Sternberg Law Group


What is Wrongful Foreclosure in California?

24 Feb 2024 | Foreclosure

Wrongful foreclosure refers to a situation where a lender, bank, or mortgage servicer illegally forecloses on a homeowner’s property. The term “illegal” can encompass a broad range of violations, from procedural errors and fraud to violations of specific consumer protection laws and regulations.

In California, as in many other states, foreclosure is most commonly a non-judicial process, meaning it does not have to go through the court system. While this can expedite the procedure, it also means that homeowners must be extra vigilant about their rights and the legality of the foreclosure process.

Table of Contents

  1. Understanding California Foreclosure Laws
  2. Common Causes of Wrongful Foreclosure
  3. The Impact of Wrongful Foreclosure on Homeowners
  4. Legal Remedies for Victims of Wrongful Foreclosure
  5. How to Protect Yourself from Wrongful Foreclosure
  6. Conclusion: The Way Forward for Homeowners

1. Understanding California Foreclosure Laws

The state of California has a specific set of laws governing the foreclosure process, which is designed to ensure that homeowners are treated fairly and that lenders adhere to a legal and ethical standard when repossessing a property. Understanding these laws is crucial for any homeowner facing the possibility of foreclosure.

a. Non-Judicial Foreclosure Process

California primarily utilizes a non-judicial foreclosure process. This means that the foreclosure does not have to go through the court system, which can make the process faster compared to states that require judicial foreclosures. Non-judicial foreclosures are carried out according to the power of sale clause in a deed of trust, which allows the trustee to sell the property to pay off the defaulted loan.

b. Notice Requirements

One of the most critical aspects of California foreclosure law is the requirement for lenders to provide adequate notice to the homeowner. The process typically begins with the lender contacting the homeowner to assess their financial situation and explore options to avoid foreclosure 30 days before issuing a notice of default.

After this, the law mandates the following notices:

  • Notice of Default (NOD): This is the first formal notice that the borrower has fallen behind on payments. It is recorded in the county where the property is located. Following the NOD, there is a mandatory waiting period of at least three months before the lender can take further action.
  • Notice of Trustee’s Sale: If the default is not cured within three months, the lender can then issue a Notice of Trustee’s Sale, which sets the date and time of the foreclosure sale. This notice must be sent at least 20 days before the sale to the homeowner, posted on the property, recorded in the county, and published in local newspapers.

c. Homeowner’s Rights and Protections

California law provides several protections for homeowners during the foreclosure process:

  • Right to Reinstate: Up until five business days before the trustee’s sale, the homeowner has the right to reinstate the loan by paying the past due amounts, plus applicable fees and costs.
  • Right of Redemption: In some states, homeowners have the right to reclaim their property by paying off the full loan amount plus certain additional costs even after a foreclosure sale. However, in California, there is no right of redemption after a non-judicial foreclosure sale.
  • One Action Rule: This rule prevents lenders from seeking a personal judgment against the borrower for any deficiency if the property is sold at a foreclosure sale for less than the loan amount. This applies only to non-judicial foreclosures and not if the lender sues for judicial foreclosure.
  • Homeowner Bill of Rights: Enacted in 2013, this bill provides additional protections, including a ban on dual tracking (foreclosing while a modification is being reviewed), the right to a single point of contact at the lender, and verification of documents.

2. Common Causes of Wrongful Foreclosure

Wrongful foreclosure in California can result from a variety of causes, often stemming from either intentional misconduct by lenders or servicers, or from mistakes and oversights during the complex process of loan servicing and foreclosure. Here are some common causes of wrongful foreclosure that homeowners may encounter:

a. Servicer Errors

Mortgage servicers manage the day-to-day tasks of handling loan accounts, including collecting payments and managing escrow accounts. Errors by these servicers can lead to wrongful foreclosures. Such errors might include:

  • Misapplication of mortgage payments
  • Failure to credit payments to the account
  • Incorrect calculation of escrow amounts
  • Failure to process payment deferments or forbearances correctly

b. Improper Loan Modification Processes

Loan modifications can provide relief for struggling homeowners. However, wrongful foreclosures can occur if:

  • A servicer forecloses while a modification application is pending (a practice known as “dual tracking”)
  • The servicer incorrectly denies a modification application
  • The servicer does not honor the terms of a modification agreement

c. Inaccurate or Fraudulent Documentation

The foreclosure process requires precise documentation. Common issues that can lead to wrongful foreclosure include:

