Opinion
C043197.
10-30-2003
JERRY L. HENDERSON et al., Plaintiffs and Respondents, v. MARK W. LIGHTY et al., Defendants and Appellants.
When Jerry and Marianne Henderson defaulted on a monetary obligation to the Bank of America (the Bank), the Bank caused their home to be sold to Mark and Theresa Lighty at a nonjudicial foreclosure sale. (Civ. Code, § 2924; further section references are to the Civil Code unless otherwise specified.) Thereafter, the Hendersons and the Bank brought an action to quiet title and to set aside the trustees deed of sale on the ground that the Hendersons had cured the default prior to the sale and, thus, the sale and resulting trustees deed were void.
The Lightys appeal from the judgment entered after the trial court granted a motion for summary judgment and set aside the nonjudicial foreclosure sale. They contend their status as bona fide purchasers precluded the court from setting aside the sale and quieting title in the Hendersons. We shall affirm the judgment.
BACKGROUND
In 1979, the Hendersons purchased a residence in Chico, California with a Cal Vet loan secured by a first deed of trust. In 1988, they obtained a $30,000 revolving line of credit from the Bank, secured by a second trust deed on their house. The Bank declared the loan in default for the nonpayment of monthly installment payments in August 2001. The Notice of Default, issued by Integrated Lenders Services (ILS), stated the Hendersons owed $ 2,324.77.
On November 26, 2001, ILS filed a Notice of Trustees Sale Under Deed of Trust, which indicated that the Hendersons house would be sold on December 21, 2001, and that the unpaid balance of the obligation secured by the property was $31,666.97.
On December 12, 2001, Ed Huff, a family friend and business associate of the Hendersons, went to a branch of the Bank in Ukiah in order to bring the Hendersons loan current. He was instructed to speak with Bess Waddell, a Bank representative in North Carolina, regarding the process to reinstate the Hendersons loan. Huff contacted Waddell, who then spoke with an employee in the Ukiah branch and instructed her how to arrange to cure the default and reinstate the loan.
The Banks personnel took Huffs personal check for $4,174.53 and issued two cashiers checks: one for $1,221.50 made payable to ILS to pay the amounts charged by the trustee, and one for $2,953.03 made payable to the Bank to pay the accrued interest and principal due on the loan. Bank personnel informed him the checks would be dispatched to the proper department and credited to the loan account, whereupon the foreclosure would be stopped and the loan cured.
Unfortunately, due to an error by a Bank employee, the funds were not applied to the Hendersons loan account and the Notice of Trustees Sale was not rescinded.
The trustees sale was postponed until January 11, 2002, at which time the Lightys purchased the property for $31,571, which reflected the full amount owing on the debt prior to reinstatement. They also paid off the Hendersons Cal Vet loan in the amount of $32,685.00. Thereafter, the Lightys served the Hendersons with a three-day notice to quit and, when the Hendersons failed to move out, the Lightys brought an unlawful detainer action against them.
The Hendersons, as well as the Bank, responded by filing a complaint to quiet title and set aside the trustees sale.
The Hendersons and the Bank moved for summary judgment on the ground that the Hendersons payment cured the default, which reinstated the deed and rendered the subsequent sale and trustees deed void. Because the deed was void, it had no effect and the court was not precluded from setting it aside and quieting title in the Hendersons even if the Lightys were bona fide purchasers. Moreover, the Hendersons and the Bank asserted that the Lightys were not bona fide purchasers because they admitted they were professional purchasers at trustees sales and had bought the property for significantly less than its fair market value. The Hendersons and the Bank conceded that the Lightys were entitled to recover $64,256, which reflected the money they had expended on the property.
In their opposition to the summary judgment motion, the Lightys agreed that the Hendersons had redeemed their loan and that there had been an irregularity in the trustees sale. And, except for the Hendersons assertion that they were the legal and equitable title owners of the property, the Lightys did not dispute any of the Hendersons factual assertions in their statement of undisputed facts, including the assertion that the Lightys were professional trustee sale purchasers who had purchased between 60 and 80 properties at foreclosure sales. They only disputed that this negated their status as bona fide purchasers.
The Lightys sole opposition to the motion was that they were bona fide purchasers and, as such, they were entitled to a conclusive presumption that the sale was proper and regular in accordance with section 2924. Based on this statutory conclusive presumption, the Lightys argued that the Hendersons were precluded from relying upon any irregularities in the trustees sale and setting it aside.
