By Mitchell Sussman
California, which has been called the "epicenter" of the foreclosure and mortgage crisis by Attorney General Kamala Harris, was one of the hardest states hit by the economic meltdown and real estate crash brought on by the latest financial crisis. According to a recent report, in 2011, seven of the nation's 10 hardest-hit cities by foreclosure were in California.
As result of the decimation of the California real estate market, California has been called the "epicenter" of the foreclosure and mortgage crisis. According to a recent report, in 2011, seven of the nation's 10 hardest-hit cities by foreclosure were in California.
While it is no doubt true that parts of the California real estate market are recovering, statewide there are an additional 700,000 properties currently in various stages of the foreclosure process.
As a result of such horrific statistics, on July 11, 2012, in order to stem the wave of foreclosure, California enacted into law a "Homeowner Bill of Rights" for the purpose of aiding embattled homeowners.
Some of its key provisions include the ban on "dual tracking," a practice whereby the lender on one hand gives the illusion of working with the borrower to secure a modification and at the same time, is foreclosing. Needless to say, many homeowners are lulled into a false sense of security by such practice, thinking they will get a modification, when in reality the bank wants to do nothing more than foreclose and take the home.
The ban on dual tracking prohibits the recording of a notice of default, notice of trustee's sale and the conducting of sale while a loan modification application is pending.
Another protection provided by the new legislation is the requirement that mortgage servicers designate a "single point of contact" for borrowers who are potentially eligible for a loan modification. The single point of contact be responsible to coordinate the flow of documentation between borrower and mortgage servicer and be knowledgeable about the borrower's status and foreclosure prevention alternatives.
There are also provisions which establish procedures to be followed in connection with the modification application. In addition, there are definite steps that must be taken by the servicer, should the servicer deny a modification application. Finally, the new law sets out very specific procedure to be followed in the event a borrower wishes to appeal the denial of a modification.
The enforcement provisions of the Bill of Rights authorize a borrower, who is forced to litigate with his/her lender, to seek an injunction and damages for violations of certain of the provisions described above. Under its provisions, for the first time in the state of California, a homeowner will be able to secure injunctive relief without having to cure arrears or post expensive bonds.
In addition to injunctive relief, California's Homeowner Bill of Rights authorize the greater of treble actual damages or $50,000 in statutory damages if a violation of certain provisions of the law is found to be intentional, reckless or resulting from willful misconduct. Prevailing borrowers may also receive attorneys' fees.
Other changes include changes to the notice provisions of Trustee's Sales. Formerly, a Trustee's Sale could be continued for as much as a year without written notice being provided to the borrower of the continued date. Under the new law, once foreclosure begins, if a Trustee's Sale date is postponed, the new law requires that written notice be given to the borrower after the postponement in order to advise the borrower of any new sale date and time.
California's Homeowners Bill of Rights legislation is effective January 1, 2013, and can be found in the recent amendments and additions to the California Civil Code Sections relating to mortgages. ( See: Civil Code 2920.5, 2923.4, 2923.5, 2924, 2923.6, 2923.7, 2923.55, 2924.9, 2924.10, 2924.11, 2924.12, 2924.15, 2924.17, 2924.18, 2924.19 and 2924.20 )
As result of the decimation of the California real estate market, California has been called the "epicenter" of the foreclosure and mortgage crisis. According to a recent report, in 2011, seven of the nation's 10 hardest-hit cities by foreclosure were in California.
While it is no doubt true that parts of the California real estate market are recovering, statewide there are an additional 700,000 properties currently in various stages of the foreclosure process.
As a result of such horrific statistics, on July 11, 2012, in order to stem the wave of foreclosure, California enacted into law a "Homeowner Bill of Rights" for the purpose of aiding embattled homeowners.
Some of its key provisions include the ban on "dual tracking," a practice whereby the lender on one hand gives the illusion of working with the borrower to secure a modification and at the same time, is foreclosing. Needless to say, many homeowners are lulled into a false sense of security by such practice, thinking they will get a modification, when in reality the bank wants to do nothing more than foreclose and take the home.
The ban on dual tracking prohibits the recording of a notice of default, notice of trustee's sale and the conducting of sale while a loan modification application is pending.
Another protection provided by the new legislation is the requirement that mortgage servicers designate a "single point of contact" for borrowers who are potentially eligible for a loan modification. The single point of contact be responsible to coordinate the flow of documentation between borrower and mortgage servicer and be knowledgeable about the borrower's status and foreclosure prevention alternatives.
There are also provisions which establish procedures to be followed in connection with the modification application. In addition, there are definite steps that must be taken by the servicer, should the servicer deny a modification application. Finally, the new law sets out very specific procedure to be followed in the event a borrower wishes to appeal the denial of a modification.
The enforcement provisions of the Bill of Rights authorize a borrower, who is forced to litigate with his/her lender, to seek an injunction and damages for violations of certain of the provisions described above. Under its provisions, for the first time in the state of California, a homeowner will be able to secure injunctive relief without having to cure arrears or post expensive bonds.
In addition to injunctive relief, California's Homeowner Bill of Rights authorize the greater of treble actual damages or $50,000 in statutory damages if a violation of certain provisions of the law is found to be intentional, reckless or resulting from willful misconduct. Prevailing borrowers may also receive attorneys' fees.
Other changes include changes to the notice provisions of Trustee's Sales. Formerly, a Trustee's Sale could be continued for as much as a year without written notice being provided to the borrower of the continued date. Under the new law, once foreclosure begins, if a Trustee's Sale date is postponed, the new law requires that written notice be given to the borrower after the postponement in order to advise the borrower of any new sale date and time.
California's Homeowners Bill of Rights legislation is effective January 1, 2013, and can be found in the recent amendments and additions to the California Civil Code Sections relating to mortgages. ( See: Civil Code 2920.5, 2923.4, 2923.5, 2924, 2923.6, 2923.7, 2923.55, 2924.9, 2924.10, 2924.11, 2924.12, 2924.15, 2924.17, 2924.18, 2924.19 and 2924.20 )
About the Author:
Looking to find the best real estate and foreclosure assistance, then visit www.losangelesrealestateattorney.com for advice on real estate, foreclosures, modifications and short sales. .
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