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Threatening or filing suit on a time-barred debt is a misleading and unfair debt collection practice violating 15 USC 1692e and 1692f.  To allege and prove a violation of those sections, the debtor need not allege or prove that the debt collector knew the debt was time-barred.  However, the debt collector may be able to establish an affirmative defense of… Read More

Under Family Code 1102(a), both spouses must sign a deed of trust that encumbers real estate held as community property.  If one spouse does not sign the deed of trust, that spouse can invalidate the deed of trust.  Here, the property was deeded to the spouses as joint tenants, but under Family Code 760 property acquired during marriage is presumed… Read More

As this decision explains, Civil Code 2911 provides that a lien is extinguished when the statute of limitations has run on the principal obligation that the lien secures.  This statute has limited application to deeds of trust.  While the lien of a deed of trust that is enforceable by judicial action (i.e., a judicial foreclosure action under CCP 725a) expires… Read More

This decision holds that Walls v. Wells Fargo Bank (9th Cir. 2002) 276 F.3d 502 does not apply to or bar an FDCPA claim against a debt collector for trying to collect a debt that was fully repaid under the debtor's Chapter 13 plan before the debtor received a discharge.  That is because in these circumstances whether an unfair debt… Read More

The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. Read More

Robin held a senior deed of trust. Crowell held a junior lien on the same property.  Robin commenced a judicial foreclosure action against the debtor and the property but failed to name and serve Crowell as a defendnat in the suit.  Some years after the judicial foreclosure sale, Robin brought this quiet title action against Crowell to "complete" the judicial… Read More

(A creditor need not prove that it was harmed or that the debtor was rendered unable to pay his debt to the creditor in order to prevail in seeking to set aside a transfer of the debtor's property on the ground the transfer was made with actual intent to defraud creditors under Civ. Code 3439.04(a)(1). Read More

Plaintiff alleged that before he entered into a HELOC in 2005, the lender orally promised him that its maturity in ten years, the lender would refinance the loan or extend its term.  The lender didn't and foreclosed instead when the plaintiff didn't repay all amounts due at maturity of the loan.  Held:  (1) The statute of frauds barred plaintiff's breach… Read More

The portion of 47 U.S.C. 227(b) added in 2015 to exempt calls to collect debts owed to or guaranteed by the federal government from the TCPA's ban on robocalls to cellphones is an unconstitutional restriction on free speech.  The exception is content-based as it draws distinctions based on the message conveyed in the telephone call.  The exception may be invalidated… Read More

Under Civ. Code 2924.15, HBOR's provisions apply only to owner-occupied properties.  But the section goes on to define "owner-occupied" as property that is the borrower's principal residence and security for a loan made for consumer purposes.  This decision reads the definition literally, holding that so long as the property is the borrower's principal residence, HBOR's provisions apply even if the… Read More

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