Legal Question in Real Estate Law in California

Foreclosure; substitution of trustee.
Is this foreclosure sale valid?. Does this 'substituted' Trustee have the authority of the 'Power of Sale' to dispose of my property?. When the SUBSTITUTION OF TRUSTEE instrument was errorneously recorded by the County absent a (1) CERTIFICATE OF ACKNOWLEDGEMENT signed by same individuals ( private lenders ) who executed the substitute trustee instrument, and, or, (2) The CERTIFICATE OF ACKNOWLEDGEMENT accompanying the substitution document bears the signature of the same new Trustee being substituted, rather than the signatures of the lenders who executed the substitution instrument. I gathered that the ACKNOWLEDGEMENT is defective and not entitled to Recordation by Statute. Furthermore, I understand that a SUBSTITUTION OF TRUSTEE must be 'Recorded' before the Trustee has Power to Sell my property. Please help. Thank You.

Asked on 7/12/09, 3:33 pm

3 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

0 users found helpful

0 attorneys agreed

Re: Foreclosure; substitution of trustee.

Your argument falls apart upon the matter of who may or must execute the certificate of acknowledgment. Civil Code section 2934a(a)(1) provides that the acknowledgment shall be signed by the original beneficiary OR its successor in interest. In other words, the person to whom the loan is NOW owed is the person who may select the trustee, sign the papers, etc. If the loan has changed hands by assignment or sale, the original lender no longer has any role.

Answered on 7/12/09, 5:39 pm

Mark as helpful

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

0 users found helpful

0 attorneys agreed

Re: Foreclosure; substitution of trustee.

Oops; I have re-read your question and I think I misunderstood it the first time around. As I said, the acknowledgment (and the substitution itself) must be signed by the current beneficiary. However, I wrongly assumed you were saying the documents may be defective because they were not signed by the original lenders. Now I see that's NOW what you're saying.

If the papers were signed by the incoming trustee rather than the beneficiary, I'd say they are defective, and therefore I'm now pretty much in agreement with you.

However, I'd still be cautious about assuming the papers are, ultimately, defective; it's possible, for example, for the beneficiary to act as its own trustee, and there might be something of this ilk going on.

In any case, I think you may have a very valid reason to see a real-estate lawyer right away. Fast action on erroneous trustree sales is often necessary to preserve your rights to object to the sale especially if the buyer is an innocent third party.

I apologize for not carefully reading and digesting your entire question before writing my first answer, which is a correct statement of the law but does not address your facts and thus is bum advice.

Answered on 7/12/09, 5:54 pm

Mark as helpful