Legal Question in Real Estate Law in California

To set aside a Trustee's Sale that has already taken place is an extremely hard case to prosecute. This is particularly true if the property was sold to a third party. That third party is going to be deemed to be a bona fide purchaser, and the Courts have been extremely reticent to set aside those sales - to the point where if it is sold to a third party, it would be the exception to the rule if the sale were upset.

The sale is definitely not "Void" as a result of your alleging fraud. It may not even be "Voidable" just because notice was not given, or was improperly given. Your alleging fraud means nothing until you convince a court either that your allegations are true. You need to also fully understand the legal meaning of Fraud - mistake, inadvertence, and other non-intentional acts are not Fraud. Failing to give notice required by law is also not automatically "Fraud." The case law in the area is very inconsistent. In some cases the Courts are unwilling to interfere with foreclosure sales over trivial or technical defaults. In other cases, where the borrowers rights have been substantially or deeply affected the Courts have sometimes set aside sales. This is not a small hurdle to overcome. Again, this is a very hard case to prove, but if you honestly believe they did not comply with the requirements for non-judicial foreclosure, then you should investigate further pursuing this.

Do you need to tender the full amount of the debt to get a Court to set-aside the sale? No, but it is possible that the Court will require you to post a bond or undertaking in the amount of the purchase price of the home at sale to protect the buyer at the sale. I don't litigate these cases in State Court, so I have to defer to someone who has filed these kinds cases.

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Allegations are nothing more than allegations. The parties against whom fraud is alleged will, 99.9% of the time, deny the allegations. Although there are a few purposes for which the factual allegations of a complaint are presumed true (e.g., for ruling on a demurrer), for the most part courts will NOT accept an allegation of fraud for purposes of ordering this-or-that, or invalidating this-or-that, until there has been a trial where the person alleged to have committed a fraud has had a chance to defend. Then and only then will fraud become a factor in the outcome of the dispute over the validity of a sale. Another exception might be in a request for a temporary restraining order and/or preliminary injunction to forestall some action pending trial. If the court thinks the defendant might prevail on its fraud allegations, the court can grant protective relief in the form of a TRO or preliminary injunction pending final judgment, but usually the plaintiff will be required to post a substantial bond to protect the defendant against loss if the defendant ultimately prevails.

Also, when the issue is the date of sale, please note that trustees have some statutory liberty to postpone sales, even at the last minute, and may not be required to re-notice the sale to quite the same extent as required for the original notice of sale. The purpose of a notice of sale, from the defaulting borrower's standpoint, is to warn that a sale WILL occur as much as to notify when it will occur.