CLIFFORD W. DAVIDSON et al.

, Petitioners,
v.
THE SUPERIOR COURT OF ORANGE COUNTY, Respondent;
AURORA LOAN SERVICES LLC et al., Real Party in Interest.

No. G042926.

Court of Appeals of California, Fourth District, Division Three.

Filed June 11, 2010.

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

No appearance for Respondent.

McCarthy & Holthus, Matthew Podmenik, Melissa Robbins, Charles E. Bell; Akerman Senterfitt,
Justin D. Balser and Donald M. Scotten for Real Party in Interest Aurora Loan Services.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

OPINION

SILLS, P. J.

This case shows how the conclusions we set forth in Mabry v. Superior Court (2010)
___ Cal.App.4th ___ (Mabry), involving Civil Code section 2923.5,[1] play out with
different facts.

Here, on September 18, 2009, Clifford and Tracey Davidson filed an action against
defendant Aurora Loan Services and others connected with their home loan ("the
lender") based on causes of action arising out of an alleged breach by the lender of
section 2923.5. Like the plaintiffs in Mabry, they alleged that the lender had not,
prior to filing a notice of default, contacted them to assess their financial situation
and explore options to avoid foreclosure.
The lenders scheduled a foreclosure sale for October 15, 2009. One week before that
sale, on October 8, 2009, the Davidsons filed an application for a temporary
restraining order and preliminary injunction to prevent the sale. The trial court issued
a temporary restraining order and set October 27, 2009 to hear the application for a
preliminary injunction.

At the hearing on October 27, the trial judge — the same trial judge who first heard
the Mabry matter — made these determinations:

(1) Contrary to what he had decided in Mabry, the trial judge concluded that a

section 2923.5 action was not preempted by the federal Home Owners Loan Act of

1933.

(2) Confronting the state law on its own terms, the trial judge concluded that a

section 2923.5 declaration must be under oath.

(3) In accord with what he had determined in Mabry, the trial judge concluded that

full tender of arrearages was required for any relief under the statute. In that regard,

at the hearing, the trial judge was initially under the misimpression that the

foreclosure sale had already taken place, and, accordingly, applied Karlsen v.

American Sav. & Loan Assn. (1971) 15 Cal.App.3d 112 to the case at hand. Karlsen

was a postforeclosure case, but had held that even if the foreclosure sale there really

was voidable, a tender of the whole amount of indebtedness was required before the

sale could be set aside.

Thus the result of the October 27 hearing was still the same as in Mabry: The
borrowers had no relief. The temporary injunction was dissolved and the application
for preliminary injunction denied.

This writ petition challenging the trial court's order was filed on November 24, 2009.
The relief requested, however, was a bit ambiguous as to what stage foreclosure
proceedings had reached by that date. Specifically, it did not mention whether the
case was a preforeclosure sale — and therefore the Davidsons were seeking a
postponement of that sale — or postforeclosure sale, and therefore the Davidsons
were seeking a stay of any eviction. In the three substantive requests for relief, the
Davidsons sought an order of this court that would have the effect of commanding
the Superior Court to "enter a new order" that would stay "both the foreclosure on
their residence and their eviction thereof."

Less than a week later, on November 30, 2009, this court issued an order tracking
the language of the petition's prayer: "As prayed for, pending further order of this
court the foreclosure on petitioners' residence and their eviction thereof is STAYED."

In their November 24 petition, the Davidsons did not tell this court that the
foreclosure sale had already taken place. To be fair to the Davidsons and their
counsel, though, we must point out that it was not until Mabry, decided in early June
2010, that the significance of a completed foreclosure sale — as distinct from a right
to postpone a foreclosure sale — was fully recognized in the context of the statutory
scheme revolving around section 2923.5. In any event, the lender, in its return by
way of answer and demurrer to the petition, filed February 19, 2010, alleged that the
foreclosure sale had taken place on November 16, 2009, i.e., eight days before the
writ petition was filed.

At oral argument in May 2009, the fact of a foreclosure sale was admitted by the
Davidsons' counsel. Counsel made the point, though, that it was the lender itself that
had bought the property at the foreclosure sale.

II

As explained in Mabry, the individual right of action created by the Legislature is a

limited one: To have a foreclosure sale postponed so that the lender can comply with
section 2923.5's substantive contact requirements. As also explained, there is
nothing in section 2923.5 that indicates that the Legislature wanted to allow
noncompliance with section 2923.5 to be the basis of any action to set aside a
foreclosure sale. (Mabry v. Superior Court (June 10, 2010, G042911) ___
Cal.App.4th ___, ___ [2010 WL 2180530 at p. 1] ["If a lender did not comply with
section 2923.5 and a foreclosure sale has already been held, does that
noncompliance affect the title to the foreclosed property obtained by the families or
investors who may have bought the property at the foreclosure sale? No. The
Legislature did nothing to affect the rule regarding foreclosure sales as final."].)
Accordingly, regardless of whether there was compliance here, section 2923.5 does
not afford a basis for relief.

III

The petition for writ of mandate is denied. Because section 2923.5 has been a matter
of first impression in the California state courts, each side will bear its own costs on
appeal. The stay issued by this court (which in any event has prevented eviction for
these past six months or so) is dissolved.

WE CONCUR.

ARONSON, J.

IKOLA, J.

[1] All otherwise undesignated statutory references in this opinion are to the Civil
Code.