​​What restrictions does California state law impose on foreclosing on a debtor's personal residence?

Section 2924 confers the power of sale upon any "mortgagee, trustee, or any other person", subject to the requirements set forth in the statute. Cal. Civ. Code § 2924(a). The first requirement is that the "trustee, mortgagee, or beneficiary, or any of their authorized agents" file a notice of default with the recorder of the county where the property is located. Id. at (a)(1). This notice of default requires identifying and recording information for the property and the mortgage, a statement that a breach of the mortgage terms has occurred, an explanation of the nature of each breach, and a statement of the beneficiary's decision to satisfy the original obligation through sale of the property. Id. at (a)(1)(A-D). The requisite language of notice to the defaulting party is detailed in Section 2924c. The next requirement is that three months elapse between the filing of the notice of default and the foreclosure sale. Cal. Civ. Code § 2924(a)(2). Following the three-month waiting period, within five days before the lapse of the total three months, the "mortgagee, trustee, or other person authorized to take the sale" must give notice of the sale, including the time, place, and manner of sale. Id. at (3). This notice must be for the amount of time stipulated in § 2924f (20 days for each possible manner of notice, including public posting, publication, and notice to defaulting owner, meaning that sale cannot occur before 3 months and 20 days after notice of default). Cal. Civ. Code § 2924f(b)(1). If these requirements are followed, the foreclosure sale is valid. See Cal. Civ. Code § 2924(c).

Furthermore, the nature and extent of the duties of the trustee in non-judicial foreclosure are defined by the deed of trust and the governing statutes; no other common law duties exist. Pro Value Properties, Inc. v. Quality Loan Service Corp, 170 Cal.App.4th 579, 583 (2009). During the foreclosure process on a deed of trust, a trustee owes no duty to provide notices to any person unless the trust deed or the statute specifically provides for such notice. Banc of America Leasing & Capital, LLC v. 3 Arch Trustee Services, Inc., 180 Cal.App.4th 1090, 1097-98 (2009). California law further states that possession of the note is not a precondition to non-judicial foreclosure under a deed of trust; instead, the trustee has the right to initiate the foreclosure process. Hafiz v. Greenpoint Mortg. Funding, Inc., 652 F.Supp.2d 1039, 1043 (N.D.Cal. July 16, 2009).

(a) Every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage, except when in the case of personal property it is accompanied by actual change of possession, in which case it is to be deemed a pledge. If, by a mortgage created after July 27, 1917, of any estate in real property, other than an estate at will or for years, less than two, or in any transfer in trust made after July 27, 1917, of a like estate to secure the performance of an obligation, a power of sale is conferred upon the mortgagee, trustee, or any other person, to be exercised after a breach of the obligation for which that mortgage or transfer is a security, the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record, or to secure the payment of bonds or other evidences of indebtedness authorized or permitted to be issued by the Commissioner of Business Oversight, or is made by a public utility subject to the provisions of the Public Utilities Act, until all of the following apply:

(1) The trustee, mortgagee, or beneficiary, or any of their authorized agents shall first file for record, in the office of the recorder of each county wherein the mortgaged or trust property or some part or parcel thereof is situated, a notice of default. That notice of default shall include all of the following:

(A) A statement identifying the mortgage or deed of trust by stating the name or names of the trustor or trustors and giving the book and page, or instrument number, if applicable, where the mortgage or deed of trust is recorded or a description of the mortgaged or trust property.

(B) A statement that a breach of the obligation for which the mortgage or transfer in trust is security has occurred.

(C) A statement setting forth the nature of each breach actually known to the beneficiary and of the beneficiary's election to sell or cause to be sold the property to satisfy that obligation and any other obligation secured by the deed of trust or mortgage that is in default.

(D) If the default is curable pursuant to Section 2924c, the statement specified in paragraph (1) of subdivision (b) of Section 2924c.

(2) Not less than three months shall elapse from the filing of the notice of default.

