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california legislation > SB 458

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Bill No: SB 458
Author: Corbett (D), et al.
Amended: 4/4/11
Vote: 27 - Urgency

AYES: Evans, Harman, Corbett, Leno

SUBJECT : Mortgages: deficiency judgments

SOURCE : California Association of Realtors
California Bankers Association

DIGEST : Existing law prohibits a lender from receiving a
judgment for a deficiency after a short sale on a first
mortgage or deed of trust, as specified. This bill expands
that anti-deficiency protection for all mortgages or deeds
of trust, provided that the holder of the mortgage or deed
of trust consents to the short sale. This bill also
restates the above prohibition to clarify that the
provisions do not impact multiple collateral loans.

ANALYSIS : Existing law provides for procedures by which
a money judgment (a "deficiency judgment") can be sought
for the balance due on an obligation for the payment of
which a deed of trust or mortgage was given as security. A
court may render judgment for not more than the amount by
which the entire amount of indebtedness due at the time of
sale exceeded the fair market value of the real property or

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interest therein sold at the time of sale, with interest
from the date of sale, as specified. (Code of Civil
Procedure ›CCP] Section 580a)

Existing law prohibits a deficiency judgment after the sale
of real property under a deed of trust or mortgage on a
dwelling for not more than four families. That provision
applies to loans that were used to pay all or a part of the
purchase price of the dwelling that was occupied by the
purchaser. (CCP Section 580b)

Existing law prohibits a deficiency judgment on a note
secured by a deed of trust or mortgage in any case in which
the property has been sold by the mortgagee or trustee
(lender) under a power of sale contained in the mortgage or
deed of trust. (CCP Section 580d)

Existing law prohibits a deficiency judgment on a note
secured by a first deed of trust or first mortgage on a
dwelling of not more than four units where the dwelling is
sold for less than the remaining amount of indebtedness due
at the time of sale with the written consent of the hold of
the first deed of trust or mortgage. Written consent of
the holder obligates that holder to accept sale proceeds as
full payment and to fully discharge the remaining amount of
indebtedness. (CCP Section 580e(a))

Existing law provides that if the mortgagee commits fraud
with respect to the sale, or waste with respect to the real
property, the above provision shall not limit the ability
of the holder of the first deed of trust or mortgage to
seek damages and use existing rights and remedies. (CCP
Section 580e(b))

Existing law provides that the above protections do not
apply if the trustor or mortgagor is a corporation or
political subdivision of the state. (CCP Section 580e(c))

This bill revises the above provisions by striking
reference to "first," thereby applying the protections to
all of the mortgages or deeds of trust secured by the

This bill revises the above language to clarify that


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following the voluntary transfer of title, the rights,
remedies and obligations of specified parties shall be
treated and determined as though the dwelling had been sold
through foreclosure under a power of sale contained in the
deed of trust or mortgage for a price equal to the sale
proceeds, as specified.

This bill additionally states that the section shall not
apply if the trustor or mortgagor is a limited liability
company, limited partnership. The section would also not
apply to any deed of trust, mortgage, or other lien given
to secure the payment of bonds or other evidence of
indebtedness authorized or permitted to be issued by the
Commissioner of Corporations, or which is made by a public
utility subject to the Public Utilities Act.

This bill provides that any waiver of the anti-deficiency
provisions in the bill by a covered person shall be void
and against public policy.

Related legislation . SB 412 (Vargas) is substantially
similar to SB 458. The bill is currently in the Senate
Judiciary Committee.

Prior legislation . SB 931 (Ducheny), Chapter 701, Statutes
of 2010, passed the Senate Floor (35-0) on August 19, 2010.

FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No

SUPPORT : (Verified 4/13/11)

California Association of Realtors (co-source)
California Bankers Association (co-source)
California Association Realtors
California Credit Union League
California Independent Bankers
California Mortgage Banker Associations

ARGUMENTS IN SUPPORT : According to the author:

"As the economic crisis continues to impact Californians,
short sales offer an opportunity for a homeowner to avoid


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foreclosure. However, current law only affords
'anti-deficiency' protection for the first note or first
deed of trust in the event of a short sale. Current law
does not extend this anti-deficiency protection for
junior notes when a short sale occurs (i.e. second

"SB 458 (Corbett) builds upon the protections laid out in
Section 580(e) of the Code of Civil Procedure by
protecting homeowners from deficiency judgments in all
loans on a home, not simply the first note."

The California Association of Realtors, co-sponsor, further
notes that "SB 458 will bring together the desired
clarification of last session's bill ›regarding multiple
collateral loans] which is currently found in SB 412,
Vargas, and adds additional protections against post-short
sale deficiency liability to junior note holders (seconds)
when those lenders approve a short sale. It is important
to note that the short sale process remains voluntary on
every participant's part - only lenders that actually agree
to the sale will be affected, and sellers that cannot put
together an acceptable sale may still go to foreclosure or
even bankruptcy."

RJG:kc 4/14/11 Senate Floor Analyses


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