The Sixth District in Skov v. U.S. Bank National Association finds a private right of action for violation of Civil Code section 2923.5. Section 2923.5 provides that a mortgagee, trustee, beneficiary, or authorized agent must contact the borrower “in person or by telephone in order to assess the borrower’s financial situation and explore options for the borrower to avoid foreclosure” or satisfy due diligence requirements before a notice of default is filed. Accordingly, the trial court which sustained a demurrer to plaintiff’s causes of action for wrongful foreclosure, unlawful business practices, and declaratory relief, erred. Whether a defendant has complied with a statute such as section 2923.5 is a question of fact which, when disputed, cannot be determined on the basis of recitals in judicially noticed recorded documents. The court also held that section 2923.5 is not preempted by the National Banking Act. Chalk one up for homeowners.

Jump to top