Trustee's Sales: Lucioni v. Bank of America
Tuesday, September 20, 2016
The court upheld the trials court's order sustaining defendant lenders' demurrers in borrower's action seeking an injunction to prevent a foreclosure based on alleged violations of the Homeowner's Bill of Rights (HBOR). The court held that the availability of injunctive relief under the HBOR is governed exclusively by two of its provisions - Civil Code Sections 2924.12(a)(1) and 2924.19(a)(1) - in which the Legislature authorized the courts to interpose such relief into the nonjudicial foreclosure scheme. Neither provision authorizes a court to enjoin a violation of section 2924(a)(6), which provides that no one other than the holder of the beneficial interest under a mortgage or deed of trust, the original or substituted trustee, or the agent of the holder of the beneficial interest can initiate the foreclosure process. Thus, no injunctive relief is available for a violation of that section.
The court also affirmed the trial court's order sustaining a demurrer to a separate cause of action for breach of an alleged oral contract to modify the loan because the 2-year statute of limitations for breach of an oral contract had run. The court held that an oral contract is not treated as a written contract for statute of limitations purposes simply because a party offers some written evidence of performance.
Cal.App. 2nd Dist. (B265722) 9/7/16