The trial court granted the motion for summary judgment. It found the Hendersons submitted evidence that (1) there had been a substantial irregularity in the foreclosure proceedings because the loan secured by the deed of trust was not in default, and (2) the Lightys were not bona fide purchasers because they were professional trustee sale purchasers who bought the property for $64,256 when it was worth $225,000. Furthermore, the Lightys did not dispute any of the Hendersons evidence. Accordingly, the court set aside the deed and sale, quieted title in the Hendersons, and ordered them to pay the Lightys $64,256, less the reasonable expenses incurred by the Hendersons.
STATUTORY FRAMEWORK
The nonjudicial foreclosure statutory scheme provides that upon default by the trustor (the Hendersons), the beneficiary (the Bank) may declare a default and proceed with a nonjudicial foreclosure sale. (§ 2924.) The foreclosure process is initiated by the recording of a notice of default and election to sell by the trustee (§ 2924), and the trustee must wait three calendar months before proceeding with the sale. (§ 2924.) After the three-month period has elapsed, a notice of sale must be published, posted, and mailed 20 days before the sale and recorded 14 days before the sale. (§ 2924f.) Thereafter, if the sale is not postponed, a public auction is held at which the property must be sold to the highest bidder. (§ 2924g, subd. (a); Moeller v. Lien (1994) 25 Cal.App.4th 822, 830.)
The trustor is given several opportunities to cure the default and avoid the loss of the property during the foreclosure process. For example, the trustor is entitled to a period of reinstatement to make the back payments until five business days prior to the date of the sale. (§ 2924c, subds. (a)(1), (e); Moeller v. Lien, supra, 25 Cal.App.4th at p. 830.) However, to cure the default the trustor must timely pay the entire amount due according to the notice of default, and any amounts that have accrued on the obligation since the filing of the notice of default. (Anderson v. Heart Federal Sav. & Loan Assn. (1989) 208 Cal.App.3d 202, 212 (hereafter Anderson).) The trustor also "possesses an equity of redemption, which permits the trustor to pay all sums due prior to the sale of the property at foreclosure and thus avoid the sale." (Moeller v. Lien, supra, 25 Cal.App.4th at p. 830; §§ 2903, 2905.)
Where the default is not cured and the property is sold at a foreclosure sale, "[t]he purchaser . . . takes title by a trustees deed. If the trustees deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser. [Citation.]" (Moeller v. Lien, supra, 25 Cal.App.4th at p. 831; § 2924.)
The purpose of this comprehensive framework for regulation of a nonjudicial foreclosure sale pursuant to a power of sale contained in a deed of trust is threefold: "`(1) to provide the creditor/beneficiary with a quick, inexpensive and efficient remedy against a defaulting debtor/trustor; (2) to protect the debtor/trustor from wrongful loss of the property; and (3) to ensure that a properly conducted sale is final between the parties and conclusive as to a bona fide purchaser. [Citations.]" (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 440.)
DISCUSSION
I
The Lightys contend that the Hendersons, as the party moving for summary judgment, had the burden of establishing that no issue of material fact existed to be tried. (Code Civ. Proc., § 437c, subd. (c); Artiglio v. General Electric Co. (1998) 61 Cal.App.4th 830, 835.) According to the Lightys, the Hendersons did not meet this burden because their moving papers failed to establish that they cured the default. Thus, the trial court erred in granting the motion for summary judgment. We disagree.
Ed Huff, a friend of the Hendersons, declared that he paid the Bank the amount it informed him was necessary to cure the Hendersons default and reinstate the loan, and he was advised by the Bank that this would stop the foreclosure process. In a letter from the Banks attorney to the Lightys attorney, the Bank admitted that the Hendersons had reinstated the second trust deed loan, but that the reinstatement information was not disseminated to the foreclosure department and, therefore, the foreclosure sale occurred by mistake. More importantly, in the Lightys points and authorities, they asserted it was "very clear that the [Hendersons] indeed redeemed their loan with Bank of America and that Bank of Americas right ha[n]d didnt know what its left hand was doing." This is more than adequate to demonstrate the Hendersons cured their default.
