Requirements to Set Aside a Foreclosure Sale in California

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.

To state a cause of action to aside a foreclosure sale, a plaintiff must allege he or she tendered payment of the full amount of the debt for which the property was security. "'A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.'" (FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021; Abdallah v.

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.)

To set aside a foreclosure sale, some courts hold that Plaintiff must allege that he has actually tendered the amount due or made a binding offer to tender the amount due on his loan. (Karlsen v. American Sav. & Loan Assn. (1971) 15 Cal. App. 3d 112, 117.) Plaintiff’s complaint does not contain any allegations regarding tender, and plaintiff does not oppose this demurrer. Based on the foregoing, the demurrer is SUSTAINED without leave to amend.

GMAC and Executive Trustee Services challenge the first three causes of action for the additional reason that a full tender of the loan proceeds is required in order to set aside a foreclosure sale. Stebley v. Litton Loan Servicing, LP (2011) 202 Cal.App.4th 522, 526 (“A full tender must be made to set aside a foreclosure sale, based on equitable principles”); Abdallah v.

Litton Loan Servicing, LLP (2011) 202 Cal.App.4th 522, 526 ("full tender must be made to set aside a foreclosure sale, based on equitable principles).") Here, the FAC does not allege tender and thus, the claims fail. The motion for judgment on the pleadings on the intentional misrepresentation claim is granted. "'A party claiming fraud must plead facts which show how, when, where, to whom, and by what means the representations were tendered.'" (Stansfield v. Starkey (1990) 220 Cal.App.3d 59, 73.)

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.

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

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.)

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.

Defendants argue that Plaintiff cannot request injunctive relief to set aside a foreclosure sale when the property has been sold to a third party bona fide purchaser. (Kalnoki v. First American Trustee Servicing Solutions, LLC (2017) 8 Cal.App.5th 23, 45; Orcilla v. Big Sur, Inc. (2005) 244 Cal.App.4th 982, 1000.) Additionally, plaintiff lacks standing to request any such relief, as he is not the borrower, nor has he shown facts establishing that he assumed the subject loan.

Kastorff (1960) 54 Cal.2d 380 While both Donovan and Elsinore apply the Civil Code statutes relating to rescission and mistake, neither involve setting aside a foreclosure sale based on mistake. "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. (Anderson v. Heart Federal Sav. & Loan Assn. (1989) 208 Cal.App.3d 202, 209–210, 256 Cal.Rptr. 180.)

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.

a foreclosure sale, and (3) defendant is entitled to BFP status based on plaintiff’s failure to plead facts to the contrary.

The FAC lacks an allegation of tender and therefore a cause of action to set aside a foreclosure sale fails. The demurrer is sustained. IV. Ruling The Court sustains the demur with 20 days’ leave to amend. Any responsive pleading must be filed and served 20 days’ thereafter or 25 if the amended pleading is served by mail. Next dates: Motion for terminating sanctions 10/30/18 Notice:

Bank N.A. (2011) 192 Cal.App.4th 218 in its opposition is manifestly misplaced, as that case discussed a promissory estoppel cause of action as a means to set aside a foreclosure sale..

Trust Co. (2012) 204 Cal.App.4th 433, 440 2nd Cause of Action (violation of Civ.Code § 2923.5): "Civil Code section 2923.5 does not provide for damages, or for setting aside a foreclosure sale, nor could it do so without running afoul of federal law, that is, the Home Owners Loan Act (15 U.S.C. § 1641; "HOLA"), and implementing regulations (12 C.F.R. § 560.2(b))... As a result, the sole available remedy is "more time" before a foreclosure sale occurs. After the sale, the statute provides no relief."

Here, Plaintiff, in particular, alleges fraud (e.g., ¶32 to Complaint) and so the rule that a trustor cannot set aside a foreclosure sale to a BFP is not applicable. Id at 156. GRO cites no law holding otherwise. GRO's citation to Strutt v. Ontario Savings and Loan Assn, (1970) 11 Cal. App. 3rd 547, is irrelevant because that case involves a Motion for Summary Judgment, not a demurrer.

