Homeowner's Do Not Always Have to Tender (Pay Mortgage) Before Suing the Bank!
Wrongful Foreclosure; Wrongful HAMP Denial: 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A void or rescinded trustee sale and trustee’s deed upon that sale is a nullity in fact, at law, and cannot be enforced (Promis v. Duke, 208 Cal. 420 ; Gould v. Wise, 97 Cal. 532;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 in good 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., quoting Barquis 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 is not required as to claims to set side foreclosure sales, where it would be inequitable, such as where plaintiffs do not 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)).
ABOUT THE AUTHOR: Rich Rydstrom, Esq.
Protecting Homeowners in Foreclosure Litigation - Like a “David vs. Goliath” story, Rydstrom fights back for the “little guy.” As a fierce advocate, Rydstrom stands up for the rights of troubled homeowners. Richard protects homeowners facing wrongful foreclosure, wrongful mortgage modification denials or those suffering from emotional and physical injuries as a result of fraud closures and fraud-mods.
With more than 21 years of legal experience, Rydstrom is rated Superb, 10 out of 10 by Avvo – the world’s largest rating directory of lawyers. He has vast experience representing plaintiffs, defendants, homeowners and mortgage banking institutions. Richard is considered a national expert in the mortgage banking industry and is no stranger to the rights and duties of banks and homeowners.
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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer. For specific technical or legal advice on the information provided and related topics, please contact the author.