HBOR gives a borrower no pre-foreclosure cause of action to enjoin foreclosure due to alleged invalidity of the assignments of the borrower’s loan or the foreclosing party’s lack of ownership of the loan. Civ. Code 2924.12 and 2924.19 allow pre-foreclosure injunction actions only for violation of specified HBOR sections. Civ. Code 2924(a)(6) which allows the filing of a notice of default or sale only by a party that is entitled to do so is not one of the HBOR sections enumerated in sections 2924.12 and 2924.19. And section 2924.17, which those sections do mention, requires the foreclosing party to diligently verify the facts stated in the declaration that section 2923.55 requires to be filed with the notice of default. But those provisions do not create a burden on the foreclosing party to prove anything in court, other than that the declaration required by section 2923.55(c) was filed, and that necessary steps were taken before filing it. Specifically, nothing in section 2924.17 requires a foreclosing party to prove, prior to foreclosure, that it has the right to foreclose.
California Court of Appeal, Second District, Division 5 (Raphael, J., sitting by assignation); September 7, 2016; 2016 WL 4655762