Summary of California’s Foreclosure Laws

If you are facing foreclosure in California, it’s important to understand some of the basics.

There follows a summary of some of the important features of California foreclosure law.

Topic State Law
Most common type of foreclosure process Nonjudicial under power of sale in deed of trust
Notice of the foreclosure Foreclosing party must personally contact (or meet the requirements for attempting to contact) borrowers to explore options for avoiding foreclosure 30 days before recording the notice of default. The foreclosing party then records a three-month notice of default in the county recorder’s office and mails a copy to the borrowers within ten business days following recordation. After three months expires (or up to five days prior), the foreclosing party records a notice of sale and mails a copy to the borrowers at least 20 days before the sale date. The sale date cannot be earlier than three months and 20 days after the recording date of the notice of default. The notice of sale is also posted on the property, in a public place, and published in a newspaper.
Reinstatement of loan before sale Allowed up to five business days before date of sale
Redemption after sale Not available after a nonjudicial foreclosure
Special protections for foreclosures involving high-cost mortgages Cal. Fin. Code § 4973 makes a number of abusive loan practices unlawful. Section 4978 provides remedies that include authority for a judge to reform the loan to comply with the law. These provisions don’t apply to mortgages held by the secondary market (Fannie Mae, Freddie Mac) or to assignees who have no reason to know of the loan origination violations. Cal. Fin. Code § 4979.8
Special state protections for service members Protections similar to those under the federal Servicemembers Civil Relief Act extended to members of the National Guard called or ordered into active state service by the governor or into active federal service by the President of the United States. Also applies to reservists who have been called to full-time active duty. Cal. Mil. & Vet. Code §§ 400 to 409.13
Deficiency judgments Not allowed after a nonjudicial foreclosure
Cash exempted in bankruptcy Up to about $25,340 under California exemption System 2
Notice after the house is sold New owner must give former homeowner three-day notice to quit (leave) and file an unlawful detainer lawsuit to evict.
Foreclosure statutes Cal. Civ. Code §§ 2923.5, 2924 to 2924l; Cal. Code of Civ. Pro. §§ 580a through 580d

The Homeowner Bill of Rights provides additional protections.

 

If you need additional info, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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What to do if your HOA has foreclosed on your property

If you owe dues or assessments to a homeowner’s association (HOA), the HOA can foreclose on your home. If you lose your home in an HOA foreclosure, some states give you the opportunity to repurchase your property following the foreclosure sale — this is called the right of redemption.

The Redemption Period Following an HOA Foreclosure

A redemption period is a specific time period given to homeowners following foreclosure during which they can buy back, or “redeem,” their home from the entity or person that purchased it at the foreclosure sale.

Some states give homeowners the right of redemption following a foreclosure by an HOA. In California, for example, if an HOA forecloses on a homeowner using a nonjudicial process, the foreclosure is subject to a 90-day right of redemption after the sale (Cal. Civ. Code § 1367.4). (Generally, there is no redemption period following the sale in a nonjudicial foreclosure of a deed of trust in California.) In Texas, there is a 180-day right of redemption from date the HOA mails written notice of the sale to the homeowner (Tex. Prop. Code Ann. § 209.011); a condominium has the right of redemption for 90-days. (Tex. Prop. Code Ann. § 82.113.) During the redemption period, the purchaser of the property may not transfer ownership of the property. The highest bidder at the foreclosure sale (either the HOA or a third party) takes ownership of the property subject to the owner’s right of redemption.

How to Redeem a Property After an HOA Foreclosure Sale

In most cases, to redeem the property following the foreclosure sale, the homeowner must pay:

  • the total assessment lien amount
  • interest, and
  • attorneys’ fees and costs.

Additionally, in California, if a homeowner wishes to exercise the right of redemption, the redemption price will include any repair costs paid by the purchaser that were reasonably necessary for the preservation of the property (Barry v. OC Residential Properties, LLC, 194 Cal.App.4th 861 (2011)). The purchaser at the foreclosure sale may pay for maintenance and repair work if:

  • the property is in need of repair, and
  • the repairs made are necessary to prevent further damage to the property.

To find out if there is a redemption period in your state or for any other info, call Attorney Linda Fessler for a free consultation at 213-446-6766.

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Talcum Powder —-Cause of Ovarian Cancer?

