Watch for the Substitution of Trustee if they are recorded late INVALID FORECLOSURE SALE

8 Feb

PRO VALUE PROPERTIES, INC.,
Cross-Complainant and Respondent,
v.
QUALITY LOAN SERVICE CORP.,
Cross-Defendant and Appellant.

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33 Responses to “Watch for the Substitution of Trustee if they are recorded late INVALID FORECLOSURE SALE”

  1. mari July 8, 2009 at 9:29 pm #

    on the substitution of trustee after the NOD, does their notary have to be from the state the property is in? I’m in ca and the notary for mers subprime loan substitution to quality loan service was done in Texas. Do i check to see if/when they do record it in the county? thank you in advance, there is so much to know.

    • timothymccandless July 9, 2009 at 5:34 am #

      no they do not they must be from the state the document is signed in

    • timothymccandless August 23, 2009 at 5:56 pm #

      More importantly did they comply with 2923.5 if not the sale could be rescinded since its out of order the sale is not authorized and not in compliace with cc 2924 and as such the sale is void. Get the TRO Injunction etc.

      • mari April 13, 2010 at 4:13 pm #

        we were granted a TRO but they foreclosed on the property anyway and we are now still working on it. but the banks attorney is trying to say we don’t have a case. Any ideas? One thing is our DOT says only the ‘lender’ can substitute a trustee, but then MERS did that. Can MERS sub a trustee if the DOT specifically says only the lender can?

        My substitution of trustee was given to purported lender/bank’ attorney and signed by Eddie Crespo as acting ‘assistant vice president’ for MERS. I believe this fellow works for citigroup but is signing as MERS employee, found his info online saying he works for Citi, my supposed lender (not MERS) and is in NY and the notary is in Texas. So what can we do with this info when they are lying to foreclose.

        Mostly, any help you know of when mers is substituting a trustee? can they? also found info that MERS business was suspended in CA 5/21/2002 ENTITY NUMBER C2416221 then this page for details http://kepler.sos.ca.gov/cbs.aspx

  2. noahsark888 July 9, 2009 at 9:05 am #

    My property was foreclosed oct.6.08. Private lenders, 3 of them, executed a ‘Substitution of Trustee’ instrument. On close examination, we discovered that the ‘Cert. of Acknowledgement’ was executed by the same individual being substituted as the new trustee rather than by the lenders who executed the substituion of trustee instrument. A friend told me that the County recorders should not have accepted it into the records in the first place since it was defectively acknowledged. Is this OK ? Is this foeclosure valid?. Does the new trustee have the authority to exercise the ‘Power of Sale’ given in my ‘Deed of Trust’. If Invalid, do you have associates in your great organization who can help me, please, in the Stockton, CA. area?. Thanks a bunch.

  3. Abby in CA July 30, 2009 at 5:57 pm #

    If the NOD was dated 4/12/2007 and then the subsitution of trustee was done on 5/27/2007 signed & notarized, but then somebody wrote on the document ‘effective 4/12/2007′ is that ok to do?

    Would a foreclosure based on that be legal?

    • timothymccandless July 31, 2009 at 6:12 am #

      It doesn’t sound right and one would question the trustees right to conduct a sale. Be sure and look at the declarations are they under penalty of perjury 70% percent of the cases I look at the sale could be set aside !

      • Charles Horner December 29, 2009 at 11:18 am #

        California Civil Code Section 2934a (d) specifically states “A trustee named in a recorded substitution of trustee shall be deemed to be authorized to act as the trustee under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgagee, beneficiaries, or by their authorized agents. Once recorded, the substitution shall constitute conclusive evidence of the authority of the substituted trustee or his or her agents to act pursuant to this section.” This means to me that anyone can write what ever date they wish but the date the instrument is notarized and dated by the notary, is the date executed. I believe this is the trigger date the legislature intended when substituting a trustee and not that of a Sub-By-Code. Therefore, Tim is accurate with his answer.