The Lightys assert that we must disregard the aforementioned assertions because they are not contained in the Hendersons statement of undisputed facts in support of their summary judgment motion. They argue we must conduct an independent de novo review to determine if the Hendersons met their burden of proof and, in doing so, we may consider only the facts contained in the Hendersons statement of undisputed facts. According to the Lightys, these facts are insufficient to establish that the Hendersons cured the default. The contention is not persuasive.
"As with an appeal from any judgment, it is the appellants responsibility to affirmatively demonstrate error" (Lewis v. County of Sacramento (2001) 93 Cal.App.4th 107, 116), which includes establishing that the arguments asserted on appeal were raised in the trial court. (Dimmick v. Dimmick (1962) 58 Cal.2d 417, 422 [points not urged in the trial court may not be raised for the first time on appeal]; Damiani v. Albert (1957) 48 Cal.2d 15, 18; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 393, p. 444.) In exercising our independent judgment, we consider only the facts before the trial court at the time it ruled on the summary judgment motion. (North Coast Business Park v. Nielsen Construction Co. (1993) 17 Cal.App.4th 22, 30.) "`[P]ossible theories not fully developed or factually presented to the trial court cannot create a "triable issue" on appeal." (Id. at p. 31, citation and italics omitted; Sacks v. FSR Brokerage, Inc. (1992) 7 Cal.App.4th 950, 962; American Continental Ins. Co. v. C & Z Timber Co. (1987) 195 Cal.App.3d 1271, 1281.)
Here, the Lightys did not oppose the Hendersons motion on the ground that the Hendersons failed to establish they cured their default. "The fact that we review de novo a grant of summary judgment does not mean that the trial court is a potted plant in that process." (Uriarte v. United States Pipe & Foundry Co. (1996) 51 Cal.App.4th 780, 791.) The trial court was entitled to rely on the Lightys assertion in their points and authorities that it was "very clear that the [Hendersons] indeed redeemed their loan with Bank of America" and that the sole issue was whether the Lightys were bona fide purchasers such that the Hendersons were precluded from challenging the sale pursuant to the conclusive presumption of section 2924. In other words, the Lightys are bound by their judicial admissions. (Uhrich v. State Farm Fire & Casualty Co. (2003) 109 Cal.App.4th 598, 612-613; Neubauer v. Goldfarb (2003) 108 Cal.App.4th 47, 53; Kurinij v. Hanna & Morton (1997) 55 Cal.App.4th 853, 870-871.)
Under the circumstances, the Lightys have failed to establish that the trial court erred in finding the loan secured by the deed of trust was not in default at the time of the foreclosure proceedings.
II
It is the general rule that a court has the power to vacate a foreclosure sale "where the sale has been improperly, unfairly or unlawfully conducted, or is tainted by fraud, or where there has been such a mistake that to allow it to stand would be inequitable to purchaser and parties." (Bank of America etc. v. Reidy (1940) 15 Cal.2d 243, 248.) But "mere inadequacy of price, however gross, is not in itself a sufficient ground for setting aside a sale legally made. There must in addition be proof of some element of fraud, unfairness, or oppression before the court will be justified in depriving the purchaser of his legal advantage. Where, however, the price obtained is greatly disproportionate to the actual value, very slight evidence of unfairness or irregularity will suffice to authorize the granting of the relief." (Sargent v. Shumaker (1924) 193 Cal. 122, 129.)
Here, it is undisputed that the Lightys bought the Hendersons house at the foreclosure sale and also retired the Hendersons Cal Vet loan for a total cost of $64,256, and that the houses fair market value was $225,000, with $160,000 in net equity. Thus, there was a gross disparity between the purchase price and the value of the house.
Nevertheless, the Lightys allege there was no irregularity in the sale, so the sale was valid and not subject to attack by the Hendersons. According to the Lightys, the Banks failure to credit the Hendersons payment and cure the default was a mistake "dehors the sale proceedings," i.e., one that is beyond, foreign to, or unconnected with the sale proceeding, which they allege will not invalidate the sale. (Citing 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc. (2001) 85 Cal.App.4th 1279, 1285 [bidding mistake by foreclosing beneficiary does not invalidate foreclosure]; Crofoot v. Tarman (1957) 147 Cal.App.2d 443, 447 [mistake concerning postponed sale date does not invalidate foreclosure].)
