Successful defenses against foreclosures have become more common in California since the 2008 housing market crash. In fact, there have been several important cases in the past 3 years that are changing the way the courts view the foreclosure process.
Judicial vs. Non-Judicial Foreclosure
In the state of California, the lender has the right to decide if they want to pursue judicial or non-judicial foreclosure based on the wording of the loan contract. Because of this option, most foreclosures involving homes in California are non-judicial.
In the eyes of your lender, non-judicial foreclosures have many advantages over judicial foreclosures. We say most (but not all) foreclosures are non-judicial, because there are certain instances in which foreclosures against homeowners can become judicial. The most common reasons why a lender might choose judicial foreclosure are: (1) the judicial foreclosure entitles the lender to a deficiency judgment[2] or (2) the home has multiple encumbrances and there are rival disputes among their claims, which the court must settle.
Advantages To Lender of Non-Judicial Foreclosure
- Timing: they are considerably faster than judicial foreclosures (4-7 months vs. 1+ years)
- Cost: they are much less expensive since the lender doesn’t have to get counsel
- Legal: non-judicial foreclosures avoids redemption statutes[3]
What gives lenders the option of non-judicial foreclosure? The answer to that question can be found in the Deed of Trust of your mortgage contract.
What is a Deed of Trust and what does it mean?
A Deed of Trust is a document created by a lender which spells out the terms of the loan to the borrower. This document is very specific, and entitles the lender to initiate a non-judicial foreclosure as long as the lender follows California guidelines. Because the Deed of Trust contains a process of foreclosure that is outside of the normal court process, lenders don’t have to use judicial foreclosures. The Deed of Trust usually contains a Power of Sale provision that allows the lender to sell the property if the lender defaults. If there is no Power of Sale contained within the Deed of Trust, then the foreclosure must be judicial. So in essence, the Deed of Trust determines if the foreclosure will be settled in or outside of court. One that note, let’s dive into the legal steps required of both foreclosure processes.
The Judicial Foreclosure Process
As mentioned before, the judicial foreclosure process is used in California when no Power of Sale is present within the Deed of Trust. In this case, the lender initiates the foreclosure process through the courts by establishing a lawsuit. It should be noted that judicial foreclosure processes can greatly vary, depending on multiple and often unpredictable variables.
Step one of the judicial foreclosure process involves the lender filing a lawsuit in the county court along with a lis pendens. A lis pendens is a document that provides public notice that the property is in the process of foreclosure litigation and places a “cloud on title” such that the property cannot be sold until the cloud is removed. In a judicial foreclosure, the process is dictated by normal court procedures for civil actions. So the homeowner has the right to defend their case in court. The goal of the court is to determine whether the debt is valid or not and whether the lender has complied with due process “notice” requirements to the borrower. If the court deems the debt valid, the loan documentation in order and proper notice has been given, the foreclosure proceedings will begin according to guidelines established by the court. At this point, the court establishes a timetable for auctioning off the property to the highest bidder.
The Non-Judicial Foreclosure Process
Again, most foreclosures in California are non-judicial. This process must adhere to the guidelines and timetables described in the Power of Sale clause specifying the time, place, and terms of the sale. The Power of Sale clause must adhere to state guidelines but reserves the right to slightly alter the timing and terms of the sale as long as they follow state requirements. In the event that this clause is vague or contradictory, the Power of Sale clause must submit to California guidelines that describe how the non-judicial disclosure process will occur.
The first step in a non-judicial foreclosure is the Notice of Default which announces that the borrower has defaulted on the loan. This initiates what is called the pre-foreclosure stage, which lasts 3 months and 20 days at minimum. Within 10 days, the Notice of Default must be mailed to the borrower. Also, the notice must be mailed within 30 days to all other parties involved in the loan (such as lien holders). During this stage a 3rd party trustee establishes a date for executing the foreclosure, which must occur at least 3 months and 20 days after the Notice of Default.
The next step in the non-judicial foreclosure process is the Notice of the Sale. This step cannot occur until 90 days have passed since the Notice of Default. Once the Notice of Sale has been filed with the county recorder’s office for 20 or more days, the home may be sold at a public auction for the amount of the debt plus foreclosure costs. If no one bids at the auction, the lender assumes ownership of the property from the 3rd party trustee and may dispose of the property to recover their investment.
