Wrongful Foreclosure

16 Mar
Wells Fargo Advisors

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Successful cases

Success is dependent on the goals of the plaintiff. The objective of gaining title to land free of any liens is rarely achieved, and has not been achieved in California. However, California debtors have used the action to remain in their homes for years after defaulting. (Ghervescu v. Wells Fargo Home Mortg., Inc., 2005 WL 6559918 (Dissolving preliminary injunction restraining trustee from delivering deed to winning purchaser at trustee’s sale).)

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A wrongful foreclosure action alleges an “illegal, fraudulent or willfully oppressive sale of property under a power of sale contained in a mortgage or deed of trust.” (Munger v. Moore (1970) 11 Cal.App.3d. 1.) These actions work best when brought prior to the non-judicial foreclosure sale. To prevent the sale, the plaintiff must apply for an injunction and convince a judge that they are entitled to the injunction and that without it they will suffer irreparable harm. (Cal Code Civ. Pro § 526.) If the injunction is successful, the debtor can stay in the home for the duration of the lawsuit.

In Ghervescu v. Wells Fargo Home Mortg., Inc. (Cal. Ct. App., Nov. 16, 2010, E048925) 2010 WL 4621734, a borrower used the above procedural strategy to keep his house for over eight years after his default on the loan. After default, Ghervescu arranged a forbearance agreement with his lender, and some time shortly thereafter applied for a loan modification causing confusion with the lender. The lender failed to put the foreclosure proceedings on hold, and Ghervescu failed to make his payments on time.. The bank did not follow up on the pending application, and held a trustee’s sale prior to promised date of sale. Ghervescu quickly filed for a preliminary injunction to restrain the trustee from delivering the deed to the winning purchaser of the house at the trustee’s sale. The granted injunction prevented the foreclosure sale from constituting the final adjudication of the borrower’s rights. (See Smith v. Allen (1968) 68 Cal.2d 93, 96.)  He lost at trial, and his motion to amend complaint and denied. The case bounced around through three trials and two appeals, finally ending in judgment for the bank.

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4 Responses to “Wrongful Foreclosure”

  1. myland909 May 23, 2012 at 4:12 am #

    Our house was sold in November, when my dad was incarcerated. He was not able to respond to the notice of sale or any other motions. Does that mean anything in court???

  2. charley rice August 6, 2012 at 6:36 pm #

    There are NO LAWS that say the people have to give up their homes to FRAUD EVICTIONS.. There NOW must be a Moratorium on all Evictions.

    We the people have to RISE up and make a voice regarding the courts and police from throwing people out
    of their homes. The PRIME BANKS were convicted GUILTY of Foreclosure Fraud. Guilty is considered guilty and we the people must sanction the banks.

    We the people must ALL come together and set new laws of our own to keep this from getting out of control by these corporations.

    http://www.thepetitionsite.com/983/896/071/american-people-lets-all-stop-the-wrongful-fore closure-fraud/

  3. How to Fight a illegal foreclosure September 18, 2013 at 7:05 am #

    Nice Post! Property foreclosures are a actual attract for the people. But according to me financial commitment in the property should be made with discretion and proper care, otherwise one could have a mistake.

Trackbacks/Pingbacks

  1. Foreclosure in California « Mass Joinder Litigation - March 16, 2012

    […] Wrongful Foreclosure (massjoinderlitigation.wordpress.com) […]

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