Again, the Lightys did not raise this ground in the trial court in opposition to the Hendersons motion for summary judgment. Rather, they alleged it was "very clear that the [Hendersons] indeed redeemed their loan with Bank of America and that . . . [a]s a result, certainly an irregularity in the foreclosure process occurred . . . ." According to the Lightys, the sole issue was whether they were bona fide purchasers such that the conclusive presumption of section 2924 precluded the Hendersons from setting aside the trustees deed. Under the circumstances, they have waived any claim to the contrary on appeal. (North Coast Business Park v. Nielsen Construction Co., supra, 17 Cal.App.4th at p. 31; Sacks v. FSR Brokerage, Inc., supra, 7 Cal.App.4th at p. 962;American Continental Ins. Co. v. C & Z Timber Co., supra, 195 Cal.App.3d at p. 1281.)
III
The Lightys final contention is the one they raised in the trial court, i.e., they are bona fide purchasers for value and, therefore, section 2924 precluded the trial court from setting aside the trustees sale and deed.
Section 2924 provides in pertinent part: "A recital in the deed executed pursuant to the power of sale of compliance with all requirements of law regarding the mailing of copies of notices or the publication of a copy of the notice of default or the personal delivery of the copy of the notice of default or the posting of copies of the notice of sale or the publication of a copy thereof shall constitute prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers and encumbrancers for value and without notice."
The trial court ruled the Lightys were not bona fide purchasers for value pursuant to Estate of Yates (1994) 25 Cal.App.4th 511, which determined that a person who is in the business of buying properties in foreclosure and buys a property for a grossly inadequate price is not a bona fide purchaser. (Id. at p. 523; see also 6 Angels, Inc. v. Stuart-Wright Mortgage, Inc., supra, 85 Cal.App.4th at p. 1286.) The trial courts ruling is supported by the following undisputed facts: (1) the Lightys acknowledged they were professional trustees sale purchasers since 1988, and (2) they purchased the $225,000 property for approximately $65,000, leaving them a net equity of $160,000.
Citing Dreyfuss v. Union Bank of California (2000) 24 Cal.4th 400, the Lightys point out that many creditors (i.e., beneficiaries under the deed of trust securing the loan) routinely purchase at foreclosure sales and are entitled to do so. (Id. at p. 410.) They argue that "[i]f these lenders are not protected by the recital in their trustees deed, and become subject to attacks on the validity of their title at will, the negative effects on the lending industry could be tremendous."
The Lightys argument is unavailing because it is established that recitals in a trustees deed do not preclude a trustor from challenging the trustees deed based on irregularities in the foreclosure sale where the creditor/beneficiary is the purchaser of the property at the foreclosure sale. (Beck v. Reinholtz (1956) 138 Cal.App.2d 719, 723; Harker v. Rickershauser (1928) 94 Cal.App. 755, 761; Seccombe v. Roe (1913) 22 Cal.App. 139, 143-144; 4 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 10:211, pp. 651-652.)
The Lightys also argue Estate of Yates, supra, 25 Cal.App.4th 511 should be read in context of the facts of that case, i.e., that collusion among professional foreclosure sale bidders will result in them being denied bona fide purchaser status. Because no such collusion existed in the present case, the Lightys maintain that they should not be deprived of their bona fide purchaser status.
We need not decide whether the Lightys interpretation of Estate of Yates is correct because, even if the Lightys may be deemed bona fide purchasers, this did not preclude the trial court from quieting title to the property in the Hendersons. This is so, in part, because the trustees sale and deed were void, and thus, of no effect. (4 Miller & Starr, Cal. Real Estate, supra, § 10:211, p. 651 ["where the sale is void the trustor can avoid the sale even where title is held by a bona fide purchaser"].)
