The Impact of Dual Tracking Restrictions on Foreclosure Rates in California

by Ballard Spahr LLP

Foreclosure rates are declining in California. Many tout an improving economy as a reason for this trend. The impact of new legislation that restricts lenders and mortgage servicers from foreclosing on residential mortgages in a timely and efficient manner has also played a significant role. Among the new legislation that has influenced the decline in foreclosure rates in California is the "dual tracking" restriction, which prevents lenders and mortgage servicers from initiating nonjudicial foreclosure proceedings while a completed loan modification application is pending review.

Dual tracking restrictions arose out of the Multistate/National Mortgage Settlement. California's version is contained in the newly enacted California Homeowners Bill of Rights, which took effect in January 2013. The Consumer Financial Protection Bureau also has promulgated new rules restricting dual tracking; the rules go into effect in January 2014.

A nonjudicial residential foreclosure in California generally takes approximately four months to complete. Under the new statute, if the borrower timely submits a completed loan modification application, the time it takes to nonjudicially foreclose is extended by several months, if not more. Section 2923.6 of the California Code of Civil Procedure requires that if a residential borrower submits a complete application for a first lien loan modification, a foreclosure may not proceed until the mortgage servicer makes a written determination that the borrower is not eligible for a first lien loan modification and any appeal period for such decision has expired.

Accordingly, under Section 2923.6, even when a loan modification application is denied, the foreclosure must be delayed at least 31 days after the borrower is notified in writing of the denial. If the borrower unsuccessfully appeals the application denial, the nonjudicial foreclosure is further delayed at least 15 days after denial of the appeal.

Making things even more difficult for a mortgage servicer are the remedies that the newly enacted California statute provides to borrowers. Before the enactment of the California Homeowner Bill of Rights, a borrower in default was generally required to tender the amount due to successfully obtain an injunction that would prevent or delay a nonjudicial foreclosure. Under the new statute, if a foreclosure proceeds while a completed loan modification application is pending review, a borrower may obtain injunctive relief to prevent or delay the foreclosure along with actual economic damages. A prevailing borrower may also seek the recovery of attorneys' fees and costs. To make matters worse, if the court finds that a material violation of the statute was intentional or reckless, or resulted from willful misconduct, the court may award the borrower the greater of triple actual damages or statutory damages of $50,000.

The impact of the new legislation on California foreclosures is palpable. There were twice as many foreclosures initiated in December, before the California Homeowner Bill of Rights came into effect, as there were in April of this year. For good reason, given the new remedies provided to borrowers, California servicers are being more cautious in exercising their right to foreclose. While foreclosure rates may be declining, the new remedies will likely fuel an increase in litigation by borrowers.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ballard Spahr LLP | Attorney Advertising

Written by:

Ballard Spahr LLP

Ballard Spahr LLP on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.