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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