Legal Question in Real Estate Law in California

Ca law trustee sale for the 2nd completed illegally no proper notice with the new laws for foreclosure procedure. how do i cancel the sale


Asked on 1/20/11, 9:04 pm

3 Answers from Attorneys

Anthony Roach Law Office of Anthony A. Roach

Which new laws?

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Answered on 1/26/11, 9:37 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

I think you refer to the laws requiring the lender to contact and counsel the borrower before issuing a notice of default. This is Civil Code section 2923.5. Before concluding that the lender violated the law and that the sale was illegal, you should read the law carefully, noting its somewhat limited application. For example, 2923.5(i) says it applies only to loans recorded between 1/1/2003 and 1/1/2007 and secured by owner-occupied residences. There are other limitations, e.g., failure to make the contacts required despite the lender's due diligence. I'm not sure whether a failure to comply with 2923.5 renders the foreclosure void, voidable or only subjects the violator to money damages. In any event, canceling the sale will probably require filing suit in Sperior Court of the county where the property is.

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Answered on 1/26/11, 11:18 am
Anthony Roach Law Office of Anthony A. Roach

If you are referring to Civil Code section 2923.5, (also known as the Perata Bill) then the answer is that failure to comply does not render the subsequent foreclosure void.

"What is the extent of a private right of action under section 2923.5? To repeat: The right of action is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with section 2923.5." (Mabry v. Superior Court (4th Dist. 2010) 185 Cal.App.4th 208, 215.)

The Mabry case contains a lengthy discussion about Civil Code section 2923.5. You can read the case here: http://scholar.google.com/scholar_case?case=8622248303031972813&hl=en&as_sdt=2&as_vis=1&oi=scholarr

But there are a lot of "new laws" so my original question remains: Which new laws?

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Answered on 1/26/11, 3:36 pm


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