(3) Except as provided in paragraph (4), after the lapse of the three months described in paragraph (2), the mortgagee, trustee, or other person authorized to take the sale shall give notice of sale, stating the time and place thereof, in the manner and for a time not less than that set forth in Section 2924f.

(4) Notwithstanding paragraph (3), the mortgagee, trustee, or other person authorized to take sale may record a notice of sale pursuant to Section 2924f up to five days before the lapse of the three-month period described in paragraph (2), provided that the date of sale is no earlier than three months and 20 days after the recording of the notice of default.

(5) Whenever a sale is postponed for a period of at least 10 business days pursuant to Section 2924g, a mortgagee, beneficiary, or authorized agent shall provide written notice to a borrower regarding the new sale date and time, within five business days following the postponement. Information provided pursuant to this paragraph shall not constitute the public declaration required by subdivision (d) of Section 2924g. Failure to comply with this paragraph shall not invalidate any sale that would otherwise be valid under Section 2924f.

(6) An entity shall not record or cause a notice of default to be recorded or otherwise initiate the foreclosure process unless it is the holder of the beneficial interest under the mortgage or deed of trust, the original trustee or the substituted trustee under the deed of trust, or the designated agent of the holder of the beneficial interest. An agent of the holder of the beneficial interest under the mortgage or deed of trust, original trustee or substituted trustee under the deed of trust shall not record a notice of default or otherwise commence the foreclosure process except when acting within the scope of authority designated by the holder of the beneficial interest.

[...]

(a) Unless otherwise provided, paragraph (5) of subdivision (a) of Section 2924, and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 shall apply only to a first lien mortgage or deed of trust that meets either of the following criteria:

(1)

(A) The first lien mortgage or deed of trust is secured by owner-occupied residential real property containing no more than four dwelling units.

(B) For purposes of this paragraph, "owner-occupied" means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes.

(2) The first lien mortgage or deed of trust is secured by residential real property that is occupied by a tenant, contains no more than four dwelling units, and meets all of the conditions described in subparagraph (B).

(A) For the purposes of this paragraph:

(i) "Applicable lease" means a lease entered pursuant to an arm's length transaction before, and in effect on, March 4, 2020.

(ii) "Arm's length transaction" means a lease entered into in good faith and for valuable consideration that reflects the fair market value in the open market between informed and willing parties.

(iii) "Occupied by a tenant" means that the property is the principal residence of a tenant.

(B) To meet the conditions of this subparagraph, a first lien mortgage or deed of trust shall have all of the following characteristics:

(i) The property is owned by an individual who owns no more than three residential real properties, or by one or more individuals who together own no more than three residential real properties, each of which contains no more than four dwelling units.

(ii) The property is occupied by a tenant pursuant to an applicable lease.

(iii) A tenant occupying the property is unable to pay rent due to a reduction in income resulting from the novel coronavirus.

(C) Relief shall be available pursuant to subdivision (a) of Section 2924 and Sections 2923.5, 2923.55, 2923.6, 2923.7, 2924.9, 2924.10, 2924.11, and 2924.18 for so long as the property remains occupied by a tenant pursuant to a lease entered in an arm's length transaction.

(b) This section shall remain in effect until January 1, 2023, and as of that date is repealed.

Former section 2923.6, subdivision (j), stated unambiguously the statute "shall apply only to mortgages or deeds of trust described in Section 2924.15." Former section 2924.15, subdivision (a), stated that section 2923.6, among other sections of HBOR, "shall apply only to first lien mortgages or deeds of trust . . . ." And section 2920.5, subdivision (d), defines "first lien" as "the most senior mortgage or deed of trust on the property that is the subject of the notice of default or notice of sale." Thus, under the ordinary meaning of the language the

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Legislature enacted, HBOR does not apply beyond first, or senior, deeds of trust.

