California Foreclosure Defense, TRO to Restrain Trustee Sale, HBOR Action, and Loss Mitigation Package

California Foreclosure Defense, TRO to Restrain Trustee Sale, HBOR Action, and Loss Mitigation Package

Part 1 — Borrower Intake and Pre-Filing Audit

Date of intake: [__/__/____]
Attorney/firm: [________________________________]
Client (Borrower) name(s): [________________________________]
Property address: [________________________________]
APN: [________________________________]
County of property: [________________________________]
Owner-occupied (yes/no): [____] Number of units (1-4): [____]

1.1 Loan Identification

1.2 Default / Pre-NOD Posture

☐ Borrower received Civ. Code § 2923.5 / § 2923.55 30-day contact (or due-diligence attempts)
☐ Notice of Default (NOD) recorded — date: [__/__/____] — Instrument #: [________________________________]
☐ Notice of Trustee's Sale (NOTS) recorded — date: [__/__/____]
☐ Trustee's sale scheduled — date: [__/__/____] — time: [________] — location: [________________________________]
☐ Trustee's Deed Upon Sale recorded (foreclosure complete) — date: [__/__/____]

1.3 Statute of Limitations Screen

1.4 HBOR / Reg X Compliance Audit

☐ Pre-NOD contact at least 30 days before recording (§ 2923.5)
☐ Pre-NOD due-diligence declaration attached to NOD (§ 2923.55(c))
☐ Single Point of Contact (SPOC) assigned (§ 2923.7)
☐ Written acknowledgment of loss-mit application within 5 business days (§ 2924.10)
☐ Decision on complete first-lookup application before NOD/NOTS/sale (§ 2923.6, § 2924.11)
☐ Appeal period honored (30 days from denial)
☐ Reg X early-intervention notice within 45 days of delinquency (1024.39)
☐ Reg X loss-mit acknowledgment within 5 business days (1024.41(b)(2))
☐ Reg X 30-day evaluation of complete application (1024.41(c))
☐ Reg X 120-day pre-filing rule (1024.41(f)) — applicable to first-time loss-mit request
☐ Verification of "competent and reliable evidence" for amounts owed (§ 2924.17)

1.5 Chain of Assignments / Standing

☐ Original note in current beneficiary's possession (or PETE under Com. Code § 3301)
☐ Endorsement chain on note (blank or specific) confirmed
☐ Assignment(s) of Deed of Trust recorded — list each:
| # | Assignor | Assignee | Date Recorded | Instrument # |
|---|---|---|---|---|
| 1 | [____________] | [____________] | [__/__/____] | [____________] |
| 2 | [____________] | [____________] | [__/__/____] | [____________] |
| 3 | [____________] | [____________] | [__/__/____] | [____________] |
☐ MERS in chain (yes/no)
☐ Securitized into a PSA closing date past (potential New York trust law / PSA-violation theory)
☐ Substitution of trustee recorded — date: [__/__/____]

1.6 Anti-Deficiency Screen

☐ CCP § 580b applies (purchase-money on 1-4 unit owner-occupied)
☐ CCP § 580d applies (non-judicial sale — no deficiency)
☐ Single-action rule under CCP § 726 implicated (lender already sued on note)

Part 2 — Verified Complaint for Injunctive Relief and Damages Under HBOR

Superior Court of the State of California, County of [________________________________]
Case No.: [________________________________]

VERIFIED COMPLAINT FOR:

1. Violation of California Homeowner Bill of Rights (Civ. Code §§ 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, 2924.17) and for Injunctive Relief Under § 2924.12
2. Wrongful Initiation of Foreclosure / Cancellation of Instruments
3. Negligence (Loss-Mitigation Handling)
4. Breach of the Implied Covenant of Good Faith and Fair Dealing
5. Violation of Bus. & Prof. Code § 17200 (UCL)
6. Violation of RESPA / Reg X (12 C.F.R. § 1024.41) and 12 U.S.C. § 2605
7. Declaratory Relief (Civ. Code § 1060)

2.1 Parties, Jurisdiction, Venue

1. Plaintiff [________________________________] is, and at all relevant times was, the legal owner of the residential real property commonly known as [________________________________], County of [____________], State of California ("Property"), an owner-occupied residential dwelling of one to four units.
2. Defendant [SERVICER] is the current mortgage servicer of the loan secured by the Property.
3. Defendant [BENEFICIARY] is the current alleged beneficiary of record under the Deed of Trust.
4. Defendant [TRUSTEE] is the current substituted trustee of record.
5. Venue is proper in this Court pursuant to CCP § 392 because the Property is located in this County.

