What is a set aside a foreclosure sale?

Requirements to Set Aside Foreclosure

In order to set aside a foreclosure sale, the trustor under a deed of trust must “give proof before the sale is set aside that he now can redeem the property.” (United States Cold Storage v. Great W. Sav. & Loan Ass'n (1985) 165 Cal.App.3d 1214, 1225.) Plaintiff is required to allege tender of the amount of the creditor's secured indebtedness “in order to maintain any cause of action for irregularity in the sale procedure.” Abdallah v. United Sav. Bank (1996) 43 Cal.App.4th 1101, 1110. The amount of the tender must be “the full amount of the debt for which the property was security.” Fpci Re-Hab 01 v. E & G Invs. (1989) 207 Cal.App.3d 1018, 1021.

Additionally to justify setting aside a presumptively valid foreclosure sale, the claimed irregularity must arise from the foreclosure proceeding itself. (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 445.)

Required Elements

“Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are:

  1. the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust;
  2. the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and
  3. in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused from tendering.”

(Bank of America etc. Assn. v. Reidy , 15 Cal.2d 243, 248)

See also, Saterstrom v. Glick Bros. Sash, Door & Mill Co. (1931) 118 Cal.App. 379, 383 setting trustee's sale set aside where deed of trust was void because it failed to adequately describe property]; Stockton v. Newman (1957) 148 Cal.App.2d 558, 564, [trustor sought rescission of the contract to purchase the property and the promissory note on grounds of fraud]; Sierra–Bay Fed. Land Bank Ass'n v. Superior Court (1991) 227 Cal.App.3d 318, 337, 277 Cal.Rptr. 753 (Sierra–Bay) [to set aside sale, “debtor must allege such unfairness or irregularity that, when coupled with the inadequacy of price obtained at the sale, it is appropriate to invalidate the sale”; ”debtor must offer to do equity by making a tender or otherwise offering to pay his debt”]; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109, 51 Cal.Rptr.2d 286 (Abdallah) [tender element]; Munger v. Moore (1970) 11 Cal.App.3d 1, 7, 89 Cal.Rptr. 323 [damages action for wrongful foreclosure]; see also 1 Bernhardt, Mortgages, Deeds of Trust, and Foreclosure Litigation (Cont.Ed.Bar 4th ed. 2011 supp.) § 7.67, pp. 580–581, and cases cited therein summarizing grounds for setting aside trustee sale.). Munger, at 104.

Useful Rulings on Set Aside a Foreclosure Sale

Recent Rulings on Set Aside a Foreclosure Sale

PRUNEDA V. SELECT PORTFOLIO SERVICING, INC.

Fourth Cause of Action: Wrongful Foreclosure “The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.

  • Hearing

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

HA, ET AL. V. PHAM, ET AL.

While “[a] nonjudicial foreclosure sale is accompanied by a common law presumption that it ‘was conducted regularly and fairly’… [and t]his presumption may only be rebutted by substantial evidence of prejudicial procedural irregularity,” and while a “trustor cannot set aside a foreclosure sale to a BFP ‘based on irregularities in the foreclosure sale process, except in the case of fraud” (Lona v.

  • Hearing

EDGAR A MEINHARDT VS SUNNY ACRE LLC, ET AL.

Plaintiff also seeks to add ten causes of action for: (1) violation of Civil Code section 2923.5; (2) wrongful foreclosure; (3) set aside a foreclosure sale; (4) violation of Civil Code section 2924.12; (5) violation of the Real Estate Settlement Procedures Act (RESPA); (6) rescission and damages under the Truth in Lending Act (TILA); (7) violation of the Home Ownership and Equity Protection Act (HOEPA); (8) fraud and deceit; (9) negligent misrepresentation; and (10) cancellation of instruments.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

GULLIERMO GUTIERREZ VS. SD LENDING LLC

Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

GULLIERMO GUTIERREZ VS. SD LENDING LLC

Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

GULLIERMO GUTIERREZ VS. SD LENDING LLC

Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

GULLIERMO GUTIERREZ VS. SD LENDING LLC

Case law instructs that the elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

ROBERT GABRIEL VS QUALITY LOAN SERVICE CORPORATION, ET AL.

