CA State Court Analysis of Real Property Claims and Title Actions Part 1 and Part 2
Ms. Rodriguez currently and for the past seven years has represented a wide range of clients, focusing her representation on borrowers facing non-judicial foreclosure. She is dedicated and focused on her practice; she both carries a case load and manages the entire legal and business team.
CA State Court Analysis of Real Property Claims and Title Actions Part 1Who are the proper defendants: the original lender, servicer, trustee of securitized trust, foreclosure Trustee and MERS if applicable. Any entity that is or may try to claim an interest in the mortgage.
You will want to collect all of the origination documents. The uniform residential loan application will tell you the type of mortgage and terms of loan, property information and purpose of loan, borrower information, employment information, monthly income and combined housing expense information and assets and liabilities.
The original lender must provide a Federal Truth-In-Lending Disclosure Statement which will include the amount of payment. There must be a post net present value when comparing the borrower's income versus the mortgage payment.
Also needed is the buyer's closing statement which will include new loan charges, loan processing fee,s banking fees, appraisal fees and processing fees; additionally the settlement statement, adjustable rate note, and balloon rider.
The causes of actions for which the original documents should be analyzed are breach of fiduciary duty, conspiracy to defraud which can include failure to disclose the balloon rider, falsification of loan application and/or setting up borrower for certain default.
Note with fraud - the allegations need to meet specificity requirements. Actual fraud is under California Civil Code ? 1572(3)(5).
Next are violations of business & professions code ?17200 unfair and deceptive acts and practices (UDAP) [Fraudulently Procured Documents] [Fairness Doctrine]
CA State Court Analysis of Real Property Claims and Title Actions Part 2Intentional Misrepresentation: the misrepresentation of a material fact; Knowledge of falsity (scienter); Intent to induce reliance; Actual and justifiable reliance on the misrepresentation; and resulting damages.
Negligent Misrepresentation: the misrepresentation of a material fact; false statement is made without a reasonable ground for a belief in the truth of the misrepresented fact; intent to induce reliance; actual and justifiable reliance on the misrepresentation; and resulting damage
Fraudulent Concealment: affirmative duty to disclose all material facts; concealment of facts in order to induce plaintiff to enter into a transaction or relationship; resulting damage.
Cancellation of Contract: California Civil Code ?1670.5, ?1689, ?3412 Existence of written instrument; that is void or voidable; grounds for rescission / when facts discovered; reasonable apprehension if left outstanding may cause serious injury to plaintiff.
Violation of Finance Lender Law: California Finance Code ?? 4973, et seq., 22000, et seq. and 50000, et seq. Plaintiff must allege that their loan is covered under this provision. A consumer loan more than $417K is not covered. No exceptions to this rule have been identified.
Waiver/Promissory Estoppel: Contractual issue - bank has told homeowner/borrower to stop making payments to be considered for a modification; thus, the bank has waived any right to enforcement of the terms of the contract under the note; it gave that right up to enforce the contract by telling the home owner to stop making payments; homeowner relied on that waiver, stopped making payments for a modification, is denied even being reviewed for a modification, - bank cannot then come back and state it is entitled to enforce the payments
Intentional Infliction of Emotional Distress: Outrageous Behavior; Injury Breach of Contract; Make sure to allege all elements; What is the breach? Find a provision in the Deed of Trust to support the breach of contract claim.
Breach of Oral Contract: Existence of a contract; Terms that establish obligation; Specify whether contract is oral, written or implied by conduct; Plaintiff's performance or excuse for non-performance; Defendant's breach; Resulting damage.
Statute of Limitations: The statute of limitations has passed for most if not all of the types of claims above that may have accrued. Therefore, there must be allegations equitable lolling otherwise the claims may not survive.
Tolling: a stop/stay on the statute of limitations because plaintiff could not have been aware of his/her claims due to concealment by the defendants.