What is wrongful foreclosure?

“A wrongful foreclosure is a common law tort claim. 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 Nat’l Assn. (2016) 247 Cal.App.4th 552, 561.)

Legal Standard

“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.) “To maintain a wrongful foreclosure claim, a plaintiff must allege that

  1. the defendants caused an illegal, fraudulent, or willfully oppressive sale of the property pursuant to a power of sale in a mortgage or deed of trust;
  2. the plaintiff suffered prejudice or harm; and
  3. the plaintiff tendered the amount of the secured indebtedness or was excused from tendering.”

(Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062; Lona v. Citibank, N.A. (2011) 202 Cal.App.4th 89, 104.)

“[M]ere technical violations of the foreclosure process will not give rise to a tort claim; the foreclosure must have been entirely unauthorized on the facts of the case.” (Miles, supra, 236 Cal.App.4th at p. 409.)

Wrongful foreclosure claims are premature if there has been no foreclosure sale. (Vega v. JPMorgan Chase Bank, N.A. (E.D.Cal. 2009) 654 F. Supp.2d 1104, 1113.) In situations where a foreclosure has already occurred, the California Supreme Court held that a borrower has standing to sue for wrongful foreclosure based on an allegedly void assignment of his or her mortgage. (Yvanova v. New Century Mortg. Corp. (2016) 62 Cal.4th 919.)

However, in cases where a foreclosure sale has not taken place, the court deliberately left open the question of whether a borrower may preemptively challenge a foreclosing party’s right to proceed with the foreclosure. (Yvanova, supra, 62 Cal.4th at p. 924.) The court thus left intact an appellate court decision in Gomes v. Countrywide Home Loans, Inc. (2011) 192 Cal.App.4th 1149 (Gomes), which held that courts may not interject themselves into California’s comprehensive nonjudicial foreclosure scheme by entertaining “speculative suit[s]” regarding the lack of authority by the foreclosing entity to foreclose. (Gomes, supra, 192 Cal.App.4th at p. 1156.)

Statute of Limitations

Generally, the statute of limitations for wrongful foreclosure is three years. (Code of Civ. Proc., Code § 338(a), (d).)

Useful Rulings on Wrongful Foreclosure

Recent Rulings on Wrongful Foreclosure

LAURA JOANNE MEADOWS VS PLANET HOME LENDING, LLC, ET AL.

Wrongful Foreclosure; ll. Quiet Title; 12. Slander of Title; 13. Cancellation of Instruments; 14. Violation of Business & Professions Code § 17200, 15. Accounting MEET & CONFER EFFORTS The exhibits to the demurrer establish that Defendants’ counsel diligently attempted to meet and confer with Plaintiffs prior to filing these motions. Plaintiffs refused to respond. It is worth noting that attorneys have made limited scope appearances for Plaintiffs.

  • Hearing

    Jul 14, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

TERESA OWENS VS MALIPEP, LLC

Plaintiff submitted evidence that Belcher, through an entity named Ivy League Consultants LLC (“Ivy League”) filed a lawsuit against REO, Trustee, and Plaintiff alleging wrongful foreclosure and related causes of action. ([O-SSF No. 12] Decl. of Daggenhurst ¶4.) Plaintiff submitted evidence Belcher dismissed the lawsuit. ([O-SSF No. 13] Decl. of Daggenhurst ¶5.)

  • Hearing

    Jul 14, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

EDWARD RANDOLPH DAYTON V. BANK OF AMERICA N.A.

BANA requests judicial notice of several recorded documents pertinent to this wrongful foreclosure action. The court takes judicial notice of all proffered recorded documents as facts not reasonably subject to dispute and capable of ready and accurate determination. (Ev. Code § 452, subd. (h); Md. Casualty Co. v. Reeder (1990) 221 Cal.App.3d 961, 977.) The court takes judicial notice of the fact of the documents’ existence, their recordation, and their legal effect. (Scott v.

  • Hearing

    Jul 13, 2020

RICK SIEGEL VS DAVID A ALESSI ET AL

Alessi further alleges that had Chase “not engaged in a wrongful foreclosure” and “not wrongfully initiated and ultimately foreclosed” on Siegel’s home, Siegel would not have lost his home and would not have needed to initiate legal action against Alessi. (Cross-Compl., ¶¶ 18-19.)

  • Hearing

    Jul 13, 2020

ANDREW M. EGBE VS SELECT PORTFOLIO SERVICING, INC., ET AL.

In Gillies, the appellate court examined a res judicata defense predicated on four pre-foreclosure lawsuits involving “similar allegations of claimed wrongful foreclosure procedures and [the lender’s] standing to foreclose.” The appellate court found that each “sought to vindicate the same primary right” irrespective of whether “the appellant has a new theory of wrongful foreclosure.” (Gillies v. JPMorgan Chase Bank, N.A. (2017) 7 Cal.App.5th 907, 910, 914.) The same logic applies to this case.

