CACI 4921 Wrongful Foreclosure—Tender Excused

California Civil Jury Instructions CACI

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 following]:

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 foreclosure.

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 borrower’s 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 trustor’s 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)