Legal Memorandum: Foreclosures in CA

Issue: Under California law, does the acceptance of a partial payment after the notice of default has been recorded operate as a waiver of the right to proceed with a foreclosure on a deed of trust?

Area of Law: Estate Planning & Probate
Keywords: Foreclosure sale; Deed of trust; Waiver
Jurisdiction: California
Cited Cases: 21 Cal. App. 2d 406; 63 P.2d 840; 81 P.2d 609; 236 P.2d 914; 212 Cal. Rptr. 350; 27 Cal. App. 2d 513; 179 Cal. App. 3d 909; 346 P.2d 814; 69 P.2d 213; 67 P.2d 706; 65 Cal. Rptr. 2d 545
Cited Statutes: None
Date: 08/01/2000

In California, a tender of payment or performance sufficient to discharge a mortgage or deed of trust cures a default and precludes a foreclosure sale based upon the delinquency.  The same rule holds even if the tender has been made, but rejected.  Winnett v. Roberts (1986) 179 Cal. App. 3d 909, 252 Cal. Rptr. 82, 88; Bisno v. Sax (Cal. Dist. Ct. App. 1959) 346 P.2d 814, 820 (citations omitted). 

The case of Sweatt v. Foreclosure Co. (1985) 166 Cal. App. 3d 273, 212 Cal. Rptr. 350, involved the issue of proper trustees’ fees related to a nonjudicial foreclosure.  In Sweatt, the debtors argued that certain installment payments had been made but not credited, that others had been credited against principal rather than interest, and that the computation of the trustees’ fees were not accurate. The court stated that in order to cure the default and reinstate the obligation in a nonjudicial foreclosure proceeding, a debtor must pay the “arrearages and . . . the actual foreclosure costs as well as the specified trustee’s fees.”  Id. at 352.  Thus Sweatt indicates that total payment, including fees, must be made in order to cure the default and halt the foreclosure proceedings.

In Harris v. Whittier Bldg. & Loan Ass’n. (1936) 18 Cal. App.2d 260, 63 P.2d 840, a notice of default on a deed of trust was signed on June 3, based on a default of […]

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