Legal Ad vertisement:
Plaintiff alleges she bought her Richmond home in 1973, refinanced her mortgage in 2005, and unsuccessfully applied for a loan modification in 2015.
Plaintiff was not allowed to make payments in the interim and owed $20,000 in arrears. Plaintiff sought Chapter 13 bankruptcy relief. She was required to make monthly payments to cover her pre-petition mortgage arrears plus her regular monthly mortgage payments. Plaintiff failed to make her regular October 2016 mortgage payment. Defendant sought relief from the automatic bankruptcy stay.
The bankruptcy court approved an agreement that she would pay the October and November payments over a period beginning in January 2017. Plaintiff claims defendant violated that agreement, that her attempts to make those payments failed, and that she was unable to contact the defendant’s “single point of contact” for foreclosure avoidance (Civil Code 2923.7)
Defendant obtained relief from the bankruptcy stay and would not accept the January 2017 payment. At the time of the bankruptcy sale, plaintiff’s home was worth approximately $550,000; defendant sold the home for $403,000.
On Elder Abuse, Welfare and Institutions Code section 15610.30, subdivision (a)(1) defines “ ‘[f]inancial abuse’ ” of an elder as occurring when a person or entity “[t]akes, secretes, appropriates, obtains, or retains real or personal property of an elder or dependent adult for a wrongful use or with intent to defraud, or both.” A person is “deemed to have taken, secreted, appropriated, obtained, or retained property for a wrongful use if, among other things, the person or entity takes, secretes, appropriates, obtains, or retains the property and the person or entity knew or should have known that this conduct is likely to be harmful to the elder or dependent adult.” (Id., subd. (b).) A lender does not take property for a “ ‘wrongful use’ ” by properly foreclosing on a loan, even if its actions are financially disadvantageous to the elder adult. (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 527–528; Paslay v. State Farm General Ins. Co. (2016) 248 Cal.App.4th 639, 657.) In this matter, the California Court of Appeal had concluded that the foreclousre was not proper.
The court of appeal reversed the dismissal of plaintiff’s claim that she should have been able to avoid foreclosure by tendering the amount in default (Civ. Code 2924c) and that it was unlawful for defendant also to demand payment on amounts subject to a confirmed bankruptcy plan and reversed the dismissal of the section 2923.7 claim but upheld the dismissal of breach of contract, negligence, and elder abuse claims.
If you are facing foreclosure and bankruptcy, you need a competent and tenacious attorney to recover all your damages; contact the Law Office of Robert Rodriguez immediately! Call (209) 596-4263, or, (510) 736-4033!
Robert Rodriguez has represented homeowners in foreclsoure cases against Bank of America, JP Morgan Chase, Wells Fargo, Ocwen; and litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California.
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