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Calif. App. Court (2nd Dist) Confirms No Implied Right to HBOR Injunctive Relief

The Court of Appeal of the State of California, Second District, recently affirmed the denial of injunctive relief to a borrower who claimed a violation of Cal. Civ. Code § 2924(a)(6) of the California Homeowner Bill of Rights, holding that injunctive relief is only available under two specific HBOR provisions where the state legislature explicitly authorized such relief – i.e., Cal. Civ. Code §§ 2924.12(a)(1) and 2924.19(a)(1).

Because the borrower’s allegations did not fall under either of those sections, the Court held that the borrower was not entitled to injunctive relief.

A copy of the opinion in Lucioni v. Bank of America, N.A. is available at: Link to Opinion.

Following the commencement of a nonjudicial foreclosure against a borrower, the borrower filed suit seeking an injunction to prevent the foreclosure.

The borrower alleged that the deed of trust was assigned and transferred in a manner that rendered such assignments void due to what the borrower alleged were “numerous breaks and misrepresentations in the chain of title.” For instance, the borrower asserted that his loan was allegedly transferred from a second mortgagee to a third mortgagee on March 23, 2011, yet the original mortgagee’s beneficiary recorded an assignment four months later, purporting to transfer the loan to the second mortgagee.

On April 19, 2014, the third mortgagee recorded and filed a Substitution of Trustee, and the newly substituted trustee immediately filed a Notice of Default on the loan.

The borrower asserted, among other things, that the mortgagees lacked standing to foreclose because they were not properly assigned an interest in the deed of trust, citing Cal. Civil Code § 2924(a)(6), and for breach of contract due to the mortgagees’ alleged failure to enter into a permanent loan modification after the borrower successfully made three trial loan modification payments.

The trial court sustained the mortgagees’ demurrers (motions to dismiss), dismissed the borrower’s suit, and entered a judgment of dismissal without leave to amend. The instant appeal followed.

As you may recall, Cal. Civil Code § 2924(a)(6) provides that only the holder of the beneficial interest under a mortgage or deed of trust may foreclose. In the HBOR, the California Legislature authorized a private right of action to enjoin a nonjudicial trustee’s sale where a lender violates any one of nine statutory provisions.

Under Cal. Civil Code § 2924.12(a)(1), a borrower may bring an action for injunctive relief due to a material violation of Cal. Civil Code §§ 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, or 2924.17. Under Section 2924.19(a)(1), a borrower may bring an action for injunctive relief due to a material violation of Sections 2923.5 or 2924.18.

The Appellate Court began its analysis by noting that while the HBOR did not apply retroactively, the HBOR’s provisions were applicable to the subject action, because the April 9, 2014 Notice of Default was recorded after the Jan. 1, 2013 effective date of the HBOR.

The Court then pointed out that while the HBOR is applicable to this case, Section 2924(a)(6) — the statutory provision specifically cited by the borrower — is not one of the nine sections that explicitly provides for injunctive relief.

Because the Legislature chose to provide for injunctive relief for some HBOR violations, but not for others, the Court found that such relief is not impliedly available for an alleged violation of Section 2924(a)(6).

The Appellate Court then reviewed the legislative history of the HBOR, finding that the HBOR’s enforcement mechanisms were drafted to avoid “frivolous claims” and attempts to “merely delay legitimate foreclosure proceedings.” Significantly, the Conference Committee Reports stated that while damages are available post-foreclosure, prior to a foreclosure sale the only remedy that a borrower may seek is an action to enjoin a violation of the specified sections, along with any trustee’s sale. The Court thus found a clear indication that the Legislature intended to preclude borrowers from seeking to enjoin a foreclosure sale for reasons other than those expressly authorized.

The Court then addressed the apparent tension with the California Supreme Court’s recent holding in Yvanova v. New Century Mortgage Corp., 62 Cal. 4th 919 (Cal. 2016). In Yvanova, the California Supreme Court recognized a cause of action for wrongful foreclosure under a similar set of facts. In Yvanova, the California Supreme Court held that after a foreclosure, a borrower may potentially “base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void.” See Yvanova at 923.

