Legal Question in Real Estate Law in California

In California, there is a general legal principle that the security follows the loan, so that whoever holds the note is also protected by the deed of trust, irrespective of paperwork faults. This doctrine may have some limits, but its existence makes me wonder whether your proposed case is as airtight as you may think. Without disputing the New York trust law, which by the way may not be all that different from California's, my immediate reaction to "never properly transferred" is that it may be a big "so what?"

Nevertheless, if you would be kind enough to send me, off the bulletin board, a factual background of the proposed case (two to ten pages, preferably), I'll do a free critique and maybe a referral.

I agree with Mr. Whipple that from the limited information you provide it doesn't sound like your case is a "slam dunk" by any means. Although the information is so limited there is no reason to believe it is a bad case either. The red flag for Mr. Whipple and me is that the vagueness of your question suggests you are not fully aware of or do not fully understand the relevant legal principals involved. A deed of trust is not a normal trust and normal trust rules do not apply. It is also unclear what New York trust law has to do with the situation, since a California deed of trust would be governed by California law. So it is difficult to really even begin to evaluate what you are talking about. However, my main office is in Walnut Creek, and I have nearly 25 years of real estate law experience, including over six years as a vice president and senior litigator for the parent of Fidelity Natl. Title and Chicago Title (among others), and including their trustee sale subsidiaries. So I know my deed of trust and foreclosure law. If you would like a free half hour to look over what you have, and discuss whether I might be able to assist you, please contact me via the information in my profile.

Both above attorneys are very knowledgeable and competent and would be of great assistance to you.

I understand what you refer to by securitization. That means the promissory note was allegedly transferred to another bank in a bundle of other loans as a trustee (in this case in New York), and does not have to do with the actual deed of trust.

With that said, however, Mr. Whipple does have a point. The term securitization defense is just a variant of the "where's the note defense" which does not have much merit in California.