It is an equitable action to set aside a foreclosure sale, or an action for damages resulting from the sale, on the basis that the foreclosure was improper.” (Sciarratta v. U.S. Bank National Assn. (2016) 247 Cal.App.4th 552, 561.) A cause of action accrues when the wrongful act is done or the wrongful result occurs. (See Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 397.) The statute of limitations for wrongful foreclosure is three years. (C.C.P. § 338(g).)

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

AZZOPARDI VS DEUTSCHE BANK

However, “[a] full tender must be made to set aside a foreclosure sale, based on equitable principles.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) There are four exceptions to the tender requirement in the nonjudicial foreclosure context: First, if the borrower’s action attacks the validity of the underlying debt, a tender is not required since it would constitute an affirmation of the debt.

  • Hearing

BRENDEM PLONG, ET AL. VS RUSHMORE LOAN MANAGEMENT SERVICE LLC., ET AL.

“[T]he elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee cause an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused

  • Hearing

  • Type

    Real Property

  • Sub Type

    Quiet Title

  • Judge

    Paul A. Bacigalupo or Virginia Keeny

  • County

    Los Angeles County, CA

BRENDEM PLONG, ET AL. VS RUSHMORE LOAN MANAGEMENT SERVICE LLC., ET AL.

“[T]he elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee cause an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the secured indebtedness or was excused

  • Hearing

  • Type

    Real Property

  • Sub Type

    Quiet Title

  • Judge

    Paul A. Bacigalupo or Virginia Keeny

  • County

    Los Angeles County, CA

BRECKENRIDGE PROPERTY FUND 2016, LLC VS. JANINE MIDORI FUJIOKA

(MPA p. 10) “[F]ull tender of the indebtedness must be made to set aside a foreclosure sale based on irregularities in the foreclosure procedure, (Lana v. Citibank, NA. (2011) 202 Cal,App.4th 89, 103404.) Full tender of the indebtedness is not required if the borrower attacks the validity of the underlying debt. (Id. at pp, 1127113,)” (Lueras v, BAC Home Loans Servicing, LP (2013) 221 Cal,Appi4th 49, 87.)

  • Hearing

  • Judge

    JAMES T, CHOU

  • County

    Marin County, CA

THOMPSON V. HORN, ET AL.

Third Cause of Action – Wrongful Foreclosure “The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

(NO CASE NAME AVAILABLE)

Third Cause of Action – Set Aside Trustee’s Sale “The elements of a cause of action to set aside a foreclosure sale are (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale suffered prejudice or harm; and (3) the trustor or mortgagor tenders the amount of the secured indebtedness or was excused from tendering.” (West v.

  • Hearing

OMAR SALOMON SIGUENZA VS SELECT PORTFOLIO SERVICING INC, ET AL.

Third Cause of Action – Set Aside Trustee’s Sale “The elements of a cause of action to set aside a foreclosure sale are (1) the trustee or mortgagee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale suffered prejudice or harm; and (3) the trustor or mortgagor tenders the amount of the secured indebtedness or was excused from tendering.” (West v.

  • Hearing

  • Type

    Real Property

  • Sub Type

    Foreclosure

SIMMONDS VS. WELLS FARGO BANK N.A.

