Wrongful Foreclosure Action and Claim against Your Bank – Your Primary Family Asset

15 Mar

From 2008 to the present (about 3-1/4 years), there have been about 10,000,000 foreclosures, many or most of which have been of questionable legality, judging from what has been appearing almost daily in the main media during the past 12-18 months (e.g., falsified foreclosure documents including affidavits, failure to follow state foreclosure laws (such as by failing to have completed assignments of interest), and lack of ownership and possession of the original “wet-ink” Note).

If you were the owner of one of the 10,000,000 properties foreclosed by the lender during this period, you probably have a meritorious claim for wrongful foreclosure and should seriously consider commencing a wrongful foreclosure action against the lender. The value of your claim could well exceed all of the other assets owned by you or your family.

A wrongful foreclosure action should not be expensive, and has the advantage that the bank cannot retaliate by foreclosing on your property. It has already done that, and probably wrongfully. There is also the possibility that, since about half of the foreclosed properties are still under control of the foreclosing bank, you could obtain recovery of your property as well as some damages.

An wrongful foreclosure action can be commenced in any State in the United States for an initial legal fee of about $5,000 to $6,000, plus court filing fees (about $300) and fees for service of process (about $200).

The damages for wrongful foreclosure, particuarly a wilful (or knowingly) wrongful foreclosure can be quite substantial, including the loss in value of your property when it was sold at a distressed price, the costs to you of having a poor credit rating because of the foreclosure, the costs of moving elsewhere, the costs and loss involved in changing schools and neighborhood, and various other costs, including consequential damages which the bank could have foreseen when it wrongfully foreclosed.

But the most important recovery could be punitive damages, which is now limited by the U.S. Supreme Court to nine times (“single digit”) the amount of the actual damages you prove at trial. Accordingly, if you can show $200,000 in actual damages, you would be entitled to a maximum amount of punitive damages equal to $1,800,000 (or 9 times $200,000).

The action would be triable to a jury, most of whom are quite familiar with your problem, and would probably be receptive to giving you a substantial recovery.

The expenditure of $5,500 to $6,500 to obtain the bank’s reaction to your complaint (which hopefully will be to try to settle the action, a response to be expected in proportion to the merits of your claim of wrongful foreclosure) is a small amount in comparison to the probable recovery, and seems to be a no brainer type of decision for most persons to make, who have suffered from wrongful foreclosure.

The key things to consider when evaluating whether you should do this are:

  • The competence of your counsel
  • The merits of your wrongful foreclosure claims against the bank
  • Whether you can afford to risk the cost needed to bring the wrongful foreclosure action against the lender

You should look at my 10-minute YouTube video # 42 (created 11/17/10) entitled Homeowners Can Sue Banks to Cancel Mortgage or for Wrongful or Fraudulent Foreclosure and Punitive Damages. The link is:

You should talk with an attorney experienced in defending foreclosures to have him/her explain to you, after hearing the facts from you, what claims you have against the lender, and the value of those claims. Also, you should discuss what happens if the bank refuses to settle or to enter into a reasonable settlement agreement with you after the suit has been commenced.

I know that lawsuits are something that most reasonable people would like to avoid, but in order for you to obtain any recovery for the wrongful taking of your property, you need to file a wrongful foreclosure action against the lender, and spell out the reasons why you are entitled to recovery, for both the judge as well as the lender to read. If your case is meritorious, you have good reason to believe that the bank will try to settle the case, to reduce its costs, liability and adverse publicity, and to settle for less than it might otherwise have to pay after a trial.

If you would like to discuss your own wrongful foreclosure situation with me – as a FREE consultation – please give me a call, to

212-307-4444

or send me an email to carlpers2@gmail.com

This could be the way for you to recover the substantial loss you have probably incurred through the foreclosure, assuming it was wrongful. Please call me to help you determine whether the foreclosure was wrongful or not, and what you can do if the foreclosure was in fact wrongful (i.e., illegal).

Carl E. Person, attorney

P.S. I’m able to represent you in any State of the U.S. by use of “local counsel”. I should be able to locate affordable local counsel in any State, subject to your approval.

