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

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

    Jun 26, 2020

  • 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

    Jun 23, 2020

  • 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

    Jan 17, 2020

  • 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

    Jan 07, 2020

  • 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

    Dec 13, 2019

  • 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

    Nov 19, 2019

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

    Oct 04, 2019

  • 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

    Sep 24, 2019

  • 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

    Sep 13, 2019

  • 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

    Aug 30, 2019

  • 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

    Aug 02, 2019

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

    Jul 29, 2019

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

    Jul 26, 2019

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

    Jul 26, 2019

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

    Jul 26, 2019

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

    Jul 19, 2019

  • 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

    Jun 14, 2019

  • 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

    Jun 07, 2019

  • 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

    Jun 06, 2019

CONLEY VS NATIONSTAR MORTGAGE LLC

Plaintiff skips from the 3rd to 5th cause of action. 5th Cause of Action – Violation of Civil Code §2924(a)(6) and 2924.17 Section 2924(a)(6) requires the holder/holder’s agent of the beneficial interest on the deed of trust to record the notice of default. Again, Plaintiff has not pled facts demonstrating that Defendant is not the holder of the loan. Section 2924.17 requires a mortgage servicer to file accurate and complete documents in which the default is substantiated.

  • Hearing

    May 17, 2019

MARILYN DINSMORE VS OCWEN LOAN SERVICING, ET AL.

The complaint, filed November 8, 2018, alleges 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. RELIEF REQUESTED: Defendants Ocwen and USBNA demur to the 1st to 4th causes of action alleged in the complaint. Defendant CIT Bank, N.A. demurs to the 1st to 5th causes of action.

  • Hearing

    Apr 12, 2019

  • Type

    Other

  • Sub Type

    Intellectual Property

EDDIE P. LAWRENCE, SR VS WELLS FARGO BANK, NA, ET AL.

Defendant further contends that to the extent that Plaintiff’s wrongful foreclosure claim is based on violations of California Civil Code §2924(a)(6) and §2924.11(c), it fails because Plaintiff improperly seeks damages, rather than injunctive relief. (SAC ¶140.) Under Lucioni v. Bank of Am. N.A. (2016) 3 Cal.App.5th 150, 160, monetary sanctions are only available after a foreclosure and prior to foreclosure the only remedy that a borrower may seek is an action to enjoin.

  • Hearing

    Mar 29, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

MITCHELL MILLER VS BAYVIEW LOAN SERVICING LLC ET AL

Code §2924.17 and §2924(a)(6); (3) unfair business practices; (4) cancellation of instruments; (5) negligent representation; and (6) intentional infliction of emotional distress. On November 30, 2018 Defendants demurrer to the FAC was sustained without leave to amend. ANALYSIS Except as otherwise expressly provided by statute, a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” (CCP § 1032(b).)

  • Hearing

    Mar 27, 2019

  • Type

    Collections

  • Sub Type

    Promisory Note

STUART VS. B. MANOR, INC.

Accordingly, because Plaintiff’s claims for violation of Civil Code sections 2923.55 and 2924.17, civil conspiracy, aiding and abetting, and void trustee’s deed upon sale and violation Civil Code sections 2924(a)(6), 2923.5, and 2932.5 of were actually litigated in the Previous Action and because Plaintiff’s unfair competition, quiet title, and cancellation of instruments claims could have been litigated there, claim preclusion bars relitigation of those claims here.

  • Hearing

    Mar 11, 2019

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

Essentially, Plaintiff seeks to reincorporate facts and the causes of action originally pled in the FAC for wrongful foreclosure and violation of Civil Code, §2924(a)(6), which he erroneously removed from the SAC.

  • Hearing

    Jan 18, 2019

  • County

    Los Angeles County, CA

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