  4. noahsark888 July 31, 2009 at 8:21 am #

    RE: Noahsark888 Question of 09-07-09, above. Is a foreclosure sale based on a defectively acknowledged substitution instrument valid ?. The Substitution document was signed by the private lenders; but the cert. of acknowledgement was signed by the individual named as the new substitute trustee and thus not entitled to recordation. Was TimothymcCandless’s comment of 07-31-09 a responce to Noahsark888 of 09-07-09 or Abby in CA of 07-30-09. It appears as though Noahsark888 question is yet unanswered. THANK YOU.

    • timothymccandless August 2, 2009 at 9:02 am #

      It could be voidable but it takes action to set aside this is compared to void

  5. Abby in CA July 31, 2009 at 3:18 pm #

    Tim–are you talking about declarations related to the new SB1137 in CA?

  6. John L. August 22, 2009 at 10:29 am #

    Sir:

    This is very interesting. I am a legal assistant of sorts (with a JD). I have an issue (abstractly) with someone who was foreclosed on and recently found out about the sale without notice or posting. She did, however, receive a Substitution of Trustee document, which was recorded after that same company (the new trustee) had already recorded the NOD. So, as you may have guessed, my query is whether the recording of the NOD was even valid since the person who recorded it (the company) was entitled to record it as they were not yet the holder of the note (I think that’s how you say it). Thanks for any commentary. – John

  7. queen November 25, 2009 at 6:01 pm #

    If the bank already recorded a substitution of trustee… is it too late to record a substitution of trustee myself? what other options may i have to stop foreclosure?

  8. confused January 20, 2010 at 9:11 am #

    our house is being foreclosed on, after the NOD, a substitution of trustee was made. then about 2 weeks later there was an assignment of deed (grantor: current bank. grantees: new bank, myself, my husband). now there is a notice of trustees sale being made by the substituted trustee. is this valid? shouldn’t the substitution of trustee be invalidated with the assignment of deed to a new bank? this is california btw.

  9. noahsark888 January 30, 2010 at 2:32 pm #

    New bank as the New Beneficiary should be the entity “Executing and Acknowledging” the Substitution Instrument. If the substitution is not done correctly, hold off on using your ONE BULLET GUN till just the right moment to unleash it’s power.”Done correctly” means Substitution of Trustee MUST conform to the terms of the Deed of Trust and your States Statutory requirements. Verify this fact. Timing is everything. If their substitution is in violation of that stringent requirement,then consult with an attorney ( a good Attorney) to be guided when your one bullet gun is most effective or you’ll be back to Square One too soon and the bank has more bullets than you do. THANK YOU, TIMOTHY McCANDLESS FOR YOUR ARTICLES. I have been well guided far more than you would ever imagine I’d like a way to pay you someday, for your help. Thank you also, Maher Soliman. The guidance from Timothy McCandless articles and blogs led me as to the perfect timing of the use of my one bullet gun.It delivered a fatal blow. Now the Invalid Substitution of Trustee in my Foreclosure scenerio is about to result in a VOID TRUSTEE SALE with huge economic and non economic damage awards from the wrongful eviction.

  10. Melinda Wiman February 12, 2010 at 2:12 am #

    I am in foreclosure, with NOS scheduled for March 1st.

    There were several problems with the NOD that was filed on my property, including not recording the Substitution of Trustee. They also claimed in the declaration of compliance that they weren’t required to comply with 2923.5 because the real property is not an owner occuped SFR. I have already advised them it IS owner occupied, but they have not responded to this issue or my QWR.

    Since my NOS is scheduled for March 1st, the question is – Should I force them to comply on the issue of the 2923.5 first and not mention the failure to record the Substitution of Trustee, or should I force them rescind the NOD and the NOS based on not having recorded the substitution and then raise the issue of non-compliance with 2923.5 afterwards?

    I want to make sure I delay long enough to finish researching the securitization issue.

    Thank you in advance,

    Melinda

  11. Gary May 2, 2010 at 7:39 pm #

    Does a new (substituted) trustee have to be in California with a California address (the property in question is a California property)? And, if the beneficiary files the NOD and the requisite declaration, can the substitution take place after filing the NOD?

