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If the superior court allows consolidation, a servicer’s right to possession of the real property security will be stayed until a verdict for the servicer is obtained in the wrongful foreclosure action.Courts generally will condition such consolidation on borrower debt service payments.
Companion allegations for emotional distress and punitive damages usually accompany any wrongful foreclosure action. Additionally, the borrower may also obtain damages for emotional distress in a wrongful foreclosure action. A notice of pending action (“lis pendens”) is the most common companion to a wrongful foreclosure action.Although the servicer may “bond around” the lis pendens without titleinsurance, the real property security is virtually inalienable.A summary procedure for removing a lis pendens is provided in the California Code of Civil Procedure Section 405.3 et seq.An ETP or Closed-end Fund proposing to list securities of a class that is not already listed should apply for the listing by letter addressed to TSX.The letter must be accompanied by one copy of the preliminary prospectus describing the provisions of the securities.This section allows a “mini trial” on the merits of the borrowers claim.
At the “mini trial”, the borrower must establish the probable validity of his/her claim by a preponderance of the evidence. If the borrower cannot establish his or her claim by a preponderance of evidence, the lis pendens is expunged.Again, though, the real property security will not berecovered until a final decision on the merits in the wrongful foreclosure action is reached.As discussed above, this can be anywhere from ten months to two years.The last step, the actual non-judicial foreclosure sale, usually occurs within approximately 120 days from the filing of the notice of default.For the vast majority of loans, the California non-judicial foreclosure process is an effective and relatively inexpensive method for a servicer to obtain its security.The causes of action alleged in a wrongful foreclosure action filed in California may include the following: breach of contract, intentional infliction of emotional distress, negligent infliction of emotional distress, violation of Business and Professions Code Section 17200 (Unfair Business Practices), quiet title, wrongful foreclosure (violation of Civil Code Section 2924and violation of 2923.5), accounting and/or promissory estoppel. A lis pendens is recorded in the county in which the real property security is located at the time the wrongful foreclosure action is filed.