(a)(1)A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default pursuant to Section 2924 until both of the following:
(A)Either 30 days after initial contact is made as required by paragraph (2) or 30 days after satisfying the due diligence requirements as described in subdivision (e).
(B)The mortgage servicer complies with paragraph (1) of subdivision (a) of Section 2924.18, if the borrower has provided a complete application as defined in subdivision (d) of Section 2924.18.
(2)(A)A mortgage servicer shall contact the borrower in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure. During the initial contact, the mortgage servicer shall advise the borrower that the borrower has the right to request a subsequent meeting and, if requested, the mortgage servicer shall schedule the meeting to occur within 14 days. 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 borrower shall be provided 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. Any meeting may occur telephonically.
(B)The mortgage servicer shall notify the borrower during the initial contact required pursuant to subparagraph (A) that a third party, such as a family member, HUD-certified housing counselor, or attorney, may record a request to receive copies of any notice of default and notice of sale pursuant to the process described in Section 2924b and that receiving a copy of these documents may allow the third party to assist the borrower in avoiding foreclosure.
(b)A notice of default recorded pursuant to Section 2924 shall include a declaration that the mortgage servicer has contacted the borrower, has tried with due diligence to contact the borrower as required by this section, or that no contact was required because the individual did not meet the definition of “borrower” pursuant to subdivision (c) of Section 2920.5.
(c)A mortgage servicer’s loss mitigation personnel may participate by telephone during any contact required by this section.
(d)A borrower may designate, with consent given in writing, a HUD-certified housing counseling agency, attorney, or other advisor to discuss with the mortgage servicer, on the borrower’s behalf, the borrower’s financial situation and options for the borrower to avoid foreclosure. That contact made at the direction of the borrower shall satisfy the contact requirements of paragraph (2) of subdivision (a). Any loan modification or workout plan offered at the meeting by the mortgage servicer is subject to approval by the borrower.
(e)A notice of default may be recorded pursuant to Section 2924
when a mortgage servicer has not contacted a borrower as required by paragraph (2) of subdivision (a) provided that the failure to contact the borrower occurred despite the due diligence of the mortgage servicer. For purposes of this section, “due diligence” shall require and mean all of the following:
(1)(A)A mortgage servicer shall first attempt to contact a 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.
(B)The mortgage servicer shall notify the borrower in the first-class letter described in subparagraph (A) that a third party, such as a family member, HUD-certified housing counselor, or attorney, may record a request to receive copies of any notice
of default and notice of sale pursuant to the process described in Section 2924b and that receiving a copy of these documents may allow the third party to assist the borrower in avoiding foreclosure.
(2)(A)After the letter has been sent, the mortgage servicer shall attempt to contact the borrower by telephone at least three times at different hours and on different days. Telephone calls shall be made to the primary telephone number on file.
(B)A mortgage servicer may attempt to contact a borrower using an automated system to dial borrowers, provided that, if the telephone call is answered, the call is connected to a live representative of the mortgage servicer.
(C)A mortgage servicer satisfies the
telephone contact requirements of this paragraph:
(i)If it determines, after attempting contact pursuant to this paragraph, that the borrower’s primary telephone number and secondary telephone number or numbers on file, if any, have been disconnected.
(ii)If the borrower or the borrower’s authorized agent notifies the mortgage servicer in writing to cease further communication with the borrower. The cease communication notification shall explicitly pertain to the mortgage loan account to be effective. The cease communication notification shall be effective until the borrower or the borrower’s authorized agent rescinds it in writing.
(3)If the borrower does not respond within two weeks after the telephone call
requirements of paragraph (2) have been satisfied, the mortgage servicer shall then send a certified letter, with return receipt requested.
(4)The mortgage servicer shall provide a means for the borrower to contact it in a timely manner, including a toll-free telephone number that will provide access to a live representative during business hours.
(5)The mortgage servicer has posted a prominent link on the home page of its internet website, if any, to the following information:
(A)Options that may be available to borrowers who are
unable to afford their mortgage payments and who wish to avoid foreclosure, and instructions to borrowers advising them on steps to take to explore those options.
