§ 704.790.Declaration By Judgment Debtor that Absence From Hearing Due to Mistake, Inadvertence, Surprise Or Excusable Neglect and Debtor Wishes to Assert Exemption
Title 9. Enforcement of Judgments · Division 2 · Chapter 4. Exemptions · Article 4. Homestead Exemption · Last amended 1985 · Last verified July 28, 2026
In one sentenceSection 704.790 gives a judgment debtor and spouse who missed the sale hearing 10 days to receive notice of the order and, if their absence was due to mistake, inadvertence, surprise, or excusable neglect, another 10 days to ask the court to reconsider and let them assert the homestead exemption.
(a)This section applies in any case where the court makes an order for sale of the dwelling upon a hearing at which none of the following appeared:
(1)The judgment debtor.
(2)The judgment debtor's spouse.
(3)The attorney for the judgment debtor.
(4)The attorney for the judgment debtor's spouse.
(b)Not later than 10 days after the date of the order for sale, the judgment creditor shall serve a copy of the order and a notice of the order in the form prescribed by the Judicial Council:
(1)Personally or by mail on the judgment debtor and the judgment debtor's spouse.
(2)Personally on an occupant of the dwelling or, if there is no occupant present at the time service is attempted, post a copy of the order and notice in a conspicuous place at the dwelling.
(c)Proof of service and of any posting shall be filed with the court and with the levying officer. If the judgment creditor fails to comply with this subdivision and with subdivision (b) in any case where this section applies, the dwelling may not be sold under the order for sale.
(d)If, within 10 days after service of notice of the order, the judgment debtor or the judgment debtor's spouse files with the levying officer a declaration that the absence of the judgment debtor and the judgment debtor's spouse or the attorney for the judgment debtor or the judgment debtor's spouse from the hearing was due to mistake, inadvertence, surprise, or excusable neglect and that the judgment debtor or spouse of the judgment debtor wishes to assert the homestead exemption, the levying officer shall transmit the declaration forthwith to the court. Upon receipt of the declaration, the court shall set a time and place for hearing to determine whether the determinations of the court should be modified. The time set for hearing shall be not later than 20 days after receipt of the declaration. The court clerk shall cause notice of the hearing promptly to be given to the parties.
Plain-English Summary
Sometimes nobody shows up to defend the home. This section applies when the court orders a sale after a hearing where neither the debtor, the debtor's spouse, nor either one's attorney appeared. Because that order was made without anyone speaking up for the household, the law builds in a second chance.
The creditor must, within 10 days of the order, serve a copy of the order and a Judicial Council notice on the debtor and spouse (personally or by mail), and also serve an occupant of the dwelling personally or, if no one is present, post the documents at the property. Proof of that service and any posting has to be filed with the court and the levying officer — and if the creditor skips this step, the sale cannot proceed.
The debtor or spouse then has 10 days after being served with that notice to file a declaration explaining that their absence from the original hearing was due to mistake, inadvertence, surprise, or excusable neglect, and stating they want to assert the homestead exemption. Once the levying officer forwards that declaration to the court, the court must set a new hearing within 20 days to decide whether to change its earlier determination.
Frequently Asked Questions
When does this second-chance procedure apply?
Only when the sale order was made after a hearing that neither the debtor, the debtor's spouse, nor either one's attorney attended.
What must the creditor do after getting a sale order under these circumstances?
Serve the order and a notice on the debtor and spouse within 10 days, and either personally serve or post the documents for an occupant of the dwelling; failing to do so blocks the sale.
How can a debtor undo a sale order entered while they were absent?
By filing a declaration within 10 days of being served, showing the absence was due to mistake, inadvertence, surprise, or excusable neglect and stating an intent to claim the homestead exemption.
What happens after that declaration is filed?
The levying officer forwards it to the court, which must set a new hearing within 20 days to decide whether to modify its earlier determination.
Amendment History
Amended by Stats. 1985, Ch. 41, Sec. 8.
Source & verification. Section text is reproduced verbatim from
the Deering's California Codes Annotated / vLex. Enacted by the California Legislature.
Last verified July 28, 2026.
· Official source
Also known as:missed homestead hearing california reliefexcusable neglect homestead hearing ccp 704.790reopen order for sale of home california