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socrateaser
socrateaser, Lawyer
Category: Real Estate Law
Satisfied Customers: 38898
Experience:  Attorney and Real Estate broker -- Retired (mostly)
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How can you use case law to stop a foreclosure in California

Customer Question

How can you use case law to stop a foreclosure in California in a Non-Judicial case? ( A case law on Statute of limitations) How would you get this into court in a non-judicial foreclosure, to stop a foreclosure, where the statue of limitations has exceeded 4 years? Case law showing used in such a case? In ref to 2911, where as time has expired..
Submitted: 8 months ago.
Category: Real Estate Law
Expert:  socrateaser replied 8 months ago.

Hello again,

You seem to be so insistent on the statute of limitations requirement. Unfortunately, it is beyond reasonable dispute that for a non-judicial foreclosure, the statute of limitations is not four years. It's at least 10 years, and in many cases, 60 years. See Miller v. Provost (1994) 26 Cal.App.4th 1703.

That said, the California courts of appeal have uniformly agreed that a borrower has no standing to bring judicial action to stop a non-judicial foreclosure action before the date of the foreclosure sale. See, e.g., Keshtgar v. U.S. Bank, N.A. (2014) 226 Cal.App.4th 1201.

Consequently, the only means by which a borrower can use the courts to deal with a nonjudicial foreclosure, is after the foreclosure occurs; the borrower has standing to bring an action for damages against the foreclosing creditor, where the borrower alleges that the note and/or deed of trust or its assignment was void on the date of foreclosure sale. See Yvanova v. New Century Mortgage Corp. (2016) 62 Cal.4th 919.

I'm trying to be helpful here, so that you are not burdened by the statute of limitations issue. Hopefully, the cited case law above will help you understand why you cannot prevail on your current legal theory -- and, perhaps enable you to find another legal theory that will actually work for your case.

I hope I've answered your question. Please let me know if you require further clarification. And, please provide a positive feedback rating for my answer (click 3, 4 or 5 stars) -- otherwise, I receive nothing for my efforts in your behalf.

Thanks again for using Justanswer!

Customer: replied 8 months ago.
No. I believe that the statue of limitations of four years does stand somewhere in the case law, just have to find someone willing to look for it..
Expert:  socrateaser replied 8 months ago.

Well, I dunno...I use the Westlaw® legal research system (the same system used by every court of appeals, supreme court, and major U.S. law school in the USA). I've have engaged in legal research for more than a decade, and my research and conclusions are generally viewed by my peers as practically irrefutable.

That said, I'll be happy to search Westlaw for as long as you wish, using whatever keywords you choose. But, to be frank, I get paid about the price of a Starbucks mocha to answer questions in this forum, so I cannot possibly devote hours of research time to your request without adequate compensation.

If you want to take this search offline, send me your email address and I'll contact you directly. If not, then I wish you the best with your search, and I thank you for using Justanswer!

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