  • Hearing

    Jul 10, 2020

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

Although Plaintiff alleges certain new causes in this action, the complaint is based on the same alleged wrongful foreclosure upon which the earlier matters were based. That is, though Plaintiff raises new issues relating to the alleged wrongful foreclosure, even if he were be able to prove his claims, he can neither circumvent the rule against claim-splitting nor the doctrines of res judicata and collateral estoppel, as detailed above. Thus, Defendants’ demurrers are SUSTAINED, without leave to amend.

  • Hearing

    Jul 10, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

WIDLY V. TUCKER

Hearing on Preliminary Injunction This is a wrongful foreclosure case. On 03/09/20, this Court granted plaintiff’s unopposed request for a TRO. The hearing on the preliminary injunction is set for this week. There is no opposition, though some of the defendants have filed a joint demurrer.

  • Hearing

    Jul 09, 2020

FELICIA JACINTA ANARO VS MASON-MCDUFFIE MORTGAGE CORPORATION AND U.S. BANK, N.A. ET AL.

Bank’s and MERS’ demurrers to the first cause of action for wrongful foreclosure/lack of standing are sustained without leave to amend. Based on the same evidence, nothing shows that Mason-McDuffie ever attempted to foreclose on plaintiff’s deed of trust. Mason-McDuffie assigned its interest in Plaintiff’s Deed of Trust by Assignments filed in the San Joaquin County records on April 30, 2010 and January 28, 2015. RJN 3, 4.

  • Hearing

    Jul 08, 2020

  • Judge

    George J. Abdallah

  • County

    San Joaquin County, CA

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

Analysis Likelihood of Prevailing The ex parte application is based on Plaintiff’s causes of action for wrongful foreclosure and declaratory relief. (See Ex parte 8-10; Compl. ¶¶ 1-34.) 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

THOMAS J MEZA, ET AL. VS BASILE & ASSOCIATES, ET AL.

The court declines to address the tender or excuse for tender element at this juncture because plaintiffs have failed to adequately allege two of the three elements of wrongful foreclosure. Therefore, RLF and MCG’s demurrer to plaintiffs’ third cause of action for wrongful foreclosure is sustained with 30 days leave to amend.

  • Hearing

    Jul 07, 2020

  • Type

    Real Property

  • Sub Type

    other

(NO CASE NAME AVAILABLE)

Analysis Likelihood of Prevailing The ex parte application is based on Plaintiff’s causes of action for wrongful foreclosure and declaratory relief. (See Ex parte 8-10; Compl. ¶¶ 1-34.) 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

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

Analysis Likelihood of Prevailing The ex parte application is based on Plaintiff’s causes of action for wrongful foreclosure and declaratory relief. (See Ex parte 8-10; Compl. ¶¶ 1-34.) 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

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

. §§ 2201, 2202]; 2) Notice of Violations – Wrongful Foreclosure; and 3) Notice of Violations – Trustee Sale on September 13, 2019. On November 27, 2019, Defendants Rushmore Loan Management Services LLC (“Rushmore”), U.S. Bank Trust National Association as Trustee for Legacy Mortgage Asset Trust 2017-GSI (“Legacy Mortgage”), and Mortgage Electronic Registration Systems, Inc. (“MERS”) filed a demurrer to Plaintiffs’ FAC.

  • Hearing

    Jul 06, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

  • Judge

    Paul A. Bacigalupo or Virginia Keeny

  • County

    Los Angeles County, CA

ESTILLORE V. QUALITY LOAN SERVICE CORP., ET AL.

The Court also sustained the demurrer to the third cause of action for unfair business practices with leave to amend and sustained a demurrer to causes of action for wrongful foreclosure and fraud without leave to amend. On September 25, 2019, Plaintiff filed the TAC against defendants Select Portfolio Servicing, Inc. (“SPS”), U.S. Bank N.A., as trustee, on behalf of the holders of J.P.

  • Hearing

    Jul 02, 2020

AZZOPARDI VS. DEUTSCHE BANK

The FAC alleges causes of action for (1) wrongful foreclosure; (2) declaratory relief; (3) cancellation of instruments; and (4) to set aside trustee’s sale. For the following reasons the Defendant’s Demurrer to Plaintiff’s cause of action for wrongful foreclosure is sustained, without leave to amend. Request for Judicial Notice Plaintiff requests judicial notice of a declaration filed in Case No. PS19-1246. Defendant objects. The Request is denied. Evid Code § 450.

  • Hearing

    Jul 02, 2020

MARIA RIVERA, ET AL. VS THE LAW OFFICE OF ZIEVES, BODNAK, & STEELE, LLP

This wrongful foreclosure action was filed by Plaintiffs WILLIAM LINARES and MARIA RIVERA (in pro per) on October 5, 2018. On December 26, 2019, a First Amended Complaint (“FAC”) was filed. Plaintiffs’ FAC asserts the following causes of action: (1) Violation of Homeowner Bill of Rights; (2) Violation of Civil Code §2923.5; (3) Declaratory Relief; (4) Injunctive Relief; (5) Accounting; and (6) Wrongful Foreclosure. Defendant demurs to each and every cause of action pursuant to CCP §430.10(e).

