All posts in Legislation

New California Law Signed by Jerry Brown re Levies on Banks

By | September 26, 2012 | Legislation | 1 Comment

Governor Brown Signs AB 2364 into Law, Centralizing the Location for Service of Levies, Attachments and Garnishments on Financial Institutions

The Consumer Financial Services Committee is pleased to report that an Affirmative Legislative Proposal on service of levies and other process on financial institutions that was sponsored by the CFSC has now become law.  This will require large banks, and permit smaller banks, to designate a central location where judgment creditors must serve levies, attachments and garnishments on deposit accounts and safe deposit boxes. The advantage for plaintiffs such as tort victims suing underinsured or uninsured motorists, as well as debt collectors, is that they no longer will have to serve the correct branch of the bank holding the account, a requirement that was a vestige of the pre-computer era.  Identifying the right branch bank for service of levies, attachments and garnishments has necessitated the costly use of orders of examination of the debtor and other procedures, and enforcement of money judgments could be frustrated by the judgment debtor moving money around.  The advantage of the legislation for financial institutions lies in both the efficiency of centralizing this function and the reduced risk of errors by branch bank staff.   The Department of Financial Institutions is required to create a procedure for banks to designate their central locations for service, and to establish a website where judgment creditors can obtain this information.

The law goes into effect January 1, 2013.

For the text of the Bill, click here: http://www.leginfo.ca.gov/pub/11-12/bill/asm/ab_2351-2400/ab_2364_bill_20120911_enrolled.pdf

Jonathan Leventhal, esq.

Homeowner Bill of Rights Act Signed by Jerry Brown on July 11, 2012 (Effective January 1, 2013)

By | July 17, 2012 | Legislation | 1 Comment

From the Department of Justice:

Two key bills of the Homeowner Bill of Rights contain significant mortgage and foreclosure reforms. The major provisions of AB 278 (Eng/Feuer/Mitchell) and SB 900(Leno/Corbett/DeSaulnier/Evans) include:

  • Dual track foreclosure ban: Mortgage servicers will be required to render a decision on a loan modification application before advancing the foreclosure process by filing a notice of default or notice of sale, or by conducting a trustee’s sale. The foreclosure process is essentially paused upon the completion of a loan modification application for the duration of the lender’s review of that application.
  • Single point of contact: Mortgage servicers will be required to designate a “single point of contact” for borrowers who are potentially eligible for a federal or proprietary loan modification application. The single point of contact is an individual or team  with knowledge of the borrower’s status and foreclosure prevention alternatives, access to decision makers, and the responsibility to coordinate the flow of documentation between borrower and mortgage servicer.
  • Enforceability: Borrowers will have authority to seek redress of “material” violations of theCalifornia Homeowner Bill of Rights. Injunctive relief willbe available prior to a foreclosure sale and recovery of damages will be available following a sale.

The actual changes are to the California CVivil Code Section 2920 et seq.   For example,

Read more…

New Anti-Deficiency Protection (a little at least) in California Starting January 1, 2013

By | July 17, 2012 | Legislation | No comments

Thanks to Arne Wuhrman for this:

Just received from the California Association of Realtors:   New Anti-Deficiency Protection for Refinance Loans Made After January 1, 2013

Starting January 1, 2013, a new California law will protect homeowners who default on their refinance loans from personal liability for any deficiency following foreclosure. Existing anti-deficiency law protects a borrower from personal liability for the difference between the principal balance and what the lender receives at foreclosure if the loan is a purchase money loan secured by an owner-occupied property with one-to-four residential units. The new law, Senate Bill 1069, extends that anti-deficiency protection to include any loan used to refinance the purchase money loan, plus any loan fees, costs, and related expenses for the refinance. The anti-deficiency protection, however, does not extend to any “cash out” in a refinance, which is when the lender advances new principal not applied to any obligation owed under the purchase money loan.  This new law does not affect the other anti-deficiency protections for non-judicial foreclosures (or trustee’s sales) and seller financing.