2.2 Common Allegations

6. On or about [__/__/____], Plaintiff executed a promissory note in the original principal amount of $[__________] in favor of [________________________________] secured by a Deed of Trust recorded on [__/__/____] as Instrument No. [____________] in the Official Records of [____________] County.
7. The Property is Plaintiff's principal residence within the meaning of Cal. Civ. Code § 2924.15.
8. [Allege all loss-mit submissions, lender failures, dates, missing documents, denials, appeal requests, and trustee-sale postings — chronological narrative.]

2.3 First Cause of Action — Violation of HBOR (Civ. Code § 2923.6 / § 2923.7 / § 2924.10) and Injunctive Relief Under § 2924.12

9. Plaintiff submitted a complete first-lookup loss-mitigation application on [__/__/____].
10. Defendants nevertheless recorded a Notice of Default and/or Notice of Trustee's Sale and/or conducted/scheduled a trustee's sale in violation of the prohibition on dual tracking set forth at Cal. Civ. Code § 2923.6 / § 2924.11.
11. Defendants failed to provide a Single Point of Contact in violation of § 2923.7.
12. Defendants failed to acknowledge Plaintiff's application within five (5) business days as required by § 2924.10.
13. Pursuant to Cal. Civ. Code § 2924.12, Plaintiff is entitled to injunctive relief enjoining any trustee's sale until Defendants have cured the material violations, and to actual damages, statutory damages of $50,000, treble damages, and reasonable attorneys' fees and costs.

2.4 Second Cause of Action — Violation of Pre-NOD Contact Requirement (§§ 2923.5, 2923.55)

14. Defendants did not contact Plaintiff (or satisfy the due-diligence requirements of § 2923.55(f)) at least thirty (30) days before recording the NOD.
15. The declaration attached to the NOD is false or non-compliant.
16. The NOD is void and must be rescinded.

2.5 Third Cause of Action — Violation of § 2924.17 (Robosigning / Lack of Reliable Evidence)

17. The recorded NOD, assignment, and substitution of trustee were not based on competent and reliable evidence as to the beneficiary's right to foreclose or the amounts owed.

2.6 Fourth Cause of Action — Negligence in Loss-Mitigation Handling

18. Defendant servicer owed Plaintiff a duty of care in processing the loss-mitigation application. Alvarez v. BAC Home Loans Servicing, L.P., 228 Cal. App. 4th 941 (2014).
19. Defendant breached that duty by [identify specific acts/omissions].
20. As a proximate result, Plaintiff suffered damages including emotional distress, foreclosure-related costs, and impairment of credit.

2.7 Fifth Cause of Action — Violation of RESPA / Reg X (12 C.F.R. § 1024.41; 12 U.S.C. § 2605)

21. Defendant servicer failed to comply with one or more of 12 C.F.R. § 1024.41(b), (c), (d), (g), (h) by [identify specific failures].
22. Defendant failed to timely respond to Plaintiff's Notice of Error and/or Request for Information dated [__/__/____].
23. Plaintiff is entitled to actual damages, statutory damages of up to $2,000 per violation, costs, and attorneys' fees pursuant to 12 U.S.C. § 2605(f).

2.8 Sixth Cause of Action — Violation of UCL (Bus. & Prof. Code § 17200)

24. The acts and omissions alleged are "unlawful, unfair, or fraudulent business acts or practices" entitling Plaintiff to restitution and injunctive relief.

2.9 Prayer for Relief

WHEREFORE, Plaintiff prays for judgment as follows:
a. For a temporary restraining order, preliminary injunction, and permanent injunction enjoining Defendants from conducting any trustee's sale of the Property pending compliance with HBOR and Reg X;
b. For an order rescinding and cancelling the Notice of Default, Notice of Trustee's Sale, and any Substitution of Trustee or Assignment recorded in violation of § 2924.17;
c. For actual damages, statutory damages of $50,000 under § 2924.12(b), and treble damages where authorized;
d. For RESPA statutory and actual damages under 12 U.S.C. § 2605(f);
e. For restitution under Bus. & Prof. Code § 17203;
f. For declaratory relief that Defendants have no present right to foreclose;
g. For reasonable attorneys' fees and costs pursuant to Civ. Code § 2924.12(i), 12 U.S.C. § 2605(f), CCP § 1021.5;
h. For such other relief as the Court deems just.

Dated: [__/__/____] Signed: [________________________________]
Attorney for Plaintiff

2.10 Verification

I, [________________________________], am the Plaintiff in the above action. I have read the foregoing Verified Complaint and know the contents thereof. The matters stated therein are true of my own knowledge except as to those matters stated on information and belief, and as to those, I believe them to be true. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

Executed on [__/__/____] at [____________], California.

