Private Lenders: Can a Sale Be Both Void—and Valid—at the Same Time?

California Civil Code Section 2924.13(h) tries to protect foreclosure sales, but creates new confusion instead

What happens if a foreclosure sale violates the new statute—but still goes through?

From 23+ years of representing lenders in real estate litigation and foreclosures, few things are more dangerous than a poorly drafted statute. California’s Civil Code § 2924.13(h) attempts to preserve the finality of foreclosure sales—but in doing so, directly contradicts the subsection that came right before it.

“Any failure to comply with the provisions of this section shall not affect the validity of a trustee’s sale or a sale in favor of a bona fide purchaser.”

This Subsection Conflicts With the One Above It

In yesterday’s post, subdivision (g) gave borrowers the right to petition the court to set aside a completed sale based on a defective or missing certification. But now subdivision (h) says that any failure to comply shall not affect the validity of the sale. Which one controls?

There’s no clear answer.

This clause appears to protect even lender-reverted sales—not just those sold to third-party buyers. That could allow a lender to argue that a defective certification does not invalidate a completed foreclosure.

But courts may still give weight to subsection (g), especially where the borrower builds a strong record of noncompliance or misrepresentation. In practice, outcomes will likely turn on the facts, the quality of the evidence, and how the judge interprets the statute.

Don’t Rely on Ambiguity—It Will Backfire

Even if the sale is upheld, courts may still impose monetary penalties or equitable remedies for unlawful practices or wrongful foreclosure. Violating § 2924.13 and hoping to rely on subsection (h) is risky—especially in a borrower-friendly state like California.

Follow for more legal insights as this statute is tested—and litigated—in real time.