What is recording a default or foreclosure?

Section 2924(a)(6) of the Code of Civil Procedure limits who may record a notice of default or initiate foreclosure proceedings. (Code of Civ. Proc., § 2924(a)(6).) It requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” (Code of Civ. Proc., § 2924(a)(6).)

In the [Homeowners' Bill of Rights], the Legislature addressed when courts may intercede in the nonjudicial foreclosure scheme. (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 926.) The Legislature itself created the nonjudicial foreclosure process, which uses a trustee not beholden to either the lender or borrower “to provide the lender-beneficiary with an inexpensive and efficient remedy against a defaulting borrower, while protecting the borrower from wrongful loss of the property....” (Id.)

Section 2924(a)(6) does not enable borrowers to litigate, pre-foreclosure, a claim that the foreclosing party lacked a beneficial interest in the deed of trust. (Lucioni v. Bank of Amer., N.A. (2016) 3 Cal.App.5th 150, 155, 163.) When the Legislature enacted the Homeowners' Bill of Rights, it included two provisions – section 2924.12, subdivision (a)(1) and 2924.19, subdivision (a)(1) – authorizing borrowers to seek injunctive relief when specific statutes were violated. (Id.) Since section 2924(a)(6) was not one of the statutes listed, the court held that borrowers could not seek to enjoin foreclosures based on a violation of its provisions. (Id. at 158.)

“Generally, the expression of some things in a statute implies the exclusion of others not expressed.” (In re Bryce C. (1995) 12 Cal.4th 226, 231, 48 Cal.Rptr.2d 120, 906 P.2d 1275; Gikas v. Zolin (1993) 6 Cal.4th 841, 852, 25 Cal.Rptr.2d 500, 863 P.2d 745; Jauregui v. City of Palmdale (2014) 226 Cal.App.4th 781, 806, 172 Cal.Rptr.3d 333.)

Useful Rulings on Recording a Default or Foreclosure

Recent Rulings on Recording a Default or Foreclosure

CRUZ VS. RUSHMORE LOAN MANAGEMENT

 The Court of Appeal has expressly held that there is no cause of action for injunctive relief under Civil Code section 2924(a)(6), because that statute is not listed in the Homeowner Bill of Rights remedies statute. (Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 157-161.)  No foreclosure sale has taken place, and preemptive causes of action challenging standing to foreclose are not authorized. (See, Perez v. Mortg. Elec.

  • Hearing

ROBERT GABRIEL VS QUALITY LOAN SERVICE CORPORATION, ET AL.

However, section 2924(a)(6) does not provide for a private right of action. (Wasjutin v. Bank of America, N.A. (9th Cir. 2018) 732 Fed.Appx. 513, 515 [“There is no private right of action under section 2924(a)(6).”]; see also Lucioni v. Bank of America, N.A. (2016) 3 Cal.App.5th 150, 163 [Section 2924(a)(6) “does not provide for the ability of a borrower to directly litigate preforeclosure a claim that the foreclosing party lacked a beneficial interest in the deed of trust.”].)

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

EMILY CAPATI GADDI VS PHH MORTGAGE SERVICES,, ET AL.

Fifth Cause of Action for Lack of Title and Standing Under Civil Code § 2924(a)(6) Plaintiff fails to state facts sufficient to constitute a cause of action. Civil Code § 2924(a)(6) states: “(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

THUAN D LE, ET AL. VS TRANS ATLANTIC INTL. INC. A NEVADA CORPORATION, ET AL.

First Cause of Action – Lack of Title & Standing under Civil Code section 2924(a)(6) Civil Code section 2924(a)(6) provides: An entity shall not record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

  • Hearing

  • Type

    Real Property

  • Sub Type

    Quiet Title

ETHEL MATTHEWS VS RESMAE MORTGAGE CORPORATION, ET AL.

Bank of America, N.A. (2016) 3 Cal.App.5th 150, 160 (“Yvanova, thus is in accord with the policy embodied in section 2924(a)(6) in authorizing an action for damages after a foreclosure. Where the foreclosing party had no valid interest in the property, a borrower has postforeclosure recourse even if the borrower is in default to some other party. Yvanova, however, does not resolve this case for at least two reasons.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

AMIRAH BEHAAR VS. BAYVIEW LOAN SERVICING, LLC., ET AL

., Alternative Loan Trust 2006-OA21, Mortgage Pass-Through Certificates, Series 2006-OA21 (New York), , and DOES 1 through 20, alleging: (1) violations of Civil Code sections 2923.5, 2924.11, 2923.7, 2924(a)(6), 2924.9, 2924.10, 2924.17, and 2934a; (2) negligence per se; and (3) violation of Business and Professionals Code section 17200.