New York Statute of Limitations – 6 Years

An appropriate action for wrongful foreclosure will have more than one claim. For example, claims for breach of contract, fraud, mistake, negligence and unjust enrichment will probably be included, as well as other claims. Each of these claims has a statute of limitations, meaning that the claim cannot be brought after expiration of the statute of limitations for such claim. In New York, many of the claims seems to be governed by New York’s 6-year statute of limitations for various types of actions. Here is the statute, NY CPLR Section 213:

§ 213. Actions to be commenced within six years: where not otherwise provided for; on contract; on sealed instrument; on bond or note, and mortgage upon real property; by state based on misappropriation of public property; based on mistake; by corporation against director, officer or stockholder; based on fraud

The following actions must be commenced within six years:

1. an action for which no limitation is specifically prescribed by law;

2. an action upon a contractual obligation or liability, express or implied, except as provided in section two hundred thirteen-a of this article or article 2 of the uniform commercial code or article 36-B of the general business law;

3. an action upon a sealed instrument;

4. an action upon a bond or note, the payment of which is secured by a mortgage upon real property, or upon a bond or note and mortgage so secured, or upon a mortgage of real property, or any interest therein;

5. an action by the state based upon the spoliation or other misappropriation of public property; the time within which the action must be commenced shall be computed from discovery by the state of the facts relied upon;

6. an action based upon mistake;

7. an action by or on behalf of a corporation against a present or former director, officer or stockholder for an accounting, or to procure a judgment on the ground of fraud, or to enforce a liability, penalty or forfeiture, or to recover damages for waste or for an injury to property or for an accounting in conjunction therewith.

8. an action based upon fraud; the time within which the action must be commenced shall be the greater of six years from the date the cause of action accrued or two years from the time the plaintiff or the person under whom the plaintiff claims discovered the fraud, or could with reasonable diligence have discovered it.

There may be a period as short as one year as to some of the claims, such as in California. The first thing you should discuss with your attorney is the period of time in which your various claims must be brought in a lawsuit against the bank. The primary claim is for breach of contract, as your starting point.

In California, the tort of wrongful foreclosure requires: (1) a legally owed duty to the Plaintiff by the foreclosing party (2) a breach of that duty (3) a causal connection between the breach of that duty and the injury the Plaintiff sustained, and (4) damages. California courts have further clarified this cause of action by stating: “We are inclined however, to believe that with respect to real property the Murphy case was articulating a rule that has been applied in other jurisdictions. That rule is that a trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained where there has been an illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust. Munger v. Moore, 11 Cal. App. 3d 1, 7, 89 Cal. Rptr. 323, 326 (Cal. Ct. App. 1970)

The court in Munger appears to be saying that if the foreclosure was illegal, fraudulent or willfully oppressive then that foreclosure was wrongful and the party foreclosed on may be entitled to damages. According to California statutory and case law several types of damages are available to victims of wrongful foreclosures.

First, damages are measured by the value of the property at the time of the sale in excess of the mortgage lien against the property (i.e the equity in the property). Second, damages are available in the amount that is sufficient to compensate for all detriment proximately caused by the wrongful conduct. California Civil Code Section 3333. Third, the borrower may be able to obtain damages for emotional distress in a wrongful foreclosure action and if the borrower can prove by clear and convincing evidence that the servicer/trustee was guilty of fraud, oppression or malice punitive damages may be awarded. Where there is a wrongful foreclosure, the borrower may seek punitive damages. In Kachlon v. Markowitz (2008) 168 Cal.App.4th 316, 345 [85 Cal.Rptr.3d 532, 554] the Court in acknowledging the right to seek punitive damages said:

“The jury concluded that the nonjudicial foreclosures instituted by the Kachlons were wrongful, and that in pursuing the foreclosure proceedings Mordechai acted “intentionally, fraudulently and in conscious and callous disregard for the rights of the Markowitzes.” These findings are tantamount to the finding of malice….” (emphasis added).

As such, it is clear in California, if the borrower can prove by clear and convincing
evidence that the servicer or trustee was guilty of fraud, oppression or malice in its wrongful conduct, punitive damages may be awarded.


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3 Responses to “Wrongful Foreclosure Action and Claim against Your Bank – Your Primary Family Asset”

  1. Atilav March 15, 2012 at 9:10 am #

    This post is so misleading it borders on fraudulent inducement.

    Yes Any suit can be started for 5000-6000 but that will get you little more that a compaint written. Plan to spend that monthly as demurrer are filed and arious objections and motions come into play. One thing left out is that your attorney will also need 25,000-35,000 up front as a retainer that you will likely re-fill as deposition(s), discovery, and many phoneir writing hours burns tbrough

  2. atilav March 15, 2012 at 12:44 pm #

    as a matter of fact id like to see this or any other Mc candles lawyers put up or shut up.

    please post any cases you have won.

    and if so many attorneys are so sure of themselves take a case on pro-bono. ill give you the 5000 plus filing fees, ill even give you a bigger chunk of the 9x damages you wrote about.
    if its so easy and sure then walk the walk, You have nothing to lose right?

  3. Online payday loans & Predatory Credit June 2, 2013 at 1:26 pm #

    WOW just what I was searching for. Came here by searching for Online payday loans & Predatory Credit

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