Foreclosure Defense

Foreclosure Defense

Homeowner Bill of Rights The Homeowner Bill of Rights and other related tactics can be helpful for a homeowner facing foreclosure in California by providing them with certain legal protections and strategies to fight back against unfair lending practices and wrongful foreclosures. Some ways these tools can help include:
  • Dual Tracking Prohibition: Under the Homeowner Bill of Rights, lenders are prohibited from dual tracking, which means they cannot proceed with foreclosure while also considering the homeowner’s application for a loan modification. This provision can help ensure that homeowners are given a fair chance to negotiate a loan modification that could help them keep their home.
  • Single Point of Contact: The Homeowner Bill of Rights also requires lenders to provide homeowners with a single point of contact during the loan modification process. This can help prevent confusion and miscommunication between the homeowner and the lender, which can sometimes lead to wrongful foreclosures.
  • Right to Sue for Violations: If a lender violates the Homeowner Bill of Rights or other related laws, the homeowner may have the right to sue the lender for damages. This can provide homeowners with a way to hold lenders accountable for any unfair or illegal actions they may have taken during the foreclosure process.
  • Loan Modification: A loan modification is a change to the terms of a homeowner’s mortgage that can help make it more affordable and prevent foreclosure. Homeowners may be able to negotiate a loan modification with their lender as part of a foreclosure defense strategy.
  • Mediation: Some counties in California offer foreclosure mediation programs that can help homeowners negotiate with their lenders and potentially avoid foreclosure.

Overall, these tools can help homeowners facing foreclosure by providing them with legal protections, strategies, and resources to fight back against wrongful foreclosures and keep their homes. There have been several successful HBOR cases in California where homeowners were able to fight off foreclosure, including:

  • Glaski v. Bank of America, N.A. (2013): In this case, the homeowner argued that the foreclosing bank did not have the legal authority to foreclose on his property because the trust that held his mortgage had not followed the proper procedures for transferring ownership of the mortgage to the trust. The court ruled in favor of the homeowner, stating that the bank did not have standing to foreclose because it had not complied with the requirements of the pooling and servicing agreement.
  • Yvanova v. New Century Mortgage Corp. (2016): In this case, the homeowner argued that the foreclosing bank did not have the legal authority to foreclose on her property because the trust that held her mortgage had been dissolved years before the foreclosure proceedings began. The court ruled in favor of the homeowner, stating that the borrower had standing to challenge the foreclosure because the assignment of the deed of trust was void, and the plaintiff had alleged facts sufficient to constitute a cause of action for wrongful foreclosure.
  • Jolley v. Chase Home Finance, LLC (2014): In this case, the homeowner argued that the bank had violated HBOR by conducting a foreclosure sale while his loan modification application was still under review. The court ruled in favor of the homeowner, stating that the bank had violated HBOR by conducting the sale before giving the homeowner a decision on his modification application.
  • Barrionuevo v. Chase Bank, N.A. (2012): In this case, the homeowner argued that the bank had violated HBOR by failing to provide him with a single point of contact during the loan modification process. The court ruled in favor of the homeowner, stating that the bank had violated HBOR by failing to provide the homeowner with a single point of contact, which had caused confusion and delay in the modification process.
  • Singh v. Wells Fargo Bank (2016): This case addressed the issue of whether a servicer can be liable for HBOR violations even if it is not the actual owner of the loan. The court held that the servicer can be liable if it is acting on behalf of the loan owner.
  • Skov v. U.S. Bank National Association (2018): This case addressed the issue of whether a homeowner can challenge a foreclosure based on the lack of proper notice of default and right to cure under HBOR. The court held that the homeowner had standing to bring such a challenge, and that the foreclosure may be void if the notice was defective.

