Special Foreclosure Protections in California

California's Homeowner Bill of Rights (HBOR) is a set of laws that provides special protections to homeowners struggling to make their mortgage payments. HBOR gives California homeowners rights regarding foreclosure and ensures they get a fair opportunity to explore getting a loan modification or another way to avoid foreclosure.

This law, among other things:

• requires servicers to provide preforeclosure help to borrowers
• prohibits dual tracking, and
• requires servicers to appoint a single point of contact to assist borrowers in their loss mitigation efforts.

HBOR's protections, which went into effect on January 1, 2013, generally apply to first mortgages and deeds of trust on owner-occupied homes and don't have more than four units. Almost all mortgage servicers must comply with HBOR.

Preforeclosure Help for Borrowers Under HBOR

HBOR prevents a servicer or lender from recording a notice of default, the first official step in a typical California foreclosure, until 30 days after the servicer has made contact, or has satisfied contact attempt requirements, with a delinquent borrower to discuss foreclosure alternatives. (Cal. Civ. Code § 2923.5.)

Contact Must Be in Person or by Telephone

Under HBOR, the servicer must try to contact the borrower in person or by telephone to assess the borrower's financial situation and explore options to avoid foreclosure. During the initial contact, the servicer has to advise the borrower of the right to request a subsequent meeting, which may be over the telephone. If requested, the servicer has to schedule the meeting to occur within 14 days. (Cal. Civ. Code § 2923.5.)

The assessment of the borrower's financial situation and discussion of options may occur during the first contact or at the subsequent meeting scheduled for that purpose. In either case, the servicer has to give the borrower the toll-free telephone number made available by the United States Department of Housing and Urban Development (HUD) to find a HUD-certified housing counseling agency. A HUD-approved housing counselor can provide information (for free) about different ways to avoid foreclosure. (Cal. Civ. Code § 2923.5.)

Contact Attempt Requirements

The servicer has to attempt to contact the borrower by sending a first-class letter that includes the toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency. After sending the letter, the servicer must try to contact the borrower by telephone at least three times at different hours and on different days. (Cal. Civ. Code § 2923.5.)

If the borrower doesn't respond within two weeks after the servicer meets the telephone call requirements, the servicer must send a certified letter, with return receipt requested. (Cal. Civ. Code § 2923.5.)

Cease and Desist Letters

If the borrower notifies the servicer in writing to cease further communication regarding the mortgage loan account, the servicer doesn't have to continue to try to contact the borrower. (Cal. Civ. Code § 2923.5.)

Other Key HBOR Protections

A few of the other key provisions of HBOR, which also apply to most servicers, include:

Prohibition on Dual-Tracking Under HBOR

Dual tracking happens when a servicer simultaneously reviews a borrower for a loan modification or other foreclosure avoidance alternatives while at the same time going ahead with a foreclosure on the property.

Under HBOR, if a borrower sends the servicer a complete application for a first lien loan modification at least five business days before a scheduled foreclosure sale, the servicer can't record a notice of default, notice of sale, or conduct a trustee's sale while the application is pending, and until:

But the prohibition on continuing with the foreclosure doesn't apply if you have already exhausted the loan modification application process—unless you've had a material change in your financial circumstances since you last applied. (Cal. Civ. Code § 2923.6.)

Single Point of Contact Requirement Under HBOR

Servicers must provide a single point of contact to a borrower who applies for a foreclosure prevention alternative. (Cal. Civ. Code § 2923.7.)

Subsequent Loss Mitigation Applications

The servicer must review a borrower's subsequent foreclosure alternative (loss mitigation) application if a material change in the borrower's financial condition has happened. (Cal. Civ. Code § 2923.6.)

No Robosigning

HBOR prohibits "robosigning." Robosigning is when an employee of a bank or servicer signs a foreclosure document, like an affidavit or assignment of mortgage, without having any knowledge about whether the information in the document is correct.

Under HBOR, servicers must review foreclosure documents and ensure they're accurate, complete, and supported by reliable evidence about the borrower's loan, the loan's status, and the servicer's right to foreclose. (Cal. Civ. Code § 2924.17.)

Written Denial Notice Requirement Under HBOR

HBOR also requires the servicer to give the borrower a denial notice if the servicer rejects a request for a first lien loan modification. The notice must specifically provide the reasons for the denial and, if applicable, a description of other foreclosure prevention alternatives for which the borrower might be eligible and a list of the steps the borrower must take to be considered for those options. (Cal. Civ. Code § 2923.6.)

If the servicer has already approved the borrower for another foreclosure prevention alternative, the notice must include the information necessary to complete the foreclosure prevention alternative. (Cal. Civ. Code § 2923.6.)

Fees

The servicer can't charge fees to apply for a loan modification or late fees while a loan modification application is pending. (Cal. Civ. Code § 2924.11)

Getting Help

Talk to a foreclosure attorney if you think your servicer has violated HBOR. You might be able to stop the foreclosure until the servicer complies with the law or sue for damages.