However, the Tender Rule is not usually applied in situations where no foreclosure sale has yet been held: " 'A full tender must be made to set aside a foreclosure sale, based on equitable principles.' [Citation.] Courts, however, have not required tender when the lender has not yet foreclosed and has allegedly violated laws related to avoiding the necessity for a foreclosure. (See, e.g., Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 225–226 [110 Cal.

Supp.3d 926, 948 [wrongful foreclosure is a California common law claim that generally tracks the elements of an equitable cause of action to set aside a foreclosure sale]; Compl., ¶¶ 64, 65, 67, Exhibit F [misidentified as Exhibit G].) Defendants’ demurrer as to the seventh cause of action for interpleader pursuant to Code of Civil Procedure section 386 and Civil Code sections 2924j & 2924k is SUSTAINED WITH LEAVE TO AMEND. (Code Civ. Proc., § 430.10, subd. (e).)

PLAINTIFFS’ ALLEGATIONS Plaintiffs seek to set aside a foreclosure sale of real property. Plaintiffs obtained a $380,000 loan secured by a Deed of Trust recorded against the real property. (RJN Exh. A) The loan was assigned to Wachovia Bank, N.A. and then to Defendant M & T Bank. (RJN Exhs. B, C) Plaintiffs defaulted on the loan and Defendant Bayview caused a Notice of Default to be recorded against the property. (RJN., Exh.

Liberty Savings Bank, FSB (1997) 52 Cal.App.4th 1075, in which the Second District had similarly recognized 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.

Wrongful Foreclosure The common law tort claim of wrongful foreclosure 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.)

First Cause of Action to Set Aside Trustee Sale: “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

The demurrer to the 3rd cause of action is overruled. 1st Cause of Action for Wrongful Foreclosure A trustor seeking to set aside a foreclosure sale must allege (1) an illegal, fraudulent, or willfully oppressive sale; (2) prejudice; and (3) tender of the secured indebtedness or an excuse from tendering. Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104. Defendants argue the first element is not met because there was no wrongful conduct. However, plaintiff's HBOR claim satisfies this requirement.

A full tender must be made to set aside a foreclosure sale, based on equitable principles, to avoid plaintiffs from evading their lawful debt. (Stebley v. Litton Loan Servicing (2011) 202 Cal.App.4th 522, 526.) Merely alleging an offer to tender is not sufficient before attacking a sale. (Ibid.)

These are the same elements as an equitable cause of action to set aside a foreclosure sale. (Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104; Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394, 408 [“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.”].)

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.)

And while tender and acceptance of a payment sufficient to cure a default on a loan secured by a deed of trust reinstates the loan and deprives the trustee of the power to foreclose (and thus can be grounds for setting aside a foreclosure sale), there is no indication that there was a consummated modification agreement (Barroso v. Ocwen Loan Servicing, supra, 208 Cal.App.4th at p. 1017; Residential Capital v.

Discussion 1st Cause of Action for Wrongful Foreclosure The elements of an action to set aside a foreclosure sale are: (1) the trustee caused an illegal, fraudulent, or willfully oppressive sale of real property; (2) the party attacking the sale was prejudiced or harmed; and (3) in cases where the trustor challenges the sale, the trustor tendered the amount of the secured indebtedness or was excused from tendering. Orcilla v. Big Sur, Inc. (2016) 244 Cal.App.4th 982, 996 (citation omitted).

While the tender requirement may apply to causes of action to set aside a foreclosure sale, it does not apply to actions seeking to enjoin a foreclosure sale. A borrower is not required to tender the full amount due in seeking to enjoining foreclosure based on alleged failure to comply with Civil Code § 2923.5. Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 225. See also, Barrionuevo v. Chase Bank, N.A.

Finally, when a plaintiff seeks to set aside a foreclosure sale, he or she must allege to be ready, willing and able to satisfy the indebtedness (or at least the amount necessary to cover the delinquency). Vanderlous v. Conley (2010) 188 Cal.App.4th 111, 119. Although there is a generic incorporation of all prior paragraphs, there is now nothing in this cause of action relating to the alleged $2.8 million tender. This claim is tied exclusively to a receiver’s deed, which is not applicable here.

“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.” (Ibid, citing, Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,408–409.)

“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.