In the face of this unambiguous statutory language, the Arefis contend we should interpret former section 2923.6 to prohibit any mortgage servicer or lienholder from foreclosing under any deed of trust, senior or otherwise, once the borrower submits an application to modify the first loan. The Arefis contend the Legislature's use of the indefinite article "a" in former section 2923.6, subdivision (c), which prohibited "[a] mortgage servicer, mortgagee, trustee, beneficiary, or authorized agent" from proceeding with foreclosure, rather than the definite article "the," evidenced the Legislature's intent to preclude any entity from foreclosing while a loan modification is pending. The use of "the" and "a" in former section 2923.6, subdivision (c), however, is not of sufficient grammatical significance to negate the express limitation in former section 2923.6, subdivision (j), to first lien deeds of trust. Rather, the use of the indefinite "a" acknowledges there may be more than one of each entity, at least in the "authorized agent" category. (See Cholakian & Associates v. Superior Court (2015) 236 Cal.App.4th 361, 370 [courts "'typically find that a term introduced by "a" or "an" applies to multiple subjects or objects, absent a contrary intent'"].)

The Arefis also argue "first lien" and "senior deed of trust" under HBOR do not mean the most senior-in-time deed of trust on the property, but rather the most senior loan in default, so that "a second or third or fourth deed of trust can be a 'first lien' loan for purposes of section 2923.6." The Arefis assert the Legislature intended "to create a cascading effect" such that a loan modification application "temporarily halts foreclosure proceedings on the most senior debt, as well as any subordinate

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debt." This interpretation, however, would require us to excise "on the property" from the definition of "first lien" in section 2920.5, subdivision (d), in order for the subordinate clause "is the subject of the notice of default or notice of sale" to modify "mortgage or deed of trust." (§ 2920.5, subd. (d).) This we cannot do. (State Dept. of Public Health v. Superior Court (2015) 60 Cal.4th 960, 956 [courts are not "authorize[d] . . . to rewrite statutes"]; Newark Unified School Dist. v. Superior Court (2016) 245 Cal.App.4th 887, 905 [same].)

Moreover, the Arefis' proposed interpretation of former section 2923.6 would make lien seniority under HBOR a moving target, dependent on the order in which default occurred, and would upend commonly understood notions of senior and junior lien priority. (See MTC Financial, Inc. v. Nationstar Mortgage (2018) 19 Cal.App.5th 811, 814 ["[w]hen a junior lienholder forecloses on a second deed of trust at a nonjudicial trustee's sale . . . the property is purchased at the sale subject to the first deed of trust"]; Friery v. Sutter Buttes Savings Bank (1998) 61 Cal.App.4th 869, 878 ["[a] seller who invests in a second deed of trust accepts all the risks of the junior position" and "gambles that the equity in the property will be sufficient to cover her investment in a worst case scenario—a foreclosure sale"].) The term "most senior" should have its ordinary, first-in-time, meaning. (See § 2897 ["[o]ther things being equal, different liens upon the same property have priority according to the time of their creation"]; MTC Financial, Inc. v. Nationstar Mortgage, supra, 19 Cal.App.5th at p. 814 ["as a general rule, liens 'have relative priorities among themselves according to the time of their creation"']; Bank of New York Mellon v. Citibank, N.A. (2017) 8 Cal.App.5th 935, 944 ["'"California follows the 'first in time, first in right' system of lien priorities"'"]; Travis v.

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Nationstar Mortgage, LLC (9th Cir. May 7, 2018, No. 16-55388) ___ Fed.Appx. ___, ___ [2018 WL 2093321, at p. 1] ["HBOR defines a 'first lien' as 'the most senior mortgage or deed of trust' . . . in mortgage parlance, a 'first lien' is one with priority over all others"]; Graham v. Wells Fargo Bank, N.A. (N.D.Cal., Jan. 10, 2017, 3:15-cv-04220-JD) 2017 WL 86013, p. 3 [HBOR provision "applies 'only to first lien mortgages or deeds of trust,' and not second loans like [the borrowers' line of credit]"]; Stephens v. World Sav. Bank (N.D.Cal., Feb. 22, 2013, C 13-277 CW) 2013 WL 664615, p. 7 [rejecting the borrowers' claim under HBOR because section 2923.6 "do[es] not apply to the second deed of trust at issue here," and "[t]he notices of default and sale at issue here were related to the second deed of trust, not the first"].)

