Written by attorney Richard Ivar Rydstrom

Don't Confuse California Foreclosure Tender Laws; Borrowers Do Not Always Have to Tender!

No tender is required to enjoin a foreclosure sale prior to the sale, in the event of [the bank’s] non-compliance with Civil Code § 2923.5 (Mabry v. Superior Court (2010) 185 Cal. App. 4th 208). However, even after the sale, a void, fraudulent or mistaken foreclosure process, sale or trustee’s deed can be set aside [or further enjoined].

A void or rescinded trustee sale and trustee’s deed upon that sale is a nullity in fact, at law, and cannot be enforced (Promis v. Duke, 208 Cal. 420 ; Gould v. Wise, 97 Cal. 532; Dimock v Emerald Props (2000) 81 Cal. App. 4th 868, 97 CR2d 255; Strathvale Holdings v. E.B.H. 126Cal. App.4th 1241). Even in the California Supreme Court in Cheney v. Trauzettel (9 Cal.2d 158, 160 (1937)) the court held that title issues are not concluded by judgment. “The rule prohibiting extrinsic evidence does not mean that a judgment void for lack of jurisdiction can be enforced merely because the supporting papers, though false-in-fact, are ingood form.’ (Emphasis Added) (8 Wikin, supra, Section 11, p. 518.) (Strathvale Holdings v E.B.H. 126 Cal. App.4th 1241, 1249); “When a court lacks jurisdiction in a fundamental sense, an ensuing judgment is void and ‘thus vulnerable to direct or collateral attack at any time.’" (Ibid., quotingBarquis v. Merchants Collection Assn. (1972) 7 Cal.3d 94, 119.) (C.C.P. 1161 a (b) (3), 1172, C.C. 2924 et seq;Old National Financial Services Inc., v. Siebert(1987) 194 Cal App. 3rd 460(Emphasis Added)). An offer to pay the debt isnot required as to claims to set side foreclosure sales, where it would be inequitable, such as where plaintiffs donot owe the debt,or have a legal right to avoid the sale (Humbolt Sav. Bank v. McCleverly (1911) 161Cal.285, 291; Carruth v. Fritch 36 Cal.2d 426 (1950), 430-431 at 433)).

Additional resources provided by the author

Wrongful Foreclosure; Wrongful HAMP Modificaiton Denials; Call 1-877-Win-4-You

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