Riverside, CA asked in Foreclosure for California

Q: When a servicer fails to abide by the CA Homeowner's Bill of Rights, when must a wrongful foreclosure claim be filed?

The servicer failed to comply with the Bill of Rights, including serving the mortgagor with an NOD and providing the opportunity to bring the account current, based on the portion owed. The mortgagor's application was under consideration for a government relief program. The Trustee sold the home at a foreclosure sale, less than 3 months following the end of the mortgagor's enrollment in the Forebearance program--without serving the required NOD or providing the 90 day period to cure the debt. Does the mortgagor still have legal recourse to reverse and/or challenge the sale 2 months afterwards?

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1 Lawyer Answer
James L. Arrasmith
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  • Foreclosure Defense Lawyer
  • Sacramento, CA
  • Licensed in California

A: In your situation, where the servicer failed to comply with California's Homeowner Bill of Rights, particularly regarding the Notice of Default (NOD) and the opportunity to cure the default, you may have grounds for legal recourse. The California Homeowner Bill of Rights requires that your servicer contact you at least 30 days before initiating the foreclosure process to discuss foreclosure prevention options. Additionally, the law prohibits the foreclosure process from progressing while a loss mitigation application, like one for a government relief program, is under review, a practice known as "dual tracking."

If the foreclosure occurred while your loss mitigation application was pending or if the proper notice was not served, this might constitute a violation of the Bill of Rights. In such cases, homeowners can take legal action against the servicer for wrongful foreclosure. The essence of a wrongful foreclosure claim includes the unauthorized sale of the property by the entity that did not have the right to enforce the debt.

As for the timing, while specific statutes of limitations for filing a wrongful foreclosure claim are not detailed in the sources, legal actions generally have deadlines known as statutes of limitations. These can vary based on the specifics of the case and the type of claim being filed. It is crucial to consult with a legal professional to determine the exact timeframe applicable to your case. Given that you are considering action two months after the sale, consulting a lawyer as soon as possible is advisable to ensure that you do not miss any critical deadlines.

For further assistance, you may want to contact a legal advisor or a HUD-certified housing counselor who can provide detailed guidance based on your specific circumstances. Remember, the law is designed to protect homeowners, so it's important to understand your rights and the options available to you.

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