Thursday, May 23, 2013
California Homeowner Bill of Rights Levels the Playing Field between Homeowners & Banks
Published: Thursday, May. 23, 2013 - 12:00 am | Page 1A
A West Sacramento man is among the first in the state to use California's new Homeowner Bill of Rights to stop a bank from foreclosing on his home, and experts say the case marks a shift in a legal system that has traditionally favored lenders.
Kevin Singh, a house painter, secured a federal court order earlier this month after Bank of America allegedly engaged in a now-forbidden practice called dual tracking. The behavior, in which a bank proceeds with foreclosure while negotiating with a borrower for a loan modification, has been widely criticized as deceptive.
Experts said Singh's case was the first instance in which a judge issued a preliminary injunction to halt a foreclosure auction under the Homeowner Bill of Rights.
This week, North Carolina-based Bank of America was negotiating to resolve the case, said Singh's lawyer, Sacramento attorney Aldon Bolanos. Any settlement would have to include rescinding the foreclosure, he said. The Homeowner Bill of Rights also provides for attorneys fees for winning an injunction.
In an email, Bank of America spokeswoman Jumana Bauwen wrote that "Bank of America has resolved this issue with the borrower ... and is continuing to work with the borrower consistent with the bank's commitment to help customers experiencing payment difficulties with their mortgages."
Consumer advocates said cases such as Singh's signal a changing power balance between banks and borrowers in California. The landmark Homeowner Bill of Rights, which took effect Jan. 1, has given homeowners real legal leverage in fighting foreclosures, they said. A number of similar Homeowner Bill of Rights cases are moving through the courts in Northern and Southern California. Some, like Singh's, have resulted in judges issuing temporary restraining orders and preliminary injunctions that put a stop to foreclosures.
"Before, it was really in a bank's discretion to stop a foreclosure sale or not, but now you can get the courts to force them to stop," said Kent Qian, an attorney with the National Housing Law Project in San Francisco.
California is a nonjudicial foreclosure state, where foreclosures typically do not go before a judge. In other states, such as Florida, courts routinely review foreclosures. The new law provides California homeowners more opportunities to mount legal challenges.
In West Sacramento, Singh shares his neat suburban tract house in the city's Southport area with his wife, three children and aging parents. Singh said his painting business dried up during the recession and he stopped making mortgage payments.
Recently, Singh thought he was working out a loan modification with Bank of America and was stunned to receive a notice that his home would be auctioned on April 22.
"I didn't want to lose my house," Singh said. "We would have nowhere to go."
Singh brought his plight to the attention of one of his painting clients, Bolanos, a Sacramento civil rights attorney who also handles real estate matters.
"We were just talking and he said, 'Man, I'm going to lose my house," Bolanos recalled.
The lawyer offered to help and had to race to stop Singh's house from being auctioned in less than two weeks.
Bolanos' first step was to seek a temporary restraining order. The Homeowner Bill of Rights is a state law, but Bolanos filed his case in federal court in Sacramento, where he thought it would get heard faster than in the backlogged state courts. The court could take the case because Singh was challenging an entity from another state.
Bolanos said he also thought the federal courts "were in a better position to police the banks" because of last year's $25 billion national mortgage settlement between five major lenders, the federal government and 49 state attorneys general.
The settlement included terms similar to some provisions of the Homeowner Bill of Rights, including curbs on dual tracking.
The Singh case was a blatant example of dual tracking, Bolanos said. Singh had submitted an application for a loan modification but never got an answer before he was notified his house would be auctioned.
"There was no letter saying, 'Sorry, you've been denied a loan modification,' " the lawyer said. "This is a red-handed case. There couldn't be a simpler violation of the Homeowner Bill of Rights."
U.S. District Court Judge Morrison England Jr. granted the temporary restraining order on April 17, and Bolanos asked a colleague to go to the auction at a hotel in West Sacramento to "wave the TRO at the auctioneer."
The sale was stopped, and on May 1 England issued a preliminary injunction halting the foreclosure indefinitely. England noted in his order that Bank of America had not disputed Singh's claim that he never received a decision on his loan modification before the bank moved to foreclose.
"An injunction is in the public's interest as it enforces a recently enacted law designed to protect the public," the judge wrote.
That point was significant because it shows the courts, which "have not been a very hospitable venue for homeowners who took matters into their own hands," have changed since the foreclosure crisis, said Michael Troncoso, chief counsel to state Attorney General Kamala Harris, who championed the Homeowner Bill of Rights.
"There's recognition in the courts and recognition in the bar that we're actually going to enforce and uphold (laws to protect homeowners)," Troncoso said.
Bolanos agreed. "Since the Homeowner Bill of Rights it's a completely new game," he said. "We're winning now."
Call The Bee's Hudson Sangree, (916) 321-1191. Bee researcher Pete Basofin contributed to this report.