As relevant here, Herrera stands for the following propositions: (1) " to allege a cause of action to set aside a foreclosure sale, there must be a specific factual basis for alleging the foreclosure was not initiated by the correct party" (205 Cal.App.4th at p. 1503); (2) where the deed of trust vests in MERS the right to exercise all interests and rights held by the lender and its successors and assigns, MERS may exercise those rights without the need to affirmatively demonstrate that it was authorized by

Analysis Set Aside Trustee’s Sale Generally, “[a] full tender must be made to set aside a foreclosure sale.” (Stebley v. Litton Loan Servicing, LLP (2011) 202 Cal. App. 4th 522, 526.) Plaintiff has not alleged tender or adequately alleged that he is exempt from the tender requirement.

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.

The application of the "tender rule" prevents a court from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established his ability to purchase the property. Thus, without a showing or an allegation of full tender of the loan amount, Plaintiff lacks standing to challenge the foreclosure sale, or any claim related to the sale. Plaintiff has not alleged that he offered the amount of the loan ($500,000).

Eischen (1984) 158 Cal.App.3d 575, 578-579 [it would be a “useless act” for a court to exercise its equitable authority to set aside a foreclosure sale, if the defaulted borrower could not cure the default].) Based upon the above, and absent a showing by Plaintiff as to how the deficiencies could be cured by amendment after previously doing so voluntarily, the court sustains the demurrer by each of the Defendants to all causes of action, each without leave to amend.

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.

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.]” ( In re: Sciarratta v. U.S. Bank National Association (2016) 247 Cal.App.4th 552, 561.)

“[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 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

While a failure to allege tender may preclude Plaintiffs from setting aside a foreclosure sale, it does not preclude them from seeking damages. The demurrers for uncertainty are overruled as no argument was presented in the moving papers on this issue. Leave to amend is given as this is the first challenge to the complaint upon which the Court has ruled. Plaintiffs may file and serve an amended complaint on or before June 15, 2012.

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, supra, 236 Cal.App.4th at pp. 408409.)

Tender: “A full tender must be made to set aside a foreclosure sale, based on equitable principles. … 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, 202 Cal.App.4th 522, 526 (2011). To maintain any cause of action for irregularity in a foreclosure sale procedure, a plaintiff must allege tender of the amount of the secured indebtedness. Abdallah v.

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.

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.

“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.” (Ibid, citing, Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,408–409.)

Nature of Proceedings: Motion: Consolidation This is an action for declaratory relief to set aside a foreclosure sale. Plaintiff Barbara Watts, individually and as Trustee of the Barbara Watts Living Trust dated January 13, 2012 (“Watts”), is the former owner of real property located at 4888 Ogram Road, Santa Barbara, California 93105.

An equitable action for wrongful foreclosure to set aside a foreclosure sale involves equitable issues not necessarily implicated by an action for damages. (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) Having alleged in 2013 the underlying facts upon which the claim is based but having made the apparent decision in 2013 to limit DLG’s claims to claims for monetary remedies, DLG now less than 60 days before trial seeks to make a substantial change to the tenor and complexity of the action.

Section 2923.5 does not provide for damages, or for setting aside a foreclosure sale. (Ibid.) The only remedy is additional time before a foreclosure sale occurs. (Ibid.) Plaintiff concedes that the foreclosure sale has already occurred in this case. (First Amended Complaint, ¶ 24.) Therefore, the Court sustains the demurrer to the first cause of action without leave to amend. 2.

While it is not always necessary to establish tender to prevent a foreclosure, the borrower must show that he or she tendered the full amount of indebtedness in order to set aside a foreclosure sale that has already occurred. (Intengan v. BAC Home Loans Servicing LP (2013) 214 Cal.App.4th 1047, 1053-1054.) Plaintiff fails to allege tender or a valid basis for failure to tender. She alleges excuse from tender, but there is no basis for such an excuse.

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.

Wrongful foreclosure “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 Association (2016) 247 Cal.App.4th 552, 561.)

“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.” (Id, citing, Miles v. Deutsche Bank National Trust Co. (2015) 236 Cal.App.4th 394,408–409.)

First Cause of Action for 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.

