Wrongful Foreclosure: Borrowers May Challenge Void Assignments of Deeds of Trust

  In Glaski v. Bank of America, the appellate court held a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void. Subsequent appellate court opinions, for a variety of reasons, refused to follow Glaski.

  In Yvanova v. New Century Mortgage the California Supreme Court considered the narrow question, considered in Glaski, of whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void. Continue reading

Mandatory Relief from Default: Attorney-Fault; C.C.P. 473(b)

  Code of Civil Procedure section 473, subdivision (b), contains the attorney-fault provision for relief from default which provides “…the court shall, whenever an application for relief is made no more than six months after entry of judgment, is in proper form, and is accompanied by an attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect, vacate any . . . resulting default judgment or dismissal entered against his or her client, unless the court finds that the default or dismissal was not in fact caused by the attorney’s mistake, inadvertence, surprise, or neglect.”

  Relief under the statute is mandatory if the conditions are fulfilled. The motion is timely if filed within six months of the entry of default judgment or dismissal. Due diligence is not required. Nor is it necessary for the attorney attesting to mistake, inadvertence, surprise or neglect be attorney of record for the party requesting relief. The statute only requires the affidavit be executed by an attorney who represents the client and whose mistake, inadvertence, surprise or neglect in fact caused the client’s default or dismissal. Continue reading

Notice of Damages: Required for Entry of Default in Action for Accounting?

  It is a fundamental concept of due process that a judgment against a defendant cannot be entered unless he was given proper notice and an opportunity to defend. Code of Civil Procedure section 580 therefore provides the relief granted to the plaintiff, if there is no answer, cannot exceed that demanded in the complaint or in a statement of damages as required by section 425.11. Section 425.11 refers to the required statement which must be served prior to entry of default in an action for personal injury or wrongful death. In those actions, the complaint must not allege a specific dollar amount of damages.The purpose of sections 580 and 425.11 is to guarantee defaulting parties adequate notice of the maximum judgment that may be assessed against them. Continue reading

Promissory Note Statute of Limitations: 6 Years

  What is the statute of limitations on a promissory note? The statute of limitations for an action upon any contract, obligation or liability founded upon an instrument in writing is four years from breach per Code of Civil Procedure section 337. However, Commercial Code section 3118(a) provides a six-year statute of limitations for “an action to enforce the obligation of a party to pay a note payable at a definite time.” The period runs from “the due date or dates stated in the note.” Continue reading

Renewed Motions for Mandatory Relief from Default Must Comply with C.C.P. 1008

   The California Supreme Court holds that Code of Civil Procedure section 1008, which imposes special requirements on renewed applications for orders a court has previously refused, governs renewed applications for mandatory relief under Code of Civil Procedure section 473, subdivision (b), for relief from default based on an attorney’s “sworn affidavit attesting to his or her mistake, inadvertence, surprise, or neglect.”

   Section 1008 requires a party filing a renewed application to submit an affidavit showing what “new or different facts, circumstances, or law are claimed” to justify the renewed application, and show diligence with a satisfactory explanation for not presenting the new or different information earlier. [See, Even Zohar Construction & Remodeling, Inc. v. Bellaire Townhouses, LLC.]


  Mr. Daymude consults with clients and accepts cases involving relief from default and default judgments, including those based upon an attorney’s mistake, inadvertence, surprise, or neglect. For other types of cases accepted, please scroll the Home and My Practice pages. If you are seeking a legal consultation or representation, call Michael Daymude at 818-971-9409.

Attorney-Client Privilege: Joint Client Exception

  In a lawsuit between an attorney and a client based on an alleged breach of a duty arising from the attorney-client relationship, attorney-client communications relevant to the breach are not protected by the attorney-client privilege. If multiple clients retain or consult with an attorney on a matter of common interest and the joint clients later sue each other, the communications between either client and the attorney made in the course of that relationship are not privileged in the suit between the clients. Continue reading

C.C.P 473(b) Provides Relief From Terminating Sanction

  The Fifth Appellate District opines in Rodriguez v. Brill that relief from a judgment of dismissal under the mandatory provisions of Code of Civil Procedure section 473(b), for inexcusable failures of plaintiff’s attorney, is available following the granting of a terminating sanction. Continue reading

Medical Malpractice Statute of Limitations Tolled by Insurance Code Section 11583

  Determining when the statute of limitations expires is not always easy. This is particularly true in medical malpractice cases which are governed by two Code of Civil Procedure sections: 340.5 and 364. Additionally, other statutes may act to toll the applicable statute of limitations. One such statute is Insurance Code section 11583. It provides that the applicable statute of limitations is tolled when advance or partial payment is made to an injured and unrepresented person without notifying him of the applicable limitations period. Continue reading

Davis-Stirling: Partial Payments Reducing Assessments Must Be Accepted

  The Court of Appeals affirms, in Huntington Continental Town House Ass. v. Miner, that a homeowners’ association is required by the Davis-Stirling Common Interest Development Act to accept partial payments from an owner of a separate interest when the owner is delinquent in paying assessments. Continue reading

How to Count Days: California Courts

  Code of Civil Procedure sections 12-12c tell you how to count days. The first step is to determine if the days are calendar or court days–a distinction with a difference. The next step is to count either forward, or backward, the correct number of days. The third step is to add days, as required, due to the specific manner of service. The following rules apply: Continue reading