They're Foreclosing While Reviewing Your Mod—That's Illegal
California's Homeowner Bill of Rights bans "dual tracking"—advancing foreclosure while your modification is pending. If they recorded a Notice of Sale or scheduled a sale date while your complete application was under review, they violated the law.
CC § 2923.6
Dual Track Ban
$50K+
Statutory Damages
Injunction
Stop the Sale
Attorney fees
If You Win
What is Dual Tracking?
Dual tracking occurs when a servicer simultaneously processes your loss mitigation application (modification, forbearance, etc.) while also advancing the foreclosure process. Under CC § 2923.6, this is prohibited.
What's Banned
Recording Notice of Sale while complete application is pending
Conducting trustee sale while complete application is pending
Proceeding after approval if you're meeting trial period terms
Sale before appeal period expires after any denial
Key Requirement: "Complete" Application
The dual tracking prohibition only kicks in when your application is COMPLETE. Servicers exploit this by declaring applications incomplete repeatedly. Get written acknowledgment of completeness.
Evidence of Dual Tracking
To prove dual tracking, document:
Date your complete application was submitted - Fax confirmations, certified mail receipts, portal screenshots
Date servicer acknowledged completeness - Letters, call logs, or their silence past the acknowledgment deadline
Date of foreclosure action - When Notice of Sale was recorded or sale was scheduled
Overlap period - Show that foreclosure action occurred while application was pending
Timeline Example
March 1: You submit complete modification application
March 5: Servicer acknowledges receipt
March 15: Notice of Trustee's Sale recorded ← VIOLATION
April 10: Servicer denies modification
In this example, the Notice of Sale on March 15 violated CC § 2923.6 because your complete application was still under review.
Sample Dual Tracking Demand Letter
[Your Name]
[Your Address]
[City, State ZIP]
[Date]
Via Certified Mail, Return Receipt Requested
[Servicer Name]
[Servicer Address]
[City, State ZIP]
Re: Demand to Cure Dual Tracking Violation Under CC § 2923.6
Loan Number: [LOAN NUMBER]
Property: [PROPERTY ADDRESS]
Dear Sir or Madam:
I am writing to demand that you immediately cure your violation of California Civil Code § 2923.6, which prohibits dual tracking.
TIMELINE OF VIOLATION:
1. On [DATE], I submitted a complete loss mitigation application.
2. On [DATE], you acknowledged receipt of my complete application. [OR: You failed to request any additional documents within the required timeframe, meaning my application was complete.]
3. Despite my pending complete application, on [DATE], you [recorded a Notice of Trustee's Sale / scheduled a trustee sale for DATE / etc.].
This action violated CC § 2923.6(c), which states: "If a borrower submits a complete application for a first lien loan modification... a mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent shall not record a notice of default or notice of sale, or conduct a trustee's sale, while the complete first lien loan modification application is pending."
DEMANDS:
1. Immediately RESCIND the Notice of Trustee's Sale recorded on [DATE].
2. POSTPONE any scheduled sale indefinitely pending resolution of my loss mitigation application.
3. Complete evaluation of my modification application within 30 days per RESPA.
4. Confirm in writing that foreclosure proceedings are suspended.
CONSEQUENCES OF NON-COMPLIANCE:
Under CC § 2924.12, a borrower may bring an action for injunctive relief and damages. If material violation resulted in foreclosure, I may recover the greater of treble actual damages or $50,000 statutory damages, plus attorney's fees.
I expect written confirmation of compliance within 5 business days. Failure to respond will result in an emergency motion for a temporary restraining order and a complaint to the California DFPI.
Sincerely,
[Your Signature]
[Your Printed Name]
cc: California DFPI
[Attorney, if applicable]
Actual damages - Loss of home equity, moving costs, emotional distress
Statutory damages - Greater of treble actual damages OR $50,000
Attorney's fees - Paid by servicer
FAQ
This is their primary defense. Counter it by showing:
They never requested missing documents in writing
They acknowledged completeness (written or by their silence)
They evaluated and denied the application (can't claim incomplete AND deny)
If they requested documents and you provided them, keep all fax confirmations and receipts.
Possibly. You'd need an emergency TRO (temporary restraining order). This requires:
Filing an ex parte motion with the court
Showing irreparable harm (loss of home qualifies)
Showing likelihood of success on HBOR claims
This is extremely time-sensitive. Contact an attorney immediately or file pro se if necessary. See my TRO Guide.
Yes. Under 12 CFR 1024.41, servicers cannot proceed to foreclosure sale if a complete application is pending more than 37 days before the sale. RESPA provides additional federal claims alongside HBOR.
I handle dual tracking claims from demand letters through TRO filings. If they're foreclosing while your application is pending, I can help you stop the sale and hold them accountable.