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Can an complaint really delay the sale of a home?

Ventura, CA |

I received a notice of sale of my home. A friend says that if I hire an attorney they can sue the lender to delay the sale of the home. I cannot confirm this and I am afraid to ask an attorney because they might just tell me yes to get me to pay them. Can a complaint delay the sale of the home? I am getting money together but it is taking time to liquidate it all I just need time.

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Best Answer

Once in a blue moon, a borrower does succeed in stopping a foreclosure sale by filing a lawsuit and obtaining a TRO and preliminary injunction. Whether you will succeed depends upon a whole number of factors. It is very fact specific.

In California, in order to obtain a preliminary injunction to prevent a non-judicial foreclosure, the plaintiff must show a probability of prevailing on the merits. The decision to grant or deny a preliminary injunction is committed to the discretion of the trial court after the court determines (1) the likelihood that the plaintiff will prevail on the merits at trial, and (2) the relative harms suffered by the parties.” Pleasant Hill Bayshore Disposal, Inc. v. Chip-It Recycling, Inc., 91 Cal. App. 4th 678, 695 (2001). Plaintiffs have the burden of proof to show all elements necessary to support the issuance of a preliminary injunction. O’Connell v. Superior Ct., 141 Cal.App.4th 1452, 1481 (2006).

Typically, the balance of harms favors the plaintiff since real property is unique. Real property is usually deemed “unique,” so that injury or loss cannot be compensated in damages, and injunctive relief is therefore readily granted. See Civ. Code §3387.

As to the merits, the plaintiff must submit supporting evidence. A verified complaint may be sufficient by itself to support an application for a preliminary injunction if (and only if) it contains sufficient evidentiary facts. See Code of Civil Procedure §527(a).

A substitution of trustee may be effected after a Notice of Default (NOD) has been recorded, but prior to the recording of the Notice of Truste's sale (NOTS), so long as the beneficiary or its authorized agents concurrently mail the substitution in the manner provided in Section 2924b to all persons to whom a copy of the NOD would be required to be mailed under 2924b. See Civil Code §2934a(c).

Civ. Code §2924(a)(1) states that “The trustee, mortgagee, or beneficiary, or any of their authorized agents” may initiate the foreclosure process.

Under Civ. Code §2924, no party needs to physically possess the promissory note in order to commence foreclosure proceedings. (Civ. Code §2924(a)(1)).

A borrower attacking a voidable sale must do equity by tendering the amount owing under the loan. The tender rule applies to all causes of action implicitly integrated with the sale. Arnolds Management Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 579.

However, a tender may not be required where it would be inequitable to impose this condition. Humboldt Sav. Bank v. McCleverty (1911) 161 Cal. 285, 291; see also Lucci v. United Credit & Collection Co. (1934) 220 Cal. 492, 497. When the sale is totally void, a tender usually is not required. Scott v. Security Title Insurance & Guarantee Co. (1937) 9 Cal. 2d 606, 610-611. An example of when the tender rule would not apply is if the sale would be void because either the NOD or NOTS were not properly recorded.

As a condition of issuing and maintaining the preliminary injunction, the court will usually require the plaintiffs to pay some amount of money equivalent to the monthly mortgage payments to a trust account, as well as require the plaintiff to maintain the property and keep the property taxes, HOA dues (if any), and insurance current.

The information presented here is general in nature and is not intended, nor should be construed, as legal advice. This posting does not create any attorney-client relationship with the author (who is only admitted to practice law in the State of California). For specific advice about your particular situation, consult your own attorney.


It depends on the causes of action alleged in the complaint and whether those allegations will support a temporary restraining order and an injunction during the course of the lawsuit. If the foreclosure was started because of the lender's mistake, or they did not attempt to contact you to discuss ways to avoid foreclosure before filing the Notice of Default, filing a lawsuit can delay the foreclosure process for a while, but in the final analysis, if you cannot afford to make the mortgage payments, you probaby cannot afford to pay an attorney to kick this can down the road. Your money is probably better spent on curing the default. In any event, you should consult with a real estate attorney and discuss the exact particulars of your situation.

Richard A. Rodgers, Esq.
(805) 230-2525
200 N. Westlake Blvd. Ste 201
Westlake Village, CA 91362

As stated in the AVVO.COM Terms and Conditions of Use, this answer is not intended as legal advice, and no attorney-client relationship or privilige is created by this response.

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