NOTICE OF DEFAULT

As a rule, lenders do not start foreclosure proceedings, when the borrower is a few days late on a payment. Generally, lenders do not declare a default, until the borrower is substantially behind in his or her payments. This is, however, a decision for the lender; it has the legal power to declare a default, and start foreclosure, as soon as there is a default.

When a lender decides to start foreclosure proceedings, the first step is for the trustee under the Deed of Trust or mortgage to record a Notice of Default and an election to sell. This is a legal document, which must be mailed to the borrower, to any one else who has recorded a Request for Copy of Notice of Default and/or Sale in the form specified by Civil Code Section 2924b and to all other parties listed in Civil Code Section 2924b. The Notice of Default must also be recorded.

Civil Code Section 2924 describes the information which the Notice of Default must contain. Among other things, it must state the amount which is in default and the amount which must be paid by the borrower to reinstate the loan and to avoid the foreclosure. The Notice of Default must comply strictly with the format set out in Civil Code Section 2924c(b)(1).

Small inaccuracies in the Notice of Default will not invalidate a later foreclosure sale. Knapp v. Doherty (2004) 123 Cal. App. 4th 76; 20 Cal. Rptr. 3d 1. The lender, however, is bound by its Notice of Default; in seeking a foreclosure, a lender is not permitted to rely upon defaults other than those stated in the Notice of Default. Miller v. Cote (1982) 127 Cal. App. 3d 888; 179 Cal. Rptr. 753.

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