"`[S]ubstantially defective sales have been held void where the defect lay in a particular as to which the statutory provision was regarded as mandatory . . . . [Citation.]" (Little v. CFS Service Corp. (1987) 188 Cal.App.3d 1354, 1358.) For example, a tender of full payment by the trustor extinguishes the lien, and a subsequent trustees foreclosure sale is void and may be set aside since a valid lien is a prerequisite to a foreclosure sale. (Nguyen v. Calhoun, supra, 105 Cal.App.4th at p. 439; Winnett v. Roberts (1986) 179 Cal.App.3d 909, 922; Lichty v. Whitney (1947) 80 Cal.App.2d 696, 701-702; see also Rosenberg v. Smidt (Alaska 1986) 727 P.2d 778, 783-784 [the lack of a substantive basis to foreclose in the first place will render a foreclosure sale void, and the doctrine of good faith purchaser for value without notice does not apply to a purchaser at a void foreclosure sale]; Henke v. First Southern Properties, Inc. (Tex.Civ.App. 1979) 586 S.W.2d 617, 620 [if the trustee conducting the sale has no power or authority to offer the property for sale, for example, because the trustor is not in default, then the foreclosure sale is void, and the buyer cannot acquire title to the property even if the buyer is a bona fide purchaser].)
"[G]enerally, the acceptance of payment of a delinquent installment of principal or interest cures that particular default and precludes a foreclosure sale based upon such preexisting delinquency." (Bisno v. Sax (1959) 175 Cal.App.2d 714, 724.) Section 2924c, subdivision (a), provides that if the trustor pays the past due amounts, including interest and collection costs, this will "cure the default theretofore existing, and thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect . . . ."[]
Thus, once the Hendersons friend gave the cashiers checks to the Bank in an amount specified by the Bank as sufficient to cure the default, a rescission of the foreclosure sale and reinstatement of the loan was mandatory, and the subsequent sale was without legal basis and void. The fact that the Bank neglected timely and properly to credit the Hendersons payment does not mean the payment did not serve to reinstate their loan and extinguish the legal basis for the trustees sale. (Cf. Peterson v. State of California (1982) 138 Cal.App.3d 110 [tender of check for the total amount needed to redeem real property deeded to the state on account of tax delinquencies constitutes redemption where payment has been accepted, even if the payment has not been formally acknowledged].)
The Lightys reliance on the conclusive presumption in section 2924 is unavailing because the plain language of the statute discloses it pertains to the notice requirements set forth in the nonjudicial foreclosure statutes. Section 2924 states that a recital of compliance with all requirements of law regarding the mailing of the requisite notices shall constitute "prima facie evidence of compliance with these requirements and conclusive evidence thereof in favor of bona fide purchasers." (§ 2924, italics added.) In other words, "[t]he effect of the conclusive presumption statute is to deny a party judicial process to challenge whether the trustee, a private party, has in fact complied with the notice requirements against a bona fide purchaser for value." (Homestead Savings v. Darmiento (1991) 230 Cal.App.3d 424, 434, italic added.)
Our conclusion that a trustor is not precluded from challenging the validity of a sale to a bona fide purchaser based on proof that the trustor cured the default within the meaning of section 2924c, subdivision (a), is supported further by subdivision (b) of that section. Subdivision (b)(1) sets forth certain language that must be included in a notice of default. Subdivision (b)(2) provides: "Any failure to comply with the provisions of this subdivision shall not affect the validity of a sale in favor of a bona fide purchaser or the rights of an encumbrancer for value and without notice." (Italics added.)
There is no similar language in the statute providing that the beneficiarys failure to reinstate the loan, discontinue foreclosure proceedings, and send a notice of rescission of the demand for sale to the trustee, as mandated by section 2924c, subdivision (a)(1) and (2), shall not affect the validity of a sale to a bona fide purchaser. This omission is a compelling indication that the Legislature did not intend to preclude a trustor from setting aside a trustees deed to a bona fide purchaser on the ground that the foreclosure sale was void because the trustors default had been cured prior to the sale. (Lewis C. Nelson & Sons, Inc. v. Clovis Unified School Dist. (2001) 90 Cal.App.4th 64, 71 ["the Legislature knows how to use the word "subdivision" or a similar term when it wants to confine the effect of a statutory subpart"]; Louise Gardens of Encino Homeowners Assn., Inc. v. Truck Ins. Exchange, Inc. (2000) 82 Cal.App.4th 648, 657 ["When one part of a statute contains a term or provision, the omission of that term or provision from another part of the statute indicates that the Legislature intended to convey a different meaning"].)
