CACI No. 4910. Violation of Homeowner Bill of Rights - Essential Factual Elements (Civ. Code, § 2924.12(b))

Judicial Council of California Civil Jury Instructions (2023 edition)

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4910.Violation of Homeowner Bill of Rights - Essential Factual
Elements (Civ. Code, § 2924.12(b))
[Name of plaintiff] claims that [he/she/nonbinary pronoun] has been
harmed because of [name of defendant]’s [specify, e.g., foreclosure sale of
[his/her/nonbinary pronoun] home]. To establish this claim, [name of
plaintiff] must prove:
1. That [specify one or more violations of the Homeowner Bill of Rights
in Civil Code sections 2923.55, 2923.6, 2923.7, 2924.9, 2924.10,
2924.11, or 2924.17];
2. That [name of plaintiff] was harmed; and
3. That [name of defendant]’s actions were a substantial factor in
causing [name of plaintiff]’s harm.
The violation claimed by [name of plaintiff] must have been “material,”
which means that it was significant or important.
New November 2019
Directions for Use
Give this instruction in a case claiming a violation of the Homeowner Bill of Rights
(the HBOR). (Civ. Code, §§ 2920.5, 2923.4-2923.7, 2924, 2924.9-2924.12, 2924.15,
2924.17-2924.20). The HBOR provides for a homeowner’s civil action for actual
economic damages against a mortgage servicer, mortgagee, trustee, beneficiary, or
authorized agent for a material violation of specified provisions of the HBOR. (Civ.
Code, § 2924.12(b); see Civ. Code, §§ 2923.55, 2923.6, 2923.7, 2924.9, 2924.10,
2924.11, 2924.17.) In element 1, insert the specific violation(s) alleged.
For a violation that is intentional or reckless, or resulted from willful misconduct,
there is a penalty of the greater of treble actual damages or $50,000. (Civ. Code,
§ 2924.12(b).) These terms are not further defined in the HBOR. If the plaintiff
seeks a penalty, an additional element should be added to require an intentional or
reckless violation or willful misconduct.
Sources and Authority
Action for Damages Under Homeowner Bill of Rights. Civil Code section
Preforeclosure Requirements. Civil Code section 2923.55.
“Dual Tracking” Prohibited. Civil Code section 2923.6.
Single Point of Contact Required. Civil Code section 2923.7.
Written Notice to Borrower on Recording of Notice of Default. Civil Code
section 2924.9.
Written Acknowledgment of Receipt of Loan Modification Application. Civil
Code section 2924.10.
Approved Foreclosure Prevention Alternative; Prohibition Against Recording
Notice of Default or Sale or Conducting Trustee Sale; Rescission or
Cancellation. Civil Code section 2924.11.
Recording Inaccurate Title Document. Civil Code section 2924.17.
“The Homeowner Bill of Rights (Civ. Code, §§ 2920.5, 2923.4-2923.7, 2924,
2924.9-2924.12, 2924.15, 2924.17-2924.20) (HBOR), effective January 1, 2013,
was enacted ‘to ensure that, as part of the nonjudicial foreclosure process,
borrowers are considered for, and have a meaningful opportunity to obtain,
available loss mitigation options, if any, offered by or through the borrowers
mortgage servicer, such as loan modifications or other alternatives to
foreclosure.’ 2923.4, subd. (a).) Among other things, HBOR prohibits ‘dual
tracking,’ which occurs when a bank forecloses on a loan while negotiating with
the borrower to avoid foreclosure. (See § 2923.6.) HBOR provides for injunctive
relief for statutory violations that occur prior to foreclosure 2924.12, subd.
(a)), and monetary damages when the borrower seeks relief for violations after
the foreclosure sale has occurred 2924.12, subd. (b)).” (Valbuena v. Ocwen
Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1272 [188 Cal.Rptr.3d 668].)
“A material violation found by the court to be intentional or reckless, or to result
from willful misconduct, may result in a trebling of actual damages or statutory
damages of $50,000. ‘A court may award a prevailing borrower reasonable
attorney’s fees and costs in an action brought pursuant to this section.’
(Valbuena, supra, 237 Cal.App.4th at p. 1273, internal citation omitted.)
“Nothing in the language of HBOR suggests that a borrower must tender the
loan balance before filing suit based on a violation of the requirements of the
law. Indeed, such a requirement would completely eviscerate the remedial
provisions of the statute.” (Valbuena, supra, 237 Cal.App.4th at p. 1273.)
“We disagree with the [plaintiffs’] assertion that ‘contacts’ between the lender or
its agent and the borrow [sic] must be initiated by the lender or its agent in
order to comply with former section 2923.55, and that any telephone calls
initiated by the [plaintiffs], and not by [the loan servicer], in which the
[plaintiffs’] financial situation and alternatives to foreclosure were discussed,
cannot constitute compliance with former section 2923.55. The language of the
statute does not require that a lender initiate the contact; rather, the statute
requires only that the lender make contact in some manner and provide the
borrower with an opportunity to discuss the borrowers financial situation and
possible options for avoiding foreclosure.” (Schmidt v. Citibank, N.A. (2018) 28
Cal.App.5th 1109, 1122 [239 Cal.Rptr.3d 648], original italics.)
“We conclude that a borrower who obtains a TRO enjoining the trustee’s sale of
his or her home is a ‘prevailing borrower within the meaning of section
2924.12, subdivision (h), and therefore may recover attorney fees and costs. The
text of the statute refers to ‘injunctive relief,’ which plainly includes a TRO. The
statute makes no exception for temporary injunctions. Thus, under the plain
language of the statute, a trial court is authorized, in its discretion, to award
attorney fees and costs to such a borrower.” (Bustos v. Wells Fargo Bank, N.A.
(2019) 39 Cal.App.5th 369, 380 [252 Cal.Rptr.3d 172].)
Secondary Sources
Greenwald et al., California Practice Guide: Real Property Transactions, Ch. 6-I,
Real Property Foreclosures and Antideficiency Laws, 6:511.1 et seq. (The Rutter
5 California Real Estate Law and Practice, Ch. 123, Nonjudicial Disclosure,
§ 123.08C (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 555, Trust Deeds and Real
Property Mortgages, § 555.51C (Matthew Bender)
10 California Legal Forms Transaction Guide, Ch. 25D, Foreclosure, § 25D.34
(Matthew Bender)
4911-4919. Reserved for Future Use

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