J
JAHMAL1
Guest
Does anyone have any knowledge of precedent or case history regarding California Civil Code 1695.13 - Taking Uncousciounable advantage of property owner while under the duress of imminate foreclosure sale?
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J
JAHMAL1
Guest
rescinding equity sale
CALIFORNIA CODES
CIVIL CODE
SECTION 1695-1695.17
d) The intent and purposes of this chapter are the following:
(1) To provide each homeowner with information necessary to make
an informed and intelligent decision regarding the sale of his or her
home to an equity purchaser; to require that the sales agreement be
expressed in writing; to safeguard the public against deceit and
financial hardship; to insure, foster, and encourage fair dealing in
the sale and purchase of homes in foreclosure; to prohibit
representations that tend to mislead; to prohibit or restrict unfair
contract terms; to afford homeowners a reasonable and meaningful
opportunity to rescind sales to equity purchasers; and to preserve
and protect home equities for the homeowners of this state.
(2) This chapter shall be liberally construed to effectuate this
intent and to achieve these purposes.
1695.13. It is unlawful for any person to initiate, enter into,
negotiate, or consummate any transaction involving residential real
property in foreclosure, as defined in Section 1695.1, if such
person, by the terms of such transaction, takes unconscionable
advantage of the property owner in foreclosure.
1695.14. (a) In any transaction involving residential real property
in foreclosure, as defined in Section 1695.1, which is in violation
of Section 1695.13 is voidable and the transaction may be rescinded
by the property owner within two years of the date of the recordation
of the conveyance of the residential real property in foreclosure.
(b) Such rescission shall be effected by giving written notice as
provided in Section 1691 to the equity purchaser and his successor in
interest, if the successor is not a bona fide purchaser or
encumbrancer for value as set forth in subdivision (c), and by
recording such notice with the county recorder of the county in which
the property is located, within two years of the date of the
recordation of the conveyance to the equity purchaser. The notice of
rescission shall contain the names of the property owner and the
name of the equity purchaser in addition to any successor in interest
holding record title to the real property and shall particularly
describe such real property. The equity purchaser and his successor
in interest if the successor is not a bona fide purchaser or
encumbrancer for value as set forth in subdivision (c), shall have 20
days after the delivery of the notice in which to reconvey title to
the property free and clear of encumbrances created subsequent to the
rescinded transaction. Upon failure to reconvey title within such
time, the rescinding party may bring an action to enforce the
rescission and for cancellation of the deed.
(c) The provisions of this section shall not affect the interest
of a bona fide purchaser or encumbrancer for value if such purchase
or encumbrance occurred prior to the recordation of the notice of
rescission pursuant to subdivision (b). Knowledge that the property
was residential real property in foreclosure shall not impair the
status of such persons or entities as bona fide purchasers or
encumbrancers for value. This subdivision shall not be deemed to
abrogate any duty of inquiry which exists as to rights or interests
of persons in possession of the residential real property in
foreclosure.
(d) In any action brought to enforce a rescission pursuant to this
section, the prevailing party shall be entitled to costs and
reasonable attorneys fees.
(e) The remedies provided by this section shall be in addition to
any other remedies provided by law.
http://www.leginfo.ca.gov/calaw/html
select "civil code"
search for "1695"
CALIFORNIA CODES
CIVIL CODE
SECTION 1695-1695.17
d) The intent and purposes of this chapter are the following:
(1) To provide each homeowner with information necessary to make
an informed and intelligent decision regarding the sale of his or her
home to an equity purchaser; to require that the sales agreement be
expressed in writing; to safeguard the public against deceit and
financial hardship; to insure, foster, and encourage fair dealing in
the sale and purchase of homes in foreclosure; to prohibit
representations that tend to mislead; to prohibit or restrict unfair
contract terms; to afford homeowners a reasonable and meaningful
opportunity to rescind sales to equity purchasers; and to preserve
and protect home equities for the homeowners of this state.
(2) This chapter shall be liberally construed to effectuate this
intent and to achieve these purposes.
1695.13. It is unlawful for any person to initiate, enter into,
negotiate, or consummate any transaction involving residential real
property in foreclosure, as defined in Section 1695.1, if such
person, by the terms of such transaction, takes unconscionable
advantage of the property owner in foreclosure.
1695.14. (a) In any transaction involving residential real property
in foreclosure, as defined in Section 1695.1, which is in violation
of Section 1695.13 is voidable and the transaction may be rescinded
by the property owner within two years of the date of the recordation
of the conveyance of the residential real property in foreclosure.
