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Legal Memorandum: Tender Requirement for Foreclosure Sale

Issue: Do plaintiff’s claims raise a challenge to a foreclosure sale, so tender was required?

Area of Law: Litigation & Procedure
Keywords: Foreclosure sale; Tender requirement; Irregular sale
Jurisdiction: California
Cited Cases: 55 Cal. App. 4th 413; 92 Cal. Rptr. 851; 205 Cal. Rptr. 15
Cited Statutes: None
Date: 01/01/2007

The full amount owed must be tendered first.  See Countrywide’s Mot. J. Pleadings at 6 (“any cause of action for irregularity in the sale procedure.”  Id., citing Abdallah v. United Savings Bank (1996) 43 Cal. App. 4th 1101, 1109, 51 Cal. Rptr. 2d 286).

Although causes of action “implicitly integrated” with an irregular sale are also implicated by the tender requirement (see id. at 7, citing Arnolds Mgmt. Corp. v. Eischen (1984) 158 Cal. App. 3d 575, 579, 205 Cal. Rptr. 15), central to any such “integrated” claim is still the element of an irregular sale.

In Onofrio v. Rice (1997) 55 Cal. App. 4th 413, 64 Cal. Rptr. 2d 74, the defendants argued that the plaintiff was not entitled to relief on her rescission claim because she failed to tender the amount necessary to cure the default under the subject mortgage.  Id., 55 Cal. App. 4th at 423-24.  They attempted to convince the court that, without an allegation of full tender in the complaint, the plaintiff failed to state of cause of action.  Id. at 424.  But the court was not persuaded.  Rather, it emphasized that the defendants’ argument “ignore[d] significant parts of the authority upon which they rely.”  Id.  That authority provides that “‘a tender may not be required where it would be inequitable to do so.'”  Id. (quoting 4 Miller & Starr, California Real Estate (2d ed. 1989) Deeds of Trust & Mortgages § 9:154, at […]

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