Legal Question in Real Estate Law in California

I don't have the document in front of me, but assuming you are using a legitimate foreclosure service, probably yes.

Ask them that question and if they can not show you or if you are not convinced then find another company to facilitate the process...

http://www.ortc.com/trusteeservices/startforeclosure.aspx?sid=&

or contact and escrow company and ask for a referral

It's sometimes scary to me how attorneys on this site who have no idea what they are talking about are willing to chime in and answer questions. A "foreclosure" as you call it, in California is not legally a "foreclosure" at all. In California what lay people call a "foreclosure" is actually a Trustee's Sale under the power of sale provisions of a deed of trust. A true "foreclosure" requires a lawsuit in Superior Court. When your father-in-law made the loan, he was given a deed of trust as security. The deed of trust named a trustee, usually the title company that handled the escrow if the loan involved an escrow, sometimes the mortgage broker if no escrow was opened. In any case, it was only a place-holder trustee. In order to foreclose you must substitute a trustee who actually conducts trustees sales for the place-holder trustee. So until you substitute a real trustees sale service for the place holder trustee, your father-in-law's "foreclosure" can never happen.

While Mr. McCormick is technically correct that a trustee's sale is not a "foreclosure" in the strictest technical sense, everyone calls a trustee sale, and the process leading up to it, by that word, including judges, treatise writers, and the Civil Code itself (see CC 2924.8). Often, the term is further clarified by specifying a "non-judicial foreclosure."

You will need to substitute the trustee named for convenience in the deed of trust with one who is ready, willing and able to do the job. Many times, the trustee named in a deed of trust has not even been consulted before being "named" by the borrower and lender filling in the blank with the name or using a form with the name pre-printed. The process of substituting trustees is set forth in the Civil Code, mostly at section 2934a, and requires the beneficiaries (lenders) to sign the substitution before a notary and the document to be recorded and served. This is quite routine as a trustee sale, a/k/a foreclosure, approaches.

Even experienced foreclosure services can make mistakes, and those mistakes can result in large lawsuit claims against the lender/beneficiary. The risk is even higher recently, with foreclosure services so busy they may add inexperienced help and the experienced ones are over-worked. Therefore, I think it is important to inquire whether your foreclosure service is bonded or insured against consequences of professional negligence (malpractice).

I disagree with Mr. McCormick and agree with Mr. Whipple. It is called foreclosure because if forecloses the equity of redemption, regardless of whether it is done through a trustee's sale or an action filed in the superior court.

The main reason, as pointed out by Mr. Whipple, is that the original trustee appointed under the deed of trust was unwilling or unable to act. In that situation, the beneficiary has a new trustee substituted in place. In your situation, if the foreclosure service was not the original trustee, and is not an agent of the trustee, then the substitution of trustee is required before the nonjudicial foreclosure can take place.

I'm sorry that Mr. McCormick felt the need to insult you.