Discussion: This is an action to set aside a foreclosure sale and to cancel a deed of trust. According to the complaint, in December 2006 plaintiff Jose M. Alvarado obtained a residential loan in the amount of $918,000 secured by a deed of trust encumbering real property located at 1601 Chino Street, Santa Barbara, California 93101. The deed of trust identifies plaintiff as the borrower, Washington Mutual Bank as the lender and beneficiary, and California Reconveyance Company as the trustee.

Moreover, the authority cited by the Federal court in Rockridge provides the elements required for “an equitable cause of action to set aside a foreclosure sale….” (See Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.) It is not apparent to the Court that Plaintiff intends to bring such a claim.1 (See, generally, Complaint.)

Fifth Cause of Action Equitable Cancellation of Foreclosure Deed (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.

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.

Fifth Cause of Action for Wrongful Foreclosure The basic elements of the wrongful foreclosure tort track the elements of an equitable cause of action to set aside a foreclosure sale: (i) the trustee caused an illegal, fraudulent or willfully oppressive real property sale pursuant to a power of sale in a deed of trust; (ii) the party attacking the sale (usually, but not always, the trustor) was prejudiced or harmed; and (iii) in cases where the trustor challenges the sale, the trustor tendered the amount of the

Setting aside the trustee’s sale (fifth cause of action) “[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 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

“While the tender requirement may apply to causes of action to set aside a foreclosure sale, a number of California and federal courts have held or suggested that it does not apply to actions seeking to enjoin a foreclosure sale ....” (Intengan v. BAC Home Loans The cases cited by Everbank appear to be focused on setting aside a trustee’s sale.3 Here, according to the complaint, a trustee’s sale has not yet occurred and Plaintiffs seek to enjoin the sale.

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.]

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 .

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.)

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.)

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.)

Generally, 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; Abdallah v. United Savings Bank (1996) 43 Cal.App.4th 1101, 1109.)

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 Natl Assn. (2016) 247 Cal.App.4th 552, 561.)

“[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

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.

Fourth Cause of Action (i.e., Wrongful Foreclosure) [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

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

Wrongful foreclosure “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 Association (2016) 247 Cal.App.4th 552, 561.)

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

A plaintiff seeking to set aside a foreclosure sale must allege tender of the full amount of the loan to maintain a cause of action that either is based on the wrongful foreclosure allegations or seeks redress from that foreclosure. (Turner v. Seterus, Inc. (2018) 27 Cal.App.5" 516, 525.) In the present case, no tender has been alleged. Plaintiff contends tender need not be made where it would be inequitable to do so, citing Humboldt Savings Bank v. McCleverty (1911) 161 Cal. 285.

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, 561–562.)

First cause of action for 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.

First cause of action for wrongful foreclosure: “[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 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

However, errors in nonjudicial sale proceedings must cause prejudice to support a claim to set aside a foreclosure sale. Fontenot v Wells Fargo Bank, N.A. (2011) 198 Cal.App.4th 256, 272. 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.

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.

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.

Set Aside Trustee’s Sale “[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 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

However, the rule is not so clear in cases in which no foreclosure sale has yet been held: " 'A full tender must be made to set aside a foreclosure sale, based on equitable principles.' [Citation.] Courts, however, have not required tender when the lender has not yet foreclosed and has allegedly violated laws related to avoiding the necessity for a foreclosure. (See, e.g., Mabry v. Superior Court (2010) 185 Cal.App.4th 208, 225–226 [110 Cal.

(E.D.Cal.2009) 664 F.Supp.2d 1086, 1101 [tender rule is meant to prevent courts “ ‘from uselessly setting aside a foreclosure sale on a technical ground when the party making the challenge has not established his ability to purchase the property’ ”].)

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

Full tender must be made to set aside a foreclosure sale. Stebley v. Litton Loan Servicing LLP (2001) 2001 WL 5975655 *2. Plaintiffs have not tendered the amount owed on the loan, and claim to quiet title fails as a matter of law. Defendants contend further that there is no post-foreclosure remedy under CC § 2923.5. Rather, the only possible remedy is for postponement of the sale before it happens. After the sale, Section 2923.5 provides the borrower no relief. Mabry v.

First 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.

First 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.

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.

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.

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.

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.