Here, the Court distinguished Yvanova on two grounds. First, the instant appeal was not a wrongful foreclosure but an action brought preemptively to enjoin a foreclosure, which Yvanova did not address. Second, Yvanova involved a foreclosure that preceded the effective date of the HBOR and thus did not address the effect of that legislation. The Court noted that the borrower may have a post-foreclosure cause of action for damages under Yvanova; the Legislature appears to have simply made a policy decision as to pre-foreclosure injunctive relief, where foreclosure delays may occur due to litigation, even where the lenders are ultimately vindicated.

Next, the Court rejected the borrower’s argument that he should have been given leave to amend his complaint to allege violations of Cal. Civil Code § 2923.17, as the declarations required by that section were all properly filed below. The Court noted that nothing precludes the borrower from challenging the substance of those declarations in a post-foreclosure suit, which the Court held is the borrower’s exclusive remedy for the alleged violations under the HBOR’s statutory scheme.

Finally, the Court rejected the borrower’s breach of contract claim, finding the claim barred under the two-year statute of limitations for breach of an oral contract. (Cal. Code Civ. Proc., § 339). Accepting the borrower’s allegations as true, the latest date the breach of contract suit could have accrued was March 23, 2011; however, the original complaint was not filed below until Aug. 13, 2014, more than three years after the alleged breach.

Thus, the Appellate Court held that the plain language and legislative history of the HBOR does not authorize a court to enjoin a violation of Section 2924(a)(6), and therefore no injunctive relief is available for a violation of that section.

Moreover, the Court held that the borrower failed to show a reasonable possibility of amending his complaint to plead any of the authorized grounds for injunctive relief under the HBOR.

Accordingly, the trial court’s judgment of dismissal was affirmed on all counts.

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Foreclosure picture continues to improve in Colorado Springs

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Colorado Springs’ foreclosure rate continues to fall.

The percentage of Springs-are loans that were in some stage of foreclosure dipped to 0.42 percent in July, down from a rate of 0.63 percent a year earlier, according to a report Wednesday by CoreLogic, a California-based housing data firm that tracks foreclosure data from around the country.

Not only has the Springs’ foreclosure rate fallen from last year, but, perhaps more importantly, it’s down significantly from the years just after the recession. In July 2011, the local percentage of loans in some stage of foreclosure was more than three times higher at 1.55 percent, CoreLogic reports show.

Meanwhile, the percentage of local mortgage holders who were delinquent on loan payments by at least 90 days dropped to 1.51 percent in July, down from 2.02 percent a year earlier and down from 4.07 percent in July 2011, according to CoreLogic.

By comparison, Colorado Springs continued to fare better than the rest of the nation, but was worse off than other areas of Colorado.

The nation’s foreclosure rate was 0.93 percent in July, while the percentage of mortgage holders who were more than 90 days late on loans was 2.82 percent. Statewide, July’s foreclosure rate was 0.28 percent and the delinquency rate was 1.08 percent.

Like other cities, Colorado Springs’ hot single-family housing market has led to a better foreclosure picture.

Historically low mortgage rates and a stronger economy have helped stoke the demand for homes, and property values have risen as a result, local real estate agents have said.

Financially troubled homeowners who otherwise would have fallen into foreclosure now have a better chance to sell their homes or refinance mortgages because of the improved housing market.


Contact Rich Laden: 636-0228

Twitter: @richladen

Facebook: Rich Laden

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Ohio restarts foreclosure assistance program – Cincinnati Enquirer

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Ohio law aims to reduce ‘zombie,’ blighted properties

COLUMBUS – A new Ohio law is being viewed as a national model for eliminating zombies. Zombie properties, that is.

The measure taking effect Wednesday speeds up the process for foreclosing on vacant and abandoned properties — homes and other structures given their nickname for being left to languish like the living dead.

Legislation signed by Republican Gov. John Kasich in June was three years in the making. It establishes a fast-track system that trims Ohio’s foreclosure process from two years or more to as little as six months.

