San Diego, CA
Real estate Lawyer at San Diego, CA
Practice Areas: Real Estate, Foreclosure, Banking
OUTCOME: Borrower did not state a UCL claim and lenders act to foreclose was commerically privileged to collect loan
Borrower contended a foreclosure sale on his residence was invalid due oral promises allegedly made by lender prior to loan documents being executed by the borrower, a real estate developer.
OUTCOME: Trustees have a qualified privilege to act.
Filed Amicus Brief on behalf of the United Trustees Association and the California Mortgage Association. The Court of Appeal ruled that a trustee can rely upon the amount of the debt provided by the ... beneficiary. Further, that in order to defeat the qualified privilege a trustee under a deed of trust has to record notices and perform the other acts required under the Civil Code to complete a non judicial foreclosure, the plaintiff must allege acts by the trustee showing a malicious intent on the part of the trustee. A malicious intent requires a showing that the trustee acted out of ill will with the intent to injure the borrower. Since in the vast majority of cases the trustee will not have any prior contact with the borrower prior to the recording of the Notice of Default, the borrower will have great difficulty in pleading an adequate factual basis to support any claims against the trustee. The case also upholds the right of a trustee to file a notice of non monetary status under Civil Code Section 2924l even in cases where the claims alleged against the trustee are for monetary damages. Filing a Civil Code Section 2924l notice for the trustee is a critical factor in reducing the trustee's expense in defending litigation. The case also held that because the trustee did not file a Civil Code Section 2924l notice until almost the conclusion of the case since it was not the prevailing party because the court ordered the trustee to rescind the Notice of Default, the trustee was liable jointly and severally with the beneficiary for the legal fees incurred by the borrowers.
OUTCOME: Loan reinstated prior to sale can be rescinded.
The lender received a reinstatement payment on behalf of the borrower prior to the foreclosure sale but the lender did not notify the trustee that the loan had been reinstated. The foreclosure sale we ... nt on as scheduled and the defendant, a third party purchaser, was the successful bidder at the sale. Upon discovering the error but after the issuance of the Trustee's Deed Upon Sale (TDUS) the trustee rescinded the sale. The Court of Appeal upheld the decision of the trial court to rescind the sale holding that the trustee could not sell the property and pass valid title to the third party purchaser where the loan had been reinstated prior to the sale. The conclusive presumption in CIvil Code Section 2924 is limited to notices and mailings required by the statutory scheme and not all actions of the trustee. Thus, the third party purchaser was not entitled to bona fide purchaser status to defeat the right of the trustee to rescind the sale and restore the borrower to title and the lender to its lien against the property.
OUTCOME:
Filed Amicus Brief for trade association. Court of Appeal reversed ruling of trial court holding that a loan secured by real property is not reinstated or paid off until the lender actually receives t ... he funds not when an escrow closes.
OUTCOME: Time to enforce note not triggered by NOD.
Civil Code Section 882.020 et seq., limits the time that a lender has to enforce its rights under a deed of trust. Prior to the enactment of the statute in the 1980's there was no time limit for enfor ... cement of a deed of trust by non judicial foreclosure. Under the statute, the time limit is 10 years if the due date of the instrument, obligation or promissory note is contained in the deed of trust and 60 years if it is not. The court of appeal reversed the trial court by ruling that the recordation of the Notice of Default (NOD) by the trustee did not trigger the running of the statute of limitations because the breach language in the NOD was not part of the original deed of trust.
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