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

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

    Jul 10, 2020

  • 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

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    other

  • County

    Los Angeles County, CA

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

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    other

(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

    Jul 07, 2020

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

    Jun 05, 2020

SAVIOUR 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

    Jun 04, 2020

SNOWDEN V. OCWEN LOAN SERVICING

Fifth Cause of Action for Wrongful Foreclosure Essentially, “[t]he 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

    Apr 20, 2020

  • Type

    Real Property

  • Sub Type

    other

TERESITA ALBA INDIVIDUALLY AND AS TRUSTEE OF THE TERESITA A. ALBA TRUST DATED NOVEMBER 1, 2016, VS H&O UNIQUE CONSTRUCTION, INC. A CALIFORNIA CORPORATION, ET AL.

Generally, “a full tender must be made to set aside a foreclosure sale, based on equitable principles.” (Stebley v. Litton Loan Servicing (2011) 202 Cal.App.4th 522, 526.) However, “excusing tender based on equitable considerations is one of the exceptions to the tender …. Specifically, ‘a tender may not be required where it would be inequitable to impose such a condition on the party challenging the sale.’” (Fonteno v. Wells Fargo Bank, N.A. (2014) 228 Cal.App.4th 1358, 1373.)

  • Hearing

    Apr 09, 2020

SNOWDEN V. OCWEN LOAN SERVICING

Fifth Cause of Action for Wrongful Foreclosure Essentially, “[t]he 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

    Mar 17, 2020

  • Type

    Real Property

  • Sub Type

    other

SUPERIOR COURT VS. FAY SERVICING

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

    Mar 12, 2020

KRAGE V. WYNDHAM VACATION RESORTS, INC.

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.

  • Hearing

    Mar 06, 2020

OMOTOSHO VS. KINGSMEAD ASSET HOLDING TRUST

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

    Feb 06, 2020

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

“A full tender must be made to set aside a foreclosure sale, based on equitable principles. [Citations.] . . . Allowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal. App. 4th 522, 526.) The tender rule is strictly enforced. (Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428, 439.)

  • Hearing

    Jan 31, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

GONZALEZ VS THE BANK OF NEW YORK MELLON

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. (See Miles v. Deutsche Bank National Trust Company (2015) 236 Cal.App.4th 394, 408–409.)

  • Hearing

    Jan 13, 2020

MARVELL LENOX TELL JR VS RAY BROWN BOWEN JR 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. [Citation.]” (Sciarratta v. U.S. Bank Nat’l Assn. (2016) 247 Cal.App.4th 552, 561.) “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.” (Miles v. Deutsche Bank Nat’l Trust Co. (2015) 236 Cal.App.4th 394, 408.)

  • Hearing

    Jan 02, 2020

ANDREW DB, ROWEN VS, US, BANK NATIONAL ASSOCIATION, ET AL

The failure to provide notice does not provide a basis for setting aside a foreclosure sale. (See § 2937, subd. (g).) Plaintiff s breach of contract, breach of implied covenant, and negligence causes of action seek damages, which is the proper remedy. “After a nonjudicial foreclosure sale has been completed, the traditional method by which the sale is challenged is a suit in equity to set aside the trustee’s sale. m” (Lona v, Citibank, NA. (2011) 202 Ca1,App,4“‘ 89, 103.)

  • Hearing

    Dec 17, 2019

BENZEEN, INC. VS JP MORGAN CHASE BANK, NA, ET AL.

Third, Fourth, and Fifth Causes of Action: Wrongful Foreclosure, to Vacate and Set Aside the Foreclosure Sale, and Cancellation of Trustee’s Deed Upon Sale “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

    Dec 12, 2019

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

“A full tender must be made to set aside a foreclosure sale, based on equitable principles. [Citations.] . . . Allowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal. App. 4th 522, 526.) The tender rule is strictly enforced. (Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428, 439.)

  • Hearing

    Nov 22, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

“A full tender must be made to set aside a foreclosure sale, based on equitable principles. [Citations.] . . . Allowing plaintiffs to recoup the property without full tender would give them an inequitable windfall, allowing them to evade their lawful debt.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal. App. 4th 522, 526.) The tender rule is strictly enforced. (Nguyen v. Calhoun (2003) 105 Cal. App. 4th 428, 439.)

  • Hearing

    Nov 22, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

CANDICE MCINTOSH, ET AL. VS DEUTSCHE BANK NATIONAL TRUST COMPANY AMERICAS, ET AL.

“[T]he 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 not but 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

    Nov 22, 2019

  • Type

    Real Property

  • Sub Type

    other

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

“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

    Nov 19, 2019

SNOWDEN V. OCWEN LOAN SERVICING

Fifth Cause of Action for Wrongful Foreclosure Essentially, “[t]he 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

    Nov 12, 2019

  • Type

    Real Property

  • Sub Type

    other

ANTHONY SIRACUSA VS BARRETT DAFFIN FRAPPIER TREDER & WEISS

The Second District has 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 bankruptcy trustee can pursue. Bostanian v. Liberty Savings Bank, FSB (1997) 52 Cal.App.4th 1075.

  • Hearing

    Nov 08, 2019

HORWICH V. CARRINGTON PROPERTY SERVICE, INC., 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.

  • Hearing

    Oct 18, 2019

NICOLE MOUSSA VS WELLS FARGO BANK, N.A.

Further, a full tender must be made to set aside a foreclosure sale based on equitable principles. (Stebley v. Litton Loan Servicing (2011) 202 Cal.App.4th 522, 526.) Plaintiff failed to allege that she has tendered the full amount due. Finally, the extent of a private right of action under Civ. Code, § 2923.5, is limited to obtaining a postponement of an impending foreclosure to permit the lender to comply with § 2923.5. (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208, 214.)

  • Hearing

    Oct 10, 2019

  • Type

    Real Property

  • Sub Type

    Quiet Title

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