What is the test for maintaining a wrongful foreclosure claim?

California, United States of America


The following excerpt is from Aniel v. E*trade Bank, A141246 (Cal. App. 2015):

"To . . . maintain a wrongful foreclosure claim, a plaintiff must allege that (1) 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) plaintiff suffered prejudice or harm; and (3) plaintiff tendered the amount of the secured indebtedness or was excused from tendering. [Citation.] Recognized exceptions to the tender rule include when: (1) the underlying debt is void, (2) the foreclosure sale or trustee's deed is void on its face, (3) a counterclaim offsets the amount due, (4) specific circumstances make it inequitable to enforce the debt against the party challenging the sale, or (5) the foreclosure sale has not yet occurred. [Citations.]" (Chavez v. Indymac Mortgage Services (2013) 219 Cal.App.4th 1052, 1062.)

" 'The doctrine of tender has been correctly summarized in this fashion: "The rules which govern tenders are strict and are strictly applied, and where the rules are prescribed by statute or rules of court, the tender must be in such form as to comply therewith. The tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction." ' [Citations.] . . . [] . . . [W]ith respect to payment, 'the trustor must pay the debt . . . according to its terms to protect the property from loss by foreclosure.' [Citation.]" (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439.)

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