Federal Eastern District of California July 12, 2018
Dennis H. Doss
Christopher J. Donovan
It is not unusual for a borrower to challenge a foreclosure by a court action against a foreclosing lender. However, in Lane v. Wells Fargo Bank, the Federal District Court for the Eastern District of California dismissed the case of a foreclosed homeowner who could not allege he had tendered the amount due to the lender before filing his case. The exact holding of the Court:
- Plaintiff’s complaint also fails to allege tender. “When a debtor is in default of a home mortgage loan, and a foreclosure is either pending or has taken place, the debtor must allege a credible tender of the amount of the secured debt to maintain any cause of action for wrongful foreclosure.”6 Flores v. EMC Mortg. Co., 997 F.Supp.2d 1088, 1106 (E.D. Cal. 2014) (quotation omitted); see also Gardner v. American Home Mortg. Servicing, Inc., 691 F.Supp.2d 1192, 1203 (E.D. Cal. 2010) (“an action to set aside a foreclosure sale, unaccompanied by an offer to tender, does not state a cause of action for wrongful foreclosure”).