These cases show that homeowners have been able to successfully use HBOR to fight off foreclosure and challenge the legal authority of foreclosing banks. However, it’s important to note that each case is fact-specific, and homeowners should consult with an experienced attorney to determine their legal options. TILA The Truth in Lending Act (TILA) requires lenders to disclose certain information about a mortgage loan to the borrower, including the loan’s terms and conditions, fees, and interest rates. Under TILA, lenders must also provide regular mortgage statements to borrowers, detailing the amount of the payment due, the amount of interest charged, and any late fees. If a lender fails to provide regular mortgage statements to a borrower as required by TILA, the borrower may have legal grounds to challenge any interest and late fees charged during the period when statements were not provided. This can be a helpful tactic for homeowners facing foreclosure because it may reduce the amount owed and potentially provide more time to catch up on missed payments. However, it’s important to note that the borrower must have suffered actual damages as a result of the TILA violation in order to make a successful claim. Additionally, TILA has a statute of limitations, so any claim must be filed within a certain timeframe after the violation occurs. One successful TILA case in California is Reyes v. OneWest Bank, FSB, 2016 WL 1099111 (C.D. Cal. Mar. 18, 2016). In this case, the homeowner had a silent second mortgage that was held by OneWest Bank. The bank did not provide regular mortgage statements to the homeowner, in violation of TILA, and continued to charge interest on the loan. The homeowner brought a lawsuit against OneWest Bank, alleging violations of TILA and other laws. The court found that OneWest Bank had violated TILA by failing to provide the homeowner with accurate and timely mortgage statements. The court also found that the bank had violated California’s Unfair Competition Law by engaging in unfair and deceptive business practices.
As a result of these findings, the court awarded the homeowner damages for the interest that was improperly charged by OneWest Bank, as well as statutory damages and attorney’s fees. This case illustrates how TILA can be used as a tool to fight against foreclosure when a lender is not providing regular mortgage statements.
Another successful TILA case is Patel v. Mortgage Electronic Registration Systems, Inc., 2012 WL 1087158 (C.D. Cal. Mar. 30, 2012). In this case, the homeowner had a silent second mortgage held by Mortgage Electronic Registration Systems (MERS). MERS did not provide the homeowner with regular mortgage statements, and continued to charge interest on the loan. The homeowner brought a lawsuit against MERS, alleging violations of TILA and other laws. The court found that MERS had violated TILA by failing to provide the homeowner with accurate and timely mortgage statements. The court also found that MERS had violated California’s Rosenthal Fair Debt Collection Practices Act by engaging in unfair and deceptive business practices. As a result of these findings, the court awarded the homeowner damages for the interest that was improperly charged by MERS, as well as statutory damages and attorney’s fees. This case demonstrates how TILA can be used to protect homeowners from predatory lending practices and to hold lenders accountable for their actions. Negligence Alvarez v. BAC Home Loans Servicing, L.P. is a California case that resulted in a successful negligence lawsuit against a lender by a homeowner facing foreclosure. The case was filed in 2010 and ultimately went to trial in 2014. In this case, the plaintiff, Mr. Alvarez, was facing foreclosure on his home, which he had purchased with a subprime mortgage. He sought a loan modification from his lender, BAC Home Loans Servicing, but was denied. Mr. Alvarez claimed that BAC had negligently evaluated his loan modification application, and that this negligence led to his eventual foreclosure. To prove his case, Mr. Alvarez needed to satisfy the four elements of a negligence claim, which are:
  • Duty of care: the defendant owed a duty of care to the plaintiff
  • Breach of duty: the defendant breached their duty of care
  • Causation: the defendant’s breach of duty caused harm to the plaintiff
  • Damages: the plaintiff suffered actual damages as a result of the harm caused by the defendant’s breach of duty
The court in Alvarez v. BAC ultimately found in favor of the plaintiff, stating that BAC had breached its duty of care by negligently evaluating Mr. Alvarez’s loan modification application. The court also found that this negligence was the cause of Mr. Alvarez’s eventual foreclosure. One key factor in the case was the fact that BAC had entered into a consent judgment with the state of California in a separate case, which required the lender to follow certain procedures when evaluating loan modification applications. The court in Alvarez v. BAC found that BAC’s failure to follow these procedures was a breach of its duty of care to Mr. Alvarez. It’s worth noting that not all cases involving foreclosure and negligence will have the same outcome as Alvarez v. BAC. Each case will depend on its own set of facts and circumstances. However, this case is a useful example of how a negligence claim may be successful in a foreclosure defense case. There are other examples of when a negligence claim against a lender was successful in California. Here are a few:
  • Dominguez v. Washington Mutual Bank (2008): In this case, the plaintiff alleged that the lender breached its duty of care by approving a loan that the plaintiff could not afford. The plaintiff also alleged that the lender failed to properly disclose the terms of the loan. The court held that the plaintiff had presented sufficient evidence to establish a prima facie case of negligence and that a triable issue of fact existed as to whether the lender breached its duty of care.
  • Nymark v. Heart Fed. Savings & Loan Assn. (1991): In this case, the plaintiff alleged that the lender failed to disclose material information about the loan and misled the plaintiff about the interest rate. The court held that the lender had a duty to disclose material information and that the plaintiff had presented sufficient evidence to establish a prima facie case of negligence.
  • Lueras v. BAC Home Loans Servicing LP (2013): In this case, the plaintiff alleged that the lender breached its duty of care by misrepresenting the terms of the loan and failing to provide the plaintiff with accurate information. The court held that the plaintiff had presented sufficient evidence to establish a prima facie case of negligence and that a triable issue of fact existed as to whether the lender breached its duty of care.


In all of these cases, the plaintiffs were able to establish that the lender had a duty of care, that the lender breached that duty, and that the breach caused harm to the plaintiff. The facts and circumstances of each case were unique, but they all involved allegations of improper conduct by the lender, such as failing to disclose material information or misrepresenting the terms of the loan.

Breach of Contract
there have been cases where breach of contract was successfully used by a homeowner facing foreclosure. Here are a few examples:
  • Glaski v. Bank of America (2013): In this case, the borrower alleged that the bank had breached the terms of the pooling and servicing agreement (PSA) that governed the securitized trust that held the borrower’s loan. The borrower argued that the bank did not transfer the loan into the trust before the closing date, as required by the PSA. As a result, the bank did not have standing to foreclose on the property. The court held that the borrower had standing to challenge the foreclosure on the basis of the bank’s alleged breach of the PSA.
  • Jenkins v. JPMorgan Chase Bank (2013): In this case, the borrower alleged that the bank had breached the terms of the trial loan modification agreement (TLMA) that the parties had entered into. The borrower argued that the bank had promised to modify the loan permanently if the borrower complied with the terms of the TLMA, but the bank failed to do so. The court held that the borrower had stated a claim for breach of contract and allowed the case to proceed.
  • Singh v. Bank of America (2014): In this case, the borrower alleged that the bank had breached the terms of the loan modification agreement (LMA) that the parties had entered into. The borrower argued that the bank had promised to modify the loan permanently if the borrower complied with the terms of the LMA, but the bank failed to do so. The court held that the borrower had stated a claim for breach of contract and allowed the case to proceed.


In all of these cases, the borrowers were able to show that the bank had breached a contract that governed the loan or the foreclosure process. The courts allowed the cases to proceed and gave the borrowers an opportunity to prove their claims.

Testimonials

We Are Here to Help

Are you ready to work with
a different kind of law firm?

If you need legal assistance, don't hesitate to contact us today.
We are here to help you achieve a successful outcome
and protect your rights every step of the way.

Main Office

Follow Us

Newsletter

© 2023 Vokshori Law Group. All rights reserved.