The legislative history of HBOR supports limiting section 2923.6 to first lien deeds of trust. (See Goodman v. Lozano (2010) 47 Cal.4th 1327, 1335 [although a statute's language "is plain, it is helpful to look at [the statute's] legislative history"]; Hughes v. Pair (2009) 46 Cal.4th 1035, 1046 ["we [may] look to legislative history to confirm our plain-meaning construction of statutory language"]; De Vries v. Regents of University of California (2016) 6 Cal.App.5th 574, 596-597 [even where a statute is "unambiguous," courts may look to the legislative history to "confirm [its] interpretation"]; United Health Centers of San Joaquin Valley, Inc. v. Superior Court (2014) 229 Cal.App.4th 63, 79 ["'[r]eviewing courts may turn to the legislative history behind even unambiguous statutes when it confirms or bolsters their interpretation'"].) The Conference Committee Report, adopted by the Legislature when it enacted HBOR (see Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th at p. 159), explained that the new law would "[l]imit the scope of loss mitigation requirements and activities to first lien mortgages." (Sen. Rules

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Com., Off. of Sen. Floor Analyses, Conf. Com. Rep. on Assem. Bill No. 278 (2011-2012 Reg. Sess.), adopted by the Assembly on July 2, 2012, p. 2.) The report goes on to state: "In response to concerns raised by industry stakeholders, the proposed conference committee amendments would be limited in scope in several ways. First, the dual track . . . provision[] would apply only to first lien loan mortgages. This restriction is consistent with the national mortgage settlement." (Id. at 20.)

The Arefis rely on the same Conference Committee Report, and note the "Background" section states: "Another obstacle to loan modifications arises if borrowers have second liens, like home equity loans, on their properties. These liens are often held by lenders who are also servicers on the first mortgage. They, too, have little interest in seeing any modification because it would harm the value of their holdings and reduce their income from fees." (Sen. Rules Com., Off. of Sen. Floor Analyses, Conf. Com. Rep. on Assem. Bill No. 278 (2011-2012 Reg. Sess.), supra, at p. 13.) This snippet of legislative history, however, actually reinforces limiting application of former section 2923.6 to first lien deeds of trust: The Legislature knew second liens created an "obstacle" for obtaining a loan modification, and yet, in response to the "concerns" of "industry stakeholders," limited the statute to first liens. As discussed, courts may not expand the provisions of HBOR beyond the circumstances the Legislature stated it applies. (See Lucioni v. Bank of America, N.A., supra, 3 Cal.App.5th at pp. 159, 161.)

Accordingly, we follow the HBOR's definition of "owner-occupied" to mean what it says: that the property must be the "principal residence of the borrower."³

C. Adams's Pleading of "Principal Residence of the Borrower"

Given section 2924.15's definition of "owner-occupied," we must next decide whether facts alleged in the complaint or subject to judicial notice are sufficient to

[265 Cal.Rptr.3d 421]

satisfy the "principal residence of the borrower" requirement. Nowhere in the complaint does Adams allege the property is her principal residence. The complaint only references "his [sic ] property at 372 Wilson Avenue, Vallejo, California," and "the home."

The documents defendants submitted in support of their motion for judgment on the pleadings similarly do not contain any judicially noticeable matter that establishes the property as Adams's principal residence. For example, while a memorandum of points and authorities Adams submitted in the bankruptcy proceedings stated she "continues in possession of his [sic ] estate and, in particular lives in her single family residence located at 372 Wilson Avenue, Vallejo, California," the truth of these assertions is not subject to judicial notice. (Sosinsky v. Grant (1992) 6 Cal.App.4th 1548, 1569–1570, 8 Cal.Rptr.2d 552.) Even if they were judicially noticeable, the fact that Adams may reside at a property does not mean it is her principal residence.

