I recently lost my California home to foreclosure, but I think the bank violated the Homeowner Bill of Rights when it foreclosed. Can I get my house back?
The California Homeowner Bill of Rights (HBOR) does not provide a way for you to get your home back if the bank violated HBOR during your foreclosure. You might be entitled to recover damages (a sum of money to compensate you for your losses) under this law though.
Also, depending on the facts of your particular situation, you may be able to set aside (undo) the foreclosure sale by making a different legal claim, such as wrongful foreclosure or breach of contract. However, this is only successful in rare circumstances.
The Homeowner Bill of Rights (HBOR) is a set of California laws designed to protect homeowners in the foreclosure process. Under HBOR, the following activities (among others) are illegal:
Depending on whether or not the foreclosure sale has already occurred, if your bank or mortgage servicer (the company you make your payments to) violates HBOR, you can sue to:
If the foreclosure sale has already taken place, however, you cannot sue to get the house back under HBOR.
In cases where the foreclosure sale has not yet occurred, you can ask the court for an order stopping the foreclosure (called an injunction). Unfortunately, this may only postpone the sale until the bank starts acting in compliance with HBOR’s requirements.
If the foreclosure sale has already taken place, you can sue the bank to recover your actual damages (that is, your monetary losses caused by the bank’s violation of HBOR). You might get triple damages or $50,000 (whichever is greater) if a court finds that the violation was intentional, reckless, or resulted from willful misconduct, plus attorneys' fees and costs.
Although HBOR won't let you get your home back, you might be able to reclaim your home in rare circumstances by making a legal claim such as wrongful foreclosure or breach of contract, depending on the facts of your situation.
In California, the following situations (among others) could provide the basis for a wrongful foreclosure claim:
In some situations, you may be able to bring a breach of contract claim to set aside the foreclosure sale. For example, if your loan servicer foreclosed on your home even though you were making payments pursuant to a written loan modification agreement, you might be able to invalidate the sale.
You can raise a claim of wrongful foreclosure or breach of contract in the unlawful detainer (eviction) action after the foreclosure or by filing your own lawsuit.
Claims for wrongful foreclosure and breach of contract represent just two of the ways you could try to set aside a foreclosure sale. There are others. If you have lost your home to foreclosure and think that the bank violated the law in the process, you should speak to a qualified attorney who can advise you about what to do in your circumstances. Keep in mind that very few borrowers are able to get their home back after a foreclosure.
To learn more about how to get the court to set aside (invalidate) a foreclosure sale, see Nolo’s article Setting Aside a Foreclosure Sale.