SAN DIEGO FORECLOSURE DEFENSE ATTORNEYS
Dual Tracking & Homeowner Bill Of Rights
You Dual Tracking is a phrase that reflects the banks process of loan modification and foreclosure. The banks generally handle the foreclosure process among several departments that were not properly communicating with each other. As a result, innocent homeowners were foreclosed upon while awaiting a response to their loan modification application.
Now, the legislatures of California, have passed a new law that forbids the conduct of dual tracking. The banks are now responsible for proper communication within their departments and cannot foreclose on a homeowner while a loan modification application is pending. There are few interesting caveats to this new law and it best suits homeowners to be aware.
The homeowner bill of rights does not apply to subsequent work out applications. This issue was recently litigated heavily by our firm and the courts have set a precedent with subsequent applications. The courts will consider the totality of the the circumstances for the new application and determine if it was made in "good faith". Factors to be considered are circumstances where there was a material change that would have affected the outcome of the prior application. Also highly relevant to the new law is, affordability. In some circumstances, the current loan is the best option for the homeowner (based on a 1/3 calculation of household income). An application seeking assistance that reflects higher income will not suffice as a material change, because it will reflect a higher stance of affordability.
The new law also applies to banks conduct during a review of a pending loan modification application. For example, the bank cannot proceed with the foreclosure process, including the filing of notice of defaults or notice of sale. This conduct is statutory violation and if successfully proven, the court will award you damages and attorney fees.Further, the law requires the banks to have a single point of contact while you negotiate a work out plan. If the file is not properly attended, then you may have a right to sue your lender. The remedy would be an order from the court and an award of your attorney fees.