Johnson & Johnson is appealing two recent jury verdicts awarding a total of $127 million to women who blame their ovarian cancer on talc in the company’s baby powder.

The monetary awards have raised the concern that women’s use of talcum powder may cause ovarian cancer.  Research has returned mixed results and those studies finding a link showed only a slightly higher risk of the cancer.

In one case, a jury in St. Louis awarded $55 million to a woman, who was diagnosed with ovarian cancer in 2011. In the same court in February, a jury awarded $72 million to the family of a woman who died from ovarian cancer.

For the company, the threats posed by the personal-injury lawsuits come as J&J is involved in government investigations into off-label prescription-drug marketing, liability litigation over faulty hip and knee parts, and a recall of children’s Tylenol.

These matters have cost J&J billions of dollars.

The New Brunswick, N.J.-based company says it faces over 1,000 lawsuits involving Johnson’s Baby Powder. The lawsuits allege that talc in the powder caused ovarian cancer, and that the company failed to warn of the risks.

Company documents dating to the 1970s show J&J was concerned about a link between talcum powder and ovarian cancer.

If they had concerns Johnson & Johnson had an absolute moral obligation to warn people.

The American Cancer Society has said that research into a potential link between women’s use of talcum powder in the genital area and cancer of the ovary has been “mixed, with some studies reporting a slightly increased risk and some reporting no increase.”

If you need further info, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

 

 

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HALT TO OCWEN FORECLOSURES

Ocwen Post-Settlement

Ocwen has provided roughly $2 billion in consumer relief to borrowers, according to the Office of Mortgage Settlement Oversight’s Joseph Smith Jr. But Ocwen has not resolved its failure in several areas.

“While Ocwen has made progress toward correcting a number of past fails, it has not resolved its issues that led to its failure of Metric 31,” Smith said. “Despite its progress, Ocwen continues to have work to do.”

Metric 31 measures whether the servicer has sent denial notifications to homeowners including the reason for denial, factual information used in making the decision and a timeframe during which the homeowner can provide evidence that the denial was made in error. Ocwen has failed this metric.

The company expects another analysis to resume in the second quarter of 2016. Until these borrowers receive the proper information and are given the opportunity to appeal the foreclosure process has been halted.

Meanwhile, Ocwen has other failures with regard to the monitoring of the settlement.

Joseph Smith, Jr. and Ocwen have agreed that the company failed seven other metrics because of issues related to the company’s letter dating. Corrective plans have been established. It remains to be seen if the “corrective measures” will stop Ocwen from misdating letters all to their own benefit and to the detriment of the homeowner.

 

If you need additional info, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

 

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OPTIONS TO PREVENT FORECLOSURE SALE

Foreclosure can hurt financially, impair credit, and make it impossible to buy a house or car. A foreclosure attorney can often prevent a foreclosure sale from occurring. Lenders will sometimes take advantage of a distressed homeowner who does not have an attorney.

In the state of California, the Homeowners Bill of Rights protects homeowners from losing their homes and from fraudulent mortgage practices. The foreclosure laws in California make it illegal for lenders to start the foreclosure process without first offering alternative solutions such as loan modifications.

How to Stop Foreclosure

There are several options: the most common options to stop foreclosure include filing a lawsuit or a bankruptcy.

Filing a Lawsuit

A foreclosure lawyer can stop and reverse wrongful foreclosure.  The most common illegal practice in California is “dual tracking”.  When a borrower is in the process of applying for a loan modification, a lender cannot move forward with foreclosure.  If the lender receives a notice of default or notice of trustee sale while a borrower is applying for a loan modification, a homeowner should contact a foreclosure lawyer.

Filing Bankruptcy

A lawyer can immediately stop foreclosure by filing a Chapter 7 or Chapter 13 bankruptcy.  A homeowner who qualifies for bankruptcy can save his assets, eliminate his debts, and stop the foreclosure process.  Chapter 7 bankruptcy and Chapter 13 bankruptcy are not the same. A homeowner should speak to a foreclosure attorney to see if he qualifies for a bankruptcy and if bankruptcy is the best solution.

Before hiring an attorney, you can apply for a loan modification, short sale, or deed in lieu of foreclosure

A homeowner should contact the lender directly to apply for a modification, a short sale, or deed in lieu prior to hiring an attorney. Applying for a loan modification in California should stop the foreclosure process until the lender determines whether they will approve or deny the request.  The same is true for a short sale; which allows a homeowner, with the lender’s approval, to sell their home for less than the amount owed. Likewise, a deed in lieu stops the foreclosure process by transferring interest in the property to the lender. (Sometimes the homeowner can even negotiate to receive some cash for handing over the keys.)

