From: Charles Cox [mailto:firstname.lastname@example.org]
Sent: Friday, March 29, 2013 11:41 AM
To: Charles Cox
Subject: Results of some legal research for an appellate case I’m working on – California case law Headnotes
Those of you getting hit with the standard BS about CCP 2924 being a “comprehensive statutory scheme” might find this quote interesting and useful in your litigations:
“The mere existence of a comprehensive statutory scheme does not necessarily eliminate all further remedies without the consideration of the relevant policy concerns. Indeed, California courts have repeatedly allowed parties to pursue additional remedies for misconduct arising out of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes.” Pfeifer v. Countrywide Home Loans, Inc., 211 Cal. App. 4th 1250 (Cal. App. 1st Dist. 2012)
“The rights and powers of trustees in nonjudicial foreclosure proceedings have long been regarded as strictly limited and defined by the contract of the parties and the statutes. The fact that a borrower is in arrears does not allow the trustee to circumvent the conditions precedent to foreclosure. Indeed, the conditions precedent in the deed of trust that govern the accrual of the trustee’s latent power to foreclose do not become relevant until the borrower has first breached the deed of trust in some way. Therefore, prohibiting the borrower who has breached from bringing an action to enforce the conditions precedent in a deed of trust would nullify such conditions. The mere fact of the borrower’s breach alone would become, de facto, the only condition precedent to foreclosure. Lenders require deeds of trust precisely because they contemplate the possibility of non-payment, and the deed of trust is a contract in which the parties have agreed that material breach of the note by nonpayment will not deprive borrowers of their rights to enforce conditions precedent.” Pfeifer, Id.
“A full tender must be made to set aside a foreclosure sale, based on equitable principles. 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.” Pfeifer, Id.
“Courts have recognized various exceptions to the tender rule, including an exception based on an allegation that a foreclosure sale is void.” Pfeifer, Id.