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Ely
Ely, Counselor at Law
Category: Real Estate Law
Satisfied Customers: 100023
Experience:  Qualified attorney in private practice including business, family, criminal, and real estate issues.
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In California, on non-judicial foreclosure sale by 1st lien

Customer Question

In California, on non-judicial foreclosure sale by 1st lien holder...how long does the borrower have after the Trustee sale to file a wrongful foreclosure lawsuit?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Ely replied 1 year ago.
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This depends on what cause of action is used.
To sue in a state court, one needs to have a "cause of action." There are numerous causes of action, such as "breach of contract," "negligence," "fraud," "unjust enrichment," etc., as well as causes of action rooted in statutory law. Every state has their own although they are very similar to each other in every state because they all stem from the same common law. A pleading in Court needs at least one cause of action, although it is not unusual to have more than one.
There is no "wrongful foreclosure" cause of action. Such matters normally fall under the following:
NEGLIGENCE
The elements of a cause of action for negligence are: the "defendant had a duty to use due care, that he [or she] breached that duty, and that the breach was the proximate or legal cause of the resulting injury. [Citation.]" (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 292-293, 253 Cal.Rptr. 97, 763 P.2d 948.)
STATUTE OF LIMITATIONS: Generally 2-3 years, depending on the facts.
NEGLIGENCE PER SE
"Negligence per se" is an evidentiary doctrine codified at Evidence Code section 669. Under subdivision (a) of this section, the doctrine creates a presumption of negligence if four elements are established: (1) the defendant violated a statute, ordinance, or regulation of a public entity; (2) the violation proximately caused death or injury to person or property; (3) the death or injury resulted from an occurrence the nature of which the statute, ordinance, or regulation was designed to prevent; and (4) the person suffering the death or the injury to his person or property was one of the class of persons for whose protection the statute, ordinance, or regulation was adopted. (Spates v. Dameron Hosp. Assn. (2003) 114 Cal.App.4th 208, 218, 7 Cal.Rptr.3d 597.)
STATUTE OF LIMITATIONS: Generally 2-3 years, depending on the facts.
FRAUD
The necessary elements of fraud are: (1) misrepresentation (false representation, concealment, or nondisclosure); (2) knowledge of falsity (scienter); (3) intent to defraud (i.e., to induce reliance); (4) justifiable reliance; and (5) resulting damage. (Seeger v. Odell (1941) 18 Cal.2d 409, 414 [115 P.2d 977, 136 A.L.R. 1291].)
STATUTE OF LIMITATIONS: Three years.
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