Backers say the law protects property-owner rights by requiring at least three of 11 listed factors to be present before foreclosure can begin. Factors include disconnected utilities, boarded-up or broken windows, unlocked doors, accumulated trash, vandalism and a lack of furnishings.

Bill sponsor and state Rep. Jonathan Dever, R-Madeira, said in May that the bill “will help alleviate the strain that vacant and abandoned properties put on our local governments, schools, and communities.”

“By modernizing Ohio’s foreclosure process, we are providing additional protections for homeowners, lifting our communities up, and ensuring a transparent process for all involved in a foreclosure lawsuit,” he said.

Foreclosure rates are continuing to fall from the days of the housing collapse and Great Recession between 2007 and 2009.

The foreclosure rate among outstanding mortgage loans in Greater Cincinnati was 1.03 percent in July, down 28 basis points from a year ago, according to real estate analytics firm CoreLogic. However, the share of loans in the foreclosure process here was higher than the national average of 0.93 percent in July.

Also in Greater Cincinnati, 3.08 percent of mortgage loans were 90 days or more delinquent in July compared to 3.74 percent in the same period last year.

The Enquirer contributed to this report.

Copyright 2016 The Associated Press. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

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When a Municipality Makes a Mistake

Anthony S. Guardino
Anthony S. Guardino

Local government officials are no different from the rest of us—they can, and they do, make mistakes. Generally speaking, however, a municipality does not have to suffer the consequences of its errors.

That is because New York law is well settled that estoppel typically cannot be invoked against a municipality to preclude it from enforcing its zoning laws, to ratify administrative errors, or to prevent it from discharging its statutory duties.1 Of course, in those rare instances where a municipality has engaged in “fraud, misrepresentation, deception, or similar affirmative misconduct” upon which there was “reasonable reliance,”2 an estoppel defense may lie.

Over the years, these general principles have been applied by courts to a broad range of local government actions.

The Paradigm

In McGannon v. Board of Trustees for Village of Pomona,3 a building inspector for the village of Pomona erroneously issued a property owner a building permit to construct an accessory building on his residential lot that exceeded the size permitted by the village’s zoning code and that was for a purpose not permitted by the code. After the owner commenced construction, a stop-work order was issued, and the owner went to court.

The Appellate Division, Second Department, affirmed a decision by the Supreme Court, Rockland County, in favor of the village. The appellate court rejected the property owner’s contention that the village was estopped from enforcing its zoning code. It explained that estoppel generally may not be invoked against a municipality to prevent it from discharging its statutory duties or for the purpose of preventing the municipality from rectifying an administrative error. Here, the Second Department added, the issuance of the permit did “not confer rights in contravention of zoning laws.”

Moreover, the appellate court said, had the property owner exercised reasonable diligence and reviewed the code, it would have been clear that his contemplated commercial use was illegal and that the size of the structure required a special permit that he had not sought.

Estoppel Rejected

Other local government actions also have been challenged on the ground of estoppel. In Matter of County of Orange v. Al Turi Landfill,4 a landowner contended that a county should be estopped from bringing a supplementary proceeding to collect taxes after having withdrawn a landfill from a foreclosure proceeding on the ground that the property’s withdrawal from the foreclosure proceeding was tantamount to an admission that it had little or no value. The Second Department observed that the county had withdrawn the property to avoid potential liability, which could “hardly be characterized as misconduct,” and that, in any event, the landowner had failed to show any detrimental reliance or injury caused by the county’s action.

In Lily Pond Enterprises v. City of New York,5 a city employee mistakenly indicated that a property owner had paid all past due taxes and that its property would not be sold in an in rem tax foreclosure action. The city scheduled a foreclosure and the property owner, claiming that it spent more than $16,900 to improve the property in reliance on the city employee’s statements, went to court to block it. The Supreme Court, Richmond County, granted the city’s motion for summary judgment dismissing the complaint on the ground that the property owner’s action was untimely.

