Consumer complaint received 2019-10-01
Company: Community Loan Servicing, LLC (formerly known as Bayview Loan Servicing, LLC)
State: CA
Product: Mortgage
Sub-product: Conventional home mortgage
Issue: Struggling to pay mortgage

Complaint:
There is an illegal, fraudulent and willfully oppressive sale of property scheduled for my home at XXXX XXXX XXXX in XXXX California on XX/XX/XXXX. Bayview Loan Servicing lacks the contractual authority under the Deed of Trust and the statutory authority under Civil Code 2924 to conduct a nonjudicial foreclosure sale. 

Bayview is obligated not to foreclose absent certain conditions precedent as stated in Section 22 of the Deed of Trust and Bayview breached that obligation by initiating a foreclosure sale although the conditions precedent were absent. The alleged default exists only by virtue of misconduct on the part of Bayview and XXXX XXXX XXXX and their own breach of its terms. ( See Civ. Code, 1511, ( 1 ) [ performance excused when such performance is prevented or delayed by the act of the creditor ]. ) Their actions do not conform sufficiently with the DOT as to allow Bayview to invoke the power of sale. 

Under California contract law, " hindrance of the other party 's performance operates to excuse that party 's nonperformance. '' ( Erich v. Granoff ( 1980 ) 109 Cal.App.3d 920, 93 ; " A foreclosure sale in which performance has been prevented could be considered illegal and even willfully oppressive, Citrus El Dorado , LLC v. Stearns Bank NA , No. E067610 ( Cal. Ct. App. Apr. 11, 2019 ). This supported an action for wrongful foreclosure. 

An obligor may not prevent the performance of an obligee and then demand a tender of performance that the obligor itself frustrated. See Cal. Civ. Code 1511-12 ; Harris v. Wells Fargo Bank, N.A., Case No. 12-cv-05629-JST ( N.D. Cal. Apr. 30, 2013 ) ; " By force of the provisions of section 1511 of the Civil Code, prevention by one party will excuse want of performance or delay on the part of the other. '' ( 6 Cal.Jur., p. 436, sec . 261. ) 1 " A party to a contract can not take advantage of his own act or omission to  escape liability therefrom, and performance of a contract is excused when prevented by the acts of the opposite party, or is rendered impossible by him. '' ( Ray Thomas, Inc., v. Cowan, 99 Cal.App. 140 [ 277 P. 1086 ]. ) Taylor v. Sapritch, 38 Cal. App. 2d 478, 101 P.2d 539 ( Ct. App. 1940. ) The sale is fraudulent as the " default '' was induced by XXXX 's as part of a scheme to increase profitability at the homeowner 's expense by offering improved loan terms if payments were skipped then refusing payments and initiating foreclosure. The homeowner is kept in default as long as possible while they earn special servicing fees and allow payments to accrue at the note rate. Bayview can then either modify and add the arrears to the principal and earn interest on interest. Or they may choose to foreclose despite having induced default and being themselves the party in breach. 

This is only the latest in the systematic pattern of unlawful conduct that began with a predatory loan that was procedurally and substantively unconscionable with deception at origination and monthly payments in excess of my income. As a result, I ended up in Chapter XXXX where the payments were 89 % of my income not including overcharged escrow. 

Throughout the life of the loan XXXX and Bayview have exploited their position of authority and control by deceptive and fraudulent means in an effort to benefit at my expense.This is a willfully oppressive abuse of power. 

The disparity of economics requires a homeowner to either accept the loss of their home or divert funds that could have made loan payments into a Quixotic effort in the legal system against an opponent with comparatively limitless resources. 

It is outrageous for financial institutions to deliberately harm consumers for profit. It is foreseeable that homeowners subjected to these practices, having their homes wrongfully taken from then will experience extreme emotional distress. Prolonged states of XXXX XXXX, it is well known, can lead to physical ailments. After years of fighting for my home I've suffered a XXXX related XXXX injury that impedes my XXXX XXXX XXXX and appears to be a XXXX condition. Mobility seems a high price but one I've been willing to pay to keep my home. If the sale goes through I'll have neither.

Company response to consumer: Closed with explanation