Defenses against Foreclosure
Now that you’ve got the basics of foreclosures in California, it’s time to proceed to the various legal defenses against the foreclosure. If you’re already in the process of a judicial foreclosure, you need not worry about establishing a lawsuit since you’re already in a lawsuit that was filed by the lender. But for most people facing non-judicial foreclosure, you must first file a lawsuit in the county court to enjoin (stop) the foreclosure. Initiating a lawsuit puts the foreclosure on a temporary hold to give you the borrower the opportunity to provide evidence that the foreclosure is in some way unlawful for it to become void. This can be very challenging. In this section we’ll try to use California cases that illustrate successful foreclosure defenses used in the recent past.
Lack of Legal Standing: The lender can’t prove that they own the mortgage. To understand this defense, we must first clarify the notion of legal standing. In short, legal standing is the right of a party to bring or defend a lawsuit in court. For example, if your parents are hit by a drunk driver, the parties that have standing in court are your parents and the driver – not you (unless you were injured).This defense has proven more viable as the predatory practices of the lending industry have become more prevalent and exposed. The recent mortgage scandal was caused in part to the slicing, dicing, repackaging, and sale of mortgages. What that means is that your lender may have sold the loan to someone else, who may have flipped the loan and sold it to yet another person. Why is this important? Only the legal owner of the loan has the right to initiate the foreclosure, and if your lender can’t prove that they own the loan then they cannot foreclose on your home.
How can the lender lack legal standing? Well, there are different ways a lender may lack legal standing, so it might be best to start with an example. In 2006, a Mr. Davies took out a home loan from Universal American Mortgage Company of California (UAMCC) who falsely represented that they were funding the loan. The mortgage was in fact subsidized by Deutsche Bank, and in 2010 Mr. Davies defaulted. OneWest Bank, a subsidiary of Deutsche Bank, subsequently initiated a foreclosure against Mr. Davies. In his defense, Mr. Davies successfully argued that OneWest Bank lacked standing to initiate the foreclosure. Put another way, OneWest Bank couldn’t claim injury because they didn’t hold the loan; and without injury the bank lacked legal standing.
In another court decision, a company called Bayrock Mortgage Corp. transferred some loans to Citibank through an electronic mortgage transfer system called MERS. After buying the loan from Bayrock, Citibank then foreclosed on some of the defaulting homeowners, who in turn argued that Citibank didn’t legally own their mortgages. In court, it was successfully argued that MERS (the intermediary electronic system) couldn’t transfer the loans from Bayrock to Citibank because MERS never legally owned the Deed of Trust. The California court ruled that “any attempt to transfer the beneficial interest of a trust deed without ownership of the underlying note is void under California law.” In other words, because MERS never owned the Deed of Trust, they therefore could not legally transfer the note. This may be a valuable defense if you’re foreclosure is being initiated by someone other than your original lender.
The lender forged the mortgage documents. As mentioned above, mortgages are often bundled, then repackaged, and subsequently traded on Wall Street to various investors; and your original lender may no longer hold the mortgage. A tendency during trading arose where multiple (sometimes thousands) of mortgage documents were bundled together, and at some point, many of the original mortgage documents were lost or went missing. Some lenders seeking to foreclose without the proper paperwork have turned to forgery, which was a topic recently discussed on a 60 Minutes segment.[4]
In the 60 minutes segment, a Florida woman named Lynn Szymoniak was taken to court by her lender in an attempt to initiate foreclosure. At first the lender said that they had lost her loan documents, but a year later they mysteriously found them. Lynn, a trained forgery analyst, became immediately suspicious and requested her own copy of these documents. The new documents, namely the Assignment of Mortgage, had blatant errors regarding dates. Lynn then researched another 10,000 mortgage documents online, to find that the signature of the bank’s supposed Vice President, Linda Green, had been forged in many instances, and even used by multiple banks. Lynn brought this information to court and to date she still lives in her home – completely stopping the foreclosure and suing for damages.
The lender engages in unfair lending practices. Sometimes lenders engage in practices which are clearly abhorrent to a reasonable person, but are kept hidden from the borrower until very late in the process. One of the more notorious lending practices to emerge in recent years is the use of parallel foreclosure: the lender negotiates with the borrower on a loan modification even though the lender is planning on foreclosing the borrower while the negotiations are still taking place.
