In an effort to help homeowners save their homes, California legislature enacted numerous statutes requiring lenders and mortgage servicers to comply with certain notice requirements before they can commence the foreclosure proceedings. These statutes did not really have any teeth until the California Court of Appeals held in Mabry v. Superior Court (2010) 185 Cal.App.4th 208 that Civil Code Section 2923.5 provides borrowers with a private right of action, i.e., a right to sue.
Code of Civil Procedure § 2923.5 became effective on July 8, 2008 and applies to deeds of trust recorded from January 1, 2003 to December 31, 2007. Under the language of the Civil Code Section 2923.5, prior to filing the Notice of Default, a lender must initiate voice-to-voice contact with the borrower to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During this contact, the mortgagee, beneficiary, or authorized agent shall advise the borrower that he or she has the right to request a subsequent meeting and, if requested, the mortgagee, beneficiary, or authorized agent shall schedule the meeting to occur within 14 days.
Alternatively, a lender may file a Notice of Default without initiating voice-to-voice contact if the lender satisfied the “due diligence” requirements 30 days prior to filing said Notice of Default. “Due dilligence” requires that the lender first send the borrower a first-class letter with HUD phone number and thereafter attempt to contact the borrower telephonically on at least three separate occasions. The lender may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live representative. Thereafter, the lender must again follow up by sending the borrower a certified letter with return of receipt requested. The lender must also post on its website particular infomration to assist the borrowers in avoiding foreclosure.
In Mabry, the court held that a borrower can sue the lender to have the trustee’s sale postponed until the lender have fully complied with the notice and/or “dilligence” requirements set forth in Civil Code Section 2923.5. However, the Mabry court also held that a violation of Section 2923.5 does not entitle the borrower to a loan modification or a workout plan of their loan but only provides the borrower with more time to explore his or her alternatives to foreclosure. Most importantly, Civil Code Section 2923.5 cannot be relied upon to halt the trustee’s sale if the sale already occurred.
If the trustee’s sale of your home had been scheduled and you believe that your lender or mortgagor failed to properly comply with the notice and diligence requirements of Civil Code Section 2923.5, please contact Regal Law Office for a free initial telephone consultation. We can help you postpone your trustee’s sale today!
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