Wrongful Reverse-Mortgage Foreclosure and Destroyed Family Belongings

Attorney Answer

If your mother was current on her taxes and insurance and was not actually in default, your family may have real and separate claims — for wrongful foreclosure, for the destruction of the belongings that were thrown out, and potentially for her wrongful death. Each is its own claim with its own proof requirements and its own filing deadline, so this needs a lawyer's review soon.

Before a lender can foreclose without going through court, California Civil Code § 2924 requires a notice of default to be recorded first, identifying the deed of trust and stating that a breach or default has occurred. If your mother was current and not in default, that foundation may not have been properly laid. In Sciarratta v. U.S. Bank National Ass'n, 247 Cal. App. 4th 552 (2016), the Court of Appeal held that a homeowner foreclosed upon by an entity with no right to do so suffers, by those facts alone, the prejudice needed to state a wrongful foreclosure claim — no separate showing that the wrongful act interfered with her ability to pay is required. The other side of that line matters too: Ram v. OneWest Bank, FSB, 234 Cal. App. 4th 1 (2015), sets out the elements of wrongful foreclosure and holds that where the defect is not substantial the sale is voidable rather than void, so a borrower in default must plead tender — an offer to pay what was actually owed — or an excuse from it. Ram was decided against the borrowers on exactly that point. How strong your family's claim is turns heavily on what went wrong and how serious the defect was.

The eviction is a related but separate issue, and it turns on the unlawful detainer statute rather than on Sciarratta. California Code of Civil Procedure § 1161a allows a buyer at a trustee's sale to recover possession only where the title acquired at the sale has been duly perfected — which is the hook that lets a defect in the underlying foreclosure be raised in response to the eviction that followed it. Sciarratta does not speak to eviction procedure; what it decides is the wrongful foreclosure claim itself, holding that being foreclosed upon by an entity with no right to do so is by itself the prejudice a homeowner must show.

The belongings that were discarded are a separate claim for conversion. California Civil Code § 3336 measures those damages by the value of the property at the time of conversion with interest, or, where justice requires, an amount sufficient to indemnify the loss, plus fair compensation for time and money spent trying to recover the property. What happened to your father's remains raises its own distinct concerns that an attorney should address separately rather than folding into the property claim.

Finally, California Code of Civil Procedure § 377.60 identifies who may bring a wrongful death action — a surviving spouse or domestic partner, children and the issue of deceased children, and other specified relatives — and allows a personal representative to bring it on their behalf. Your mother's own claims that arose before her death travel through a separate survival process handled by her estate. Whether her death can be legally connected to the eviction and the loss is a serious, fact-intensive medical and legal question that requires her records.

What you can do

1. Request your mother's complete loan servicing file and the recorded notice of default, to see whether the paperwork actually shows a default. 2. Preserve every piece of evidence of the destroyed property — photos, receipts, an itemized list, and anything documenting what happened to your father's remains. 3. Obtain her death certificate and relevant medical records now, before evidence and memories fade. 4. Consult a foreclosure and real estate attorney and, separately, a wrongful death attorney — these may need to be two specialists working together. 5. Move quickly. These are exactly the kinds of claims where waiting can cost you the ability to bring them at all.

A note on timing: wrongful foreclosure, conversion, and wrongful death claims each carry their own statute of limitations, and when each clock started running depends on facts specific to your case. Don't try to calculate a deadline yourself — get individualized review from a California attorney now.