Cole Moscatel — Insurance/Foreclosure Matter

Bottom line: A post-sale set-aside / wrongful foreclosure theory typically requires a material statutory defect or authority defect in the nonjudicial process plus prejudice. The "partial payments for postponement" facts are important, but they do not automatically unwind acceleration unless the lender's communications create a clear waiver/estoppel or a reinstatement/forbearance agreement was reached and then violated.

Notices / sale defects to check: Compliance with Civ. Code § 2924 et seq. (recording and mailing of NOD/NTS, trustee authority/substitution issues, and statutory postponement procedure under Civ. Code § 2924g). We also need the trustee's sale log and any postponement declarations to confirm the sale was conducted exactly as noticed and postponed.

Acceleration / partial payments: Most notes/deeds of trust have "no waiver" language; acceptance of partial payments after NOD/NTS usually does not, by itself, waive default or de-accelerate. But if the lender promised postponement or other relief in exchange for specified payments and then proceeded inconsistently (or induced reliance on a last extension), those facts can support equitable estoppel and strengthen a wrongful foreclosure narrative.

Tender: Tender is often litigated in set-aside cases; depending on whether the defect makes the sale void vs. voidable (and other equitable factors), tender exceptions may apply (Lona v. Citibank, 202 Cal.App.4th 89 (2011); Dimock v. Emerald Properties, 81 Cal.App.4th 868 (2000)).

Evidence we need (priority): the recorded NOD/NTS, any substitution of trustee, the trustee's deed (and recording date), trustee sale log/postponement documentation, payoff/reinstatement figures, and proof of all payments and postponement communications with Abbasi.

Bottom line: The owner-occupant affidavit matters primarily because it can affect sale finality timing under Civ. Code § 2924m and the trustee's ability to treat the sale as immediately final. If the "owner-occupant" representation is false (and current marketing suggests investment intent), it creates powerful leverage for emergency equitable relief and potential public enforcement.

Challenging a false affidavit: The statute is not perfectly set up as a clean standalone private cause of action in every court (see California Lawyers Association commentary on § 2924m), so the best approach is typically: (1) use the affidavit fraud as a core fact supporting an injunction / wrongful foreclosure / equitable set-aside posture (especially if the trustee treated the sale as "final" based on owner-occupant status), and (2) pursue parallel public enforcement avenues for false filings/perjury if evidence supports.

Timing (calendar): Treat this as emergency. Depending on whether owner-occupant status properly applies and whether any "eligible bidder" process was triggered, statutory finality can turn on short windows (commonly discussed as a 15-day and potentially 45-day structure). From a 12/12/2025 sale date, those reference points are approximately 12/27/2025 and 1/26/2026 (subject to the exact statutory trigger that applies). Title remains with the trustor until sale is deemed final under § 2924m.

What "prevailing" would look like: If we succeed in establishing that the buyer was not a qualifying owner-occupant and that the trustee prematurely treated the sale as final, the relief goal is typically: stop further transfers (and/or unwind the trustee's deed process if it occurred prematurely), compel compliance with the correct SB 1079 post-sale procedure, and pressure public enforcement/perjury exposure.

Action items NOW: (i) preserve screenshots/records of the "bank owned"/auction listings and any broker marketing, (ii) demand from the trustee a copy of the owner-occupant declaration/affidavit and the trustee's sale log/finality determination, (iii) confirm whether/when a trustee's deed was issued/recorded, and (iv) if the evidence is strong, prepare an ex parte/TRO package before finality/recordation hardens the posture.

Primary "two-track" strategy: (1) Settlement enforcement track (motion to enforce/enter judgment if available; otherwise breach of settlement) aimed at fast monetization + interest/fees; and (2) Foreclosure/Title track aimed at emergency injunctive relief and/or set-aside based on statutory defects, authority defects, prejudice, and SB 1079-related irregularities.

Regulatory / pressure levers: Even if not a direct damages remedy, a targeted complaint to the California Department of Insurance can create pressure and preserve a record. Likewise, if counsel's "check is overnighted / signed / went out yesterday" representations are provably false, a State Bar complaint is a potential parallel lever (noting that litigation privilege issues generally constrain civil tort claims against counsel, but professional discipline operates on a different track).

Buyer-side remedies: If the buyer is misrepresenting owner-occupant intent, preserve evidence and consider public enforcement referral (AG / local prosecutor — this is the primary enforcement avenue SB 1079 contemplates for false affidavits); in civil litigation, incorporate that fact pattern into equitable relief requests (including restraining further transfers and clarifying whether title properly passed).

Additional theories worth preserving: Unfair business practices (B&P Code § 17200 — equitable remedy only, but can reach restitution); intentional interference with prospective economic advantage (property sale/refinancing was imminent); and equitable relief (constructive trust / unjust enrichment) if we can show who benefited from the wrongful conduct.

What we need to complete the matrix: trustee's deed/recording status, trustee sale log, owner-occupant affidavit copy, and the settlement agreement provisions on enforcement/fees/interest and who is the obligor/payor. Once we have these, we can finalize which track(s) have the strongest immediate posture.