Adams tries to overcome this omission by arguing that the same address is provided in documents she submitted to this court on appeal.⁴ While the

[51 Cal.App.5th 674]

existence of those documents may be judicially noticed, the matters asserted in those documents may not. (Sosinsky v. Grant, supra, 6 Cal.App.4th at pp. 1564, 1569–1570, 8 Cal.Rptr.2d 552.) The documents do not contain any judicially noticeable matter that shows the property is Adams's principal residence. The mere fact that Adams has a loan on the property or lists the property as an address does not mean it is her "principal residence."

In sum, we conclude the facts alleged in the complaint together with matters that are subject to judicial notice do not establish that the Wilson Avenue property is Adams's principal residence. Therefore, Adams failed to state a cause of action under section 2924.15.⁵

Nevertheless, significant questions going to the propriety of the pending sale appear. At the hearing, counsel for the trust acknowledged that a subrogation agreement had given the trust loan priority over the earlier loan and admitted it to be his understanding that the trust loan was for a rental property owned by a business, not a family home. Indeed, the notice of default accompanying plaintiffs' papers, recorded by the loan servicer Redwood Trust Deed Services, Inc., includes a declaration that:

The requirements of Cal. Civil Code § 2923.5 do not apply because the loan is not secured by a first mortgage or first deed of trust that secures a loan, or that encumbers real property, described in Civil Code § 2924.15(a) which shall apply only to first lien mortgages or deeds of trust that are secured by owner-occupied residential real property containing no more than four dwelling units. For these purposes, "owner-occupied" means that the property is the principal residence of the borrower and is security for a loan made for personal, family, or household purposes.

(Dkt. No. 2-1 at 31) (emphasis added). Directly contradicting this, though, both plaintiffs' declaration and counsel represent that the home at issue is plaintiffs' primary residence.

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"Civil Code section 2923.5 requires, before a notice of default may be filed, that a lender contact the borrower in person or by phone to 'assess' the borrower's financial situation and 'explore' options to prevent foreclosure." Lueras v. BAC Home Loan Servicing, LP, 221 Cal. App. 4th 49, 77 (2013). Defendants' own documents concede noncompliance with Section 2923.5 in the foreclosure of plaintiffs' home, even though our facts indicate — regardless of any malfeasance on the trust or servicer's part — that Section 2923.5 did in fact apply. "The only remedy for noncompliance with [Section 2923.5] is the postponement of the foreclosure sale." Skov v. U.S. Bank Nat'l Ass'n, 207 Cal. App. 4th 690, 696 (2012); In re Turner, 859 F.3d 1145, 1150 (9th Cir. 2017).

In sum, imminent harm looms in the loss of plaintiffs' family home. They have raised significant questions regarding the propriety of the sale under California Civil Code Section 2923.5. The balance of the equities tips sharply in their favor. And, the public interest supports relief. The pending foreclosure sale of the subject property is ENJOINED.

This relief is conditioned on plaintiffs posting a $25,000 BOND with the Court and tendering ONE USUAL PAYMENT to the lender by DECEMBER 22 AT NOON. For all defendants who have not yet appeared, plaintiffs shall ensure that all defendants have been served with a summons, complaint, moving papers, and all the Court's orders in a manner consistent with Rule 4. Though if a defendant has already accepted service by Rule 4, the parties may consent to service of later documents by other methods.

Plaintiffs' motion for preliminary injunction is due JANUARY 7 AT NOON. Defendants' oppositions are due JANUARY 21 AT NOON. A hearing is set for JANUARY 28 AT 8:00 A.M. Each side shall be entitled to ONE fact deposition OR ONE reasonably tailored document production request. Continued relief is conditioned on plaintiffs' cooperation.

