• Land Use Attorney Capitola

CASE UPDATE: Wrongful Foreclosure Plaintiff Can Challenge The Validity Of The Assignment Of The Underlying Note And Deed Of Trust.

In Yvanov v. New Century Mortg. Corp., (2016) 62 Cal.4th 919, the California Supreme Court resolved a split of authority in the appellate courts and held that a borrower who has suffered a nonjudicial foreclosure has standing to sue for wrongful foreclosure based on an argument that the foreclosing loan beneficiary and trustee lack foreclosure authority because the loan was not properly assigned.   Generally speaking, “standing” is a constitutional requirement that a plaintiff in a lawsuit have a legally protectable and tangible interest at stake in the litigation.

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CASE UPDATE: Court Affirms Statutory Residential Tenant Protections Even After Premises Is Foreclosed On.

In Nativi v. Deutsche Bank National Trust Company (6TH Dist. 2014), 2014 WL 255587, the tenants were evicted from their rented garage by the foreclosing bank, even though the tenants had several more months remaining on their one-year lease. The trial court held that the foreclosure sale extinguished the lease pursuant to California state law generally providing that the nonjudicial foreclosure of a dominant deed of trust extinguishes subordinate interests, including leases.

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CASE UPDATE: Deficiency Judgment Not Allowed Because Bank Failed To Include All Properties Securing Loan In Judicial Foreclosure Sale.

In First California Bank v. McDonald, (2014) 2014 WL 6675937, the court held that a bank/ secured lender could not maintain an action for a deficiency judgment because in the underlying judicial foreclosure action the bank only included one of two properties securing the loan.

The bank made the subject loan to a husband and wife secured by two properties, the “Wasco” property, which was community property, and the “Shafter” property, which was the wife’s sole and separate property. After the husband died, the loan went into default.  The bank and the wife agreed to a private sale of the parcel that was her separate property (Shafter), and then the bank filed a lawsuit to foreclose on the remaining parcel and obtain a deficiency judgment.  The trial court granted a decree of judicial foreclosure stating that the bank was entitled to obtain a deficiency judgment against the representatives of the husband’s estate, but the court of appeal reversed. 

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CASE UPDATE: Borrower Is Not Required To Tender Balance Of Loan As A Condition Of Filing Suit For Violations Of Pre-Foreclosure Sale Loan Modification Requirements Set Forth In The “Homeowner’s Bill Of Rights”.

In Valbuena v. Ocwen Loan Servicing, LLC, (2015) 237 Cal.App.4th 1267, the court of appeal held that the Homeowner’s Bill of Rights (“HBOR”, Civil Code §§ 2920.5 et al.), did not require a defaulting debtor to tender the loan balance as a condition of filing suit for violations of the pre-foreclosure sale loan modification requirements contained in the HBOR.

This was a “dual tracking” case.  Dual tracking occurs when a bank forecloses on a loan while it is in the process of negotiating with the borrower to avoid foreclosure, and it is generally prohibited by the HBOR.  (Civil Code §§ 2923.6, 2924.12.)  The HBOR provides that a mortgage servicer must offer the borrower a loan modification or workout plan, and that the loan servicer it shall not record a notice of default or conduct a trustee’s sale while the loan modification application is pending — and otherwise not until the loan servicer makes a written determination that the borrower is not eligible and the 30 day period to appeal that determination has expired.

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Miles J. Dolinger
Attorney at Law

314 Capitola Avenue Capitola, CA 95010
Phone: (831) 477-9193
FAX: (831) 477-9196
miles@dolingerlaw.com

“I would definitely go with Mr. Dolinger again, and I would recommend him in a heartbeat to anyone who is looking for representation. He knows his business and he is very good at it.”

Richard. February 8, 2015
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