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Category: California Employment Law
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Experience:  29 Years In General Practice,
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I had a property in Calaveras county. I feel I was illegally

Customer Question

I had a property in Calaveras county. I feel I was illegally foreclosed on. I had fallen behind with my payments. The lender agreed to a repayment plan for one year. Seven months in I was two weeks late. And they foreclosed. None of the paper work for the repayment plan mentioned foreclosure, if I was a couple of weeks late. I gave them $10,000 up front. Then added $600 to my regular payment. They foreclosed last August. No notice. No nothing. Is that legal?
Submitted: 11 months ago.
Category: California Employment Law
Expert:  Attorney2 replied 11 months ago.

Welcome and thank you for your question.

The lender agreed to a repayment plan for one year. Seven months in I was two weeks late. And they foreclosed. None of the paper work for the repayment plan mentioned foreclosure, if I was a couple of weeks late. I gave them $10,000 up front. Then added $600 to my regular payment. They foreclosed last August. No notice. No nothing. Is that legal?

If the lender agreed to a repayment plan (do you have signed documents?) and agreed not foreclose you unless you failed to meet the payments as agreed to and you made all payments as required, this is a breach of contract and that is not legal. If you were late once and the terms of the agreement MUST spell out clearly how you would be notified of a default and how they would be required to send the NOTICE they agreed to provide.

Fortunately, there are government agencies in place that are required by law to assist you with this type of matter. Have received any reputable attorney referrals from the State Bar Association? Have you filed any consumer protection complaints?

Expert:  Attorney2 replied 11 months ago.

Are you still with me?

They foreclosed last August. No notice. No nothing. Is that legal? You need notice.

"Notice of the foreclosure

Foreclosing party must personally contact (or meet the requirements for attempting to contact) borrowers to explore options for avoiding foreclosure 30 days before recording the notice of default. The foreclosing party then records a three-month notice of default in the county recorder’s office and mails a copy to the borrowers within ten business days following recordation. After three months expires (or up to five days prior), the foreclosing party records a notice of sale and mails a copy to the borrowers at least 20 days before the sale date. The sale date cannot be earlier than three months and 20 days after the recording date of the notice of default. The notice of sale is also posted on the property, in a public place, and published in a newspaper." http://www.nolo.com/legal-encyclopedia/summary-californias-foreclosure-laws.html

The agencies that will take your complaint and investigate your foreclosure are the Consumer Financial Protection Bureau who has helped millions of home owners. You would file a complaint for an investigation at http://www.consumerfinance.gov/complaint/

The FTC will also take your complaint at https://www.ftc.gov/faq/consumer-protection/submit-consumer-complaint-ftc

You can file a complaint with the California Attorney General at https://oag.ca.gov/consumers

The attorney general is tasked with protecting consumers from fraud.

Depending on when the foreclosure occurred you may be able to have it set aside or appeal the decision.

The other option which can be done with all of the above options is to sue the lender for fraud.

This is a link for the State Bar Attorney referral service http://www.calbar.ca.gov/Public/LawyerReferralServicesLRS.aspx

There are also pro bono and legal aid attorneys that can assist you for free or at a very low cost to you. This is a link for those services https://apps.americanbar.org/legalservices/probono/directory/california.html

"Wrongful Foreclosure Claims

In California, the following situations (among others) could provide the basis for a wrongful foreclosure claim:

  • The foreclosing party did not have authority to foreclose. Under California law, only certain parties (such as the owner of the loan) can start a foreclosure. If some other party started the foreclosure, you can make a wrongful foreclosure claim.
  • The foreclosing party made a mistake in the foreclosure documentation. In California, a third-party called a “trustee” handles nonjudicial foreclosures. The trustee is designated in the deed of trust or in a document called a “Substitution of Trustee” (SOT), which must be recorded in the land records. If the SOT is not recorded or is not completed properly (for example, if the person who signed the SOT lacked authority or robo signed the document), any actions the trustee takes, such as conducting a foreclosure sale, are void. (Learn more about general foreclosure laws and procedures in California.)
  • The servicer did not follow FHA rules. You may be able to challenge the foreclosure if you have an FHA loan and the servicer did not meet FHA’s strict loss mitigation requirements. (“Loss mitigation” in this context means finding a way to avoid foreclosure.) For example, FHA guidelines require the servicer to make reasonable efforts to have a face-to-face meeting with a borrower who falls behind in payments...

Breach of Contract Claims

In some situations, you may be able to bring a breach of contract claim to set aside the foreclosure sale. For example, if your loan servicer foreclosed on your home even though you were making payments pursuant to a written loan modification agreement, you might be able to invalidate the sale." http://www.nolo.com/legal-encyclopedia/the-bank-violated-californias-hbor-i-lost-home-foreclosure-can-i-back.html

This is another link for information http://www.alllaw.com/articles/nolo/foreclosure/laws-in-california.html

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