(a) With respect to residential real property containing no more than four dwelling units, a mortgagee, trustee, beneficiary, or authorized agent shall provide to the mortgagor or trustor a copy of the recorded notice of default with an attached separate summary document of the notice of default in English and the languages described in Section 1632, as set forth in subdivision (c), and a copy of the recorded notice of sale with an attached separate summary document of the information required to be contained in the notice of sale in English and the languages described in Section 1632, as set forth in subdivision (d). These summaries are not required to be recorded or published. This subdivision shall become operative on April 1, 2013, or 90 days following the issuance of the translations by the Department of Business Oversight pursuant to subdivision (b), whichever is later.

(b)

(1) The Department of Business Oversight shall provide a standard translation of the statement in paragraph (1) of subdivision (c), and of the summary of the notice of default, as set forth in paragraph (2) of subdivision (c) in the languages described in Section 1632.

(2) The Department of Business Oversight shall provide a standard translation of the statement in paragraph (1) of subdivision (d), and of the summary of the notice of sale, as set forth in paragraph (2) of subdivision (d).

(3) The department shall make the translations described in paragraphs (1) and (2) available without charge on its Internet Web site. Any mortgagee, trustee, beneficiary, or authorized agent who provides the department's translations in the manner prescribed by this section shall be in compliance with this section.

(c)

(1) The following statement shall appear in the languages described in Section 1632 at the beginning of the notice of default:

NOTE: THERE IS A SUMMARY OF THE INFORMATION IN THIS DOCUMENT ATTACHED.

(2) The following summary of key information shall be attached to the copy of the notice of default provided to the mortgagor or trustor:

SUMMARY OF KEY INFORMATION

The attached notice of default was sent to name of the trustor], in relation to description of the property that secures the mortgage or deed of trust in default]. This property may be sold to satisfy your obligation and any other obligation secured by the deed of trust or mortgage that is in default. Trustor] has, as described in the notice of default, breached the mortgage or deed of trust on the property described above.

IMPORTANT NOTICE: IF YOUR PROPERTY IS IN FORECLOSURE BECAUSE YOU ARE BEHIND IN YOUR PAYMENTS, IT MAY BE SOLD WITHOUT ANY COURT ACTION, and you may have the legal right to bring your account in good standing by paying all of your past due payments plus permitted costs and expenses within the time permitted by law for reinstatement of your account, which is normally five business days prior to the date set for the sale of your property. No sale date may be set until approximately 90 days from the date the attached notice of default may be recorded (which date of recordation appears on the notice).

This amount is ____________ as of ___(date)____________and will increase until your account becomes current.

While your property is in foreclosure, you still must pay other obligations (such as insurance and taxes) required by your note and deed of trust or mortgage. If you fail to make future payments on the loan, pay taxes on the property, provide insurance on the property, or pay other obligations as required in the note and deed of trust or mortgage, the beneficiary or mortgagee may insist that you do so in order to reinstate your account in good standing. In addition, the beneficiary or mortgagee may require as a condition to reinstatement that you provide reliable written evidence that you paid all senior liens, property taxes, and hazard insurance premiums.

Upon your written request, the beneficiary or mortgagee will give you a written itemization of the entire amount you must pay. You may not have to pay the entire unpaid portion of your account, even though full payment was demanded, but you must pay all amounts in default at the time payment is made. However, you and your beneficiary or mortgagee may mutually agree in writing prior to the time the notice of sale is posted (which may not be earlier than three months after this notice of default is recorded) to, among other things, (1) provide additional time in which to cure the default by transfer of the property or otherwise; or (2) establish a schedule of payments in order to cure your default; or both (1) and (2).

Following the expiration of the time period referred to in the first paragraph of this notice, unless the obligation being foreclosed upon or a separate written agreement between you and your creditor permits a longer period, you have only the legal right to stop the sale of your property by paying the entire amount demanded by your creditor.

To find out the amount you must pay, or to arrange for payment to stop the foreclosure, or if your property is in foreclosure for any other reason, contact:

____________________________________

(Name of beneficiary or mortgagee) ____________________________________

(Mailing address) ____________________________________

(Telephone)

If you have any questions, you should contact a lawyer or the governmental agency which may have insured your loan.

