Civil Code §2924.12(b) Right to Sue Mortgage Servicers for Injunctive Relief, Damages, Treble Damages, and Right to Attorney’s Fees. : )

5 Dec

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H. Right to Sue Mortgage Servicers for Injunctive Relief, Damages, Treble Damages, and Right to Attorney’s Fees

2013 is going to be a good year

One of the most important provisions of the Act from a lender’s perspective is that it provides borrowers with the right to sue mortgage servicers for injunctive relief before the trustee’s deed upon sale has recorded, or if it has already recorded, to sue for actual economic damages, if the mortgage servicer has not corrected any “material” violation of certain enumerated portions of the Act before the trustee’s deed upon sale recorded. (Civil Code §2924.12(a).) In an area that will certainly open up a Pandora’s Box of litigation, the Act does not define what constitutes a “material” violation of the Act. If a court finds that the violation was intentional, reckless or willful, the court can award the borrower the greater of treble (triple) damages or $50,000. (Civil Code §2924.12(b).) Furthermore, a violation of the enumerated provisions of the Act is also deemed to be a violation of the licensing laws if committed by a person licensed as a consumer or commercial finance lender or broker, a residential mortgage lender or servicer, or a licensed real estate broker or salesman. (Civil Code §2924.12(d).) Lastly, in a one-sided attorney’s fee provision that only benefits borrowers, the court may award a borrower who obtains an injunction or receives an award of economic damages as a result of the violation of the Act their reasonable attorney’s fees and costs as the prevailing party. (Civil Code §2924.12(i).) This provides all the more reason for lenders and mortgage servicers to comply with the terms of the Act. This provision for the recovery by only the borrower of their reasonable attorney’s fees makes it more likely that borrowers will file litigation against mortgage lenders or servicers than they otherwise would. Compliance is the lender’s or mortgage servicer’s best defense to litigation under the Act.

Significantly for lenders, as long as the mortgage servicer remedies the material violation of the Act before the trustee’s deed upon sale has recorded, the Act specifically provides that the mortgage servicer shall not be liable under the Act for any violation or damages. (Civil Code §2924.12(b) & (c).) The Act also clarifies that signatories to the National Mortgage Settlement who are in compliance with the terms of that settlement, as they relate to the terms of the Act, will not face liability under the Act. (Civil Code §2924.12(g).

 

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2 Responses to “Civil Code §2924.12(b) Right to Sue Mortgage Servicers for Injunctive Relief, Damages, Treble Damages, and Right to Attorney’s Fees. : )”

  1. Beth December 8, 2012 at 7:33 am #

    I spoke with you a couple of weeks ago, regarding a property in Boulder Colorado. I wanted to share with you the results of my letter writing. I received a full release of Deed of trust from the Boulder County Recorder. I checked on line and sure enough, it is released. This is one for the homeowner! Thanks for your help! Beth Voigt (805) 433-3468

    Sent from my iPad

  2. A Workaholic December 21, 2012 at 11:35 pm #

    Please HELP ME I have so many foreclosure illegal tactics done in my homestead it is unabelievable. Looking for an attorney who is not afraid to sue a bank and if need be sanction the judge is like looking for a NEEDLE in a HAYSTACK. I have lived in my home for close to 40 years. I have predatory lending practices, exparte, deceit and fraud, robo signer, sale dates scheduled when the bank had not provided the documents necessary to establish the right to sell the property. They foreclosed the property in january 2012 but I was lucky to find an attorney to at least file the law suit. The first attorney that I hired for this purpose just took the retainer and then told me that he would not be suing the bank. The current attorney has not placed a “stay” on the case until the law suit is settled.

    I see others collecting 18 million and 8.5 millions for just one illegal tactic. Yet more often than not, I am getting attorneys that my logic tells me it is IMPOSSSIBLE and ILLOGICAL. The other attorney just took my money for almost two and half years and NEVER defended me properly. After he had expressed that we could go all the way to the Supreme Court! His main concern is to keep drawing money out of me, whether I lost my house and found myself homeless was not his problem!

    HELP, please. I just do not know what else to do. I pray you hear my plea, please feel free to call me at any time (305) 978-7653. Thank you, Ana

    On Wed, Dec 5, 2012 at 9:02 AM, North Cal. 925-957-9797 So.Cal.

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