What is setting aside a trustee sale?

“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.” (Lona v. Citibank (2011) 202 Cal. App. 4th 89, 103.)

The elements of a cause of action to set aside the trustee’s sale:

  1. the trustee caused an illegal, fraudulent, or willfully oppressive sale of real property pursuant to a power of sale;
  2. the party attacking the sale was prejudiced or harmed; and
  3. the trustor tendered the amount of the secured indebtedness or was excused from tendering.

(Id at 104.)

The trustee’s failure to comply with statutory requirements for the notice or conduct of the sale may provide justification for setting it aside. (Id at 105.)

Verified Complaint Requirement

Under Code of Civil Procedure Section 761.020, a complaint that seeks to establish title against adverse claims to real property must be verified.

Overcoming Statutory Presumption

The plaintiff in an action must overcome the statutory presumption of Civil Code Section 2924(c) that the foreclosure sale was conducted properly. (Moeller v. Lien (1994) 25 Cal.App.4th 822, 831; see also, Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 441 citing in relevant part: “If the trustee’s deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser.”)

Cases on Point

“[A] trustor cannot set aside a foreclosure sale to a bona fide purchaser for value based on irregularities in the foreclosure process, except in the case of fraud.” (Melendez v. D & I Investment, Inc. (2005) 127 Cal. App. 4th 1238, 1256.)

“A trustor has no right to set aside a trustee’s deed as against a bona fide purchaser for value by attacking the validity of the sale.” (Moeller v. Lien (1994) 25 Cal. App. 4th 822, 832.)

“In limited circumstances, a foreclosure sale can be successfully challenged only if the buyer is not a bona fide purchaser.” (6 Angels, Inc. v. Stuart- Wright Mortgage, Inc. (2001) 85 Cal. App. 1279, 1286.)

The elements of bona fide purchaser:

  1. payment of value,
  2. in good faith, and
  3. without actual or constructive notice of another's rights.

(Melendrez v. D & I Investment, Inc. (2005) 127 Cal. App. 4th 1238, 1251.)

“It is not necessary for the buyer to pay fair market value as long as valuable consideration is paid.” (Id.)

“A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing, service or posting of copies of the notice of default and notice of sale constitutes prima facie evidence of compliance with these requirement and conclusive evidence thereof in favor of bona fide purchases for value without notice.” (Cal. Civ. Code §2924(c).)

Useful Rulings on Setting Aside a Trustee Sale

Recent Rulings on Setting Aside a Trustee Sale

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

Simone for (1) quiet title; (2) rescission; (3) set aside trustee sale; (4) intentional infliction of emotional distress; (5) breach of covenant of good faith and fair dealing; (6) unfair business practices; (7) negligence; (8) violation of Business & Professions Code section 17200 et seq.; and (9) declaratory and injunction relief. The first cause of action is asserted against all defendants except for Gomez & Simone and Stuart R.

  • Hearing

    Jan 31, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

MARVELL LENOX TELL JR VS RAY BROWN BOWEN JR ET AL

On May 9, 2019, the Court ruled on Defendants demurrer to the First Amended Complaint (“FAC”), and sustained with leave to amend the first cause of action for wrongful foreclosure, fourth cause of action to set aside trustee sale, and fifth causes of action for cancellation of deed, sustained without leave to amend as to the second cause of action for conspiracy to defraud, and overruled the demurrer to the third cause of action to quiet title.

  • Hearing

    Jan 02, 2020

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

Third Cause of Action: Set Aside Trustee Sale Defendant argues that the complaint lacks factual allegations to support the third cause of action to cancel the trustee’s deed upon sale (“TDUS”). (Demurrer, p. 9:23-27.) Defendant also asserts that because there was no tender, and Plaintiff has not alleged any tender, Plaintiff may not cancel the TDUS. (Id. at p. 10:12.)

  • Hearing

    Nov 22, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

COSME R SIBRIAN VS CARRINGRON MORTGAGE SERVICES LLC

Third Cause of Action: Set Aside Trustee Sale Defendant argues that the complaint lacks factual allegations to support the third cause of action to cancel the trustee’s deed upon sale (“TDUS”). (Demurrer, p. 9:23-27.) Defendant also asserts that because there was no tender, and Plaintiff has not alleged any tender, Plaintiff may not cancel the TDUS. (Id. at p. 10:12.)