The property owner contended that the city should be estopped from relying on the statute of limitations, but the Second Department affirmed. It explained that where a municipal error had been made, estoppel could not be invoked where “reasonable diligence” would have disclosed the true state of affairs to a “good-faith inquirer.” The property owner, the appellate court concluded, could “not sit idly by” and then argue that the city was estopped to enforce the statute of limitations.6


As noted above, estoppel may be applied where government fraud, misrepresentation, deception, or similar affirmative misconduct is involved. That is a difficult standard to meet.

In Matter of Oakwood Property Management v. Town of Brunswick,7 a landscaping business obtained site plan approval from the planning board of the town of Brunswick, in Rensselaer County, to operate its business on a five-acre parcel of land zoned for industrial use. Shortly thereafter, the company purchased an adjoining 43-acre parcel that fell within a “schools and cemeteries” zone as depicted on the town’s zoning map and it subsequently acquired an abutting 26-acre parcel zoned for agricultural use. As it acquired each parcel, the company expanded its operations and, as its business grew, neighboring property owners began to complain.

The town’s code enforcement officer issued a notice of violation alleging that the company was conducting operations on the 43- and 26-acre parcels without the required approvals and, further, that it had exceeded the bounds of the site plan approval with respect to the original five-acre parcel. The code enforcement officer also issued another notice alleging various violations of the town’s zoning ordinance.

The zoning board of appeals sustained the notices of violation, and the company went to court. It argued that the town not only had been well aware that it had expanded its operations to the 43- and 26-acre parcels but that it had actively encouraged it to do so.

Among other things, the company contended that the town supervisor had encouraged one of the company’s representatives to purchase the 43-acre parcel for use in the company’s existing operations and that the town had issued fill permits, a building permit, and a certificate of occupancy for a structure built on the five-acre parcel. The company also cited town resolutions supporting the inclusion of two of the parcels in a New York State Empire Zone and various inspections of the company’s properties by town officials.

This alleged conduct did not rise to the level required to estop the town from issuing the notices, the Second Department decided.


There can be significant consequences to an individual or company that fails to persuade a court that a local government should be estopped from asserting a violation of its land use laws, as illustrated in the seminal case in New York on equitable estoppel, Matter of Parkview Assoc. v. City of New York,8 where the court of Appeals upheld an order requiring a developer to remove floors of a mistakenly-permitted building.

As the court explained, the New York City Department of Buildings erroneously approved a building application for a building on the southeast corner of Park Avenue and 96th Street in Manhattan even though the application did not meet the city’s zoning requirements, and a building permit was issued. After substantial construction, the Department of Buildings issued a stop work order for those portions of the building over 19 stories within 150 feet of Park Avenue. Then, the commissioner of buildings partially revoked the building permit, consistent with the stop work order, on the grounds that the permit, to the extent it authorized a height of 31 stories from 100-feet back instead of 150-feet back, was invalid when issued.

The developer challenged the revocation, but the court ruled in favor of the city. It declared that the commissioner could revoke a permit that had been “issued in error” where the permit “should not have been issued.” Estoppel was not available to preclude a municipality from enforcing the provisions of its zoning laws and the “mistaken or erroneous issuance of a permit” did not estop a municipality from correcting errors, even where there were “harsh results,” the court stated. Simply put, it ruled, the city “should not be estopped here from revoking that portion of the building permit which violated the long-standing zoning limits.”

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Hillsboro Beach property to be auctioned Oct. 6

Waterfront land in Hillsboro Beach will be auctioned Oct. 6 as part of a bankruptcy case involving companies tied to custom homebuilder John B. Kennelly.

U.S. Bankruptcy Judge Erik P. Kimball approved the auction of an 11-acre parcel at 1174-1185 Hillsboro Mile. If that property is sold for an amount that satisfies creditors, a separate auction for two adjacent lots will be canceled, said Bradley Shraiberg, a Boca Raton lawyer for the companies.

Creditors in the case are owed more than $44 million, Shraiberg said.

Seven companies filed for Chapter 11 bankruptcy protection in 2015 to avoid foreclosure. They later were consolidated into one entity.

Whats happened to the Chinese space lab?

Caption What’s happened to the Chinese space lab?

Rumors started this summer that China had lost control of its first space lab, which would hurtle to Earth in a fiery ball.

