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AURORA LOAN SERVICE WINS BUT WILL ULTIMATELY LOSE: THE BREACH OF A LOAN MODIFICATION CONTRACT IS NOT A BASIS TO DECLARE A FORECLOSURE WRONGFUL

By R. Grace Rodriguez, Esq.

On behalf of a nameless client I filed a lawsuit against Aurora Loan.  The facts are as follows.  Client was offered a trial loan modification.  While the client was making the payments in the trial period, without any warning, Aurora sold the property in a foreclosure sale.  After the property was sold Aurora continued to accept two more payments from these poor clients.  Try as we might, Aurora would not rescind the sale.  So I filed suit.  Among the causes of action I included a claim for breach of the Trial Loan Modification Agreement.  I also alleged that this foreclosure was wrongful because it violated the terms of the Agreement. 

So the Judge was kind enough to explain to me why this is not a wrongful foreclosure.  I am paraphrasing but what she told me was this.  I have a valid claim for a breach of the loan modification agreement.  There is no doubt that my clients are entitled to damages as they conclusively breached the agreement.  However, there is no law which would make a foreclosure sale invalid because of a breach of the foreclosure contract.

So the judge sent me back to the drawing board to amend my complaint.  I suspect what she is trying to get me to do is to sue for specific performance under the modification contract and have them reverse the foreclosure sale.

But I did get one nice ruling out of the case.  The Judge said she would not require my clients to prove that they tendered the payment on the full foreclosure amount due to the fact that it would have been inequitable to require the borrowers to tender full payment when they were still in the trial period of the loan modification agreement.

Hope some of you are doing better than I am at trying to fight this battle.

Full post as published by The Law of Second Chances on May 05, 2010 (boomark / email).