Although the case U.S. Bank National Association vs. Mathon takes place in New York rather then California, it is still one of the clearest examples of parallel foreclosures to date. In 2009, U.S. Bank National informs the Mathons through a letter that if they, the Mathons, remain current on their loans during a three month trial period, in addition to paying during a brief finalization period, they will be considered for a loan modification. The Mathons paid a total of $22,568 to the bank, during which bank representatives accepted the money and verbally assured the Mathons that a modification would soon be coming. A year later however, the Mathon’s loan modification was denied on the grounds that they did not meet certain guidelines and that they failed to supply all the necessary documents. A few months after that discouraging news, the Mathons received a foreclosure notice.
The explanation for modification denial was rejected by the Court, however, as “there is no proof of any computation or other calculation explaining the basis for denial herein.” The Court could not find any proof that U.S. Bank National had even considered a loan modification for the Mathons.
Even though the Mathons had been current with their mortgage payments and speaking with bank representatives about a loan modification, the bank was already planning on foreclosing them. Or, as Judge Spinner wrote: “while Defendants were assiduously attempting to re-negotiate a modification, Plaintiff was instructing its counsel to continue prosecution of the foreclosure action. It is painfully obvious to this Court that Defendants relied upon representations made by Plaintiff and acted affirmatively based upon those representations, all to their serious detriment.” The bank had misrepresented their intentions by speaking and writing about loan modifications to the borrowers while planning legal action against the same borrowers in other departments.
Parallel Foreclosure is not the only unfair lending practice a lender may engage in, but it is becoming a popular one, even if it is not always identified by name. Engaging in such a practice, however, may result in serious penalties for lenders which use them.
The lender failed to follow state procedures. The foreclosure process is very clear-cut in California. Simply put, there are some instances which the lender failed to follow the legal process of a non-judicial foreclosure, thus making the foreclosure illegal. Typically, the courts will not prohibit the foreclosure, but rather make the lender restart the foreclosure process. In rare instances, the foreclosure may be permanently halted if the violations are excessively blatant. This defense takes some research and prior knowledge of statutes, which makes having legal counsel a must.
As a general rule: the more serious the infraction by the lender, the more serious the response from the court. The misspelling of a name won’t get you very far, but a failure to provide a Notice of Default will usually be treated as a serious violation of foreclosure due process proceedings by the court. For example, if your lender began the foreclosure without providing a Notice of Default to either to you or failed to file such Notice in public records, or gave the notice but began the foreclosure weeks later, the court may stop the foreclosure and force the lender to restart the process.
Here’s a recent example from a southern California case. In late 2009, US Bank initiated a foreclosure against a Mr. Salazar. The defendant argued that the bank had not followed proper foreclosure procedures because there was no recorded assignment of the Deed of Trust to US Bank. As mentioned earlier, a non-judicial disclosure cannot occur without the Power of Sale clause found in the Deed of Trust. The court agreed with Salazar, ruling that the non-judicial foreclosure was wrongful and void for failing to comply with California foreclosure laws. In this example, the infraction was serious enough to end the foreclosure for good.
Moving Forward with a Legal Defense
After reading the above section you should have a basic understanding of some of the common defenses against foreclosure. The next step is simple: get counsel. Your lender(s) will certainly have an attorney of their own. For a more comprehensive understanding of legal defenses against foreclosure, speak with a knowledgeable attorney. Richard Korb is one such lawyer with over 30 years experience in real estate law and can counsel you on foreclosures. Richard can work with you, review your documentation, and can analyze your options. For a free consultation with Richard, call (510) 524-0903.
[1] RICHARD E. KORB is a seasoned attorney with 30 years of business, real estate and foreclosure litigation experience. Over his legal career, Richard has successfully litigated and resolved over 300 court cases in the fields of contract law, real estate, employment, unfair competition, and general civil law and he has drafted and negotiated over 200 contracts and licenses for large and small companies alike. Richard leverages his experience as a former partner in a 100-person law firm and chief counsel for a public software company to assist individuals and companies, from start-ups to multi-nationals, with a broad spectrum of legal matters. In addition to his legal practice, Richard is a court-approved mediator and serves on the Alternative Dispute Resolution (ADR) panel for both the Alameda and Contra Costs County Superior Courts.
[2] A Deficiency judgment: Following a judicial foreclosure, should the sale of the home not cover the entire debt to the lender, the court uses a deficiency judgment to ensure that the debtor pays the remainder of the loan – typically, this is the difference between the amount of the original loan and the price the house sold at after the foreclosure
[3] Redemption statutes: After the judicial foreclosure sale has occurred, the defaulting homeowner may reclaim the home by making payment in full (i.e. the sum of the unpaid loan costs)
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