Signature: [________________________________]

Part 3 — Ex Parte Application for Temporary Restraining Order and OSC re: Preliminary Injunction

3.1 Notice of Ex Parte

Pursuant to CRC 3.1200-3.1207, Plaintiff applies ex parte for a TRO restraining Defendants from selling, transferring, or otherwise alienating the Property pending hearing on the OSC re: Preliminary Injunction.

3.2 Grounds (Memorandum of Points & Authorities — short form)

a. Likelihood of success on the merits. Plaintiff alleges and supports by verified facts material HBOR violations: dual tracking (§ 2923.6/2924.11), no SPOC (§ 2923.7), failure to acknowledge (§ 2924.10), and false § 2923.55 declaration. Under § 2924.12(a), injunctive relief is available pre-sale for "material" violations.
b. Irreparable harm. Loss of a unique parcel of real property is per se irreparable. Civ. Code § 3387.
c. Balance of hardships. Defendants will suffer no harm beyond brief delay; their security remains intact.
d. Public interest. Vindication of HBOR.

3.3 Proposed TRO

The Court orders Defendants, their officers, agents, employees, attorneys, trustees, and all persons acting in concert with them, RESTRAINED AND ENJOINED from conducting, holding, or causing to be conducted any non-judicial trustee's sale of the Property located at [________________________________] until further order of this Court.

OSC re: Preliminary Injunction hearing: [__/__/____] at [____:____ __.m.] in Department [____].

3.4 Bond

Pursuant to CCP § 529, the Court [☐ waives bond / ☐ requires bond in the amount of $[__________]].

3.5 Supporting Declarations Checklist

☐ Declaration of Borrower (verified facts of loss-mit timeline and HBOR violations)
☐ Declaration of Counsel (CRC 3.1204 ex parte notice; efforts to meet & confer)
☐ Declaration of Housing Counselor (if applicable)
☐ Exhibits: NOD, NOTS, loss-mit application, denial letter, written correspondence

Part 4 — Federal Loss-Mitigation Application Package (Reg X § 1024.41) + HBOR Submission

4.1 Borrower Response Package — Required Documents

☐ Uniform Borrower Assistance Form (Form 710)
☐ IRS Form 4506-C
☐ Most recent two pay stubs (each borrower)
☐ Most recent two federal tax returns with all schedules
☐ Most recent two months bank statements (all accounts)
☐ Hardship affidavit (signed)
☐ Profit & loss statement (if self-employed) — last 90 days
☐ Award letters (Social Security / pension / disability)
☐ Utility bill (proof of occupancy)
☐ HOA / property tax / hazard insurance proof
☐ Documentation of any HBOR-protected status (military, illness, death)

4.2 Cover Letter to Servicer

Re: Loan No. [____________] — Complete Loss Mitigation Application — Request for First-Lookup Review under Cal. Civ. Code § 2923.6 and 12 C.F.R. § 1024.41

[Borrower] hereby submits a complete loss-mitigation application. Pursuant to 12 C.F.R. § 1024.41(b)(2), please acknowledge receipt within 5 business days and identify any missing documents. Pursuant to 12 C.F.R. § 1024.41(c), please evaluate within 30 days and offer all available options. Pursuant to Cal. Civ. Code § 2923.6 and § 2924.11, NO Notice of Default, Notice of Trustee's Sale, or trustee's sale may be recorded or conducted while this application is pending or during the appeal period.

Please assign a Single Point of Contact under Cal. Civ. Code § 2923.7 and provide that contact's name, direct phone, and email within 5 business days.

4.3 HUD-Approved Counselor Referral

☐ Borrower referred to HUD-approved housing counselor: [________________________________]
☐ Phone: [________________________________] Date of referral: [__/__/____]
☐ HUD locator: hud.gov/findacounselor or (800) 569-4287

4.4 Loan Modification Request — Specifics

Part 5 — Discovery Demand (Civil Discovery Act / CCP § 2030-2033)

5.1 Request for Production of Documents — Set One

To Defendants, produce:

1. The original promissory note executed by Plaintiff (or a true and correct copy with all endorsements and allonges).
2. Complete chain of recorded Assignments of Deed of Trust and Substitutions of Trustee.
3. The Pooling and Servicing Agreement ("PSA") governing the securitization trust in which Plaintiff's loan is allegedly held.
4. The mortgage loan schedule referencing Plaintiff's loan.
5. All communication logs, servicing notes, and "FICO score" / collection screens regarding Plaintiff's account (FNMA/FHLMC servicing notes acceptable).
6. Complete loss-mitigation file: applications, denials, appeals, decision documents, NPV results, investor guidelines applied.
7. The § 2923.55 / § 2923.5 due-diligence declaration and supporting call logs.
8. The Single Point of Contact assignment log.
9. All recorded notices: NOD, NOTS, Substitution of Trustee, Assignment.
10. Investor (Fannie/Freddie/private trust) authorization to foreclose.
11. Custodial records evidencing physical possession of the wet-ink note as of [date of NOD] and as of date of any NOTS.
12. Any Notice of Error / Request for Information sent by Plaintiff and the servicer's response.