  • Robo-signing, where foreclosure documents are signed without proper review
  • Fabrication or alteration of legal documents
  • Lost or mishandled paperwork, especially during the transfer of servicing rights

d. Lack of Standing to Foreclose

Only the entity that holds the note (or its authorized agent) has the legal standing to initiate a foreclosure. Problems can arise when:

  • The note has been sold and the chain of title is broken or unclear
  • The entity initiating the foreclosure cannot prove ownership of the debt
  • There is a failure to properly assign the deed of trust to the foreclosing party

e. Violation of State and Federal Laws

Lenders and servicers must adhere to a variety of laws and regulations, including the California Homeowner Bill of Rights, the Fair Debt Collection Practices Act, and the Real Estate Settlement Procedures Act. Violations can result in wrongful foreclosure, such as:

  • Failing to provide required notices or waiting periods
  • Engaging in deceptive or unfair practices
  • Not observing the borrower’s rights during the foreclosure process

f. Improper Handling of Military Servicemembers’ Loans

Servicemembers are afforded special protections under the Servicemembers Civil Relief Act (SCRA), which can postpone or suspend certain civil obligations to allow servicemembers to devote their full attention to duty. Violations include:

  • Foreclosing without a court order on active-duty servicemembers without regard for the SCRA
  • Not providing the interest rate reductions and other benefits to which servicemembers are entitled

3. The Impact of Wrongful Foreclosure on Homeowners

Wrongful foreclosure can have devastating consequences for homeowners, affecting them financially, emotionally, and socially. Understanding the breadth of this impact is crucial in recognizing the seriousness of wrongful foreclosure and the importance of preventing it.

a. Financial Consequences

The most immediate and apparent impact of a wrongful foreclosure is financial. Homeowners can suffer various monetary losses, including:

  • Loss of Home Equity: Homeowners lose their invested equity, which can represent years of mortgage payments and improvements made to the property.
  • Credit Score Damage: Foreclosure significantly damages a homeowner’s credit score, making it difficult to obtain loans, credit cards, and even impacting future housing opportunities.
  • Debt and Deficiency Judgments: In cases where a home sells for less than the mortgage balance, homeowners might be pursued for the deficiency unless protected by California’s one-action rule.
  • Moving Costs and Renting Challenges: Displaced homeowners may face immediate moving costs and the challenge of finding rental housing, often at a higher cost and with the added difficulty of a tarnished credit report.

b. Emotional and Psychological Toll

The emotional distress caused by wrongful foreclosure is profound. Homeowners may experience:

  • Stress and Anxiety: The uncertainty and loss of one’s home can lead to chronic stress and anxiety, impacting overall well-being.
  • Depression: The emotional burden of losing a home can lead to depression, especially if the homeowner feels a sense of personal failure.
  • Family Strain: The pressure of foreclosure can strain family relationships, sometimes leading to family breakdowns or exacerbating existing domestic issues.

c. Social and Community Impact

Wrongful foreclosure extends beyond the individual homeowner, affecting communities as well:

  • Displacement and Instability: Foreclosure can force families to leave their communities, disrupting social networks and children’s education.
  • Neighborhood Decline: A concentration of foreclosures in an area can lead to declining property values and increased crime, negatively impacting the quality of life for remaining residents.
  • Stigma and Isolation: Homeowners may feel stigmatized or isolated after a foreclosure, reluctant to engage with former neighbors or participate in community activities.

d. Legal Ramifications

Homeowners dealing with wrongful foreclosure also face a complex legal landscape:

  • Legal Costs: Pursuing legal action to address wrongful foreclosure requires financial resources, and the cost of attorney fees and court proceedings can be prohibitive.
  • Navigating the Legal System: Homeowners must navigate a complex legal system, often without adequate knowledge or representation.
  • Prolonged Legal Battles: Legal challenges to wrongful foreclosure can take months or even years, prolonging the homeowner’s distress and uncertainty.

Homeowners in California who have been victims of wrongful foreclosure have several legal avenues to seek redress and compensation. It’s critical for homeowners to act swiftly and knowledgeably to challenge an improper foreclosure.

a. Suing for Wrongful Foreclosure

Victims can file a lawsuit for wrongful foreclosure. Successful legal claims may result in various remedies:

  • Reinstatement of the Mortgage: The court may reinstate the original mortgage agreement, allowing the homeowner to continue making payments under the original terms.
  • Monetary Damages: Homeowners may be awarded monetary damages for the loss of their home, moving costs, damage to credit, and emotional distress.
  • Punitive Damages: In cases of egregious conduct by the lender or servicer, the court may award punitive damages to punish the wrongdoer and deter similar conduct in the future.

