Non-Judicial Foreclosures in California | Facts and Procedures
 

CaliforniaForeclosureNewsNon-Judicial Foreclosures in California | Facts and Procedures

January 20, 2025

Going through a non-judicial foreclosure in California can be a complicated—and stressful—experience. The process happens quickly, often without direct court involvement, leaving homeowners unsure about what rights and protections they actually have.


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What Is a Non-Judicial Foreclosure?

A non-judicial foreclosure is a process that allows a mortgage lender to foreclose on a property without having to file a lawsuit in court. In California, this method is far more common than judicial foreclosure because it generally takes less time and can be less expensive for lenders.

In place of going before a judge, the lender follows California’s non-judicial foreclosure procedures set out in Civil Code §§ 2924–2924k, which involve issuing a Notice of Default (Civil Code § 2924(a)(1)), waiting the requisite three-month period (Civil Code § 2924(a)(2)), and posting and publishing a Notice of Trustee’s Sale (Civil Code § 2924f). If the homeowner fails to cure the default or arrange an alternative (such as a loan modification) during these steps, the lender may ultimately schedule and conduct a trustee’s sale without court involvement.

Because there’s no judge overseeing the case, homeowners often feel they have limited recourse or chance to challenge the process. However, the California Legislature has enacted regulations to protect homeowners, such as the Homeowner Bill of Rights (HBOR), which provides rules and penalties designed to ensure mortgage servicers follow fair procedures before completing a foreclosure.

How Quickly Can Non-Judicial Foreclosure Happen?

One of the biggest shocks to homeowners facing foreclosure is the relatively short timeline. Once a Notice of Default (NOD) is recorded, the homeowner generally has three months to cure the default (catch up on payments) before further steps can be taken. After that, a Notice of Trustee’s Sale might be issued, which must be published and posted for at least 20 days before the sale date.

In many cases, homeowners are surprised by how quickly a foreclosure sale can occur—sometimes within around four months of the initial NOD. Because of this rapid timeline, it’s crucial to understand your options early, including possible loan modifications or other foreclosure prevention measures.


Stressed woman with husband holding foreclosure notice


What Rights Do Homeowners Have Under the Homeowner Bill of Rights?

California’s HBOR includes several protections intended to give homeowners a fair shot at avoiding foreclosure. The HBOR generally applies to first-lien mortgages or deeds of trust on residential, owner-occupied properties with no more than four units.

Below are some of the significant protections:

  1. Preforeclosure Help: Before recording a Notice of Default, servicers must try to contact the homeowner to discuss loss-mitigation options. This contact must be in person or by phone, and the servicer must provide information on how to reach HUD-certified counseling agencies.
  2. No Dual Tracking: This prohibits a lender from continuing the foreclosure process while a completed loan modification application is under review.
  3. Single Point of Contact: The servicer must assign someone (or a small team) to handle your case, making it easier to communicate about the status of any pending applications or foreclosure prevention programs.
  4. No “Robosigning”: All foreclosure-related documents must be accurate, properly reviewed, and verified. Fabricating or rushing documents without verification can lead to penalties.
  5. Ability to Sue: If the servicer violates certain provisions—like failing to consider your complete loan modification application—you may have the right to seek an injunction to halt the sale or even claim damages if the property has already been sold.

Are There “Safe Harbor” Provisions for Lenders?

Yes. While the HBOR heavily penalizes servicers who don’t comply with these protections, there’s a safe harbor clause that lets lenders correct violations before the trustee’s deed upon sale is recorded. If the servicer remedies the issue in time—by properly reviewing a borrower’s application, providing accurate notices, or stopping the foreclosure until it complies with the law—it may avoid liability. For homeowners, this means that if you identify a violation, you should raise it as soon as possible to potentially halt the foreclosure process.

What Happens If My Servicer Violates the HBOR?

When a servicer violates the HBOR before the home is sold at a foreclosure sale, you can often request an injunction—a court order stopping the sale until the servicer fixes the problem. If the violation is discovered after the trustee’s deed upon sale has been recorded, you may be entitled to economic damages, which might be multiplied if you can show the violation was intentional or reckless. In some cases, the homeowner could recover legal fees and an additional penalty of $50,000 if the servicer’s misconduct is egregious.

Do I Have Any Redemption Rights After a Non-Judicial Foreclosure?

California’s non-judicial foreclosure process generally does not include a post-sale redemption period for homeowners. Once the property is sold at a trustee’s sale, the new owner (often the lender itself or a third-party buyer) typically gains possession with few opportunities for the previous homeowner to get it back. That’s why swift action is crucial if you’re trying to save your home—waiting until after the sale occurs may be too late.

How Do I Know If My Lender Is Following the Correct Process?

Watching out for potential HBOR violations can be key to delaying or preventing a foreclosure. You should expect:

  1. Timely notices: You should receive a Notice of Default, then a Notice of Trustee’s Sale. The lender must allow the required waiting periods between these steps.
  2. Opportunities to Discuss Options: The servicer should reach out to explore options for avoiding foreclosure (like a loan modification) before a Notice of Default is recorded.
  3. No Foreclosure Sale During Review: If you’ve submitted a complete application for a loan modification at least five business days before a scheduled sale, the lender must pause the foreclosure.

If any of these elements are missing or suspicious, it might signal that the lender is not following the correct process and could be in violation of the HBOR.


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What Should I Do If I Receive a Notice of Default?

A Notice of Default is the official signal that the lender is taking steps toward foreclosure. Even though this can feel scary, you still have time. Your best move is to act quickly:

  1. Review all documents: Make sure the Notice of Default is accurate and that your loan information is correct.
  2. Contact your servicer: Ask about loan modification options, repayment plans, or other ways to resolve the default.
  3. Seek professional help: Consider talking to a HUD-certified housing counselor or an attorney who focuses on foreclosure defense. They can explain your rights, review your case, and help you communicate more effectively with your lender.

It’s worth noting that California law also requires the servicer to provide information about HUD-approved housing counseling agencies and to discuss possible foreclosure avoidance options with you. Ignoring the Notice of Default or failing to act will only bring you closer to a trustee’s sale.

If you believe the party collecting on your mortgage debt is using harassing or deceptive tactics—beyond simply notifying you of foreclosure—take note that California’s Rosenthal Fair Debt Collection Practices Act (Civil Code §§ 1788–1788.3) may also offer additional protections against unfair debt collection. You can learn more about these rights here.

Who Can Help Me Understand My Options?

If you’re struggling to pay your mortgage, or if you’ve already received a Notice of Default or a Notice of Trustee’s Sale, you don’t have to face it alone. Housing counselors, legal aid organizations, and consumer attorneys can review your situation to figure out your best course of action. A conversation with an attorney can be especially valuable if you suspect your servicer has violated any part of the HBOR or if you need to file a complaint to stop or delay the foreclosure sale.



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