Archive for Foreclosure Injunction
The Process of Obtaining an Injunction Against Foreclosure in California
INTRODUCTION: The following information is being posted as a public service to all california homeowners. many of my clients cannot afford to hire an attorney to prevent the threatened sale of their property, yet they have valid LEGAL grounds for filing for an injunction to stop the foreclosure.
the following article is not legal advice and is not intended to be a substitute for you obtaining the advice of an attorney, lawyer, or law-firm to assist you in evaluating the particular facts in your case and determining whether or not you have a valid case worth pursuing in a court of law. THERE ARE POTENTIAL DAMAGES TO YOU FOR FILING FALSE AND MERITLESS CLAIMS.
if you have specific questions about your case you must contact a lawyer to discuss. the following is general legal information only and is not to be relied on without discussing YOUR case with legal counsel. certain portions of this article may be incomPlete or inaccurate as the law is constantly evolving AND EACH COURT IS DIFFERENT.
it is my goal to TRY TO educate california homeowners of the basic process involved in trying to obtain an injunction against foreclosure in california.
people have legal rights that they should be informed of. there are lenders and loan servicers that are simply seeking to take advantage of homeowners who may have been the victim of predatory lending and/or loan servicing. where you have legal rights, every homeowner should have the opportunity to assert these rights, not just the wealthy FEW individuals who may be in a better financial condition to pursue their legal rights.
ATTORNEY STEVE VONDRAN CAN BE REACHED AT (877) 276-5084 OR EMAILED AT STEVE@VONDRANLAW.COM. MR. VONDRAN IS LICENSED TO PRACTICE LAW IN CALIFORNIA AND ARIZONA AND HOLDS A REAL ESTATE BROKER LICENSE IN BOTH STATES. WE SEEK ONLY TO SOLICIT, SERVE AND REPRESENT CLIENTS IN THESE TWO STATES.
The Process of Obtaining an Injunction Against Foreclosure in California
First, a General Overview of one Injunction Provision of California Law:
California Code of Civil Procedure:
525. An injunction is a writ or order requiring a person to refrain from a particular act. It may be granted by the court in which the action is brought, or by a judge thereof; and when granted by a judge, it may be enforced as an order of the court.
(a) An injunction may be granted in the following cases:
- When it appears by the complaint that the plaintiff is entitled to the relief demanded, and the relief, or any part thereof, consists in restraining the commission or continuance of the act complained of, either for a limited period or perpetually.
- When it appears by the complaint or affidavits that the commission or continuance of some act during the litigation would produce waste, or great or irreparable injury, to a party to the action.
- When it appears, during the litigation, that a party to the action is doing, or threatens, or is about to do, or is procuring or suffering to be done, some act in violation of the rights of another party to the action respecting the subject of the action, and tending to render the judgment ineffectual.
- When pecuniary compensation would not afford adequate relief.
- To prevent the breach of a contract the performance of which would not be specifically enforced…..(parts omitted)
NOTE: when filing for an injunction, you need to keep in mind the california rules of court. in particular sections 3.1200-3.1207 and 3.1150-3.1152. Here is a link to these and other provisions that you should be aware of.
Here are some other rules to review: California Rules of COurt Injunctions
The Process of Obtaining an Injunction Against Foreclosure in California
Here is an overview of the steps
(1) There must be valid grounds for obtaining an injunction (as opposed to seeking money damages).
