Tag Archives: Unfair business practices

17200 Unfair Business Practices maybe thats what it is

22 May

– Cause of Action for Violation of Bus. & Prof. Code § 17200 –
“The UCL does not proscribe specific activities, but broadly prohibits
any unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising. The UCL governs
anti-competitive business practices as well as injuries to consumers,
and has as a major purpose the preservation of fair business
competition. By proscribing “any unlawful business practice,” section
17200 “borrows” violations of other laws and treats them as unlawful
practices that the unfair competition law makes independently
actionable.  Because section 17200 is written in the disjunctive, it
establishes three varieties of unfair competition-acts or practices
which are unlawful, or unfair, or fraudulent. In other words, a
practice is prohibited as “unfair” or “deceptive” even if not
“unlawful” and vice versa.”  Puentes v. Wells Fargo Home Mortg., Inc.,
160 Cal. App. 4th 638, 643-644 (2008) (citations and quotations
omitted).

“Unfair” Prong

[A]ny finding of unfairness to competitors under section 17200 [must]
be tethered to some legislatively declared policy or proof of some
actual or threatened impact on competition. We thus adopt the
following test: When a plaintiff who claims to have suffered injury
from a direct competitor’s “unfair” act or practice invokes section
17200, the word “unfair” in that section means conduct that threatens
an incipient violation of an antitrust law, or violates the policy or
spirit of one of those laws because its effects are comparable to or
the same as a violation of the law, or otherwise significantly
threatens or harms competition.

Cel-Tech Communications, Inc. v. Los Angeles Cellular Telephone Co.,
20 Cal. 4th 163, 186-187 (1999).

“Fraudulent” Prong

The term “fraudulent” as used in section 17200 does not refer to the
common law tort of fraud but only requires a showing members of the
public are likely to be deceived. Unless the challenged conduct
targets a particular disadvantaged or vulnerable group, it is judged
by the effect it would have on a reasonable consumer.

Puentes, 160 Cal. App. 4th at 645 (citations and quotations
omitted).

“Unlawful” Prong

By proscribing “any unlawful” business practice, Business and
Professions Code section 17200 “borrows” violations of other laws and
treats them as unlawful practices that the UCL makes independently
actionable. An unlawful business practice under Business and
Professions Code section 17200 is an act or practice, committed
pursuant to business activity, that is at the same time forbidden by
law. Virtually any law -federal, state or local – can serve as a
predicate for an action under Business and Professions Code section
17200.

Hale v. Sharp Healthcare, 183 Cal. App. 4th 1373, 1382-1383 (2010)
(citations and quotations omitted).

“A plaintiff alleging unfair business practices under these statutes
must state with reasonable particularity the facts supporting the
statutory elements of the violation.”  Khoury v. Maly’s of California,
Inc., 14 Cal. App. 4th 612, 619 (1993) (citations and quotations
omitted).

Fixing the Administration’s Home Affordable Modification Program (HAMP)

28 Jan

Posted: December 28, 2009.

By Professor Jean Braucher

Jean Braucher is the Roger C. Henderson Professor of Law at the University of Arizona James E. Rogers College of Law. This article is based on a longer paper, available for free at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1518098).

The Obama Administration originally envisioned bankruptcy modification as a companion to HAMP. The House passed a bill to achieve that goal, only to see it stall in the Senate. An attempt to get the legislation moving again in the House failed on December 11, but the more problems with HAMP become apparent, the greater the chances that bankruptcy modification might ultimately be enacted.

Low quantity. Only 31,382 modifications were made permanent in the first eight months of HAMP, which became operational last April and committed $75 billion to help three to four million borrowers avoid foreclosure. In response to these poor results, Treasury launched a “Conversion Campaign” to get as many as possible of another 697,026 pending trial plans converted into permanent ones.

Comparing the permanent modifications at the end of November to the 386,865 trial plans at the end of August (giving them three months to become final), the conversion rate has been about eight percent, equivalent to chances of a college applicant getting into Harvard or Yale.

A Treasury official used police and military rhetoric to describe its campaign: “SWAT teams” of Treasury staff are now “imbedded” at servicers in an “escalation process.” So if you have clients who could benefit from HAMP modifications, now is a good time to contact the program’s “Hope Hotline”: 1-888-995-HOPE (4673).

Treasury also acknowledged persistent accounts of servicers “losing” documents and asks borrowers and their counselors to report program violations. That’s another action item for you if you have clients who have been given the runaround. Other servicer violations should also be reported, such as conducting foreclosure sales while reviews or trial plans are in progress, charging for evaluation, or offering noncomplying plans that are more expensive than HAMP calls for. Gross monthly mortgage payments are supposed to be reduced to 31 percent of gross monthly income. Any of these practices could make a good basis for state Unfair and Deceptive Practices (UDAP) actions, typically carrying statutory damages and attorneys’ fees.

Low quality. Principal reduction is not required under HAMP and is rarely given. Three-quarters of borrowers are left underwater, often seriously so, with the principal obligation on average at 137 percent of the home’s current value, according to the Congressional Oversight Panel report last October. Borrowers who later lose income are stuck, unable to sell and pay off the loan or refinance. Temporary interest rate breaks are the way affordability is achieved, without principal reduction, and that creates high risk of redefault, especially given high unemployment.

The Obama Administration originally envisioned bankruptcy modification as a companion to HAMP. The House twice passed bills to achieve that goal, only to see them stall in the Senate. An attempt to get the legislation moving again in the House failed on December 11, but the more problems with HAMP become apparent, the greater the chances that bankruptcy modification might ultimately be enacted.

Alternatively, HAMP’s guidelines could include principal reduction as a standard tool when needed to keep borrowers in their homes, something Treasury could implement itself. As is, many HAMP modifications are not going to be sustainable.

Wrongful Foreclosure Class Action

15 Jan

Attached hereto is a class action pending in Massachusetts the same action could be filed here in California in that our foreclosure laws are not being followed Civil Code 2924 and 2923.5 and 2923.6 and we have the unfair business practices act under b and p 17200 MAClassActionforeclosure

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