Pre-NOD Outreach Requirements

HBOR continued the existing requirement that a servicer may not record a Notice of Default (NOD) until 30 days after contacting, or diligently attempting to contact, the borrower to discuss alternatives to foreclosure. The statutes provide specific instructions on the nature and content of the communication.

With each version of the law, some courts accept bare assertions that a borrower was never contacted pre-NOD as sufficient to pass the pleading stage, while others require more specific allegations to overcome a servicer’s NOD declaration attesting to its due diligence.Because the statute requires the servicer to initiate specific contact, borrower-initiated loan modification inquiries, or general contact, does not satisfy the pre-NOD contact requirements.

HBOR’s pre-NOD outreach requirements expand upon existing communication requirements. For example, the former Civil Code Section 2923.5 only applied to deeds of trust originated between 2003 and 2007; HBOR removed this time limitation. Borrowers who successfully brought claims under the pre-HBOR law were limited to postponing a foreclosure until the servicer complied with the outreach requirements.Enjoining a sale is still a remedy, but HBOR makes damages available after a foreclosure sale.

Thus a potential remedy for a wrongful foreclosure can be significant money damages. Therefore it's important to keep track of the financial harm caused to the wrongful conduct. It's imperative to keep an accurate financial accounting because the foreclosing entity will argue that the damages are not actual and merely speculative. Your attorney can do more for your case when more facts and evidence supporting your position are provided to them.


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