Legal Question in Real Estate Law in California

You probably need an attorney to write to them pointing out all the court decisions granting injunctions when the lender holding the mortgage can not prove they actually hold the Note. The lender does not have title, you do.the. if that does not cause them to stop the sale then you have to go for a temporary restraining order and injunction. That would probably cost you several thousand dollars but you might be able to successfully claim attorney fees under the original deed of trust.

I disagree with Mr. Shers. But first I must point out that there is a lot of misinformation about this area of law on the internet.

First of all, the lender does not have an interest in the deed. When a lender loans money, there are two documents, a promissory note and a deed of trust. The promissory note is written evidence of the obligation, and the deed of trust is the security. When a person borrows money that is a secured loan, they deed two powers to a trustee: a power of sale, and a power to reconvey. If you don't pay the loan, the trustee can exercise the power of sale at a trustee's sale, to satisfy the indebtedness.

A deed of trust is worthless without an underlying obligation, which in most cases is a promissory note. When a lender transfers the loan to a new lender, all that is needed is a transfer of the promissory note. Nothing has to be recorded with the county recorder's office, because the transfer of the note transfers the deed of trust, by operation of law. Claiming that there is no note, or that the lender did not record an assignment will not stop a trustee's sale.

The notice of default will reference the deed of trust and the book and page, or instrument number where it is recorded. If there was absolutely no deed of trust, then you would have cause to seek legal help to enjoin the sale. If that is the case, then I suggest that you speak to a competent real estate attorney, immediately.

Mr. Roach is entirely right. Mr. Shers is again dabbling in law he does not know or understand. There are specific statutory provisions in California that have been around for years that provide that the lender does not have to physically hold the note and pretty much never has to produce it. You have been fed some very bad information that only applies sometimes in other states, Mr. Shers should know this. California is not like states that have true mortgages that must be transferred. Whomever has legal right to collect on the loan has the legal right to order the deed of trust foreclosed if the loan is not paid when and as due. The legal right to collect the note can be transferred in a great many ways without physical delivery of the note. You're about to lose your house and unless there are some very unusual facts you have not provided, you don't have a legal leg to stand on.