Bottom line: There are ways of avoiding a foreclosure sale.

If you need additional info, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.
 

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Personal Injury Lawyers and Dog Bite Claims

Lots of adults and children get dog bites but whether you collect for your damages in large part depends on state law.

Strict Liability States

In certain states, an owner is strictly liable for the actions of his dog.  You do not have to prove that the owner was at fault in any way to win a lawsuit. Nevertheless, you must prove your actual amount of damages and counter any legal defenses of the dog owner.  A good attorney will end up increasing the value of your settlement.

“Dangerous Propensities” States

In certain states, you cannot win a lawsuit against a dog owner unless you prove that the owner was at fault. Typically, this means you must prove that the dog had “dangerous propensities” or “vicious propensities” — that the owner knew or should have known that the dog was dangerous, and that he failed to take appropriate precautions that likely would have prevented your injury.

          Proving Fault

In a “dangerous propensities” state, you can prove that the dog was dangerous (and that the owner knew or should have known about it) by showing that:

The dog was kept for protection,

The dog had a history of aggressive behavior, including fighting with other animals,

The dog was often chained up indicating that the owner considered the dog dangerous,

The owner warned others about the dog – either verbally of with a “Beware of Dog” sign,

The dog’s breed is known for its aggressiveness.

Stray Dogs

If you are bitten by a stray dog, you cannot sue a non-existent owner. You can sue the city, however, if you can show that the city was obligated to secure the city from the dangers of stray dogs, and that it negligently failed to do so. Lots of luck with that.

Possible Defenses

A dog owner might assert one of several possible defenses in a dog bite lawsuit, including:

Provocation: The dog was provoked into biting by the victim.

Reasonable care: The owner undertook reasonable safety precautions in light of the dog’s known propensities, and therefore should not be held liable for the injury.

Contributory negligence (assumption of risk): The victim removed a dog’s muzzle, or otherwise acted carelessly.

Trespassing: The victim was trespassing on the owner’s property at the time of the dog bite.

If you have suffered a dog bite, call Attorney Linda Fessler at 213-446-6766 for a free consultation.

 

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Vicarious Liability in Car Accidents

If the driver who caused your injuries did not own the vehicle he or she was driving, you may be able to recover compensation from the owner of the vehicle under the legal doctrine of vicarious liability. Each state is different. Some states offer wide protection for injury victims, while others are far more favorable toward vehicle owners and their insurance companies. You also need to know the laws in your state if you own a vehicle that you allow other people to drive. A local auto accident attorney can help.

Parents and Kids

Parents can be held liable for accidents caused by their kids. Negligent entrustment applies when a parent lets his kid drive the family car, knowing that the teenager is a dangerous driver.

In some states the family car doctrine applies. In those states negligent entrustment is not necessary. Even if the kid is an excellent driver, the parent who owns the vehicle can be held vicariously liable.

Employees

Employers can be held liable for accidents caused by their employees when the employee was driving in the scope of his employment.

Rentals

In some cases, rental companies can be vicariously liable, although you must prove that they were negligent or guilty of criminal wrongdoing.

Loaned Vehicles

Negligent entrustment can be an issue if you loan your car to a bad driver. If you let someone use your car and you know he is intoxicated, for example, you can be held responsible for any injuries he causes.

For a free consultation, please call Attorney Linda Fessler at 213-446-6766.

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Why You Need an Experienced Lawyer to Negotiate Your Product Liability Claim

There are many different kinds of personal injury claims: auto accidents, slip and falls, products liability. The product liability claim, which is the appropriate claim to file when you are injured or your property is damaged by a defective product. Product liability law is complex, and it is distinctively different than other types of personal injury claims.

Who You Can Sue

You can assert a product liability claim against a manufacturer, wholesaler, and retailer.

If you sue all of them and win, you can collect your damages from any one of the defendants based on a theory of joint and several liability.

What You Have to Prove

To win a product liability lawsuit you must prove that:

You suffered a tangible injury

The product was defective and unreasonably dangerous.

The product defect actually caused your injury.