  • Hearing

    Nov 22, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

RICARDO ARREDONDO VS POYA GHASRI, ET AL.

Seaside Demurrer First and Fifth Causes of Action: Set Aside Trustee Sale and Wrongful Foreclosure Seaside demurs to the First and Fifth Causes of Action on the grounds that the FAC fails to allege any procedural defect in the sale and fails to allege any prejudice or harm flowing from any alleged defects. (Seaside Demurrer at pp. 8-10.)

  • Hearing

    Nov 12, 2019

  • Type

    Real Property

  • Sub Type

    Quiet Title

PAULA BOYD VS DAVID FREEMAN

Service Company (“TD”) (collectively, “Defendants”) alleging causes of action for (1) wrongful foreclosure, (2) setting aside trustee sale, (3) voiding or canceling trustee’s deed upon sale, (4) unjust enrichment, and (5) quiet title. The FAC alleges in pertinent part as follows. Boyd was the owner of a 16-unit apartment complex located at 125 W. Chestnut Street, Glendale, CA 91205 (“Property”). Boyd received over $12,000 a month from these rental units.

  • Hearing

    Sep 11, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

MARVELL LENOX TELL JR VS RAY BROWN BOWEN JR ET AL

Demurrer: Third Cause of Action – Set Aside Trustee Sale Defendants demur to the 3rd cause of action on the grounds that Plaintiff failed to comply with the rule of tender. As previously discussed, Plaintiff’s pleadings allege an ineffective assignment and that the foreclosure sale was void. Thus, the rule of tender would not apply. The demurrer to the 3rd cause of action is OVERRULED.

  • Hearing

    Sep 10, 2019

BRECKENRIDGE PROPERTY FUND VS WILLIAMSON

The Court sustains without leave to amend as to the Wrongful Foreclosure, Set Aside Trustee Sale and Cancellation of Instruments causes of action. SUMMARY OF MATTER This is a quiet title action. Plaintiff/Cross-Defendant Breckenridge Property Fund (“Breckenridge”) purchased the subject property at a foreclosure sale after Defendant/Cross- Complainant Douglas Williamson (“Williamson”) allegedly failed to pay all assessments to Cross- Defendant Georgetown Square Community Association (“Association”).

  • Hearing

    Aug 15, 2019

MARVELL LENOX TELL JR VS RAY BROWN BOWEN JR ET AL

The operative second amended complaint (“SAC”) alleges four causes of action for: 1) wrongful foreclosure; 2) quiet title; 3) set aside trustee sale; and 4) cancellation of deed. On April 17, 2019, Jones, specially appearing, moved to quash the service of summons and complaint. On July 24, 2019, Plaintiff filed an opposition. Plaintiff filed a supplemental opposition on July 26, 2019. On July 31, 2019, Jones filed a reply.

  • Hearing

    Aug 07, 2019

PAULA BOYD VS DAVID FREEMAN

Service Company (“TD”) (collectively, “Defendants”) alleging causes of action for (1) wrongful foreclosure, (2) setting aside trustee sale, (3) voiding or canceling trustee’s deed upon sale, (4) unjust enrichment, and (5) quiet title. The FAC alleges in pertinent part as follows. Plaintiff was the owner of real property located at 125 W. Chestnut Street, Glendale, CA 91205 (“Property”). The Property possessed a 16-unit apartment complex and Plaintiff received over $12,000 a month from these rental units.

  • Hearing

    Aug 02, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

ANGELA FIGUEROA VS NATIONSTAR MORTGAGE LLC ET AL

Complaint Plaintiff Figueroa commenced this proceeding on August 24, 2018 against Defendants Nationstar, Bank, and Quality Loan Service Corporation (“Quality”), alleging causes of action for (1) violation of Civil Code section 2923.7, (2) violation of Civil Code section 2923.6, (3) violation of Civil Code section 2923.55, (4) breach of contract, (5) promissory estoppel, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) to set aside trustee sale, (10) quiet title, and (11

  • Hearing

    Jun 27, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

MARVELL LENOX TELL JR VS RAY BROWN BOWEN JR ET AL

On January 17, 2019, Plaintiff filed the operative first amended complaint (“FAC”), alleging six causes of action for: 1) wrongful foreclosure; 2) conspiracy to defraud; 3) quiet title; 4) set aside trustee sale; 5) cancellation of deed; and 6) injunction. On February 8, 2019, Defendants filed a demurrer and motion to strike the FAC. On April 22, 2019, Plaintiff filed oppositions. On April 30, 2019, Defendants filed reply.

