Dual tracking is back on the rails
California Homeowners Bill of Rights, enacted January, 2013, prohibited dual tracking of mortgages: that is, the lender could not simultaneously consider a loan modification and prosecute a non judicial foreclosure.
That’s exactly what Sonoma County homeowner Keni Meyer alleged in her lawsuit that Wells Fargo did. On April 3, they send her letters discussing the modification of her mortgage loan and on April 8, sent her a notice of foreclosure sale.
Under the provisions of HBOR, a completed loan modification application halts the foreclosure process.
Northern California federal district court ruled in December, 2013 that HBOR is preempted by Depression era law creating federal savings banks. The preemption doctrine holds that federal law on a subject trumps state law on that subject.
Here’s Judge Alsup’s written decision
While the foreclosing bank was Wells Fargo, the loan had originated with World Savings and World Savings was a federal savings bank subject to the federal Home Owners Loan Act of 1933.
The judge held that federal law occupied the field as to servicing mortgages of federally chartered savings banks and the federal law followed the mortgage, even when now held by an institution that isn’t a federal savings bank.
Thus, Ms. Meyer’s claim that Wells Fargo engaged in dual tracking in violation of California law was denied and those claims grounded in HBOR were dismissed.
Mortgages now unprotected
Mortgage servicing in California sometimes feels like the old Laurel and Hardy routine, Who’s On First. Loans change hands, banks fail, trusts are created, and entities merge.
Below is my preliminary list of entities which may have been federally charted savings banks. I make no guarantees that I’ve got them all nor that this information is absolutely reliable.
- World Savings
- First Federal Bank of California
- California Federal Bank
- USAA Federal Savings Bank
- Glendale Federal Bank
If, however, your loan was initially made by a federal savings bank, you cannot rely on the California Homeowners Bill of Rights to prevent a foreclosure while the servicer considers a loan modification.
I would welcome your comments to flesh out or correct my list of federal savings banks to whom HOLA preemption may apply.
Image courtesy of OpenClipArt.