First COA for Wrongful Foreclosure “[T]he elements of an equitable cause of action to set aside a foreclosure sale are: (1) the trustee or mortgagee cause an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale in a mortgage or deed of trust; (2) the party attacking the sale (usually but not always the trustor or mortgagor) was prejudiced or harmed; and (3) in cases where the trustor or mortgagor challenges the sale, the trustor or mortgagor tendered the amount of the

  • Hearing

JOHNSON VS. JOINER

Actions to set aside a foreclosure sale and to quiet title are governed by the substance or gravamen of the action. (Hatch v. Collins (1990) 225 Cal.App.3d 1104, 1110; Salazar v. Thomas (2015) 236 Cal.App.4th 467, 476.) Plaintiff’s claims for wrongful foreclosure and quiet title are based on the contention that the statutory provisions governing foreclosures have been violated. Thus, the three-year statute of limitations found in Code of Civil Procedure section 338(a) governs. (Engstrom v.

  • Hearing

BISAGNO V. RESOLVE DEFAULT SERVICES, LLC

Wrongful Foreclosure Cause of Action In discussing the elements of a wrongful foreclosure cause of action brought to recover damages at law, an appellate court has stated: “The basic elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.

  • Hearing

MEIER VS. POWER

The use of the former APN related to the Property appears at best to be a nonmaterial error which does not justify setting aside a foreclosure sale. (Knapp v. Doherty (2004) 123 Cal.App.4th 76, 88-89 [non-material defect in foreclosure process, in that case premature service of the notice of trustee's sale in violation of the statutory time period, does not warrant setting sale aside].) (See also Citrus El Dorado, LLC v.

  • Hearing

ETHEL MATTHEWS VS RESMAE MORTGAGE CORPORATION, ET AL.

‘Wrongful foreclosure is an action in equity where a plaintiff seeks to set aside a foreclosure sale.’ ‘A trustee or mortgagee may be liable to the trustor or mortgagor for damages sustained where there has been an illegal, fraudulent, or willfully oppressive sale of property under the power of sale contained in the mortgage or deed of trust.’”)(Citations Omitted).)

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

KATHY L COX ET AL VS VN PARTNERSHIP ET AL

Defendants rely on authority under which the Second District determined that a claim for wrongful foreclosure to set aside a foreclosure sale of a debtor’s residence is property of the bankruptcy estate which only the chapter 7 trustee can pursue. Bostanian v. Liberty Savings Bank, FSB (1997) 52 Cal.App.4th 1075.

  • Hearing

  • Type

    Personal Injury/ Tort

  • Sub Type

    other

MAX GRIGGS VS WELLS FARGO BANK, N.A., ET AL.

Doctrine of Tender A party seeking to postpone or set aside a foreclosure sale must allege tender of the amount of his indebtedness to maintain a cause of action for irregularity in the procedure. (Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.) Defendants demur to the FAC on the ground Plaintiff is required to allege he tendered the amount of his indebtedness. Plaintiff argues he was not required to tender because his claims could be brought in the absence of a threatened foreclosure.

  • Hearing

  • Type

    Real Property

  • Sub Type

    Foreclosure

JOHN MANOS VS WASHINGTON MUTUAL BANK, F.A., ET AL.

“A full tender must be made to set aside a foreclosure sale,” and a plaintiff attacking a foreclosure sale is required to allege tender of the full amount owed. (See Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526.) This requirement exists so that plaintiffs may not recoup the property while evading their lawful debt on the property. (Ibid.) The requirement extends to all causes of action which are “implicitly integrated” with the allegedly wrongful sale.

  • Hearing

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

2009 WELLINGTON ROAD, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY VS MICHELLE HAGUE, AN INDIVIDUAL, ET AL.

The “elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.” (Miles v. Deutsche Bank National Trust. Co. (2015) 236 Cal.App.4th 394, 408.)

  • Hearing

  • Type

    Real Property

  • Sub Type

    other

  • County

    Los Angeles County, CA

(NO CASE NAME AVAILABLE)

The “elements of a tort cause of action for wrongful foreclosure track the elements of an equitable cause of action to set aside a foreclosure sale.” (Miles v. Deutsche Bank National Trust. Co. (2015) 236 Cal.App.4th 394, 408.)

  • Hearing

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