Once again a Court of Appeals affirms the trial court’s ruling sustaining a demurrer without leave to amend of a homeowners’ complaint which challenged the MERS registration system and the assignment of the underlying note by MERS. Continue reading
In Logan v. U.S. Bank National Association the Ninth Circuit held that no private right of action exists under the Protecting Tenants at Foreclosure Act of 2009. Accordingly, the court affirmed the dismissal of a complaint seeking damages and injunctive relief against a bank that had filed an unlawful detainer action against the tenant of a former owner of foreclosed property. The Act is intended to provide a defense to bona fide tenants in eviction proceedings – it cannot be used offensively.
I consult with clients and accept cases involving foreclosure and unlawful detainer proceedings, including available defenses under the Protecting Tenants at Foreclosure Act of 2009. For other types of cases I accept, please scroll my Home and My Practice pages. If you are seeking a legal consultation or representation, please give me a call at 818.971.9409. – Michael Daymude
Antideficiency protections have been clarified by July 2013 legislation amending Code of Civil Procedure sections 580b and 580d. SB 426 amends those sections and clearly provides that the prohibitions contained in sections 580b and 580d include collecting or even owing a deficiency. The amendment further clarifies that the prohibition extends only to the borrower and the borrower’s non-encumbered assets — not to 1) guarantors, pledgors, or other sureties; or, 2) that might be satisfied from other collateral pledged to secure the obligation. Continue reading
The Fifth Appellate District holds in Glaski v. Bank of America that a borrower may challenge a securitized trust’s claim to ownership of the deed of trust by alleging “the attempts to transfer the deed of trust to the securitized trust (which was formed under New York law) occurred after the trust’s closing date. Transfers that violate the terms of the trust instrument are void under New York law, and borrowers have standing to challenge void assignments of their loans even though they are not a party to, or a third party beneficiary of, the assignment agreement.” Continue reading
In a case of first impression, the Fourth Appellate District in Coker v. JP Morgan Chase Bank, holds that the antideficiency protections of Code of Civil Procedure section 580b apply to any loan used to purchase residential real property, commonly referred to as a “purchase money loan,” regardless of the mode of sale. Continue reading
Code of Civil Procedure section 580e provides protection to homeowners from a deficiency judgment when a short sale has been approved by the lender. Originally the section provided protection only from lenders whose notes were secured by a first deed of trust. In July 2011, section 580e was amended to expand antideficiency protection in the event of a short sale to any deed of trust, including junior lienholders, if the holder of said deed of trust consented to the short sale and received proceeds from the sale as agreed. Continue reading
The Sixth Appellate District holds that the pre-foreclosure notice requirements of the Davis-Stirling Common Interest Development Act must be strictly construed to create a valid lien. Only valid liens may be recorded and subsequently foreclosed by the association. The case is Diamond v. Superior Court (Casa Del Valle Homeowners Association). The notice and procedural requirements can be found in Civil Code sections 1367.1 and 1367.4 and are summarized here. Continue reading
Under the Davis-Stirling Common Interest Development Act the amount of any unpaid association assessment, plus the reasonable costs of collection, late charges, and interest, constitutes a debt of the owner. After complying with notice requirements an association may record a lien for delinquent assessments against the property of an owner. The lien may then be enforced through the nonjudicial foreclosure process applicable to powers of sale in mortgages and deeds of trust. Continue reading
In Multani v. Witkin & Neal [See, also Multani v. Witkin & Neal Order Modifying Opinion (No Change in Judgment)] the Court of Appeal was presented with a question of first impression. Does a homeowner’s association’s failure to comply with the requirements of Code of Civil Procedure section 729.050, i.e., the associations failure to notify the owner of its redemption rights, sufficiently prejudiced an owner such that the owner can state a cause of action to set aside the foreclosure sale? Continue reading
Nonjudicial trustee foreclosure sales are regulated by statute. The result is that, so long as the statutory scheme is strictly followed, trustee sales are final and cannot be undone. Procedural irregularities in the statutory foreclosure process coupled with an inadequate sales price may, however, allow the trustee to exercise discretionary authority to void the sale if the error is discovered prior to delivery of the deed. Continue reading