Bill Text: CA AB2347 | 2009-2010 | Regular Session | Amended

California Assembly Bill 2347 (Prior Session Legislation)

NOTE: There are more recent revisions of this legislation. Read Latest Draft

Bill Title: Mortgage defaults: secondary public financing.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2010-09-30 - Chaptered by Secretary of State - Chapter 597, Statutes of 2010. [AB2347 Detail]

Download: California-2009-AB2347-Amended.html

BILL NUMBER: AB 2347	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  APRIL 8, 2010

INTRODUCED BY   Assembly Member Feuer

                        FEBRUARY 19, 2010

   An act  to amend Section 2924f of the Civil Code, 
relating to mortgage defaults.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 2347, as amended, Feuer. Mortgage defaults: secondary public
financing.
   Existing law requires a lender to file a notice of default in the
case of nonjudicial foreclosure prior to enforcing a power of sale as
a result of a default on an obligation secured by real property, as
specified.  Existing law also requires that a notice of sale be
given before the power of sale may be exercised. 
   This bill would  express the intent of the Legislature to
enact legislation that would, if enacted, ensure that when a public
entity is a secondary mortgage lender for multifamily residential
real property, that public entity would receive each notice of
default filed on that property in a timely manner  
create an exception to the provision   governing the
exercise of the power of sale by providing that if a property
contains 2 or more dwelling units and a public entity holds any
interest in the property, including a deed of trust, lien, rent
regulatory agreement, or similar instrument, the public entity may,
by written notice to the trustee, postpone the sale date by no more
than 60 days  .
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    Section 2924f of the   Civil
Code   is amended to read: 
   2924f.  (a) As used in this section and Sections 2924g and 2924h,
"property" means real property or a leasehold estate therein, and
"calendar week" means Monday through Saturday, inclusive.
   (b) (1) Except as provided in subdivision (c)  or (d)  ,
before any sale of property can be made under the power of sale
contained in any deed of trust or mortgage, or any resale resulting
from a rescission for a failure of consideration pursuant to
subdivision (c) of Section 2924h, notice of the sale thereof shall be
given by posting a written notice of the time of sale and of the
street address and the specific place at the street address where the
sale will be held, and describing the property to be sold, at least
20 days before the date of sale in one public place in the city where
the property is to be sold, if the property is to be sold in a city,
or, if not, then in one public place in the judicial district in
which the property is to be sold, and publishing a copy once a week
for three consecutive calendar weeks, the first publication to be at
least 20 days before the date of sale, in a newspaper of general
circulation published in the city in which the property or some part
thereof is situated, if any part thereof is situated in a city, if
not, then in a newspaper of general circulation published in the
judicial district in which the property or some part thereof is
situated, or in case no newspaper of general circulation is published
in the city or judicial district, as the case may be, in a newspaper
of general circulation published in the county in which the property
or some part thereof is situated, or in case no newspaper of general
circulation is published in the city or judicial district or county,
as the case may be, in a newspaper of general circulation published
in the county in this state that (A) is contiguous to the county in
which the property or some part thereof is situated and (B) has, by
comparison with all similarly contiguous counties, the highest
population based upon total county population as determined by the
most recent federal decennial census published by the Bureau of the
Census. A copy of the notice of sale shall also be posted in a
conspicuous place on the property to be sold at least 20 days before
the date of sale, where possible and where not restricted for any
reason. If the property is a single-family residence the posting
shall be on a door of the residence, but, if not possible or
restricted, then the notice shall be posted in a conspicuous place on
the property; however, if access is denied because a common entrance
to the property is restricted by a guard gate or similar impediment,
the property may be posted at that guard gate or similar impediment
to any development community. Additionally, the notice of sale shall
conform to the minimum requirements of Section 6043 of the Government
Code and be recorded with the county recorder of the county in which
the property or some part thereof is situated at least 20 days prior
to the date of sale. The notice of sale shall contain the name,
street address in this state, which may reflect an agent of the
trustee, and either a toll-free telephone number or telephone number
in this state of the trustee, and the name of the original trustor,
and also shall contain the statement required by paragraph (3) of
subdivision (c). In addition to any other description of the
property, the notice shall describe the property by giving its street
address, if any, or other common designation, if any, and a county
assessor's parcel number; but if the property has no street address
or other common designation, the notice shall contain a legal
description of the property, the name and address of the beneficiary
at whose request the sale is to be conducted, and a statement that
directions may be obtained pursuant to a written request submitted to
the beneficiary within 10 days from the first publication of the
notice. Directions shall be deemed reasonably sufficient to locate
the property if information as to the location of the property is
given by reference to the direction and approximate distance from the
nearest crossroads, frontage road, or access road. If a legal
description or a county assessor's parcel number and either a street
address or another common designation of the property is given, the
validity of the notice and the validity of the sale shall not be
affected by the fact that the street address, other common
designation, name and address of the beneficiary, or the directions
obtained therefrom are erroneous or that the street address, other
common designation, name and address of the beneficiary, or
directions obtained therefrom are omitted. The term "newspaper of
general circulation," as used in this section, has the same meaning
as defined in Article 1 (commencing with Section 6000) of Chapter 1
of Division 7 of Title 1 of the Government Code.
   The notice of sale shall contain a statement of the total amount
of the unpaid balance of the obligation secured by the property to be
sold and reasonably estimated costs, expenses, advances at the time
of the initial publication of the notice of sale, and, if republished
pursuant to a cancellation of a cash equivalent pursuant to
subdivision (d) of Section 2924h, a reference of that fact; provided,
that the trustee shall incur no liability for any good faith error
in stating the proper amount, including any amount provided in good
faith by or on behalf of the beneficiary. An inaccurate statement of
this amount shall not affect the validity of any sale to a bona fide
purchaser for value, nor shall the failure to post the notice of sale
on a door as provided by this subdivision affect the validity of any
sale to a bona fide purchaser for value.
   (2) If the sale of the property is to be a unified sale as
provided in subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code, the notice of sale shall also
contain a description of the personal property or fixtures to be
sold. In the case where it is contemplated that all of the personal
property or fixtures are to be sold, the description in the notice of
the personal property or fixtures shall be sufficient if it is the
same as the description of the personal property or fixtures
contained in the agreement creating the security interest in or
encumbrance on the personal property or fixtures or the filed
financing statement relating to the personal property or fixtures. In
all other cases, the description in the notice shall be sufficient
if it would be a sufficient description of the personal property or
fixtures under Section 9108 of the Commercial Code. Inclusion of a
reference to or a description of personal property or fixtures in a
notice of sale hereunder shall not constitute an election by the
secured party to conduct a unified sale pursuant to subparagraph (B)
of paragraph (1) of subdivision (a) of Section 9604 of the Commercial
Code, shall not obligate the secured party to conduct a unified sale
pursuant to subparagraph (B) of paragraph (1) of subdivision (a) of
Section 9604 of the Commercial Code, and in no way shall render
defective or noncomplying either that notice or a sale pursuant to
that notice by reason of the fact that the sale includes none or less
than all of the personal property or fixtures referred to or
described in the notice. This paragraph shall not otherwise affect
the obligations or duties of a secured party under the Commercial
Code.
   (c) (1) This subdivision applies only to deeds of trust or
mortgages which contain a power of sale and which are secured by real
property containing a single-family, owner-occupied residence, where
the obligation secured by the deed of trust or mortgage is contained
in a contract for goods or services subject to the provisions of the
Unruh Act (Chapter 1 (commencing with Section 1801) of Title 2 of
Part 4 of Division 3).
   (2) Except as otherwise expressly set forth in this subdivision,
all other provisions of law relating to the exercise of a power of
sale shall govern the exercise of a power of sale contained in a deed
of trust or mortgage described in paragraph (1).
   (3) If any default of the obligation secured by a deed of trust or
mortgage described in paragraph (1) has not been cured within 30
days after the recordation of the notice of default, the trustee or
mortgagee shall mail to the trustor or mortgagor, at his or her last
known address, a copy of the following statement:
YOU ARE IN DEFAULT UNDER A
_______________________________________________,
            (Deed of trust or mortgage)
DATED ____. UNLESS YOU TAKE ACTION TO PROTECT
YOUR PROPERTY, IT MAY BE SOLD AT A PUBLIC SALE.
IF
YOU NEED AN EXPLANATION OF THE NATURE OF THE
PROCEEDING AGAINST YOU, YOU SHOULD CONTACT A
LAWYER.