5.2 Special Interrogatories — Set One

1. Identify each person involved in deciding to record the NOD.
2. State the date Defendant came into possession of the original promissory note.
3. Identify each loss-mitigation option evaluated.
4. State the basis for each denial.
5. Identify the Single Point of Contact assigned to Plaintiff and the date assigned.

5.3 Requests for Admission — Set One

1. Admit that no SPOC was assigned within 5 business days of Plaintiff's loss-mit application.
2. Admit that the loss-mit application was complete on [__/__/____].
3. Admit that Defendant recorded an NOD/NOTS while the application was pending.

Part 6 — RESPA Notice of Error and Request for Information

6.1 NOE / RFI Cover Letter

To: [Servicer Loss-Mitigation / RESPA Department address]
Re: Loan No. [____________]
This is a Notice of Error and Request for Information under 12 U.S.C. § 2605(e)/(k) and 12 C.F.R. §§ 1024.35 / 1024.36.

Notices of Error:
☐ Failure to provide accurate payoff statement
☐ Improper acceleration / failure to honor loss-mit
☐ Misapplication of payments
☐ Charge of unauthorized fees
☐ Dual-tracking in violation of § 1024.41(g)
☐ Failure to evaluate complete application within 30 days
☐ Failure to provide written notice of denial / appeal rights

Information Requests:
☐ Identity of owner of the loan
☐ Complete payment history
☐ Complete loss-mit file
☐ All assignments and chain-of-title documents
☐ PSA and mortgage loan schedule

Please respond within 5 business days (acknowledgment) and 30 business days (substantive) as required by 12 C.F.R. § 1024.35(d)-(e) / § 1024.36(c)-(d).

Part 7 — Chapter 13 Bankruptcy Referral Checklist

☐ Confirm borrower has regular income to fund a Chapter 13 plan
☐ Calculate total mortgage arrears (60-month cure horizon)
☐ Confirm borrower is under unsecured debt limit ($465,275) and secured debt limit ($1,395,875) — verify current figures
☐ Identify automatic stay protection — 11 U.S.C. § 362
☐ Identify whether prior bk dismissed within 1 year (stay limited under § 362(c)(3))
☐ Confirm property valuation supports retention
☐ Refer to bankruptcy counsel: [________________________________]
☐ Verify trustee-sale date and timing of Chapter 13 petition filing (file BEFORE sale)

Part 8 — Post-Trustee-Sale Wrongful Foreclosure Checklist (if sale occurred)

☐ Trustee's Deed Upon Sale recorded — date: [__/__/____]
☐ Three-element wrongful foreclosure: (1) illegal/fraudulent/oppressive sale; (2) prejudice; (3) tender or excuse (Lona v. Citibank, 202 Cal. App. 4th 89)
☐ Tender excuse — fraud, void instrument, or HBOR violation excuses tender (Yvanova v. New Century, 62 Cal. 4th 919)
☐ Quiet title / cancellation of trustee's deed
☐ § 2924.12(b) post-sale damages claim
☐ Eviction defense via unlawful detainer answer (CCP § 1161a — title defense)

Part 9 — Sources and References

• Cal. Civ. Code §§ 2923.5, 2923.55, 2923.6, 2923.7, 2924, 2924.9, 2924.10, 2924.11, 2924.12, 2924.15, 2924.17
• Cal. Code Civ. Proc. §§ 526, 529, 580b, 580d, 726
• 12 C.F.R. §§ 1024.35, 1024.36, 1024.39, 1024.40, 1024.41
• 12 U.S.C. § 2605 (RESPA)
• 15 U.S.C. § 1692 et seq. (FDCPA); 15 U.S.C. § 1681 et seq. (FCRA)
• Yvanova v. New Century Mortgage Corp., 62 Cal. 4th 919 (2016)
• Alvarez v. BAC Home Loans Servicing, 228 Cal. App. 4th 941 (2014)
• Lona v. Citibank, N.A., 202 Cal. App. 4th 89 (2011)
• California Attorney General HBOR portal: oag.ca.gov/hbor
• CFPB Mortgage Servicing Rules: consumerfinance.gov