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To borrowers who choose to allocate their resources away from debt payment towards fighting a loan servicers right to its payments and its security, the nonjudicial foreclosure process is a war of attrition which ranges from the bankruptcy court, to superior court to municipal court. The wrongful foreclosure action is often brought prior to the non-judicial foreclosure sale in order to delay the sale, but the action may also be brought after the non-judicial foreclosure sale. A wrongful foreclosure suit filed in superior court will not necessarily delay a servicers recovery of its security.While serial bankruptcy filings are often a frustrating delay to a servicer obtaining possession of its security, the wrongful foreclosure action filed in superior court is potentially the most time consuming weapon in the arsenal of the litigious borrower. A wrongful foreclosure action is an action filed in superior court by the borrower against the servicer, the holder of the note, and usually the foreclosing trustee. In most cases, a wrongful foreclosure action alleges that the amount stated as due and owing in the notice of default is incorrect for one or more of the following reasons: an incorrect interest rate adjustment, incorrect tax impound accounts, misapplied payments, a forbearance agreement which was not adhered to by the servicer, unnecessary forced place insurance, improper accounting for a confirmed chapter 11 or chapter 13 bankruptcy plan. The companion filings to such a suit (notice of pending action, injunction and/or motion to consolidate) however can delay a servicers ultimate recovery.
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The reciprocal nature of attorney fees provisions in all real property notes and deeds of trust dictate that any wrongful foreclosure action be taken seriously. The only requirement for a lis pendens to be recorded is an attorneys signature that the action which is being noticed actually involves a real property claim.
Again, though, the real property security will not berecovered until a final decision on the merits in the wrongful foreclosure action is reached.