This new law only applies to refinance loans or other credit transactions used to refinance a purchase money loan, or subsequent refinances of a purchase money loan, that are executed on or after January 1, 2013. For purposes of this law, any payment of principal shall be deemed to be applied first to the principal balance of the purchase money loan, and then to the principal balance of any new advance and interest payments shall be applied to any interest due and owing.

  Arnie Wuhrman SERENITY LEGAL SERVICES

Protecting Tenants at Foreclosure Act – Tenants’ Rights: When to Hire a Lawyer

By | March 15, 2012 | Current Events, Legislation | No comments

Many issues tenants face are minor and can be easily resolved by common sense and checking reputable resources on landlord-tenant law, such as a local tenants’ rights group. The more you know the law and your legal rights, the better. The Tenant Rights section of the U.S. Department of Housing and Urban Development (HUD) website provides a wide variety of state and local resources, including links to fair housing groups, rent control boards, tenant unions, and legal aid organizations for each state; even if you don’t qualify for legal aid services, you will find useful information on tenant rights on many legal aid websites. The Nolo website includes many useful articles and books on tenant rights, from breaking a lease to mold in rentals, as well as small claims court (should your dispute involve a security deposit).
Some issues, however, are not easily resolved and can seriously threaten your enjoyment of your rental — or worse, your ability to stay in the rental at all. In these situations, getting a lawyer’s help may be the most effective, albeit costly, way to protect your rights.

Below is a guide to determining whether you need a tenant lawyer or not. If you find yourself in one of the following situations, consider hiring a lawyer.

Your Landlord is Evicting You
If your landlord serves you with a termination notice that you intend to fight, hiring a lawyer can increase your chance of success. Choose a lawyer that is knowledgeable about landlord-tenant law and has significant experience fighting evictions. Such a lawyer can come up with effective strategies or creative solutions that you might not be aware of — for example, the lawyer could argue that your landlord’s eviction was retaliatory (and therefore illegal) if the circumstances support such a defense. Get a free legal advice online

Your Landlord is Evicting You Without Proper Court Procedures
Landlords must follow eviction procedures set forth by state and local law. If your landlord tries to evict you by taking matters into his own hands — for example, by locking you out, canceling your utilities, or even removing your doors, windows, or possessions — consider hiring a lawyer. These types of “self-help” remedies are illegal. No matter how strong a landlord’s case may be for ending a tenancy, a landlord doesn’t have the right to take, or even threaten, any self-help actions against you.

Your Landlord Discriminates Against You
If you believe your landlord is discriminating against you, you may need a lawyer to stop the illegal actions and help you recover damages for any harm you suffered. One option is to hire a lawyer to sue the landlord in court.

Another option is to file a complaint with the Department of Housing and Urban Development (HUD), or a state or local agency in HUD’s Fair Housing Assistance Program (FHAP).

HUD and state and local agencies in FHAP receive over 10,000 discrimination complaints a year. If HUD investigates your complaint and determines there’s reasonable cause to believe your landlord has been discriminating, you’ll get the benefit of having a HUD lawyer representing you in front of an administrative law judge at no cost. The judge can award you compensation and attorneys’ fees, impose penalties against your landlord, and order other relief.

Your Landlord Won’t Make Necessary Repairs
If your landlord isn’t fulfilling important obligations under your lease and the law, it can lead to major problems. For example, think of the landlord who keeps putting off needed heating system repairs until winter is well under way, or the landlord who ignores a ground-floor tenant’s requests to replace a broken window until a burglary occurs.

In these cases, you may decide to implement one of your state’s tenant remedies on your own (such as rent withholding or “repair and deduct”), but you may need some coaching on how to do it right. Consulting a lawyer may be your best move. In addition, a lawyer can attempt to communicate with the landlord for you, explore the possibility of a quick settlement, and take the landlord to court, if needed.

Your Landlord Isn’t Fulfilling His Promises
Sometimes, landlords make promises to encourage hesitant applicants to rent from them. For example, if an applicant is concerned about the neighborhood crime rate, a landlord might promise to install a more effective intercom system or an electronic, gated parking lot. If the landlord later refuses to honor the promise, you may need to hire a lawyer to write a stern letter to your landlord, threatening a lawsuit unless the landlord follows through.

