Borrower's fourth mortgage foreclosure delay suit was properly dismissed as barred by the res judicata effect of the prior three judgments against her, two of which had been affirmed on appeal. All the actions involved the same cause of action as they all asserted a violation of borrower's ownership interest in the property that was subject to her deed of… Read More
Defendant initially violated HBOR by refusing to consider plaintiff's loan modification application because only his deceased wife was the borrower on the loan, but defendant cured its violation after suit was filed by canceling the pending foreclosure, accepting and review plaintiff's loan modification application, and offering him a trial payment plan intended to lead to a loan modification. Thinking he… Read More
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
If a foreclosure plaintiff seeks not only to foreclose on the property but also to recover the remainder of the debt through a deficiency judgment, then the plaintiff is attempting to collect a debt within the meaning of the FDCPA. But if the plaintiff is simply enforcing a security interest by retaking or forcing a sale of the property, without… Read More
The CFPB's structure with a single director not subject to removal by the President except for cause is unconstitutional, violating the separation of powers principle and interfering with the President's authority to execute the laws of the land. The remedy is to sever the povision barring removal without cause and allow the President to fire the CFPB director with or… Read More
Fannie Mae’s release of Desktop Underwriter software did not bring it within the statutory definition of a consumer credit reporting agency for purposes of the federal Fair Credit Reporting Act. Read More
The trial court abused its discretion in denying a prevailing plaintiff attorney fees since the defendant’s initial settlement offer (which the plaintiff rejected) did not comply with section 998. Read More
A purchaser at a foreclosure sale must perfect its title in the property by recording a trustee's deed upon sale before serving the occupant(s) with a 3-day notice to quit—not merely before filing/serving an unlawful detainer action. Read More
Trial court properly declined to certify a class in putative wage and hour class action brought by property inspectors because even though common questions predominated, the plaintiffs' proposed trial plan of proving liability by means of an expert's testimony based on a double-blind survey he conducted of a random sample of class members was unmanageable, inadequate, and unfair. Read More
When a trial court applies a substantial negative multiplier to a presumptively accurate lodestar attorney fee amount, the court must clearly explain its case-specific reasons for the percentage reduction, and the trial court abuses its discretion if the reasons for the reduction include tying the fee award to some proportion of the buyer’s damages. Read More
The statute of limitations for rescission enforcement actions under the Truth in Lending Act is the state law limitations period for suit on a written contract—six years in Washington, four years in California. Read More
