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
taken place. To be fair to the Davidsons and theircounsel, though, we must point out that it was not until
decided in early June2010, that the significance of a completed foreclosure sale — as distinct from a rightto
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.
As explained in
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."].)