  • Hearing

  • Type

    Real Property

  • Sub Type

    Foreclosure

ALFONSO LUNA, ET AL. VS OCWEN LOAN SERVICING, LLC, ET AL.

In their second cause of action, Plaintiffs allege that Defendants violated Civil Code section 2924(a)(6) by recording an NOD against the Property without authority to do so. Plaintiffs claim that Defendants lacked authority to do so because the Assignment is void. In their third cause of action, Plaintiffs allege that Defendants violated Civil Code section 2923.55 by failing to reach out to Plaintiffs to find an alternative method to foreclosure.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

ROBERT COLE, ET AL. VS CENLAR CENTRAL LOAN ADMINISTRATION & REPORTING, ET AL.

Complaint Plaintiffs commenced this proceeding on December 18, 2019, alleging causes of action for (1) wrongful foreclosure, (2) violation of CCP section 2923.6, (3) violation of CCP section 2924(a)(6), (4) breach of the covenant of good faith and fair dealing, and (5) violation of Bus. & Prof. Code sections 17200 et seq. The verified Complaint alleges in pertinent part as follows.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

MARILYN DINSMORE VS OCWEN LOAN SERVICING, ET AL.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

  • Hearing

  • Type

    Other

  • Sub Type

    Intellectual Property

WILLIAM DULANY HILL VS NEWREZ LLC DBA SHELLPOINT MORTGAG SERVICING, ET AL.

., CHL Mortgage Pass-Through Trust 2004-HYB4, Mortgage Pass-Through Certificates, Series 2004-HYB4 for (1) violation of Rosenthal Fair Debt Collection Practices Act, (2) violation of Civil Code 2924.17, 2924(a)(6), (3) violation of Civil Code §2934a(a)(1)(A)(C), 2941.9, (4) cancellation of instruments, (5) declaratory relief, (6) violations of Bus. & Prof. Code 17200, and (7) violation of the California Consumer Credit Reporting Agencies.

  • Hearing

  • Type

    Collections

  • Sub Type

    Promisory Note

ANI MARKARIAN VS. THE BANK OF NEW YORK MELLON, ET AL.

. §1641; (2) violation of Civil Code §2924(a)(6), (3) wrongful foreclosure, (4) breach of implied covenant of good faith and fair dealing; and (5) violation of Bus. & Prof. Code sections 17200, et seq. and 17500, et seq. Demurrer Defendants BANK OF AMERICA, N.A.

  • Hearing

  • County

    Los Angeles County, CA

ALICE MARIANO VS U.S. BANK, N.A. ET AL.

Plaintiff raises the following causes of action (COAs) in her Complaint: 1st COA: Lack of Title and Standing under Civil Code section 2924(a)(6). 2nd COA: Cancellation of Instruments. 3rd COA: Violation of Cal. Bus. & Prof. Code § 17200. 4th COA: Violation of Cal. Civil Code § 2924.17. 5th COA: Violation of Cal. Civil Code § 2923.6/2924.11. 6th COA: Violation of Cal. Civil Code § 2923.5. 7th COA: Quiet Title. 8th COA: Wrongful Foreclosure. 9th COA: Negligence. 10th COA: Violation of Cal.

  • Hearing

MARILYN DINSMORE VS OCWEN LOAN SERVICING, ET AL.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

  • Hearing

  • Type

    Other

  • Sub Type

    Intellectual Property

WILLIAM DULANY HILL VS NEWREZ LLC DBA SHELLPOINT MORTGAG SERVICING, ET AL.

Under Civil Code §2924(a)(6), “No entity shall record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.

  • Hearing

  • Type

    Collections

  • Sub Type

    Promisory Note

  • County

    Los Angeles County, CA

ANI MARKARIAN VS. THE BANK OF NEW YORK MELLON, ET AL.

Code, § 2924(a)(6).) The court takes judicial notice of the recorded documents showing MERS assigned the deed of trust to BONY (Defendants’ RJN, Exh. B), Quality was substituted in as trustee (Id. at Exh. C), and Quality recorded the notice of default (Id. at Exh. D). Thus, Defendants recorded the notice of default as the substituted trustee under the deed of trust. Therefore, it does not appear that Plaintiff states a violation of section 2924(a)(6).