  • Hearing

    Jul 02, 2020

  • Type

    Contract

  • Sub Type

    Breach

  • Judge

    Lori Ann Fournier or Olivia Rosales

  • County

    Los Angeles County, CA

GROVES, ET AL. V. ZIEVE, BRODNAX & STEELE, ET AL.

In this case, Plaintiff alleges that the foreclosure sale was completed May 1, 2018, that Defendant had duty to disburse surplus funds by June 8, 2018 and that, despite no other claimants to the surplus funds, Defendant maintained control of the funds and attempted to condition release of the funds upon dismissal of a suit for wrongful foreclosure. (Complaint, ¶¶ 4-7.) Notably, Defendant did not file an interpleader action until November 29, 2018. (Defendant’s Request for Judicial Notice (“RFJN” Exh. 8.)

  • Hearing

    Jul 02, 2020

WILLIAM CHARLES JONES JR VS THE REO GROUP INC ET AL

., Creative Investments, LLC, and Provident Title Company for (1) fraud; (2) temporary restraining order; (3) preliminary and permanent injunctions; (4) quiet title; (5) declaratory relief; (6) damages arising from wrongful foreclosure, cancellation of instrument. On October 17, 2018, the Court granted Plaintiff’s ex parte application to approve lis pendens.

  • Hearing

    Jul 02, 2020

  • Type

    Personal Injury/ Tort

  • Sub Type

    Fraud

CHAPTER ONE LAND TRUST VS SELECT PORTFOLIO SERVICING, INC., ET AL.

The requirement of tender is necessary in a wrongful foreclosure claim, not a HBOR claim. (Compare Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516, 525 with Valbuena v. Ocwen Loan Servicing, LLC (2015) 237 Cal.App.4th 1267, 1273 [“Nothing in the language of HBOR suggests that a borrower must tender the loan balance before filing suit based on a violation of the requirements of the law. Indeed, such a requirement would completely eviscerate the remedial provisions of the statute.”].)

  • Hearing

    Jun 30, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

CLAUDETTE MARIE LESLIE, ET AL. VS NEW CENTURY MORTGAGE CORPORATION, ET AL.

The court in its previous ruling noted that claims for wrongful foreclosure do not require tender when the basis of the claim is that the assignment by which a party took a beneficial interest in the deed of trust, such as Citimortgage here, was void. (See Sciarratta v. U.S.

  • Hearing

    Jun 30, 2020

  • Type

    Real Property

  • Sub Type

    Foreclosure

ASHLEY PEREZ VS FCI LENDER SERVICES, INC, ET AL.

As it relates to each cause of action asserted against FCI, Defendants argue that the first (breach of contract), third (breach of implied covenant of good faith and fair dealing), fourth (neglect), fifth (intentional misrepresentation), sixth (wrongful foreclosure) and seventh (violation of Bus. Prof. § 17200) causes of action fail. Defendants further argue Plaintiff failed to plead substantial detriment, which causes the second cause of action, promissory estoppel, to fail.

  • Hearing

    Jun 30, 2020

  • Type

    Real Property

  • Sub Type

    other

RAMIREZ, ET AL. V. NATIONSTAR MORTGAGE LLC, ET AL.

The federal authorities relied upon by Defendant do not hold that a person with community property interest in real property does not have standing to bring claims of wrongful foreclosure, elder abuse, or violation of the UCL.

  • Hearing

    Jun 26, 2020

ALFONSO LUNA, ET AL. VS OCWEN LOAN SERVICING, LLC, ET AL.

In Yvanova, the California Supreme Court examined the “narrow question” of “whether a wrongful foreclosure plaintiff may challenge an assignment to the foreclosing entity as void.”

  • Hearing

    Jun 26, 2020

  • Type

    Real Property

  • Sub Type

    other

BELL HOSPITAL CORPORATION ET AL VS WESTERN FIDELITY TRUSTEES

(“American Cardiocare”) (jointly, “Plaintiffs”) filed this wrongful foreclosure action on March 5, 2013. Plaintiffs filed a First Amended Complaint (“FAC”) on June 9, 2015 against Defendants New Aid Medical Supply, Inc. (“New Aid”); Earl Collins, as assignee of New Aid Medical Supply; Earl Collins; Rita Collins; T.D. Service Company (“T.D. Service”); and Fran DePalma (collectively, “Defendants”).

  • Hearing

    Jun 26, 2020

JOSHUA M RODIN VS WESTBOURNE TOWNHOUSES HOMEOWNERS ASSOCIATION, A CALIFORNIA NONPROFIT MUTUAL BENEFIT CORPORATION, ET AL.

Probability of Success Rodin asserts that he can demonstrate a probability of success on his claims for declaratory relief and quiet title and wrongful foreclosure. a.

  • Hearing

    Jun 25, 2020

  • Type

    Real Property

  • Sub Type

    Quiet Title

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