Legal Question in Real Estate Law in California
I am current on my mortgage payments to Bank of America and not in foreclosure nor in default. However, I know that BofA has broken the chain of title and they lost the original signed note and trust deed, and only have a MERS pdf copy.
If I stop making my mortgage payments, BofA can foreclose because we don't have judicial review in California and a copy of the note is good enough for the courts.
here is my question:
If I encumber my home with a loan from a private investor, not Bank of America, can that private investor file a quiet title action to have Bank of America removed from title because BofA cannot produce the original signed note and trust deed? The private investor will have his original signed note and not a MERS copy.
2 Answers from Attorneys
No, this will not work.
Among other things, the deed of trust is recorded at the county recorder's office.
Also, the bank only has to prove that you signed a note that hasn't been paid; it doesn't need to produce the note. Are you going to get on the witness stand and deny that you signed the promissory note?
California has several Court of Appeal decisions holding against "they can't produce the note" claims of borrowers and in favor of the lenders.
Wasn't the original deed of trust recorded? A certified copy of an instrument that is recorded with the county recorder is admissible evidence.
You are also mixing up the term chain of title. A subsequent holder of a promissory note does not have to record an assignment of a deed of trust. That rule only applies to an assignee of a mortgage with a power of sale. The security, which is evidenced by the deed of trust, follows the note when there is an assignment.
A copy of a document is admissible in court also. California abolished the "best evidence" rule several years ago, and adopted the secondary evidence rule. Why would Bank of America have a copy of a promissory note if they never had the original?
Related Questions & Answers
Looking for something else?
10,200 active attorneys ready to answer your legal questions today.
Featured Attorneys
Earn additional revenue and grow your business.