Rumors started this summer that China had lost control of its first space lab, which would hurtle to Earth in a fiery ball.

The healthcare industry by the numbers

Caption The healthcare industry by the numbers

How the increasing price of medicine is affecting the healthcare industry

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Target removes kids' shopping carts after kids went wild with them

Caption Target removes kids’ shopping carts after kids went wild with them

Target has removed its kid-size carts from store after parents complained. An expanded pilot program that brought kids’ shopping carts to dozens of Target stores didn’t last very long. The Minneapolis-based retailer pulled the plug on the test earlier this week, just a few weeks into it, after…

Target has removed its kid-size carts from store after parents complained. An expanded pilot program that brought kids’ shopping carts to dozens of Target stores didn’t last very long. The Minneapolis-based retailer pulled the plug on the test earlier this week, just a few weeks into it, after…

Yahoos big data breach

Caption Yahoo’s big data breach

Yahoo Inc. announced Thursday that personal information in at least 500 million accounts was stolen in a massive security breakdown in 2014.

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In May, Palm Beach County building officials gave Kennelly two more years to finish 11 homes that were deemed structurally unsafe. In July, Kennelly said he understood residents’ frustration but added that they could expect to see major improvements over the next 12 to 18 months.

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Save the Dream Ohio helps homeowners avoid foreclosure … – Sentinel

Posted: Tuesday, September 27, 2016 9:14 am

Save the Dream Ohio helps homeowners avoid foreclosure

By Sentinel-Tribune Staff


COLUMBUS — The Ohio Housing Finance Agency has begun accepting applications from homeowners who have suffered a hardship resulting from unemployment for its Save the Dream Ohio program. The program is administered by OHFA and funded by the U.S. Department of the Treasury’s Hardest Hit Fund.

Save the Dream Ohio works with approved housing counseling agencies to help homeowners avoid foreclosure by reinstating the homeowner’s mortgage and providing up to nine months of ongoing mortgage payments. The amount of assistance can be up to $35,000.

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Tuesday, September 27, 2016 9:14 am.

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Mortgage-servicer faces allegations of foreclosure fraud


A Shelby County Circuit Court lawsuit and government records revealed a pattern of fraud allegations against mortgage-servicing company Nationstar Mortgage.

The WMC Action News 5 Investigators launched an investigation of the Dallas-based mortgage-servicer after it foreclosed on the Cordova, Tennessee, home of Linda Howard. Howard and her husband had owned the home since 1998. Her attorney Kevin Snider produced records that proved Howard never missed a payment since Nationstar Mortgage started servicing her mortgage in 2011.

Also according to the records, Nationstar Mortgage suddenly started refusing her monthly payments in February of this year. From February to May, the company sent her payments back with statements posting thousands of dollars in unexplained fees like “property inspections” and “disbursement insurance.”

“I wrote them. I called them. And I got no response,” Howard said. 

Snider said Nationstar Mortgage kept returning Howard’s payments and kept ignoring her requests for explanation of the fees until it foreclosed on her house in May, then sold it at auction. “Nationstar improperly foreclosed on the property,” Snider said. 

Snider filed a lawsuit on Howard’s behalf in Shelby County Circuit Court. The suit alleges Nationstar Mortgage committed negligence, fraud, breach of contract, breach of the implied consent of good faith and fair dealing, violations of the Tennessee Consumer Protection Act and unjust enrichment based on “…improper, inaccurate and fraudulent representations” of “…improper or excessive late fees” designed to force the Howards into foreclosure “…so that (Nationstar Mortgage) could acquire the property with its large equity at a bargain basement price.”

“I don’t understand it. I never missed a payment,” Howard said. “I don’t have a house anymore.”

“The Howards made their payment every month. How are these payments being applied? What are the extra charges for?” asked Snider. “They have never been given an explanation. This is a way to garner, if you will, extra fees, extra charges, extra expenses to essentially force them into foreclosure so that Nationstar Mortgage can sell their home.”