(b) Such rescission shall be effected by giving written notice as
provided in Section 1691 to the equity purchaser and his successor in
interest, if the successor is not a bona fide purchaser or
encumbrancer for value as set forth in subdivision (c), and by
recording such notice with the county recorder of the county in which
the property is located, within two years of the date of the
recordation of the conveyance to the equity purchaser. The notice of
rescission shall contain the names of the property owner and the
name of the equity purchaser in addition to any successor in interest
holding record title to the real property and shall particularly
describe such real property. The equity purchaser and his successor
in interest if the successor is not a bona fide purchaser or
encumbrancer for value as set forth in subdivision (c), shall have 20
days after the delivery of the notice in which to reconvey title to
the property free and clear of encumbrances created subsequent to the
rescinded transaction. Upon failure to reconvey title within such
time, the rescinding party may bring an action to enforce the
rescission and for cancellation of the deed.
(c) The provisions of this section shall not affect the interest
of a bona fide purchaser or encumbrancer for value if such purchase
or encumbrance occurred prior to the recordation of the notice of
rescission pursuant to subdivision (b). Knowledge that the property
was residential real property in foreclosure shall not impair the
status of such persons or entities as bona fide purchasers or
encumbrancers for value. This subdivision shall not be deemed to
abrogate any duty of inquiry which exists as to rights or interests
of persons in possession of the residential real property in
foreclosure.
(d) In any action brought to enforce a rescission pursuant to this
section, the prevailing party shall be entitled to costs and
reasonable attorneys fees.
(e) The remedies provided by this section shall be in addition to
any other remedies provided by law.
http://www.leginfo.ca.gov/calaw/html
select "civil code"
search for "1695"
J
JAHMAL1
Guest
Pre-Foreclosure Sale rescindsion
There has been in the past year or so a lot of new legal protections for distressed (financially & disabilities) home owners. (why? are they court tested?) I am working with a single mother tenant (lease w/ option to buy, 3 yr term + 2 yr ext exerciseable NOW) who is also engaged in a battle with Social Services to reunify with her estranged children after EX was convicted and jailed for molesting the daughter. While she was on R&R out of state, the home owner paniced over imminant foreclosure sale and erroneously thinking she had abandoned the lease "sold" the property to Real estate investor / loan shark who paid ~30K to re-instate the mortgage in the existing home owners name, obtained a conveyance for the property promising $15K to the owner upon vacating the premises, and a notarized Quit Claim from the owner. Foreclosure sale was forced by a fraud disputed in re-financing esrow closing which appears to be illegal of apprx 1 year ago.
Loan Shark is insisting on a 300 % cash return of $125K within 60 days for his 'invisible' investment, which broke off negotiations and started eviction proceedings.
Unlawful Detainer judgement was surprisingly ruled in favor of Loan Shark, as the validity of the conveyance and quit claim deed "must be challenged in a separate civil action and is not a defense" and the woman tenant was unable to attend the trial due a medical emergency.
To restore the woman's home stability the equity sale must be undone, but I have not found any such sale rescinding court action for precedent or strategy guidence
There has been in the past year or so a lot of new legal protections for distressed (financially & disabilities) home owners. (why? are they court tested?) I am working with a single mother tenant (lease w/ option to buy, 3 yr term + 2 yr ext exerciseable NOW) who is also engaged in a battle with Social Services to reunify with her estranged children after EX was convicted and jailed for molesting the daughter. While she was on R&R out of state, the home owner paniced over imminant foreclosure sale and erroneously thinking she had abandoned the lease "sold" the property to Real estate investor / loan shark who paid ~30K to re-instate the mortgage in the existing home owners name, obtained a conveyance for the property promising $15K to the owner upon vacating the premises, and a notarized Quit Claim from the owner. Foreclosure sale was forced by a fraud disputed in re-financing esrow closing which appears to be illegal of apprx 1 year ago.
Loan Shark is insisting on a 300 % cash return of $125K within 60 days for his 'invisible' investment, which broke off negotiations and started eviction proceedings.
Unlawful Detainer judgement was surprisingly ruled in favor of Loan Shark, as the validity of the conveyance and quit claim deed "must be challenged in a separate civil action and is not a defense" and the woman tenant was unable to attend the trial due a medical emergency.
To restore the woman's home stability the equity sale must be undone, but I have not found any such sale rescinding court action for precedent or strategy guidence