You were using the product as the manufacturer intended it to be used.

If you prove that the product was defective, you may not have to prove that the manufacturer  was negligent.

Product Defects

Design defects: The defect lies in the design of the product itself.

Manufacturing defects: The manufacturer failed to manufacture the product in accordance with its design.

Warning defects: The product included no warning of its known dangerous side effects.

Establishing the existence of a design or manufacturing defect usually requires an expert witness. In addition, you will have to interview witnesses and collect extensive documentation.

For a free consultation regarding any personal injury case, please call Attorney Linda Fessler at 213-446-6766.

 

 

 

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Head Injuries After an Auto Accident

Head injuries caused by an auto accident can be very serious. This kind of injury can occur at both low and high speeds. While significant injuries can occur if the head strikes an object in the car, it’s also possible for a  brain injury to occur without any direct impact.

Hematoma, skull fractures, and brain concussions are head injuries that can occur during an accident. If any kind of head injury is sustained, it will require immediate medical care.

The Basics of Dealing with an Insurance Company

When someone sustains a head injury during a car accident, the main concern is getting back to normal health. However, you are still faced with medical bills. Compensation may be available in the form of an insurance claim, settlement, or verdict, but getting them is easier said than done. Insurance companies work hard to minimize the amounts they pay out. This is more so if an individual tries to represent himself. Without proper legal representation, it is likely that a head injury victim will get significantly less than he is entitled to receive.

How a Lawyer Can Help Build a Claim

Head trauma caused by an auto accident can be either a closed or open head injury. A closed head injury happens inside the skull, while an open head injury happens when a head wound is open or something penetrates the skull. Because the symptoms of closed head injuries can be less obvious than open head injuries, it is crucial for anyone involved in a car accident to visit a doctor immediately. Seeing a doctor will ensure that a closed head injury does not go untreated. It will also provide documentation of the injury and its direct link to the accident. That type of documentation can help a car accident lawyer build the strongest possible case. Other forms of evidence like photographs, witness statements and a police report will be used.

If you were involved in a car accident and sustained a head injury, you need the right legal representation.

For a free consultation, call Attorney Linda Fessler at 213-446-6766.

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DYI–IDENTITY THEFT PROTECTION

The Federal Trade Commission has published this article

Identity theft protection – you can do it!

March 28, 2016

You’ve probably seen ads offering “identity protection” services. In fact, nobody can guarantee you won’t experience identity theft. Those services offer identity monitoring and repair — things you can do yourself, for free.

Concern about identity theft has spawned many companies that watch information sources — most notably, your credit report — for signs that an identity thief may be using your personal information to get loans, open credit card accounts, or otherwise cause financial havoc. You can pay them to alert you to possible trouble, or simply keep watch yourself.

If you’re open to being a do-it-yourselfer, here are some free and low-cost alternatives to buying identity theft protection services:

  • Check your credit reports for free. Your credit reports usually will show if an identity thief opens, or tries to open, an account in your name. Federal law requires each of the three major credit bureaus to give you a free credit report each year at AnnualCreditReport.com, the only authorized website for free credit reports.
  • Place a credit freeze on your reports. A credit freeze blocks anyone from accessing your credit reports without your permission. Because potential creditors can’t check your files, a freeze generally stops identity thieves from opening new accounts in your name.
  • Review your monthly credit card, bank, retirement, and other account statements for transactions you didn’t authorize. Better yet, log in to check them more frequently.
  • Keep an eye on your mailbox. If you’re not getting bills, benefits checks, or other mail you’re expecting, or if you get bills for items you didn’t buy, it could be a sign that an identity thief is at work.
  • Review benefits statements you get from your health insurance providers, and immediately tell your insurers and medical providers if you see treatments you never received.

What if you find an identity thief has struck? You can get free recovery help at IdentityTheft.gov. You can report identity theft to the FTC and get a personal recovery plan that:

  • walks you through each recovery step
  • tracks your progress and adapts to your changing situation
  • pre-fills letters and forms for you to send to credit bureaus, businesses, debt collectors, and the IRS

IdentityTheft.gov has recovery plans for more than 30 types of identity theft, including child identity theft and tax-related identity theft.

To learn more about your identity theft protection options, read the FTC’s recently updated article, Identity Theft Protection Services.

 

If you need further information, please call Attorney Linda Fessler at 213-446-6766 for a free consultation.

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