Between 2008 and 2011, more than one million homes in California were foreclosed. In many cases, lenders and loan servicers did not provide homeowners with a significant opportunity to obtain loss mitigation options to avoid foreclosure, and also engaged in extensive mortgage servicing misconduct. To address this issue, Governor Jerry Brown signed the California Homeowner Bill of Rights into law on July 11, 2012.
On January 1, 2013, California's Homeowner Bill of Rights, went into effect. The law reformed some aspects of the California foreclosure process to better protect homeowners. On January 1, 2018, many provisions of the Homeowner Bill of Rights were replaced with new ones, though the main aspects of the law—including those discussed in this article—remain substantially the same.
Read on to learn how the Homeowner Bill of Rights might be able to help you if you're facing a foreclosure in California. (See our article Summary of California Foreclosure Laws for more information on the California foreclosure process).
The Homeowner Bill of Rights was part of California's former Attorney General Kamala D. Harris’ response to the state’s foreclosure crisis and largely came about as a result of the national mortgage settlement between 49 states and certain banks. (Learn more about the the national mortgage settlement.)
However, whereas the national mortgage settlement was only applicable to the five settling banks and their customers, the Homeowner Bill of Rights extends the reforms addressed in the national mortgage settlement to almost all mortgage lenders and servicers that conduct foreclosures in California.
The Homeowner Bill of Rights contains several key provisions, including:
In the past, a servicer could foreclose even while a loss mitigation (foreclosure alternative) application was pending, which is a process called “dual-tracking.” The Homeowner Bill of Rights restricts the dual-tracking of foreclosures in California. (Federal law also restricts dual tracking.)
The Homeowner Bill of Right's dual-tracking provision. Under the Homeowner Bill of Rights, if you submit a complete application for a foreclosure prevention alternative, the servicer can't record a notice of sale or conduct a trustee's foreclosure sale before it makes a decision to grant or deny the application.
Changes to the law as of 2018. Prior to January 1, 2018, servicers were only required to stop foreclosure proceedings upon the receipt of a complete loan modification application. Now, the prohibition on dual tracking applies to all applications for all foreclosure prevention alternatives. Also, as of January 1, 2018, California law no longer requires an appeal period if the servicer denies the request. Instead, a denial notification regarding a first lien loan modification has to:
During the foreclosure crisis, homeowners who called their servicer to get help with mortgage problems typically had to explain their circumstances repeatedly, often to several different representatives. Under the Homeowner Bill of Rights, a servicer has to promptly establish a single point of contact upon a request from a borrower who asks for a foreclosure prevention alternative. The servicer also has to give the homeowner one or more direct means of communication with the single point of contact.
The point of contact must be an individual person or a team of personnel who can:
The single point of contact will remain assigned to the account until all loss mitigation options are exhausted or until the account is brought current.
The Homeowner Bill of Rights requires a servicer to contact—or attempt to contact—the borrower to discuss foreclosure alternatives before starting a foreclosure. Specifically, a servicer has hold off for 30 days after contacting the borrower (or meeting the contact attempt requirements) regarding foreclosure alternatives before recording a notice of default, which is the first official step in a California foreclosure. (Learn more about pre-foreclosure help for borrowers in our Special Foreclosure Protections in California article.)
Homeowners may sue the lender or servicer for material violations of certain sections of the California Homeowner Bill of Rights. Potential relief includes:
In addition, if the court finds that the violation was intentional, reckless, or resulted from willful misconduct by a loan servicer or lender, the court may award the borrower the greater of treble actual damages or statutory damages of $50,000.
The protections afforded to homeowners by the Homeowner Bill of Rights generally apply to first lien mortgage loans for properties that are:
Smaller servicers (entities that conduct fewer than 175 foreclosure sales per year or annual reporting period) are exempt from some of the procedural requirements.
For more information, go to the State of California Department of Justice’s webpage at www.oag.ca.gov and search for “Homeowner Bill of Rights”.