CACI No. 4921. Wrongful Foreclosure - Tender Excused

Judicial Council of California Civil Jury Instructions (2023 edition)

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4921.Wrongful Foreclosure - Tender Excused
[Name of plaintiff] claims that [he/she/nonbinary pronoun] was not
required to tender all amounts that were due under loan secured by the
[mortgage/deed of trust]. Tender is excused if [insert one or more of the
a. The underlying debt was not valid because [specify reason(s)];
b. [Name of plaintiff] has a claim for money against [name of
defendant] and the claim, if valid, would completely offset the
amount due on the loan secured by the [mortgage/deed of trust];
c. It would be unfair to require tender of [name of plaintiff] because
[specify reason(s)];
d. The trust deed is void on its face because [specify reason(s)];
e. The loan was illegal or made in violation of [the loan agreement/
an agreement to modify the loan] because [specify reason(s)]; or
f. [Name of plaintiff] was not in default and there is no basis for a
New May 2020
Directions for Use
Give this instruction if the plaintiff alleges that tender is excused in element 3 of
CACI No. 4920, Wrongful Foreclosure - Essential Factual Elements.
Sources and Authority
“Courts have applied equitable exceptions to the tender rule, such as: ‘(1) where
the borrowers action attacks the validity of the underlying debt, tender is not
required since it would constitute affirmation of the debt; (2) when the person
who seeks to set aside the trustee’s sale has a counter-claim or set-off against the
beneficiary, the tender and the counter-claim offset each other and if the offset is
greater than or equal to the amount due, tender is not required; (3) a tender may
not be required if it would be ‘inequitable’ to impose such a condition on the
party challenging the sale; . . . (4) tender is not required where the trustors
attack is based not on principles of equity but on the basis that the trustee’s deed
is void on its face (such as where the original trustee had been substituted out
before the sale occurred)[;] [(5)] when the loan was made in violation of
substantive law, or in breach of the loan agreement or an agreement to modify
the loan[;] [and (6)] when the borrower is not in default and there is no basis for
the foreclosure . . . .’ (Turner v. Seterus, Inc. (2018) 27 Cal.App.5th 516,
525-526 [238 Cal.Rptr.3d 528].)
“Because [plaintiff] alleges a void as distinguished from a voidable assignment,
she is excused from having to allege tender as an element of her wrongful
foreclosure cause of action.” (Sciarratta v. U.S. Bank National Association
(2016) 247 Cal.App.4th 552, 565 fn. 10 [202 Cal.Rptr.3d 219].)
Secondary Sources
4 Witkin, Summary of California Law (11th ed. 2017) Secured Transactions in Real
Property, § 153 et seq.
5 California Real Estate Law and Practice, Ch. 123, Nonjudicial Foreclosure,
§ 123.14 (Matthew Bender)
48 California Forms of Pleading and Practice, Ch. 555, Trust Deeds and Real
Property Mortgages, § 555.54 (Matthew Bender)
23 California Points and Authorities, Ch. 230, Trust Deeds and Real Property
Mortgages, § 230.72 (Matthew Bender)
4922-4999. Reserved for Future Use

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