Notwithstanding the fact that your property is in foreclosure, you may offer your property for sale, provided the sale is concluded prior to the conclusion of the foreclosure.

Remember, YOU MAY LOSE LEGAL RIGHTS IF YOU DO NOT TAKE PROMPT ACTION. If you would like additional copies of this summary, you may obtain them by calling insert telephone number].

(d)

(1) The following statement shall appear in the languages described in Section 1632 at the beginning of the notice of sale:

NOTE: THERE IS A SUMMARY OF THE INFORMATION IN THIS DOCUMENT ATTACHED.

(2) The following summary of key information shall be attached to the copy of the notice of sale provided to the mortgagor or trustor:

SUMMARY OF KEY INFORMATION

The attached notice of sale was sent to trustor], in relation to description of the property that secures the mortgage or deed of trust in default].

YOU ARE IN DEFAULT UNDER A (Deed of trust or mortgage) DATED ____.

UNLESS YOU TAKE ACTION TO PROTECT YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.

IF YOU NEED AN EXPLANATION OF THE NATURE OF THE PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A LAWYER.

The total amount due in the notice of sale is ____.

Your property is scheduled to be sold on insert date and time of sale] at insert location of sale].

However, the sale date shown on the attached notice of sale may be postponed one or more times by the mortgagee, beneficiary, trustee, or a court, pursuant to Section 2924g of the California Civil Code. The law requires that information about trustee sale postponements be made available to you and to the public, as a courtesy to those not present at the sale. If you wish to learn whether your sale date has been postponed, and, if applicable, the rescheduled time and date for the sale of this property, you may call telephone number for information regarding the trustee's sale] or visit this Internet Web site Internet Web site address for information regarding the sale of this property], using the file number assigned to this case case file number]. Information about postponements that are very short in duration or that occur close in time to the scheduled sale may not immediately be reflected in the telephone information or on the Internet Web site. The best way to verify postponement information is to attend the scheduled sale.

If you would like additional copies of this summary, you may obtain them by calling insert telephone number].

(e) Failure to provide these summaries to the mortgagor or trustor shall have the same effect as if the notice of default or notice of sale were incomplete or not provided.

(f) This section sets forth a requirement for translation in languages other than English, and a document complying with the provisions of this section may be recorded pursuant to subdivision (b) of Section 27293 of the Government Code. A document that complies with this section shall not be rejected for recordation on the ground that some part of the document is in a language other than English.

When distinguishing between cases involving judicial foreclosures and nonjudicial foreclosures, the lenders maintain that California adheres to a strict statutory scheme for nonjudicial foreclosure, which is codified in Civil Code sections 2924 et seq. They contend that California law does not permit the courts to graft new requirements onto the statutory nonjudicial foreclosure requirements. They rely on Moeller v. Lien (1994) 25 Cal.App.4th 822, 30 Cal.Rptr.2d 777 (Moeller) and I.E. Associates v. Safeco Title Ins. Co., supra, 39 Cal.3d at page 287, 216 Cal.Rptr. 438, 702 P.2d 596 when advancing this argument.

[211 Cal.App.4th 1271] As explained in California Golf, L.L.C. v. Cooper (2008) 163 Cal.App.4th 1053, 78 Cal.Rptr.3d 153 (California Golf), the cases cited by the lenders “did not conclude that no remedies outside those provided by the nonjudicial foreclosure statutes are available simply because the Legislature intended to occupy the field. Instead, [these courts] also considered the policies advanced by the statutory scheme, and whether those policies would be frustrated by the allowance of the additional remedy. (I.E. Associates v. Safeco Title Ins., supra, 39 Cal.3d at pp. 288–289 [216 Cal.Rptr. 438, 702 P.2d 596] [concluding that expanding the notice obligations of the trustee would not be supported by policy]; [see also,] Residential Capital v. Cal-Western Reconveyance Corp. [ (2003) ] 108 Cal.App.4th [807,] 827, 829 [134 Cal.Rptr.2d 162], [declining to ‘graft[ ] a tort remedy onto a comprehensive statutory scheme in the absence of a compelling justification for doing so,’ and concluding that the addition of the proposed remedy would not fit within the comprehensive statutory scheme]; Moeller v. Lien, supra, 25 Cal.App.4th at p. 834 [30 Cal.Rptr.2d 777] [concluding that ‘[i]t would be inconsistent with the comprehensive and exhaustive statutory scheme regulating nonjudicial foreclosures to incorporate another unrelated cure provision into statutory nonjudicial foreclosure proceedings'].)” (California Golf, at p. 1070, 78 Cal.Rptr.3d 153.)