You’ve Been Injured or Made Ill
Accidents can happen, even at a well-run rental property. However, if an accident is the result of the landlord’s carelessness, you may have a legal case against your landlord. For example, you might break your leg after slipping on an icy patch on the front steps of your building. (Perhaps the landlord should have arranged for regular de-icing, which would have removed the danger.) Or, you may discover an outbreak of mold in your rental — only after it has made you and your family very ill.

In this case you’ll want a personal injury lawyer with experience in premises liability.

Even if your landlord didn’t personally or intentionally create the problem, there are many legal theories available to convince a court or insurance adjustor that the landlord should be held responsible. Lawyers are skilled at identifying which theories may apply and crafting arguments using them.

Your Property Has Been Damaged
Sometimes, a landlord’s failure to maintain the rental property causes damage to your personal property. For example, a landlord’s faulty wiring repair job could spark an electrical fire in your living room, damaging your furniture and other belongings.

If you have renter’s insurance, your insurance company will cover the loss and its lawyers will then seek reimbursement from your landlord. If you don’t have insurance or have inadequate coverage and the damage to your property is substantial, consider hiring a lawyer to help you obtain reimbursement from your landlord. In the alternative, you could consult with a lawyer for an hour or two to get advice on how to proceed and what arguments to make to get reimbursed.

How to Get a Lawyer’s Help
If you are in need of a lawyer, choose one with expertise in landlord-tenant matters. For help in getting a lawyer, read the article “How to Find an Excellent Lawyer” or go straight to Nolo’s Lawyer Directory.

Hiring a lawyer as “coach.” Hiring a lawyer doesn’t have to break the bank. Depending on your needs, your budget, and your confidence in your ability to handle a matter on your own, you might find a lawyer who will agree to meet with you for an hour here and there as a coach. Even limited legal help can make the difference and prove to be all you need to steer your way toward a favorable outcome.

Check for an attorney’s fees clause in your rental agreement. Many landlords include an “attorney’s fees” clause in their lease or rental agreement to prevent frivolous lawsuits. If your lease or rental agreement includes this clause, you may be entitled to get reimbursed for your reasonable attorney’s fees and court costs if you win a lawsuit against your landlord. (Even if your clause appears to provide recovery only to a victorious landlord, courts in many states will rule the clause works both ways.)

As a practical matter, if you have an attorney’s fees clause in your lease or rental agreement, you will have an easier time finding a lawyer to represent you. Since the landlord pays the lawyer’s bill if you win, a lawyer needn’t worry as much about getting paid by you. Be aware that the clause applies only to disputes arising out of the lease or rental agreement (such as evictions, rents, and security deposit issues) — not to disputes involving personal injury, discrimination, or other such matters.

California AB 22 — (Most) Employers Cannot Review Your Credit Report

By | January 3, 2012 | Legislation | No comments

Pursuant to California AB 22 (read it here) most employers will not be permitted to review your credit report starting Janaury 1, 2012 (subject to several exceptions):

“This bill would prohibit an employer or prospective employer, with the exception of certain financial institutions, from obtaining a consumer credit report, as defined, for employment purposes unless the position of the person for whom the report is sought is (1) a position in the state Department of Justice, (2) a managerial position, as defined, (3) that of a sworn peace officer or other law enforcement position, (4) a position for which the information contained in the report is required by law to be disclosed or obtained, (5) a position that involves regular access to specified personal information for any purpose other than the routine solicitation and processing of credit card applications in a retail establishment, (6) a position in which the person is or would be a named signatory on the employer’s bank or credit card account, or authorized to transfer money or enter into financial contracts on the employer’s behalf, (7) a position that involves access to confidential or proprietary information, as specified, or (8) a position that involves regular access to $10,000 or more of cash, as specified.

This bill would also require the written notice informing the person for whom a consumer credit report is sought for employment purposes to also inform the person of the specific reason for obtaining the report, as specified.”

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