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Aurora Loan Services -Another California Appeals Court Decision - post foreclosure Mabry -no relief

Aurora Loan Services -Another California Appeals Court Decision - post foreclosure Mabry -no relief

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Published by 83jjmack
This June 2010 California Appeal Court decision involves post-foreclosure, Mabry and 2923.5.

Basically if you are post foreclosure there is no relief on the 2923.5.

Aurora Loan Services
This June 2010 California Appeal Court decision involves post-foreclosure, Mabry and 2923.5.

Basically if you are post foreclosure there is no relief on the 2923.5.

Aurora Loan Services

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Published by: 83jjmack on Jun 22, 2010
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08/17/2012

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CLIFFORD W. DAVIDSON et al., Petitioners,v.THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;AURORA LOAN SERVICES LLC et al., Real Party in Interest.
 No. G042926.
Court of Appeals of California, Fourth District, Division Three.
Filed June 11, 2010.Law Offices of Moses S. Hall and Moses S. Hall for Petitioners. No appearance for Respondent.McCarthy & Holthus, Matthew Podmenik, Melissa Robbins, Charles E. Bell; Akerman Senterfitt,Justin D. Balser and Donald M. Scotten for Real Party in Interest Aurora Loan Services.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTSOPINION
SILLS, P. J.
I
This case shows how the conclusions we set forth in
Mabry v. Superior Court 
(2010) ___ Cal.App.4th ___ (
Mabry 
), involving Civil Code section 2923.5,
play out withdifferent facts.Here, on September 18, 2009, Clifford and Tracey Davidson filed an action againstdefendant Aurora Loan Services and others connected with their home loan ("thelender") based on causes of action arising out of an alleged breach by the lender of section 2923.5. Like the plaintiffs in
Mabry,
they alleged that the lender had not,prior to filing a notice of default, contacted them to assess their financial situationand explore options to avoid foreclosure.
 
The lenders scheduled a foreclosure sale for October 15, 2009. One week before thatsale, on October 8, 2009, the Davidsons filed an application for a temporaryrestraining order and preliminary injunction to prevent the sale. The trial court issueda temporary restraining order and set October 27, 2009 to hear the application for apreliminary injunction.At the hearing on October 27, the trial judge — the same trial judge who first heardthe
Mabry 
matter — made these determinations:(1) Contrary to what he had decided in
Mabry,
the trial judge concluded that asection 2923.5 action was
not 
preempted by the federal Home Owners Loan Act of 1933.(2) Confronting the state law on its own terms, the trial judge concluded that asection 2923.5 declaration must be under oath.(3) In accord with what he had determined in
Mabry,
the trial judge concluded thatfull tender of arrearages was required for any relief under the statute. In that regard,at the hearing, the trial judge was initially under the misimpression that theforeclosure sale had already taken place, and, accordingly, applied
to the case at hand.
Karlsen
was a postforeclosure case, but had held that even if the foreclosure sale there reallywas void
able,
a tender of the whole amount of indebtedness was required before thesale could be set aside.Thus the result of the October 27 hearing was still the same as in
Mabry 
: Theborrowers had no relief. The temporary injunction was dissolved and the applicationfor preliminary injunction denied.This writ petition challenging the trial court's order was filed on November 24, 2009.The relief requested, however, was a bit ambiguous as to what stage foreclosureproceedings had reached by that date. Specifically, it did not mention whether thecase was a preforeclosure sale — and therefore the Davidsons were seeking apostponement of that sale — or postforeclosure sale, and therefore the Davidsonswere seeking a stay of any eviction. In the three substantive requests for relief, the
 
Davidsons sought an order of this court that would have the effect of commandingthe Superior Court to "enter a new order" that would stay "both the foreclosure ontheir residence and their eviction thereof."Less than a week later, on November 30, 2009, this court issued an order trackingthe language of the petition's prayer: "As prayed for, pending further order of thiscourt the foreclosure on petitioners' residence and their eviction thereof is STAYED."In their November 24 petition, the Davidsons did not tell this court that theforeclosure sale had
already 
taken place. To be fair to the Davidsons and theircounsel, though, we must point out that it was not until
Mabry,
decided in early June2010, that the significance of a completed foreclosure sale — as distinct from a rightto
 postpone
a foreclosure sale — was fully recognized in the context of the statutoryscheme revolving around section 2923.5. In any event, the lender, in its return byway of answer and demurrer to the petition, filed February 19, 2010, alleged that theforeclosure sale had taken place on November 16, 2009, i.e., eight days before thewrit petition was filed.At oral argument in May 2009, the fact of a foreclosure sale was admitted by theDavidsons' counsel. Counsel made the point, though, that it was the lender itself thathad bought the property at the foreclosure sale.
II
As explained in
Mabry,
the individual right of action created by the Legislature is alimited one: To have a foreclosure sale postponed so that the lender can comply withsection 2923.5's substantive contact requirements. As also explained, there isnothing in section 2923.5 that indicates that the Legislature wanted to allownoncompliance with section 2923.5 to be the basis of any action to set aside aforeclosure sale. (
Mabry v. Superior Court 
(June 10, 2010, G042911) ___Cal.App.4th ___, ___ [2010 WL 2180530 at p. 1] ["
If a lender did not comply withsection 2923.5 and a foreclosure sale has already been held, does that noncompliance affect the title to the foreclosed property obtained by the families or investors who may have bought the property at the foreclosure sale? 
No. TheLegislature did nothing to affect the rule regarding foreclosure sales as final."].)

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