California Civil Code 2923.5: Contact Rule, Declaration, and Remedies

California Civil Code 2923.5 requires a mortgage servicer to contact you, or make a documented effort to contact you, about alternatives to foreclosure at least 30 days before it records a Notice of Default. If the servicer skips that outreach, a court can stop the foreclosure. If the home has already been sold, you can sue for your actual losses and, where the violation was willful, collect the greater of triple damages or $50,000.¹

The 30-Day Contact Rule

The statute gives the servicer two ways to satisfy its obligation. The first is direct contact: a phone call or in-person meeting to assess your finances and discuss ways to avoid foreclosure. The second is a specific sequence of follow-up attempts the statute calls “due diligence,” used when direct contact fails. Whichever track applies, the servicer cannot record a Notice of Default until at least 30 days have passed after satisfying it.¹

The outreach rule applies to borrowers as defined in Section 2920.5, which generally covers people living in the mortgaged property as their residence. If you don’t fit that definition, the servicer doesn’t owe you the outreach, but it still has to say so in the paperwork filed with the Notice of Default.

A federal rule runs alongside this one. Under the Consumer Financial Protection Bureau’s Regulation X, a servicer cannot make the first foreclosure filing until you are more than 120 days delinquent.² Both clocks have to be satisfied before the process moves forward.

What the Initial Contact Must Cover

The first-track call is not a courtesy check-in. The servicer must assess your financial situation and discuss options for keeping you in the home, which can include a loan modification, a repayment plan, or another arrangement.¹

During that call, the servicer must tell you two things. You can request a follow-up meeting, which the servicer must schedule within 14 days. And you must be given the toll-free number for HUD-certified housing counseling agencies, which provide free help with foreclosure alternatives.³

If the contact happens and the 30 days pass, the servicer can proceed. If it can’t reach you, it has to work through the due diligence sequence.

The Due Diligence Steps When Contact Fails

Due diligence is an ordered sequence. A servicer that skips a step or does them out of order has not met the statute, even if you eventually surface.

A first-class letter that includes the HUD housing counseling toll-free number and tells you a third party, such as a family member, attorney, or housing counselor, can request copies of future foreclosure notices.¹
At least three phone calls to you at different hours and on different days. If an automated dialer is used, the call must connect to a live person once answered.³
A certified letter with return receipt requested, sent if you still haven’t responded two weeks after the phone call requirements are met.³

The phone call requirement is treated as satisfied in two narrow situations: all the phone numbers on file are disconnected, or you have sent a written request telling the servicer to stop communicating about the loan. Outside of those, the three calls have to happen.

The Declaration Attached to the Notice of Default

When the servicer records a Notice of Default, it has to include a signed declaration confirming it followed these rules. Without the declaration, the Notice of Default cannot be legally recorded. The declaration must state one of three things:¹

Contact was made and foreclosure alternatives were discussed.
Due diligence was completed through the required letters and calls, but contact could not be established.
No contact was required because the individual did not meet the Section 2920.5 definition of “borrower.”

This document matters because it puts the servicer’s claim on the public record under signature. You or your attorney can pull the declaration, compare it to what actually happened in your case, and use any mismatch as evidence. A false declaration, or no declaration at all, is strong evidence of a violation.

Stopping the Foreclosure Before the Sale

If the Notice of Default was recorded without the required outreach and the trustee’s deed has not yet been recorded, you can go to court and ask for an injunction. The injunction stays in place until the servicer corrects the violation, and the servicer has to show actual compliance to get it lifted, not just promise to comply.⁴

This is where the statute gives you the most leverage. A servicer forced to start the outreach over loses weeks or months, and that gap is often enough time to submit a loan modification application, arrange a short sale, or line up other options.

Damages After the Sale

If the sale has already happened and the servicer materially violated Section 2923.5 without fixing the problem before the trustee’s deed was recorded, you can sue for actual economic damages. Where the court finds the violation was intentional, reckless, or the result of willful misconduct, it can award the greater of three times actual damages or $50,000 in statutory damages.⁴

One limitation to understand: a violation does not automatically unwind the sale. If a good-faith buyer purchased the property at the auction without knowing about the servicer’s noncompliance, the sale stands. Your remedy is money from the servicer, not the house back.⁴

A borrower who prevails, whether by winning an injunction or by recovering damages, can also collect reasonable attorney’s fees and costs.⁴ The fee-shifting provision is part of why attorneys will take these cases on contingency.

What To Do if You Think Your Servicer Skipped the Rules

Answer the servicer’s calls and letters if you still can. The 30-day window exists so you can actually talk through alternatives, and ignoring the outreach just moves the servicer onto the due diligence track, after which the foreclosure can proceed on schedule.

Pull the Notice of Default and read the declaration attached to it. If the declaration says contact was made when it wasn’t, or no declaration is attached, those are the facts an injunction case is built on. A HUD-certified housing counselor can walk you through what the paperwork means at no cost; HUD’s toll-free number is 800-569-4287. If you’re weighing an injunction or a damages claim, talk to an attorney who handles California foreclosure cases, keeping in mind that the fee-shifting provision can cover your lawyer’s bill if you win.

1
California Legislative Information. California Code Civil Code 2923.5 – Mortgages in General
2
Consumer Financial Protection Bureau. 12 CFR 1024.41 Loss Mitigation Procedures
3
California Legislative Information. California Code CIV 2923.5 – Mortgages in General
4
California Legislative Information. California Code Civil Code 2924.19