  12. HRS June 14, 2010 at 9:20 pm #

    A representative from your office called some weeks back in follow-up to a frantic urgent call/email I had placed upon receiving an eviction notice … with an active CONSOLIDATION (UD/Civil Suit) in place. In between the time of the initial contact and follow-up call, my attorney did get back to me (was on vacation). Therefore, I did not believe I needed any assistance from your office. I believe that has now changed, and I may have to seek replacement counsel.
    It has been a year since the consolidation was granted; now with an upcoming Sept. 7, 2010, trial date, my attorney is now openly discouraging me to move forward with the trial … reason being incurring more legal expenses + a burden of arrears should I lose; also, should I “win”, the lender – WaMu/Chase/Deutsche Bank – would just re-issue/re-instate the NOD and move on foreclosure again. After a first deceptive move to sell my home on a date other than in the NOD – while misleading me into believing they were modifying my loan, N. Cali Legal Services [NCLS] intervened … (I have emails from lender rep that he was working on my loan); NCLS was able to get WaMu to rescind the sale. WaMu immediately followed up and made the same deceptive move a 2nd time, without notifying me of 2nd sale date (no 2nd NOD was served; only the RESCIND and TRUSTEE DEED OF SALE are recorded – no 2nd NOD was filed). Also, in viewing the recorded documents, there APPEARS to be some incorrect/invalid dates.
    I believe there is much (documented) evidence of Foreclosure violations per related and applicable civil codes, as well recently enacted laws; evidence also points to immoral, unethical, unfair business practices. I believe an “audit” would reveal much, but that does not seem to be of interest to my attorney. I also pointed out to him a recent California favorable ruling, and another case just up the road from me – almost exact circumstances – where homeowner received favorable ruling. I have researched to find some California cases (and some in other states) have favorable rulings for foreclosure reversals or were dismissed altogether, due to audits and other foreclosure violations. Deutsche Bank has not shown at any of the hearings to date, nor have they submitted the court paperwork to submit “reasonable rent” (for court escrow) as instructed by the court – as my kids and I are still in the house while litigation is in process.

    After having come this far – especially with the consolidation – I am totally befuddled as to why he is discouraging me to move forward on the case – to give Deutsche Bank’s attorney a call to negotiate a “cost waiver” if I were to walk away from the house. I am feeling abandoned by my attorney. Please respond soonest. I am supposed to get back to him this Wednesday with authorization to proceed on negotiating waiver with Deutsche Bank’s attorney.

  13. Hans June 26, 2010 at 11:26 pm #

    Hello, what happens if a Trustee for an asset backed trust company (Deutsche Bank as Indentured Trustee for American Home Mortgage Investment Trust 2007-1) foreclosed on my home in January 2010, but a Substitution of Trustee was NEVER RECORDED at all? I just went to the county of San Diego and there is no record of this recording at all?

    They are not the original lender and trustee listed on the Deed of Trust so they would have had to Substitute a Trustee correct? But they did not record a substitution of trustee at all.

    I am still in the home as they are suing me for Quiet Title and Slander of Title due to me recording documents to protect the title of the home.

    Thanks,

    Hans

  14. Nikki June 30, 2010 at 9:47 pm #

    HANS, you are in a good place (your home) “As the table turns”. Let’s talk before you go to Court. I have something that may should be of interest to you.Email me ASAP!
    NIKKI

    • Hans July 1, 2010 at 11:15 pm #

      Hi Nikki, yes please contact me

  15. Hans July 6, 2010 at 11:16 am #

    Hi Nikki, can you contact me at the_rufs@hotmail.com.

    Thanks,

    Hans

  16. Jess July 25, 2010 at 8:51 pm #

    There is a pending foreclosure in Sept.
    The seller/lender agreed to a modification. Emailed the documents on
    Nov. 20 .
    I returned california to have the Deed, deed of trust and mod agreement notarized on Dec 3rd. The agreement was signed by both parties.
    They knew that I was unavailable till then.
    They recorded a NOD on the same day Dec. 3.
    The substitution wasnt signed till Dec 9 and notarized on Dec 9.
    Is the NOD valid.
    The NOD list taxes that they paid. But no taxes were paid by them at any time.