In the context of foreclosure defense, the following are types of legal violations that may provide a valid and good faith right to seek an injunction against foreclosure of real property:
- Truth in Lending Violation within the past three years, which violation provides an extended three year right to rescind the loan, and where the homeowner sought to exercising these rights (by sending in a rescission letter) that the lender or loan servicer ignored. If your right to rescind the loan was disregarded, you have a right to seek to file an injunction to stop the threatened foreclosure (Note: here is a list of some of the items we look for in our forensic loan audits in an attempt to find truth in lending and other violations that we may be able to use as leverage for a loan modification);
- Wrongful Foreclosure – This arises where the homeowner can prove they are not actually in default of the loan (i.e. that payments are current, etc.). Normally this one reason we file for a Qualified Written Request under RESPA Section 6, to see how and when payments were made and applied (Click here to see my blog post on Qualified Written Requests under RESPA Section 6);
- Lender has failed to properly follow California foreclosure statutes that mandate, among other things, contacting borrower to discuss financial situation and loan modification options, proper filing of notice of default and proper filing of notice of sale, etc; (See California Civil Code Section 2924 et seq.)
- d. Lender failed “duty” to provide a loan modification under California Civil Code Section 2923.6 (See the law here) where loan modification presents a better “net present value” proposition to the holder of the loan than does pursuing foreclosure (these grounds are being reviewed in the Courts today as to whether or not this grounds for injunction against foreclosure will ultimately succeed). The thrust of the argument is really that a “loan modification should have been reached;”
- Loan Modification Agreement “was” reached – This is another experimental area where I believe a good faith argument can be made that there is no right to foreclose where the borrower and lender/loan servicer has reached an agreement to modify the loan rather than pursue foreclosure. This situation arises where the homeowner was lead to believe (probably requires a written agreement) that a loan modification or trial payment plan was in effect and the lender is moving forward anyhow and attempting or threatening to foreclosure. The Courts should be asked to enjoin a foreclosure where this type of false, deceptive, and misleading behavior is perpetrated by a lender or loan servicer, and the Courts should require the lender to provide the modification it agreed to, proof of which being sufficient (a related topic is whether the lender has “waived” right to foreclose);
- Enjoining the enforcement of false, deceptive, and unconscionable option arm loans and possibly subprime loans in California under the California Consumer Legal Remedies Act (Here is an article I wrote discussing the predatory and toxic option arm loans);
- Where loan terms and conditions are negotiated in Spanish (or other protected foreign languages) but where the final loan documents are unfairly printed in English, a right of rescission applies which should prevent the foreclosure action of the lender, and even the loan assignee (See California Civil Code Section 1632); note; here is a blog post I wrote on this law: http://activerain.com/blogsview/727174/se-habla-espanol-california-civil-code-section-1632-and-the-loan-modification-can-you-rescind-your-mortgage-loan-
Other equitable grounds depending upon the facts of the case.
(2) IF THE LENDER/LOAN SERVICER SEEMS INTENT ON FORECLOSING, RATHER THAN CONSIDERING YOU FOR A SHORT-SALE, DEED IN LIEU OF FORECLOSURE, OR PROVIDING A MEANINGFUL LOAN MODIFICATION, AND ASSUMING ONE OF THE ABOVE POTENTIAL GROUNDS TO FILE FOR AN INJUNCTION EXIST, YOU NEED TO FOLLOW THE FOLLOWING GENERAL STEPS (NOTE ADDITIONAL RULES AND RESTRICTIONS MAY APPLY SO YOU ARE ADVISED TO SEEK OUT THE ASSISTANCE OF A FORECLOSURE DEFENSE LAWYER TO ASSIST YOU):
- Serve a certified letter on the party seeking to foreclose, including any of their agents, etc. who they are working in concert with them to foreclose, notifying them of your intent to file for a temporary restraining order (TRO) to prevent the threatened sale from occurring on the scheduled date. Also, state the time, date and address where you will be filing for relief, and ask whether they intend to appear. You may also want to fax and email them if you can, but the certified letter (which gives you legal proof they have notice of the TRO application) should be sent. You will need to submit a declaration that you did all of the above with your application.