(B)A list of financial documents borrowers should collect and be prepared to present to the mortgage servicer when discussing options for avoiding foreclosure.
(C)A toll-free telephone number for borrowers who wish to discuss options for avoiding foreclosure with their mortgage servicer.
(D)The toll-free telephone number made available by HUD to find a HUD-certified housing counseling agency.
(f)This section shall apply only to mortgages or deeds of trust described in Section 2924.15.
(g)This section shall apply only to entities described in subdivision (b) of Section 2924.18.
Notes of Decisions
Cedano v. Aurora Loan Servs., LLC (In Re Cedano), 470 B.R. 522 (9th Cir. BAP 2012).
· cites it 17× “5(b) declares that the mortgagee, beneficiary or the mortgagee’s or beneficiary’s authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code § 2923.5. Cal-Western recorded a Notice of Trustee’s Sale…”
Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952 (N.D. Cal. 2010).
· cites it 9× “However, Plaintiff does not allege that a foreclosure has occurred; instead, he alleges that under California Civil Code sections 2923.5 and 2924, no named defendant has the lawful right to foreclose on the Subject Property.”
Intengan v. BAC Home Loans Servicing LP, 214 Cal. App. 4th 1047 (Cal. Ct. App. 2013).
· cites it 6× “Purportedly accompanying the notice of default was a declaration by Samantha Jones, “MLO Loan Servicing Specialist of BAC Home Loans Servicing, LP,” in which she states under penalty of perjury that Bank of America “tried with due diligence to contact the borrower in accordance…”
Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009).
· cites it 7× “) First, Plaintiff alleges that Defendants’ notice of default violates Cal. Civ. Code §§ 2923.5 (a) and (b) because Defendants did not attach to the notice “a declaration based on personal knowledge discussing or detailing their efforts to avoid foreclosure.”
Lueras v. BAC Home Loans Servicing, LP, 221 Cal. App. 4th 49 (Cal. Ct. App. 2013).
· cites it 4× “” The First Amended Complaint asserted causes of action for negligence, breach of contract, violation of the Perata Mortgage Relief Act (Civ. Code, § 2923.5), fraud/misrepresentation, unfair and unlawful practices (Bus.”
Barrionuevo v. Chase Bank, N.A., 885 F. Supp. 2d 964 (N.D. Cal. 2012).
· cites it 8× “In their amended complaint, the Barrionuevos assert claims against Defendants for wrongful foreclosure, slander of title, violating California Civil Code § 2923.5, and violating California’s Unfair Business Practices Act ( Cal.”
Stebley v. Litton Loan Servicing, LLP, 202 Cal. App. 4th 522 (Cal. Ct. App. 2011).
· cites it 4× “DISCUSSION I Civil Code Section 2923.5 The gist of plaintiffs’ contention is that defendants failed to fully and fairly explore alternatives to foreclosure.”
Ortiz v. Accredited Home Lenders, Inc., 639 F. Supp. 2d 1159 (S.D. Cal. 2009).
· cites it 8× “(“TILA”), the Perata Mortgage Relief Act, Cal. Civil Code § 2923.5 , the Foreign Language Contract Act, Cal.”
David Turner v. Wells Fargo Bank, 859 F.3d 1145 (9th Cir. 2017).
· cites it 3× “As the Turners have alleged multiple claims, we have grouped them as follows: (1) Wrongful Foreclosure, (2) Breach of Express Agreement and the Implied Covenant of Good Faith and Fair Dealing Under the PSA, (3) Breach of Express Agreement and the Implied Covenant of Good Faith…”
Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp. 2d 1110 (N.D. Cal. 2013).
· cites it 4× “(b) Wrongful Foreclosure Based on Statutory Violations against Bank of America, Wells Fargo, and “First American”: 17 Plaintiffs allege that their mortgage loan is subject to California Civil Code §§ 2923.5, 2923.52, and 2923.”
Ngoc Nguyen v. Wells Fargo Bank, N.A., 749 F. Supp. 2d 1022 (N.D. Cal. 2010).