  • Hearing

    May 07, 2019

WASFY W. SHINDY, TRUSTEE OF THE WASFY W. SHINDY LIVING TRUST VS. SHELLPOINT MORTGAGE

(Opp’n at 1.) 2nd COA – To Set Aside Trustee Sale Plaintiff alleges the trustee’s sale should be set aside because: (1) Defendants “never had the legal authority to foreclose” in that their “interest was never acknowledged and recorded in violation of Civil Code § 2932.5”; (2) the trustee sale “violated the [HBOR]”; and (3) the Deed of Trust was “improperly assigned and/or transferred to the Foreclosing Defendants from the original lender.” (Compl. at ¶¶ 19, 20.)

  • Hearing

    Apr 25, 2019

PAULA BOYD VS DAVID FREEMAN

The causes of action include: (1) wrongful foreclosure; (2) to set aside trustee sale; (3) to void or cancel trustee’s deed upon sale; (4) for unjust enrichment; and (5) to quiet title. ANALYSIS It is a misuse of the discovery process to fail “to respond or to submit to an authorized method of discovery,” (CCP § 2023.010(d)) or to disobey “a court order to provide discovery.” (CCP § 2023.010(g).)

  • Hearing

    Apr 10, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

RICARDO ARREDONDO VS POYA GHASRI, ET AL.

procedural history Arredondo filed the Complaint on October 17, 2018, alleging five causes of action: To Set Aside Trustee Sale Declaratory Relief Quiet Title Injunction Wrongful Foreclosure Seaside filed the present Demurrer on December 19, 2018. Arredondo filed an untimely Opposition on February 6, 2019. Seaside filed a Response on February 11, 2019. On February 20, 2019, this Court ordered the hearing continued to allow Seaside to file a Reply. Seaside filed a Reply on April 2, 2019.

  • Hearing

    Apr 08, 2019

  • Type

    Real Property

  • Sub Type

    Quiet Title

EMEZIEM VS. OCWEN LOAN SERVICING

Analysis (1) set aside trustee sale; (2) cancellation of trustee deed; (3) quiet title Plaintiff’s claims to set aside trustee sale, cancel the trustee deed, and for quiet title are premised primarily on his allegation that pursuant to a consent order between Ocwen and the California Commission of Business Oversight, he is entitled to loan modification and partial loan forgiveness. FAC at ¶ 13.

  • Hearing

    Feb 27, 2019

RICARDO ARREDONDO VS POYA GHASRI, ET AL.

procedural history Arredondo filed the Complaint on October 17, 2018, alleging five causes of action: To Set Aside Trustee Sale Declaratory Relief Quiet Title Injunction Wrongful Foreclosure Seaside filed the present Demurrer on December 19, 2018. Arredondo filed an untimely Opposition on February 6, 2019. Seaside filed a Response on February 11, 2019. Discussion DEMURRER A demurrer should be sustained only where the defects appear on the face of the pleading or are judicially noticed.

  • Hearing

    Feb 20, 2019

  • Type

    Real Property

  • Sub Type

    Quiet Title

ANGELA FIGUEROA VS NATIONSTAR MORTGAGE LLC ET AL

Complaint Plaintiff Figueroa commenced this proceeding on August 24, 2018, alleging causes of action for (1) violation of Civil Code section 2923.7, (2) violation of Civil Code section 2923.6, (3) violation of Civil Code section 2923.55, (4) breach of contract, (5) promissory estoppel, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) to set aside trustee sale, (10) quiet title, and (11) unfair business practices.

  • Hearing

    Feb 19, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

CARLOS M DEL TORO VS WELLS FARGO BANK N A ET AL

., successor by merger to Wells Fargo Home Mortgage, formerly known as Wachovia Mortgage, FSB, World Savings Bank FSB; Breckenridge Property Fund 2016 LLC; National Default Services, LLC; Does 1 through 20 for (1) to set aside trustee sale; (2) to cancel trustee deed upon sale; (3) to quiet title; (4) accounting; (5) slander of title; (6) unfair business practices; (7) wrongful foreclosure; (8) injunctive relief; and (9) declaratory relief. On November 29, 2018, Defendant Wells Fargo Bank, N.A.