b. Seeking an Injunction

If a homeowner believes a foreclosure is imminent and wrongful, they can seek a preliminary injunction to stop the foreclosure process while the case is being litigated. This requires proving that:

  • There is a likelihood of success on the merits of the case.
  • There is a likelihood of irreparable harm if the injunction is not granted.
  • The balance of equities tips in the homeowner’s favor.
  • An injunction is in the public interest.

c. Loan Reinstatement and Modification

Homeowners may also negotiate with their lender for loan reinstatement or modification, especially if the foreclosure process has revealed errors or miscommunications. This can result in:

  • Loan Reinstatement: The homeowner pays the overdue amount plus any fees and continues with the original loan terms.
  • Loan Modification: The lender agrees to adjust the terms of the loan, such as reducing the interest rate, extending the loan term, or forgiving a portion of the principal.

d. Class Action Lawsuits

When multiple homeowners are affected by a lender’s wrongful practices, they may band together to file a class-action lawsuit. This can lead to larger settlements and changes in the lender’s practices.

e. Regulatory Complaints

Homeowners can file complaints with regulatory agencies such as the Consumer Financial Protection Bureau (CFPB) or the California Department of Business Oversight. These agencies can investigate and penalize lenders for regulatory violations.

f. Statutory Rights Under California Law

The California Homeowner Bill of Rights provides specific protections against wrongful foreclosure, including:

  • Dual Tracking Protection: Lenders cannot proceed with the foreclosure process while also negotiating a loan modification.
  • Single Point of Contact: Homeowners have the right to a single point of contact with their lender for information and to discuss foreclosure prevention options.
  • Verified Documents: Lenders must verify all foreclosure documents for accuracy.

5. How to Protect Yourself from Wrongful Foreclosure

While the consequences of wrongful foreclosure are dire, homeowners in California can take proactive steps to protect themselves and their investments. Here are strategies to help guard against wrongful foreclosure:

a. Stay Informed About Your Mortgage Rights

  • Understand Your Mortgage Documents: Read and understand the terms of your mortgage agreement and any related documents. Know your rights and obligations under the contract.
  • Keep Up-to-Date with Laws: Stay informed about foreclosure laws, including the California Homeowner Bill of Rights, which provides additional protections against wrongful foreclosure.

b. Monitor Your Mortgage Account

  • Review Statements Regularly: Keep an eye on your monthly mortgage statements to ensure payments are correctly applied and that all charges are accurate.
  • Keep Records: Maintain detailed records of all your mortgage payments and correspondence with the lender or servicer, including dates and summaries of phone conversations.

c. Act Promptly If You Spot Errors

  • Contact Your Servicer: If you notice any discrepancies or issues, contact your mortgage servicer immediately to resolve them.
  • Follow Up in Writing: Send written inquiries or dispute letters via certified mail and request return receipts to create a paper trail.

d. Explore Loss Mitigation Options

  • Seek Loan Modification or Forbearance: If you’re facing financial hardship, contact your lender as soon as possible to discuss loss mitigation options like loan modification, forbearance, or refinancing.
  • Keep Good Records: Document all efforts to seek a loan modification, including applications submitted and communications with the lender.

e. Obtain Legal or Financial Counseling

  • Consult Housing Counselors: Consider talking to a HUD-approved housing counselor who can provide free or low-cost advice on foreclosure prevention.
  • Hire an Attorney: If you’re facing foreclosure or suspect wrongful activity, consult with a real estate attorney who specializes in foreclosure defense.

f. Be Wary of Scams

  • Avoid Rescue Scams: Be cautious of companies that promise to stop foreclosure for a fee or those that suggest you transfer the title of your property to them.
  • Verify Credentials: Research any individual or company offering foreclosure assistance and verify their credentials before engaging their services.

g. Understand Your Legal Rights

  • Know Your Right to Notice: Remember that California law requires lenders to provide proper notice before initiating foreclosure.
  • Respond to Legal Notices: If you receive a Notice of Default or Notice of Sale, respond immediately by contacting your servicer or seeking legal help.

6. Conclusion: The Way Forward for Homeowners

The threat of wrongful foreclosure is a serious concern for homeowners, but it is not an insurmountable challenge. By understanding their rights, staying vigilant, and taking proactive steps, homeowners in California can protect themselves from the devastating effects of such an occurrence.

a. The Role of Legal and Financial Experts

Legal and financial experts play a critical role in guiding and assisting homeowners through the complexities of the foreclosure process. They can offer invaluable advice, represent homeowners in disputes, and help navigate the intricate legal landscape.