California's "tender rule" usually requires you to pay off the entire loan balance before challenging a foreclosure. But there are important exceptions that can excuse tender.
The tender rule is a legal doctrine that generally requires a borrower to offer to pay the full amount owed (principal, interest, fees, and costs) before a court will set aside a foreclosure sale or cancel a trustee's deed.
The policy rationale is that if you can't pay anyway, setting aside the sale would just delay the inevitable—the lender would foreclose again, and you'd end up in the same position.
The leading case on tender is Lona v. Citibank (2011), which states that tender is required to set aside a sale unless an exception applies. But the court also recognized multiple exceptions.
California courts have recognized these exceptions to the tender requirement:
If the sale is void—a nullity from the beginning—no tender is required. A sale is void when:
A voidable sale (improper procedures but some authority existed) typically requires tender.
Courts can excuse tender when requiring it would be inequitable, such as:
If your counterclaim damages would offset the amount owed, you may not need to tender the gross amount. For example:
You're still effectively "tendering" by providing value—just in the form of legal claims rather than cash.
Tender is required to set aside the sale, but may not be required if you're only seeking money damages:
If you're not asking the court to undo the sale, the tender rule's rationale doesn't apply as strongly.
The tender rule is less strict for TRO/preliminary injunction motions before the sale:
If the issue is whether the foreclosing party had the right to foreclose at all, some courts have excused tender:
The theory is: why tender to someone who may not be entitled to the money?
Under CC § 2924.12(b), "a court may award injunctive relief to prevent a material violation" of HBOR. Many courts interpret this as excusing tender for pre-sale injunctions in HBOR cases.
If you're relying on a tender exception, your complaint must specifically allege it:
"Plaintiffs are excused from tender because the sale was void. Defendant Bank had no authority to foreclose because it did not hold any beneficial interest in the deed of trust at the time the Notice of Default was recorded. The assignment from MERS to Defendant Bank was not recorded until [DATE], which was after the Notice of Default was recorded on [DATE]. A foreclosure initiated by a party without authority is void, not voidable. See Glaski v. Bank of America (2013) 218 Cal.App.4th 1079."
Generally no. Courts have rejected "hollow" tender allegations. You must:
Simply saying you're "willing" to tender if ordered, without proof of ability, won't survive a demurrer.
Partial tender generally doesn't satisfy the rule. However:
An unconditional offer to pay is generally sufficient—you don't have to actually pay before filing suit. But the offer must be:
Tender is one element of setting aside a sale, but you still need to prove:
Also, if a bona fide purchaser bought the property, getting it back becomes much harder. You may be limited to money damages.
I analyze foreclosure cases to identify tender exceptions and build the strongest possible claims. If servicer misconduct caused your situation, there may be a path forward.