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Mabry v. Superior Court

Court of Appeal of California, Fourth District, Division Three
Jun 2, 2010
185 Cal.App.4th 208 (Cal. Ct. App. 2010)

Summary

holding that California Civil Code 2923.5 declarations do not need to be signed under penalty of perjury and rejecting arguments based on California Civil Procedure Code § 2015.5 to the contrary

Summary of this case from Miller v. Wholesale Am. Mortg., Inc.

Opinion

No. G042911.

June 2, 2010.

Appeal from the Superior Court of Orange County, No. 30-2009-003090696, David C. Velazquez, Judge.

Law Offices of Moses S. Hall and Moses S. Hall for Petitioners.

No appearance for Respondent.

Akerman Senterfitt, Justin D. Balser and Donald M. Scotten for Real Party in Interest Aurora Loan Services.

McCarthy Holthus, Matthew Podmenik, Charles E. Bell and Melissa Robbins Coutts for Real Party in Interest Quality Loan Service Corporation.

Bryan Cave, Douglas E. Winter, Christopher L. Dueringer, Sean D. Muntz and Kamao C. Shaw for Bank of America and BAC Home Loans Servicing as Amici Curiae on behalf of Real Parties in Interest.

Wright, Finlay Zak, Thomas Robert Finlay and Jennifer A. Johnson for United Trustee's Association and California Mortgage Association as Amici Curiae on behalf of Real Parties in Interest.

Leland Chan for California Bankers Association as Amicus Curiae on behalf of Real Parties in Interest.



OPINION


Summaries of

Mabry v. Superior Court

Court of Appeal of California, Fourth District, Division Three
Jun 2, 2010
185 Cal.App.4th 208 (Cal. Ct. App. 2010)

holding that California Civil Code 2923.5 declarations do not need to be signed under penalty of perjury and rejecting arguments based on California Civil Procedure Code § 2015.5 to the contrary

Summary of this case from Miller v. Wholesale Am. Mortg., Inc.

holding "the only remedy provided [under § 2923.5] is a postponement of the sale before it happens"

Summary of this case from Huweih v. U.S. Bank Tr., N.A.

holding section 2923.6 "merely expresses the hope that lenders will offer loan modifications on certain terms."

Summary of this case from Rupisan v. JP Morgan Chase Bank, NA

holding "2923.6 merely expresses the hope that lenders will offer loan modifications on certain terms"

Summary of this case from Palmer v. Countrywide, Bank of America

holding that tender is not required before bringing a Section 2923.5 claim and that the sole remedy for a violation of that section is a foreclosure sale postponement, a remedy which would be unavailable were Plaintiff to bring his Section 2923.5 claim after the sale had occurred

Summary of this case from Valdez v. JPMorgan Chase Bank, N.A.

holding "there is no right . . . under to a loan modification"

Summary of this case from Nunez v. Bank of America, N.A.

holding that "Section 2923.6 merely expresses the hope that lenders will offer loan modifications on certain terms."

Summary of this case from Jacobs v. Bank of America

finding that Section 2923.6 does "not operate substantively on lenders"

Summary of this case from Peterson v. Wells Fargo Bank

finding that section 2923.6 "does not operate substantively," but instead "merely expresses the hope that lenders will offer loan modifications on certain terms"

Summary of this case from Peterson v. Wells Fargo Bank

finding tender rule inapplicable where plaintiff alleged violation of since-superseded California statute that required consideration of alternatives prior to foreclosure

Summary of this case from Davis v. Wells Fargo, N.A.

finding that § 2923.5 does not create a right to loan modification and that failure to comply with its requirements can only result in a delay in foreclosure

Summary of this case from Tamburri v. Suntrust Mortg., Inc.

concluding that Section 2015.5's definition did not apply to the use of the word "declaration" in California Civil Code § 2923.5

Summary of this case from Caravantes v. California Reconveyance Company

referring to Black's Law Dictionary as “venerable”

Summary of this case from Ala. Educ. Ass'n, an Ala. Non-Profit Corp. v. State Superintendent of Educ.

In Mabry v. Superior Court, 185 Cal. App. 4th 208 (2010), the California Court of Appeal opined that "section 2923.5 is not preempted by federal banking regulations because it is, or can be construed to be, very narrow."

Summary of this case from Hutchful v. Wells Fargo Bank, N.A.

In Mabry v. Superior Court, 185 Cal.App.4th 208 (2010), the California Court of Appeals held that an implied private right of action is unnecessary when other means of enforcement are available.

Summary of this case from Phillips-Kerley v. City of Fresno

In Mabry, the California Court of Appeal held that the appropriate remedy for a violation of this statutory right was to postpone the foreclosure sale indefinitely until the required discussion occurred.

Summary of this case from Davis v. U.S. Bancorp

In Mabry, "the court extensively reviewed section 2923.5 and persuasively reasoned that the remedy for a violation is postponement of a foreclosure sale."

Summary of this case from Williams v. Quality Loan Servs. Corp.

noting that section 2923.5 provides for "more time and only more time."

Summary of this case from Salcido v. Vericrest Fin. & Summit Mgmt. Co.

reasoning "compliance with section 2923.5 is necessarily an individualized process"

Summary of this case from McGuire v. ReconTrust Co.

In Mabry v. Superior Court, 185 Cal. App. 4th 208 (2010), the California Court of Appeal considered section 2923.5 and persuasively reasoned that the only remedy for a violation is postponement of a foreclosure sale.

Summary of this case from Morrow v. Wells Fargo Bank

In Mabry, the court held that HOLA does not preempt California Civil Code section 2923.5, which governs borrower contact requirements prior to the issuance of a notice of default.

Summary of this case from Christiansen v. Wells Fargo Bank

In Mabry, the appellate court noted that the parties disagreed about whether or not actual contact was made and therefore remanded the case to the trial court for an evidentiary hearing. Id. at 235-36.

Summary of this case from McGuire v. ReconTrust Co., N.A.

In Mabry v. Superior Court, 185 Cal.App.4th 208, 110 Cal.Rptr.3d 201 (2010), the California Court of Appeal found that a pre-foreclosure right under state law requiring borrowers “to be contacted to “assess” and “explore” alternatives to foreclosure prior to a notice of default” could be enforced by a borrower who had not first tendered the full amount of indebtedness owed on his note.

Summary of this case from Barrionuevo v. Chase Bank, N.A.

construing section 2923.5 narrowly

Summary of this case from Boatright v. Auora Loan Servs.

stating that "too many people are necessarily involved in the process for one person to likely be in the position where he or she could swear that all three requirements of the declaration . . . were met."

Summary of this case from Bowe v. American Mortg. Network, Inc.
Case details for

Mabry v. Superior Court

Case Details

Full title:TERRY MABRY et al., Petitioners, v. THE SUPERIOR COURT OF ORANGE COUNTY…

Court:Court of Appeal of California, Fourth District, Division Three

Date published: Jun 2, 2010

Citations

185 Cal.App.4th 208 (Cal. Ct. App. 2010)
110 Cal. Rptr. 3d 201

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