  17. Ruth D. August 7, 2010 at 1:10 pm #

    Timothy,

    Our loan is riddled with holes from the get-go! We owned our house free and clear prior to taking out an equity loan for home improvements, but since we attempted to make things easier and “modify” our equity loan, they fraud that occurred (typical of loan mods, such as, “we can’t help you unless you are in default” ploy) the evil villians are attempting to steal EVERYTHING from us, even our equity…is making us sick! We are in CA and our case is less than 2 months old. In our case, we have judicial misconduct, altered transcripts, and so much more against them.We are Pro Se, not by choice. Both my husband and I are not employed currently, so we are broke. We desperately need help! We have the list of “Lawyers Who Get It” and none of them will help us because we can’t come up with a retainer fee. We have over $100k equity, but can’t touch it, or else $$ would not be a problem. We need someone to take our case Pro Bono or on a contingency basis before it is too late. We are doing well so far, but know the battle is going to get worse as time goes on. Can you please put us in touch with an attorney who can take our case on a contingency basis????

    A few more particulars on our case: they filed the Sub. of Attorney AFTER the Notice of Default, there are bogus and fraudster signatures on 4 of the Foreclosure docs filed at the county, not to mention major, MAJOR TILA, RESPA, HOEPA, etc violations, plus we were not present at closing, never received a copy of the endorsements in present form at the time of closing, etc, etc. We could win hands down IF we had an attorney.

    We have KBAK Chan. 29 Eye Witness News having already put a request in at the courthouse in Bakersfield to get permission to take a camera into the courtroom at our first hearing, which just the mere request itself should let the judge know our case is being followed.

    There is MUCH, MUCH more that I cannot post publicly (hint, hint), and there are investigations being done that I cannot mention here, that have direct bearing on the case, so please email me and we can talk further.

    PLEASE HELP US!!!

    ~Rick and Ruth DeAmicis~

    • Cece Moreno September 20, 2011 at 6:51 pm #

      Hey Ruth and Rick I may have the perfect solutions for you. If you want respond back with a email of contact or something

  18. Greg August 30, 2010 at 6:13 pm #

    Hi Rich and Ruth my name is Greg and I know of a lawyer that might help you in your case. My email address is gregguevarra@gmail.com

  19. Pat September 7, 2010 at 7:25 am #

    If a NOD sent 4//4/ 09 loan still in defaut then loan number and servicer changed on 3/1/10 and subsitution of trustee recorded on 2/10/2010 is that normal? Non-Judicial State
    There has been no Notice of Default Recorded.

    What are the typical steps in Non-Judicial State
    Record Sustitution of Trustee?
    Record Notice of Default?
    Record Notice of Sale?

  20. Laurel Holliday November 22, 2010 at 11:28 pm #

    Are you still there, Tim?? I’m looking for answers to the same questions posted in the last 4 months, but you haven’t replied… You’re probably overwhelmed, but I have to tell you that reading this blog and website give me hope!! Thank you, Thank you for providing us with your insight, knowledge, and help!! You are a blessing to many. XO

  21. Fight Aurora Loan Services December 28, 2010 at 11:26 am #

    Does anyone know if they are having more success in state court or federal court? I have a federal suit, but I’m hearing of more success in state courts.

  22. myland909 May 24, 2012 at 9:29 pm #

    All our recorded documents are notarized in Minnesota, our Notice of Default was recorded BEFORE Substitution of Trustee, and all signitures I reseached and are on list of robo-signers. There’s also patterns of sloppy errors, and documents from 2011 mixed with 2009. Can you help us?

  23. live free cam May 22, 2013 at 5:00 pm #

    My brother recommended I might like this blog. He was totally right.
    This post truly made my day. You can not imagine just how much time I had spent for this info!

    Thanks!

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