No assignment no foreclosure 2932.5

31 Dec

Defendants’ Lack Standing To Conduct A Non-Judicial Foreclosure Pursuant To California Civil Code 2932.5

35. Defendants have no standing to enforce a non-judicial foreclosure.
36. Defendants are strangers to this transaction, and have no authority to go forward with the foreclosure and Trustee’s Sale.
37. Plaintiff executed a Promissory Note (hereinafter the “Note”) and a Deed of Trust to insert defendant.
38. Insert defendant is the Lender and only party entitled to enforce the Note and any security interest with it.
39. Insert defendant is not listed anywhere in the Deed of Trust or Promissory Note.
40. In California, California Civil Code § 2932.5 governs the Power of sale under an assigned mortgage, and provides that the power of sale can only vest in a person entitled to money payments: “Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.”
41. The Insert County County Recorder’s Office does not contain any evidence
of a recorded assignment from insert defendants, to insert defendant,
42. Insert defendant has never assigned their rights under the Note.
43. The power of sale may not be exercised by any of the Defendants since there was never an’ acknowledged and recorded assignment pursuant to California Civil Code § 2932.5.
44. Since the Defendants did not comply with California Civil Code
§2932.5, the Notice of Default provisions of California Civil Code § 2924 and Notice of Sale provisions of California Civil Code §2924(f) were likewise never complied with.
45. Insert defendant never complied with the Notice of Default provisions of California Civil Code §2924 and Notice of Sale provisions of California Civil Code §2924(f).

5 Responses to “No assignment no foreclosure 2932.5”

  1. Michael Rooney August 4, 2009 at 1:03 pm #

    Hi Tim,

    Do you know of any cases that have upheld this statute against an alleged “Successor in Interest”?

    Best,

    Mike Rooney

    • timothymccandless August 7, 2009 at 7:13 am #

      Look in Deerings annotated codes under this section and you will see the rulings relevant to these codes. I’d do it for you but i’d have to charge ya. Remember this blog is free…

  2. Michael Patrick Rooney, esq. August 10, 2009 at 8:15 pm #

    Hi Tim,

    Thanks for the reference. The reason I ask is, I had done this. What I find is not enouraging. Actually, the most relevant case says that where power of sale is vested in a third party (such as a trustee), the deed of trust assignment needn’t be recorded, because the power of sale had been transferred to the trustee, not the lender. Therefore, if the new trustee is properly substituted, then the power of sale transfers between trustees, not amongst the beneficiaries. I have noticed that some of the DOTs I have vest the power of sale in MERS, not the trustee, which raises an interesting question in light of Hwang and Vargas, but all in all, the cases in the annotated code did not support an argument that the beneficiary transfer needed to be recorded =(

  3. Abby in CA August 11, 2009 at 11:30 am #

    Tim- can the trustee for the securities (U.S. Bank, N.A.) foreclose in California?

    New Century sold loan in pool with 4200+ other loans to Chase. Chase did a PSA (pooling & services agreement) between different Chase entities & named U.S. Bank, N.A. as the securities trustee. After making payments to New Century I was told to make payments to Chase. I never heard of U.S. Bank, N.A. being involved until their name appeared on one of the recordings in foreclosure with c/o Chase Home Finance.

    The NOD was filed using New Century as beneficiary on 4/12/07. A Corporation Deed of Assignment was done from New Century to U.S. Bank, N.A. in May 2007 with words handwritten on it ‘effective 4/12/2007’.

    Since U.S. Bank, N.A. is NOT the investors who really own pieces of my mortgage, do you believe I can get foreclosure set aside using 2932.5?

    U.S. Bank, N.A. is who also filed the UD action.

    I could not understand their involvement until I finally found the SEC document (PSA) written by Chase.

  4. fred September 12, 2011 at 1:36 pm #

    in regards to us bank, they are the trustee of a trust that your note was pooled into.the trust has a remic status and cant recieve any assignments after its cut off date, i cant stress how important it is to read your psa and prospectus.

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