The court in California Golf, supra, 163 Cal.App.4th 1053, 78 Cal.Rptr.3d 153, noted the following: “It is clear, then, that 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

[150 Cal.Rptr.3d 690]

of a nonjudicial foreclosure sale when not inconsistent with the policies behind the statutes. In Alliance Mortgage Co. v. Rothwell (1995) 10 Cal.4th 1226, 1231 [44 Cal.Rptr.2d 352, 900 P.2d 601], ..., our Supreme Court concluded that a lender who obtained the property with a full credit bid at a foreclosure sale was not precluded from suing a third party who had fraudulently induced it to make the loan. The court concluded that ‘ “the antideficiency laws were not intended to immunize wrongdoers from the consequences of their fraudulent acts” ’ and that, if the court applies a proper measure of damages, ‘ “fraud suits do not frustrate the antideficiency policies because there should be no double recovery for the beneficiary.” ’ (Id. at p. 1238, 44 Cal.Rptr.2d 352, 900 P.2d 601.) In South Bay Building Enterprises, Inc. v. Riviera Lend–Lease, Inc. (1999) 72 Cal.App.4th 1111, 1121 [85 Cal.Rptr.2d 647], ..., the court held that a junior lienor retains the right to recover damages from the trustee and the beneficiary of the foreclosing lien if there have been material irregularities in the conduct of the foreclosure sale. (See also Melendrez v. D & I Investment, Inc. [ (2005) ] 127 Cal.App.4th [1238,] 1257–1258 [26 Cal.Rptr.3d 413]; Lo v. Jensen (2001) 88 Cal.App.4th 1093, 1095 [106 Cal.Rptr.2d 443] ... [a trustee's sale tainted by fraud may be set aside].)” (California Golf, at pp. 1070–1071, 78 Cal.Rptr.3d 153.) The court in California Golf concluded that the policy interests furthered by [211 Cal.App.4th 1272]the statutory scheme governing nonjudicial foreclosure sale were not undermined by the policy interests underlying Commercial Code section 3312, which governs the use of cashier's checks. (California Golf, at pp. 1071–1072, 78 Cal.Rptr.3d 153.)

Here, the lenders have not persuasively argued that obligating lenders to comply with HUD's face-to-face interview requirements in FHA loans would compromise the policy regarding nonjudicial foreclosure sales. The purposes for the nonjudicial foreclosure statutes are the following: “ ‘ “ ‘(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser.’ [Citations.]” [Citation.]' [Citation.]” (California Golf, supra, 163 Cal.App.4th at p. 1070, 78 Cal.Rptr.3d 153.) Requiring compliance with the HUD face-to-face interview would not deprive the lenders of a quick and inexpensive remedy; it merely would ensure that the lenders comply with the express terms set forth in the HUD regulations and incorporated into the FHA deeds of trust prior to seeking this quick and inexpensive remedy. Furthermore, the goal of protecting the borrower from a wrongful loss of property is enhanced as the interview may prevent the need for foreclosure. The lenders voluntarily agreed to purchase these FHA loans in exchange for the government's backing against default. Thus, as the Attorney General stresses, they voluntarily subjected themselves to the additional requirements designed to avoid the necessity for foreclosure.