It is one thing to permit the dispossession of property owners in favor of bona fide purchasers where irregularities in the foreclosure sale pertain to notice defects. After all, the bona fide purchasers are blameless, while the property owners are well aware that their monetary obligations are delinquent, regardless of whether they have received the requisite statutory notices. It is the trustors failure to honor their debts that caused their property to be sold. However, it is quite another thing to dispossess homeowners who have cured their default and reinstated their loans since, in this situation, the homeowners have done all the law requires. It is particularly egregious to allow such homeowners to lose their home to "bona fide purchasers" who routinely purchase property at foreclosure sales for investment purposes. The bona fide purchaser can be made whole with money, while the homeowners loss is greater than monetary.
The Hendersons challenge to the trustees sale had nothing to do with whether the trustee had complied with the statutory notice requirements referred to in section 2924 or 2924c, subdivision (b). Rather, their claim was that they had cured the default, which entitled them to a reinstatement of the loan and extinguished the basis for the trustees sale, thereby rendering the ensuing sale void and without effect. We do not interpret section 2924 as precluding such a challenge, even if the property is sold to a bona fide purchaser for value, and the Lightys do not point to any language in the statute that requires a contrary conclusion. They simply rely upon Moeller v. Lien, supra, 25 Cal.App.4th 822 in support of their assertion that the conclusive presumption in section 2924 applies here to prevent the Hendersons from setting aside the trustees sale.
Moeller v. Lien indicates that the conclusive presumption in section 2924 is not limited to notice defects which interfere with a trustors ability to exercise the right to reinstatement or redemption, but also precludes a trustor from challenging the validity of a trustees sale and deed under other circumstances, including a trustees wrongful rejection of a proper tender of reinstatement. (Id. at pp. 831-832.) For the reasons expressed above, we disagree with Moeller v. Lien if it interprets section 2924 as preventing a trustor who has actually cured a default, and is therefore entitled to a reinstatement of the loan and a rescission of the foreclosure sale, from challenging the validity of a subsequent sale.
Because the Hendersons established that they had cured their default prior to the foreclosure sale, the trial court properly granted their motion for summary judgment.
DISPOSITION
The judgment is affirmed.
We concur: NICHOLSON, J. and RAYE, J. --------------- Notes: Section 2924c states in pertinent part: "(a)(1) Whenever all or a portion of the principal sum of any obligation secured by deed of trust or mortgage on real property . . . prior to the maturity date fixed in that obligation, become due or been declared due by reason of default in payment of interest or of any installment of principal, or by reason of failure of trustor or mortgagor to pay, in accordance with the terms of that obligation or of the deed of trust or mortgage, taxes, assessments, premiums for insurance, or advances made by beneficiary or mortgagee in accordance with the terms of that obligation or of the deed of trust or mortgage, the trustor or mortgagor . . . at any time within the period specified in subdivision (e), if the power of sale therein is to be exercised, or, otherwise at any time prior to entry of the decree of foreclosure, may pay to the beneficiary or the mortgagee . . . the entire amount due, at the time payment is tendered, with respect to (A) all amounts of principal, interest, taxes, assessments, insurance premiums, or advances actually known by the beneficiary to be, and that are, in default and shown in the notice of default, under the terms of the deed of trust or mortgage and the obligation secured thereby, (B) all amounts in default on recurring obligations not shown in the notice of default, and (C) all reasonable costs and expenses, subject to subdivision (c), which are actually incurred in enforcing the terms of the obligation, deed of trust, or mortgage, and trustees or attorneys fees, subject to subdivision (d), other than the portion of principal as would not then be due had no default occurred, and thereby cure the default theretofore existing, and thereupon, all proceedings theretofore had or instituted shall be dismissed or discontinued and the obligation and deed of trust or mortgage shall be reinstated and shall be and remain in force and effect, the same as if the acceleration had not occurred. . . . [¶] (2) If the trustor, mortgagor, or other person authorized to cure the default pursuant to this subdivision does cure the default, the beneficiary or mortgagee or the agent for the beneficiary or mortgagee shall, within 21 days following the reinstatement, execute and deliver to the trustee a notice of rescission which rescinds the declaration of default and demand for sale and advises the trustee of the date of reinstatement. The trustee shall cause the notice of rescission to be recorded within 30 days of receipt of the notice of rescission and of all allowable fees and costs. [¶] . . . [¶] (e) Reinstatement of a monetary default under the terms of an obligation secured by a deed of trust, or mortgage may be made at any time within the period commencing with the date of recordation of the notice of default until five business days prior to the date of sale set forth in the initial recorded notice of sale."