No Private Right Of Action For Violation Of Statutes Extending Notice Period For Foreclosures

Question: Is there a private right of action under sections 2923.52 or 2923.53 of the Civil Code, which generally require a mortgagee or trustee to give three months additional notice before noticing a foreclosure sale?

Answer: No, according to the Fourth District Court of Appeal, Division 3, in Vuki vs. Superior Court, No. G043544 (decided October 29, 2010).

In this case, the plaintiff homeowners filed a petition for writ of mandate in the Court of Appeal, seeking to enjoin HSBC Bank USA from proceeding with a foreclosure sale on grounds that HSBC had violated sections 2923.52 and 2923.53 of the Civil Code. Section 2923.52 imposes a 90-day delay in the normal foreclosure process. (Section 2923.53 provides an exemption to that delay if the lender in question has a load modification program that meets certain criteria.) The issue the Court of Appeal had to decide was whether there was a private right of action under either of these statutes.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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