Legal Question in Real Estate Law in California

How do I know if my mortgage has a "power of sale?"


Asked on 7/11/10, 9:01 pm

4 Answers from Attorneys

Michael Stone Law Offices of Michael B. Stone Toll Free 1-855-USE-MIKE

It does. Just quit paying and you'll find out the hard way.

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Answered on 7/12/10, 12:11 am
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

What we call a "mortgage" in California is usually a promissory note coupled with a deed of trust. The power of sale is a major provision in the deed of trust. It is the provision that allows the beneficiary of the deed of trust, i.e., the lender, to instruct a trustee to sell the collateral (your house) after a default on the note. I have seen home loan papers that did not contain a power of sale, but these are drawn up by amateurs and all pre-printed deeds of trust will contain valid powers of sale. Without a valid power of sale, a lender wishing to foreclose would have to go to court rather than employ a trustee to conduct the sale.

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Answered on 7/12/10, 7:30 am

If your property is in California, and it was not a mortgage from a personal friend, it has a power of sale.

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Answered on 7/12/10, 12:36 pm
Anthony Roach Law Office of Anthony A. Roach

You have to look at the mortgage. If it was a deed of trust, it has a power of sale. California provides for mortgages, but they are rarely used. If it is an actual mortgage, you are going to have to review the terms to determine whether or not it stipulates that there is a power of sale.

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Answered on 7/13/10, 2:24 pm


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