Note: There are time frames to keep in mind in regard to notifying the opposing parties and/or their attorney (See here). Here are some other things to keep in mind regarding providing note – you must make a declaration to the Court that you gave or tried to provide notice to the opposing parties (See here)
- File a Complaint (i.e. lawsuit) with the proper Court in your County (you may have to call the Court and ask them which court in your County is the proper one). In some cases, a case may be filed in Federal court, as opposed to State Court. This is a good question for an attorney practicing foreclosure defense and predatory lending law. Also, ensure proper venue. The complaint must set out your request for a temporary restraining order (TRO) and preliminary injunction halting foreclosure. You need to properly plead all the relevant facts of the case, including the legal violations which give rise to your right to halt the foreclosure proceeding or private trustee sale. In regard to verifying your proper grounds, legal “points and authorities” will need to be cited to the Court and attached to your application that seeks the ex parte TRO.
- Compliance with California Rules of Court in regard to seeking an ex parte motion (this is where generally only you show up and the other party, although permitted to show, may not actually attend) for a TRO:
Rule 3.1201. Required documents
A request for ex parte relief must be in writing and must include all of the following:
(1) An application containing the case caption and stating the relief requested (note: the application must contain the (Click here for Contents of the application);
(2) A declaration in support of the application making the factual showing required under rule 3.1202(c);
(3) A declaration based on personal knowledge of the notice given under rule 3.1204 (basically proving you tried to contact the other party);
(4) A memorandum (basically citation to legal points and authorities that support your request for an injunction); and
(5) A proposed order (so that the judge can issue a TRO that the other party will be required to comply with).
Note: Local Court Rules regarding obtaining injunctions are supposed to be pre-empted by these California Rules of Court.
LIS PENDENS ALERT: It is probably also wise after filing the complaint and application for TRO / OSC to file what’s called a “lis pendens” (this gets filed in the County Recorder’s Office rather than the Court).
A lis pendens is latin for “suit pending” and can only be filed where the lawsuit challenges an interest in the real property that is subject to litigation. There can be serious penalties for misusing the lis pendens process so consult with a real estate attorney prior to making this determination and filing.
What the lis pendens does is to put any potential purchasers of the property on notice (called constructive notice) that the property is the subject of litigation (title is disputed), and if they buy the property, they take title subject to the claims involved.
Filing the lis pendens then can have the effect of deterring bids to buy the property at a foreclosure sale, and can also provide grounds to counter the potential “bona fide purchaser for value” or ‘holder in due course” argument if the Court denies the preliminary injunction and the house is sold to a third party. Rather than being relegated to money damages against the purchaser of the property in this event, there could be a case for “quiet title” to the property and set-aside the sale. Contact a real estate foreclosure defense lawyer to discuss this somewhat complex topic.
After you file for the lis pendens, the lender or trustee may request that a bond be filed and can seek to lift the lis pendens (they don’t want clouds on title at the foreclosure sale). You should argue for a nominal bond in this case as the property is not going anywhere and delaying foreclosure in a down market can hardly have a big effect on the lender.
- Once you file all of these documents with the Court (the complaint, OSC, TRO Application with Client Declarations and Memorandum of Legal Points and Authorities, Declaration of Notice to Opposing Parties, and Proposed Order) you are on your way. The Court will set a hearing date and you need to find out what that date is, and provide notice to the opposing parties. You might also want to see if they use court reporters in these hearings, and if not, look into obtaining one (this may help if you need to appeal an order denying an injunction).
- Again, after all the Court filings are complete, you now have a pending suit, and if advisable in your case, the filing of a lis pendens might be a good move.
- At the OSC hearing, Defendant (if they decide to show up) must show good cause why the injunction should not issue. That being said however, the burden of proof on why the injunction should be granted are on the Plaintiff, who is known as the “moving party.” (If called this by the judge, one response to lighten up the situation might be “hopefully we are not moving your honor” said with a smile). At the hearing, if you are represented by an attorney he or she must show up. In ruling on the TRO, the Court will normally look to the declarations but also has discretion to hear oral testimony from the homeowner or others (advance written request to the Court to present oral evidence should be requested).