  • Hearing

  • County

    Los Angeles County, CA

ROBINSON VS. PEAK FORECLOSURE SERVICES

Civ.Code § 2924(a)(6) prohibits the initiation of foreclosure proceedings by an entity that is not the holder of the beneficial interest, the original trustee or the substituted trustee or their designated agent. As noted above, the judicially noticeable facts show there was no violation of this statute.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

FAZIO V. FEDERAL HOME LOAN MORTGAGE CORP.

Violation of Civil Code, § 2924(a)(6) Cause of Action Defendants JP Morgan Chase Bank and Freddie Mac argue that there is no private cause of action for violation of Section 2924(a)(6). Plaintiffs assert that they have a right to maintain a private cause of action for alleged violation of Code of Civil Procedure, § 2924(a)(6); and there is a clear violation in that defendants have admitted in discovery responses that JP Morgan Chase Bank was not a beneficiary of the deed of trust..

  • Hearing

KLAUS GOETTEL VS U.S. BANK NATIONAL ASSOCIATION

Bank, FCI (subsequently dismissed on July 18, 2018) and Does 1-10 for (1) Violations of Civil Code § 2924(a)(6) and § 2924.17, (2) Violation of Civil Code § 2924.11, (3) Violation of Civil Code § 2923.7, (4) Violation of Civil Code § 2923.5, (5) Negligence and (6) Violation of Business & Professions Code § 17200. On September 17, 2018, the court sustained U.S.

  • Hearing

CRAWFORD VS. US BANK NATIONAL

Violation of Section 2924(a)(6) & (f)(3) (Third Cause of Action) Civil Code § 2924(a)(6) requires that the entity initiating the foreclosure process is “the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest.” Once more this is just an attack on the chain of transfer on the lender side, forbidden by Yvanova as discussed above.

  • Hearing

FAZIO V. FEDERAL HOME LOAN

Violation of Civil Code, § 2924(a)(6) Cause of Action Defendant MTC Financial contends that there is no statutory private cause of action for violation of Civil Code, § 2924(a)(6). Plaintiffs argue in opposition that they can maintain a private cause of action for violation of Section 2924(a)(6) where a party that holds no beneficial interest in the deed of trust forecloses and sells the property.

  • Hearing

FAZIO V. FEDERAL HOME LOAN

Violation of Civil Code, § 2924(a)(6) Cause of Action Defendant MTC Financial contends that there is no statutory private cause of action for violation of Civil Code, § 2924(a)(6). Plaintiffs argue in opposition that they can maintain a private cause of action for violation of Section 2924(a)(6) where a party that holds no beneficial interest in the deed of trust forecloses and sells the property.

  • Hearing

MARILYN DINSMORE VS OCWEN LOAN SERVICING, ET AL.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

  • Hearing

  • Type

    Other

  • Sub Type

    Intellectual Property

MARILYN DINSMORE VS OCWEN LOAN SERVICING, ET AL.

In Plaintiff’s initial, August 10, 2018, Complaint, she alleged five (5) causes of action for: (1) Violations of Civil Code, §2923.5; (2) Violations of Civil Code, §2923.6(c); (3) Violations of Civil Code, §2924(a)(6); (4) Violations of Business & Professions Code, §17200 et seq.; and (5) Declaratory Relief related to her ownership of 3869 Avenida Del Sol, Studio City, California, 91604 (the “Property”), and seeking to prevent foreclosure.

  • Hearing

  • Type

    Other

  • Sub Type

    Intellectual Property

MITCHELL MILLER VS BAYVIEW LOAN SERVICING LLC ET AL

In his First Amended Complaint (“FAC”) filed on September 26, 2018, Plaintiff alleges six causes of action for (1) violations of the Rosenthal Fair Debt Collection Practices Act (“Rosenthal Act”); (2) violations of Civil Code sections 2924.17 and 2924(a)(6); (3) unfair business practices; (4) cancellation of instruments; (5) negligent representation; and (6) intentional infliction of emotional distress. The FAC alleges in pertinent part as follows.

  • Hearing

  • Type

    Collections

  • Sub Type

    Promisory Note

VALBUENA VS JPMORGAN CHASE BANK NA

.; 4) aiding and abetting’ 5) wrongful foreclosure; 6) void Trustee’s Deed Upon Sale (TDUS), and violation of Civil Code §§ 2924(a)(6) and 2932.5; 7) quiet title and cancellation of instruments; and 8) negligence – recovery of damages for emotional distress, Civil Code §3294.

  • Hearing

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