Before and during his decade-long divorce proceedings, Piterman made monthly payments on two promissory notes to his friend Korchemny, who then with Piterman's encouragement and aid sued Piterman, his former wife and her trust to collect on the notes. This opinion affirms a judgment against Korchemny on the complaint. The first promissory note charged interest in excess of 10% and… Read More
The trial court did not abuse its discretion in denying plaintiff's motion for an attorney fee award on the ground that neither party had prevailed in the action. Plaintiff tenant sued his landlord, asked the jury to award him $200,000 but recovered a jury verdict of only $6,450. In view of plaintiff's recovery of such a small percentage of the… Read More
The res judicata/collateral estoppel effect of a post-foreclosure unlawful detainer judgment extends only to proper conduct of the trustee's sale, not to claims of earlier wrongs committed by the lender that purportedly led eventually to the foreclosure. Thus, here, the unlawful detainer judgment against the borrowers did not preclude them from later suing on a claim that the lender had… Read More
A party cannot acquire good title by adverse possession against the beneficiary of a deed of trust that was recorded on the property before the alleged adverse possession began. This is for third reasons. First, the beneficiary has no right to possession of the property until after foreclosure on the deed of trust. Since the beneficiary cannot oust the alleged… Read More
The tenant served his summary judgment motion one day late in this UD action, six days before the hearing rather than the required seven for service by express mail. Nevertheless, the the judgment is affirmed. Plaintiff filed an opposition. Though complaining about the short service, it did not claim any prejudice. Also, there was no record of oral proceedings at… Read More
Borrower's fourth mortgage foreclosure delay suit was properly dismissed as barred by the res judicata effect of the prior three judgments against her, two of which had been affirmed on appeal. All the actions involved the same cause of action as they all asserted a violation of borrower's ownership interest in the property that was subject to her deed of… Read More
Defendant initially violated HBOR by refusing to consider plaintiff's loan modification application because only his deceased wife was the borrower on the loan, but defendant cured its violation after suit was filed by canceling the pending foreclosure, accepting and review plaintiff's loan modification application, and offering him a trial payment plan intended to lead to a loan modification. Thinking he… Read More
Threatening or filing suit on a time-barred debt is a misleading and unfair debt collection practice violating 15 USC 1692e and 1692f. To allege and prove a violation of those sections, the debtor need not allege or prove that the debt collector knew the debt was time-barred. However, the debt collector may be able to establish an affirmative defense of… Read More
Under Family Code 1102(a), both spouses must sign a deed of trust that encumbers real estate held as community property. If one spouse does not sign the deed of trust, that spouse can invalidate the deed of trust. Here, the property was deeded to the spouses as joint tenants, but under Family Code 760 property acquired during marriage is presumed… Read More
As this decision explains, Civil Code 2911 provides that a lien is extinguished when the statute of limitations has run on the principal obligation that the lien secures. This statute has limited application to deeds of trust. While the lien of a deed of trust that is enforceable by judicial action (i.e., a judicial foreclosure action under CCP 725a) expires… Read More
This decision holds that Walls v. Wells Fargo Bank (9th Cir. 2002) 276 F.3d 502 does not apply to or bar an FDCPA claim against a debt collector for trying to collect a debt that was fully repaid under the debtor's Chapter 13 plan before the debtor received a discharge. That is because in these circumstances whether an unfair debt… Read More
The FDCPA's bona fide error defense does not allow debt collectors to avoid liability by contractually obligating creditor-clients to provide accurate information, nor by requesting that creditor-clients provide notice of any errors in an account assigned for collection without waiting to receive a response to the request before instituting collection efforts. Read More
Robin held a senior deed of trust. Crowell held a junior lien on the same property. Robin commenced a judicial foreclosure action against the debtor and the property but failed to name and serve Crowell as a defendnat in the suit. Some years after the judicial foreclosure sale, Robin brought this quiet title action against Crowell to "complete" the judicial… Read More
(A creditor need not prove that it was harmed or that the debtor was rendered unable to pay his debt to the creditor in order to prevail in seeking to set aside a transfer of the debtor's property on the ground the transfer was made with actual intent to defraud creditors under Civ. Code 3439.04(a)(1). Read More
Plaintiff alleged that before he entered into a HELOC in 2005, the lender orally promised him that its maturity in ten years, the lender would refinance the loan or extend its term. The lender didn't and foreclosed instead when the plaintiff didn't repay all amounts due at maturity of the loan. Held: (1) The statute of frauds barred plaintiff's breach… Read More
The portion of 47 U.S.C. 227(b) added in 2015 to exempt calls to collect debts owed to or guaranteed by the federal government from the TCPA's ban on robocalls to cellphones is an unconstitutional restriction on free speech. The exception is content-based as it draws distinctions based on the message conveyed in the telephone call. The exception may be invalidated… Read More
Under Civ. Code 2924.15, HBOR's provisions apply only to owner-occupied properties. But the section goes on to define "owner-occupied" as property that is the borrower's principal residence and security for a loan made for consumer purposes. This decision reads the definition literally, holding that so long as the property is the borrower's principal residence, HBOR's provisions apply even if the… Read More
If a foreclosure plaintiff seeks not only to foreclose on the property but also to recover the remainder of the debt through a deficiency judgment, then the plaintiff is attempting to collect a debt within the meaning of the FDCPA. But if the plaintiff is simply enforcing a security interest by retaking or forcing a sale of the property, without… Read More
The CFPB's structure with a single director not subject to removal by the President except for cause is unconstitutional, violating the separation of powers principle and interfering with the President's authority to execute the laws of the land. The remedy is to sever the povision barring removal without cause and allow the President to fire the CFPB director with or… Read More
Fannie Mae’s release of Desktop Underwriter software did not bring it within the statutory definition of a consumer credit reporting agency for purposes of the federal Fair Credit Reporting Act. Read More
