General Information on Wrongful Foreclosure:
Courts are empowered to hear cases in “law and equity.”
Some arguments that have been asserted as grounds for wrongful foreclosure (which should provide grounds for an injunction to halt a sale date – at least that is the goal anyway) are:
(1) The loan is unconscionable and unenforceable (Ex. an Option Arm loan to a non-financially savvy recipient of the loan)
(2) The borrower is exercising their legal right to rescind the agreement (ex. TILA rescission / Civ. Code 1632 rescission / Fraud in the Factum rescission, etc.)
(3) The loan servicer failed to adequately respond to a Qualified Written Request (and an bona fide issue over whether there is a default or what amount was actually owed etc.)
(4) The lender or loan servicer (agent of lender) failed to follow the foreclosure rules (ex. in regard to the notice of default / notice of sale / contact requirements under 2923.5 etc.)
(5) The default was “cured” most likely due to a modification agreement / trial plan agreement etc.
(6) Other equitable grounds
These are just a few ideas that should be looked at in every case. If you have a rescission right, you will need to explore the issue of “tender.” Keep in mind, since there are so many foreclosure lawsuits being filed in this current environment, you need to make sure you case is bona fide, and one the judge will be willing to hear. Foreclosure Attorney may NOT file mortgage litigation lawsuits for the sole purpose of delaying the inevitable where no legal grounds truly exist.
This page will provide general legal information about the topic of WRONGFUL FORECLOSURE and how it may relate to foreclosure defense. All information contained on this website is general in nature, and should not be construed as legal advice or a substitute for legal advice. Although we have tried to be as accurate as possible, the following information may be inaccurate, missing some information, or outdated – as law can frequently change or become modified. If you have questions about your case, please contact a foreclosure defense or bankruptcy lawyer in your area. Please note, comments posted to this blog and emails sent to us are NOT confidential and do not create an attorney-client relationship.