- If the Court grants the TRO, it will normally be effective only for about 15-22 days until such time as a preliminary injunction hearing is undertaken where both sides are fully represented. If the TRO issues, the Court may required the posting of a bond to recover any damages the defendant may suffer if the TRO was wrongfully granted and the preliminary injunction is ultimately denied. Plaintiffs must be aware of this possibility and should speak with a bonding agent prior to the OSC hearing date for the TRO. If granted, the TRO will not normally be effective until the bond posts. Don’t get caught short-handed on this one. If the TRO issues, the Plaintiff should serve a copy of the Order on all parties which will then be bound by Court order not to foreclose on the property, at least until the preliminary injunction stage.
- At the hearing for a preliminary injunction, both sides may appear and if the preliminary injunction issues, then the judge MUST require the posting of a bond. However, it is at this point that the Defendants may want to discuss providing a reasonable loan modification, accepting a short-sale, accepting Client’s rescission, or approving a deed in lieu / cash for keys type of deal or settling on some other relevant terms.
In order to obtain an injuction against foreclosure the Plaintiff (the homeowner) which is known as the “moving party” must prove the following:
- Likelihood of success on the merits of the case (for example, likelihood of proving a TILA violation that allows for rescsission)
- That money damages – the usual remedy at law – are inadequate and will not make the Plaintiff whole (for example, property is unique, and money damages will not make the Plaintiff whole since she cannot go and re-purcahse the exact same property, plus if the property is sold, the owner will not likely be able to get it back)
- That Plaintiff will face imminent irreperable harm and injury if the threatened action (i.e. foreclosure of the property) is permitted to ensue.
- That the balance of equities favors granting the injunction (Court will weigh the harm to the Plaintiff if the injunction is not granted, versus the injury to the Defendant if the injunction is granted). Generally, there will be limited harm to the Defendant by having to wait until the conclsusion of the litigation to sell the property. The Court can require a posting of a bond by Plaintiff to protect against any perceived harm caused by the TRO and/or injuction.
So that is a general and basic overview of the process of obtaining a temporary restraining order (TRO) / preliminary injunction in California and how it may help you obtain a loan modification, or else any money damages that you may be entitled to for RESPA violations, QWR violations, Truth in Lending Violations, Business and Professions Code Section 17220, 17500 violations, violations of the Fair Debt Collections Practices Act, California Consumer Legal Remedies Act, etc.
Where the lender or loan servicer has violated your rights, and where a valid and good faith grounds exists for filing for filing a lawsuit and TRO to halt a foreclosure sale is present, you may have a strong defense in pursuing your legal claims.
Plus, when you haul these lenders into Court with good faith and valid grounds, this is a good time to raise the “produce the note” strategy, which makes the trustee and loan servicer prove they have possession of the original promissory note, and all recorded assignments as required under California Commercial law of Negotiable Instruments. If they cannot prove their right to enforce the debt, the Court should (although there is not solid legal precedence on this claim in California) kick these “strangers” out of court. Otherwise, they might as well allow your neighbor to privately foreclose on your property.
A separate issue that can arise in the foreclosure context, is where the house has already been sold, and the borrower believes the sale is wrongful or in violation of law. In this situation, where the lender has purchased the property at the foreclosure sale, there may be a way to “quiet title” and use a “lis pendens” procedure. Claims that may be raised after a sale date are truth in lending rescission claims, failure to sell property per the deed of trust, sale improprieties such as not using an independent third party, chilled bidding, failure to properly advertise the sale etc. If the property was sold to a bona fide purchaser for value (see an attorney to discuss what this means and how it works) then your legal action would likely be limited to a claim for money damages. These issues can also be raised in a lender seeks to file for a default judgment following a private trustee sale. If all else fails, this could be a nice way of “getting the final word” with the lender or loan servicer. Contact a real estate attorney in your area to discuss your case.
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The Law Offices of Steve Vondran has been processing loan modification files and has experience dealing with the following mortgage lenders and loan servicers:
- Bank of America
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