According to the federal Consumer Financial Protection Bureau, Nationstar Mortgage has registered 14,013 mortgage servicing-related complaints, the fifth most behind Bank of America, Wells Fargo, Ocwen and JPMorgan Chase. Spokesperson Sam Gilford said the bureau neither comments on nor confirms federal investigations of mortgage-servicing companies.

Tennessee Department of Commerce Insurance spokesperson Kevin Walters says the agency has logged 24 mortgage-servicing complaints against Nationstar Mortgage since 2014. Narratives from the complaints include the following allegations:

“…consumer claims (Nationstar Mortgage) will not give an explanation of refused payment, nor do they show the money they are holding in suspension…”

“…consumer claims (Nationstar Mortgage) used deceptive tactics to steer consumer into foreclosure…”

“…consumer claims (Nationstar Mortgage) never released the lien when consumer purchased the home four years ago and said it would respond within 6 days (and did not respond)”

Kevin Solodar of Dallas, Texas, unsuccessfully filed a petition on in an attempt to encourage the Federal Trade Commission to “investigate Nationstar Mortgage for abusive servicing practices.” He produced financial documents that indicated Nationstar Mortgage may have misapplied his mortgage escrow refund to his mortgage interest during a bankruptcy. “They are a foreclosure mill,” Solodar said. “They buy risky mortgages —  people who are unemployed, people who are in bankruptcy — and do what they can to get the house and sell it.”

Kelly Ann Doherty, senior vice president of corporate communications for Nationstar Mortgage, issued this statement:

“We work hard to impress our customers through caring service. We are not perfect, but we have made tremendous progress on our journey to deliver radical service for our nearly 2.5 million customers. For example, customer complaints are down over 50% over the last two years, our current Better Business Bureau rating is an A+ and we have earned Fannie Mae’s highest servicing rating for the second year in a row. We also have a legacy of assisting homeowners in the midst of the financial crisis. Since 2010, we have helped more than 600,000 customers stay in their homes through workout solutions. While it is our policy not to comment on pending litigation, I can share that integrity is core to our business and essential to every service we perform. When we collect a payment on behalf of the owner of the loan, our team follows a comprehensive compliance and risk management system, which includes adhering to state and federal regulations.”

In 2014, Nationstar Mortgage settled a New York lawsuit, alleging the company illegally sold mortgage loans without notifying investors.The settlement’s terms were kept secret.

Howard and her husband must vacate their home by September 30. She said she realizes there’s no way to get her home of 18 years back, but she wants Nationstar Mortgage held accountable. “I’m not going to sit back and watch them do this because there’s other people out there who are probably going through the same thing,” she said.

Complaints concerning Nationstar Mortgage can be forwarded to Andy Wise at They should also be filed with your state consumer affairs office:

* Tennessee Department of Commerce Insurance

* Mississippi Attorney General’s Consumer Protection Division

* Arkansas Attorney General’s Consumer Protection Division

Copyright 2016 WMC Action News 5. All rights reserved.

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North Carolina Court of Appeals: Absent Notice to the Federal Government, Foreclosure for Unpaid Local Taxes Won’t …

Mike represents myriad clients – from Fortune 500® companies to smaller, privately-owned organizations – in cross sections of business throughout the many stages of federal and state litigation.  From his years of practice in New York and North Carolina, Mike primarily has experience in the areas of land use, local/municipal government law and real estate litigation, having handled zoning, development agreement, land use planning, eminent domain and condemnation, construction, retail and commercial landlord-tenant, partnership dissolution, state law torts, and civil fraud matters, to list…

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New Law Speeds Up Foreclosure Process

A new Ohio law is being viewed as a national model for eliminating vacant nuisance properties.

The law taking effect Wednesday speeds up the process for foreclosing on vacant and abandoned properties, which dot several neighborhoods in Columbus and the state’s other metro areas.

The bill signed by Governor John Kasich over the summer was at least three years in the making, and could cut foreclosure proceedings from two years to as little as six months. It’s based on a series of issues typically seen in abandoned homes, like disconnected utilities and boarded-up windows.

The new law says three of those factors have to be present before a foreclosure can start.


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