California Homeowner Bill of Rights Empowers People Fighting to Stay in Their Home

The California Homeowner Bill of Rights was designed to protect homeowners from unfair practices by lenders and mortgage servicers during the foreclosure process. It was written to make borrowers aware of proper procedure before and during a foreclosure, the resources that they have to guide them through foreclosure, and what they can do if they have found that the lenders or mortgage servicers have not followed the law during the process.

After the “National Mortgage Settlement” in 2012, California Governor Jerry Brown agreed to sign California Assembly Bill 278 into law. The bill, which was designed by California Attorney General Kamala Harris, mimics the same service standards of the National Mortgage Settlement. All mortgage loan officers must abide by the California Homeowner Bill of Rights regardless of their involvement in the National Mortgage Settlement.

Sections 4 and 5 focus on the process of face-to-face interviews between the lender and the borrower before a foreclosure can be commenced, which allows the homeowner to seek out alternatives to foreclosure.

These sections also contain the procedures that mortgage servicers must follow to ensure “due diligence” when serving a borrower with a delinquency notice. A servicer must send the borrower a first-class letter, and call the borrower a minimum of three times during the morning, afternoon and evening. The servicer must also follow-up by sending a certified letter. They should also be able to provide a toll-free telephone number with live agents to take all calls. If the servicer has an active website, then it must provide a toll-free telephone number and a section which suggests documents for the borrower to gather before speaking with a mortgage servicer agent.

Section 6 of the Bill states that the borrower, if facing financial difficulty, must be notified by a mortgage servicer, trustee, mortgagee, authorized agent or beneficiary that they have the right to request a copy of their promissory note, a copy of their deed of trust/mortgage, a copy of assignments or deed of trust that would be needed to allow the servicer to foreclose, and a copy of their payment history highlighting the most recent period where they were no more than 60 days behind in payment. This set of rules favors the borrower because, in most cases, mortgage servicers aren’t required to keep copies of every single one of the documents previously mentioned. They may only have three out of four documents required to continue with the foreclosure. Since the Bill was written, there has been an increase in companies that offer to keep records in order to furnish the mortgage services with the proper documents when the time comes for them to supply the borrower with the requested copies.

There are also regulations preventing foreclosure on a home while there is a pending loan modification application or workout plan on a first mortgage; this is known as “dual-tracking,” which is covered in section 7. The Bill specifies that the benefits of the loan or workout plan must be greater than the benefit of foreclosing to the borrower. If the borrower’s loan modification application has been denied, then the Bill offers the borrower the gift of time. The borrower will have no less than 31 days after they have received notice of denial to appeal the rejected application.

The borrower has the right to direct contact with the person or group that has the authority to prevent the foreclosure from moving forward, which is referred to as the “single point of contact” in section 9. The borrower benefits from the “single point of contact” because it allows them the opportunity to discuss alternatives to foreclosure with the bank’s representatives.

In order to proceed with a non-judicial foreclosure, the mortgagee, beneficiary, trustee or their agents must first file a notice of default in the public records three months and 20 days prior. They must also file a notice of sale 20 days prior to the actual sale date.
Section 10 describes other provisions that would ensure that the filing of the notice of default is valid. The notice of default may only be filed by the beneficiary under the mortgage or deed, the original trustee or substituted trustee if on the deed of trust, or an agent assigned by the beneficiary on the deed of trust.

Section 12 of the Bill explains that if the borrower hasn’t already attempted to use all of the resources as an alternative to foreclosure, such as the first lien loan modification process, then another servicer may suggest other alternatives to the borrower. The servicer would then be obligated to communicate with the borrower in writing and state that the borrower is eligible for evaluation for foreclosure prevention; if it is or is not necessary for the borrower to submit an application, how to obtain an application, and an explanation on the application process. The manner in which the borrower’s application is processed is also covered in the Bill.  While the application is pending, the servicer may not file a notice of default or a notice of sale. The borrower cannot be charged for application fees, processing fees, or any other fees related to the prevention of foreclosure by the servicer. The Bill also prevents servicers from collecting late payment fees during a pending application or while the borrower is appealing a denied application, as long as the borrower is making their loan modification payments on time or any foreclosure prevention method is being considered or in process.

Accuracy of documentation is highly stressed in the Bill. The servicer must keep accurate and authentic documentation regarding a homeowner’s loan. Having reliable evidence is also necessary when submitting documents such as a declaration, notice of default, notice of sale, assigning a deed of trust, or substituting a trustee. If there are any mistakes made, such as inaccuracy or lack of evidence, the servicer may be fined up to $7,500 per mortgage or deed of trust by the court. The borrower would also have the right to file suit for financial damages based on these regulations.

The California Homeowner’s Bill of Rights has received a great deal of positive feedback. The Bill has been in effect since January 1, 2013. Many predict that the provisions of the Bill will soon be replicated and used in other states.

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