Legal Question in Real Estate Law in California

Re: Trustee Notice of Sale

First, the Notice of Default and the Notice of Sale are different, and the requirements for distribution also differ. The Trustee's Notice of Sale must be served, recorded, published and posted according to specific time lines. See Civil Code sections 2924f(b).

The trustee or beneficiary must execute and retain an affidavit of the mailing. The Code of Civil Procedure says an affidavit is a written declaration under oath (CCP 2003). Officers authorized to administer oaths include notaries, but the process is a bit more formal that merely acknowledging ("notarizing") a signature, because you must be "sworn in." The affidavits are not recorded.

Many foreclosure services and title companies have pre-printed Notice of Sale forms. Use of the forms does not guarantee freedom from mistakes, but the forms may be helpful.

The required contents of the notice are specified at Civil Code section 2924f(b)(1). The mailed, recorded, published and posted notices must all contain the same information as to required items; very minor differences (e.g. to suit newspaper style requirements) should not invalidate the notice so long as the required information is complete, accurate and reasonably consistent.

Although serving in dual capacities of beneficiary and trustee is permissible, such dual roles at the time of a foreclosure and sale may give rise to additional issues relating to the rights, duties, and imputed knowledge that go along with each role. This is an additional good reason to retain professional assistance, either in the form of a lawyer or a foreclosure service, to carry out the foreclosure and sale.