(a)As used in this section:
(1)“Borrower” has the same meaning as defined in Section 2929.5.
(2)“Mortgage servicer” includes the current mortgage servicer and any prior mortgage servicers.
(3)“Subordinate mortgage” means a security instrument in residential real property, including a deed of trust and any security instrument that functions in the form of a mortgage, that was, at the time it was recorded, subordinate to another security interest encumbering the same residential real property.
(b)The following conduct constitutes an unlawful practice
in connection with a subordinate mortgage:
(1)The mortgage servicer did not provide the borrower with any written communication regarding the loan secured by the mortgage for at least three years.
(2)The mortgage servicer failed to
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(a)
As used in this section:
(1)
“Borrower” has the same meaning as defined in Section 2929.5.
(2)
“Mortgage servicer” includes the current mortgage servicer and any prior mortgage servicers.
(3)
“Subordinate mortgage” means a security instrument in residential real property, including a deed of trust and any security instrument that functions in the form of a mortgage, that was, at the time it was recorded, subordinate to another security interest encumbering the same residential real property.
(b)
The following conduct constitutes an unlawful practice
in connection with a subordinate mortgage:
(1)
The mortgage servicer did not provide the borrower with any written communication regarding the loan secured by the mortgage for at least three years.
(2)
The mortgage servicer failed to provide a transfer of loan servicing notice to the borrower when required to provide that notice by law, including, but not limited to, the federal Real Estate Settlement Procedures Act, as amended (12 U.S.C. Sec. 2601 et seq.), and investor or guarantor requirements.
(3)
The mortgage servicer failed to provide a transfer of loan ownership notice to the borrower when required to provide that notice by law, including, but not limited to, the federal Truth in Lending Act, as amended (15 U.S.C. 1601, et seq.), and investor or guarantor requirements.
(4)
The mortgage servicer conducted or threatened to conduct a foreclosure sale after providing a form to the borrower indicating that the debt had been written off or discharged, including, but not limited to, an Internal Revenue Service Form 1099.
(5)
The mortgage servicer conducted or threatened to conduct a foreclosure sale after the applicable statute of limitations expired.
(6)
The mortgage servicer failed to provide a periodic account statement to the borrower when required to provide that statement by law, including, but not limited to, the federal Truth in Lending Act, as amended (15 U.S.C. 1601, et seq.), and investor or guarantor requirements.
(c)
A mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not conduct or
threaten to conduct a nonjudicial foreclosure until the mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent does both of the following:
(1)
Simultaneously with the recording of a notice of default, records or causes to be recorded, in the office of the county recorder of the county that the encumbered property is located, a certification under penalty of perjury that either:
(A)
The mortgage servicer did not engage in an unlawful practice as described in subdivision (b).
(B)
The mortgage servicer lists all instances when it committed an unlawful practice as described in subdivision (b).
(2)
Simultaneously with the service of a recorded notice of default, sends both of the following documents to the borrower by United States certified
mail with return receipt requested to the last known mailing address of the borrower:
(A)
A notice providing that if the borrower believes the mortgage servicer engaged in an unlawful practice described in subdivision (b) or misrepresented its compliance history, the borrower may petition the court for relief before the foreclosure sale.
(B)
A copy of the certification recorded pursuant to paragraph (1).
(d)
Upon a borrower’s petition to the court for relief before the foreclosure sale, the court shall enjoin a proposed foreclosure sale pursuant to a power of sale in a subordinate mortgage until a final determination on the petition has been made.
(e)
It shall be an affirmative defense in a judicial foreclosure proceeding if the court finds the mortgage
servicer engaged in any of the unlawful practices specified in subdivision (b).
(f)
The court may provide equitable remedies that the court deems appropriate, depending on the extent and severity of the mortgage servicer’s violations. The equitable remedies may include, but are not limited to, striking all or a portion of the arrears claim, barring foreclosure, or permitting foreclosure subject to future compliance and corrected arrearage claim.
(g)
A borrower may also petition the court to set a nonjudicial foreclosure sale aside when a certification required by subdivision (c) was never recorded or when a certification recorded pursuant to subdivision (c) indicates that the mortgage servicer engaged in an unlawful practice described in subdivision (b) or misrepresented its compliance history.
(h)
Any failure to
comply with the provisions of this section shall not affect the validity of a trustee’s sale or a sale in favor of a bona fide purchaser.