   (4) All sales of real property pursuant to a power of sale
contained in any deed of trust or mortgage described in paragraph (1)
shall be held in the county where the residence is located and shall
be made to the person making the highest offer. The trustee may
receive offers during the 10-day period immediately prior to the date
of sale and if any offer is accepted in writing by both the trustor
or mortgagor and the beneficiary or mortgagee prior to the time set
for sale, the sale shall be postponed to a date certain and prior to
which the property may be conveyed by the trustor to the person
making the offer according to its terms. The offer is revocable until
accepted. The performance of the offer, following acceptance,
according to its terms, by a conveyance of the property to the
offeror, shall operate to terminate any further proceeding under the
notice of sale and it shall be deemed revoked.
   (5) In addition to the trustee fee pursuant to Section 2924c, the
trustee or mortgagee pursuant to a deed of trust or mortgage subject
to this subdivision shall be entitled to charge an additional fee of
fifty dollars ($50).
   (6) This subdivision applies only to property on which notices of
default were filed on or after the effective date of this
subdivision. 
   (d) If a property contains two or more dwelling units and a public
entity holds any interest in the property, including a deed of
trust, lien, rent regulatory agreement, or similar instrument, the
public entity may, by written notice to the trustee, postpone the
sale date by no more than 60 days.  
  SECTION 1.    It is the intent of the Legislature
to enact legislation that would, if enacted, ensure that when a
public entity is a secondary mortgage lender for multifamily
residential real property, that public entity would receive each
notice of default filed on that property in a timely manner.