  • Hearing

    Feb 08, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

(NO CASE NAME AVAILABLE)

., successor by merger to Wells Fargo Home Mortgage, formerly known as Wachovia Mortgage, FSB, World Savings Bank FSB; Breckenridge Property Fund 2016 LLC; National Default Services, LLC; Does 1 through 20 for (1) to set aside trustee sale; (2) to cancel trustee deed upon sale; (3) to quiet title; (4) accounting; (5) slander of title; (6) unfair business practices; (7) wrongful foreclosure; (8) injunctive relief; and (9) declaratory relief. On November 29, 2018, Defendant Wells Fargo Bank, N.A.

  • Hearing

    Feb 08, 2019

ANGELA FIGUEROA VS NATIONSTAR MORTGAGE LLC ET AL

Complaint Plaintiff Figueroa commenced this proceeding on August 24, 2018, alleging causes of action for (1) violation of Civil Code section 2923.7, (2) violation of Civil Code section 2923.6, (3) violation of Civil Code section 2923.55, (4) breach of contract, (5) promissory estoppel, (6) negligence, (7) intentional misrepresentation, (8) negligent misrepresentation, (9) to set aside trustee sale, (10) quiet title, and (11) unfair business practices.

  • Hearing

    Jan 22, 2019

  • Type

    Real Property

  • Sub Type

    Foreclosure

6741 HOLLYWOOD ASSOCIATES LLC VS PAULY'S PLACE INC ET AL

BC6884812 (“the First Action”), alleging the following causes of action against co-defendants WF, WSB, and NDS for: (1) To Set Aside Trustee Sale, (2) To Cancel Trustee Deed Upon Sale, (3) To Quiet Title, (4) Accounting, (5) Slander of Title, (6) Unfair Business Practices, (7) Wrongful Foreclosure, (8) Injunctive Relief, and (9) Declaratory Relief.

  • Hearing

    Jan 16, 2019

SUNG HEE PARK VS WESTERN PROGRESSIVE, LLC., ET AL.

In the operative original complaint, the Plaintiff asserts causes of action against all defendants for: (1) set aside trustee sale, (2) to cancel trustee’s deed, (3) quiet title, and (4) accounting. On September 27, 2018, the Plaintiff filed a notice of pendency of action (Lis Pendens) in connection with the Subject Property. RELIEF REQUESTED: Leave to intervene in the action as a party.

  • Hearing

    Dec 07, 2018

  • Type

    Real Property

  • Sub Type

    other

GUEVARA, MARK, ET AL VS. PNC BANK, N.A., ET AL

Based upon its review of the complaint and all attached exhibits, the court finds that the complaint alleges sufficient facts to adequately plead plaintiffs’ first cause of action for violation of Civil Code section 2923.6, second cause of action for breach of contract, third cause of action for promissory estoppel, seventh cause of action to set aside trustee sale and ninth cause of action for unfair business practices. The demurrer is overruled as to these causes of action.

  • Hearing

    Aug 21, 2018

  • Type

    Real Property

  • Sub Type

    other

  • Judge

    MICHAEL A. JACQUES

  • County

    Placer County, CA

MATTHEW J MATSON VS SBS TRUST DEED NETWORK

.) § 7.67, pp. 580–581, and cases cited therein summarizing grounds for setting aside trustee sale.)." Id., at 104. Plaintiffs cite Biancalana v. T.D. Service Co. (2013) 56 Cal.4th 807, Angell v. Superior Court (1999) 73 Cal.App.4th 691, Moeller v. Lien (1994) 25 Cal.App.4th 822, Bank of Seoul & Trust Co. v. Marcione (1988) 198 Cal.App.3d 113, and Crofoot v. Tarman (1957) 147 Cal.App.2d 443. In all of these cases, there was an issue of irregularity or unfairness in the sales proceeding.

  • Hearing

    May 10, 2018

  • Type

    Real Property

  • Sub Type

    other

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