What is the test for equitable set-aside of a trustee's sale or wrongful foreclosure claim?

California, United States of America


The following excerpt is from Hetrick v. Deutsche Bank Nat'l Trust Co., F067675 (Cal. App. 2014):

"To obtain the equitable set-aside of a trustee's sale or 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.)16 Plaintiffs' second cause of action alleged that defendant wrongfully foreclosed on the real property based on (among other things) alleged procedural irregularities, failure to adequately serve a foreclosure notice, failure to provide plaintiff his rights under Civil Code section 2923.5, and a breach of obligation to provide a HAMP loan modification.

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