· cites it 7× “and formerly known as Wachovia Mortgage FSB, formerly known as World Savings Bank, FSB) (“Wells Fargo”) and Executive Trustee Services, LLC (“ETS”) alleging wrongful foreclosure, violation of California Civil Code § 2923.5 and 2924, fraudulent misrepresentation, fraudulent…”
Pfeifer v. Countrywide Home Loans, Inc., 211 Cal. App. 4th 1250 (Cal. Ct. App. 2012).
· cites it 3× “Next, plaintiffs appear to concede through no stated opposition that any claim under California Civil Code section 2923.5 fails because the statute is inapplicable to plaintiffs’ deed of trust.”
— Cal. Civil Code § 2923.5(2) — 1 case
Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952 (N.D. Cal. 2010).
“However, Plaintiff does not allege that a foreclosure has occurred; instead, he alleges that under California Civil Code sections 2923.5 and 2924, no named defendant has the lawful right to foreclose on the Subject Property.”
— Cal. Civil Code § 2923.5(a) — 5 cases
Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009).
“) First, Plaintiff alleges that Defendants’ notice of default violates Cal. Civ. Code §§ 2923.5 (a) and (b) because Defendants did not attach to the notice “a declaration based on personal knowledge discussing or detailing their efforts to avoid foreclosure.”
— Cal. Civil Code § 2923.5(a)(1) — 7 cases
Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952 (N.D. Cal. 2010).
“However, Plaintiff does not allege that a foreclosure has occurred; instead, he alleges that under California Civil Code sections 2923.5 and 2924, no named defendant has the lawful right to foreclose on the Subject Property.”
Barrionuevo v. Chase Bank, N.A., 885 F. Supp. 2d 964 (N.D. Cal. 2012).
“In their amended complaint, the Barrionuevos assert claims against Defendants for wrongful foreclosure, slander of title, violating California Civil Code § 2923.5, and violating California’s Unfair Business Practices Act ( Cal.”
— Cal. Civil Code § 2923.5(a)(2) — 7 cases
— Cal. Civil Code § 2923.5(b) — 8 cases
Cedano v. Aurora Loan Servs., LLC (In Re Cedano), 470 B.R. 522 (9th Cir. BAP 2012).
“5(b) declares that the mortgagee, beneficiary or the mortgagee’s or beneficiary’s authorized agent has either contacted the borrower or tried with due diligence to contact the borrower as required by California Civil Code § 2923.5. Cal-Western recorded a Notice of Trustee’s Sale…”
Rosenfeld v. JPMorgan Chase Bank, N.A., 732 F. Supp. 2d 952 (N.D. Cal. 2010).
“However, Plaintiff does not allege that a foreclosure has occurred; instead, he alleges that under California Civil Code sections 2923.5 and 2924, no named defendant has the lawful right to foreclose on the Subject Property.”
Rockridge Trust v. Wells Fargo, N.A., 985 F. Supp. 2d 1110 (N.D. Cal. 2013).
“(b) Wrongful Foreclosure Based on Statutory Violations against Bank of America, Wells Fargo, and “First American”: 17 Plaintiffs allege that their mortgage loan is subject to California Civil Code §§ 2923.5, 2923.52, and 2923.”
Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009).
“) First, Plaintiff alleges that Defendants’ notice of default violates Cal. Civ. Code §§ 2923.5 (a) and (b) because Defendants did not attach to the notice “a declaration based on personal knowledge discussing or detailing their efforts to avoid foreclosure.”
— Cal. Civil Code § 2923.5(c) — 3 cases
Pantoja v. Countrywide Home Loans, Inc., 640 F. Supp. 2d 1177 (N.D. Cal. 2009).
“) First, Plaintiff alleges that Defendants’ notice of default violates Cal. Civ. Code §§ 2923.5 (a) and (b) because Defendants did not attach to the notice “a declaration based on personal knowledge discussing or detailing their efforts to avoid foreclosure.”
— Cal. Civil Code § 2923.5(e) — 1 case
— Cal. Civil Code § 2923.5(g) — 1 case
— Cal. Civil Code § 2923.5(h)(3) — 1 case
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