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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: CA Civil Code Reference help Posted by Craig in LA on February 18, 2006 at 8:25 PM In Reply to: Re: CA Civil Code Reference help posted by Rick Harmon (CA) on February 18, 2006 at 6:20 PM : : This Trustees deed contains more than the one we recorded. A search of several Trustees Deeds on public record show that about 90% do NOT have a reference to the recording date and doc number of the pertinent Notice of Default. Our Trustees deed refers specifically to the recording date and doc number of the Deed of Trust only (as do most others reviewed on public record). Yet if we want to support this in court, I doubt we can bring in several examples to show the judge as opposed to a reference to a portion of the Code showing what is needed would setttle the matter very quickly (as long as our Trustees Deed meets the minimum requirement). : : This sample you provided is obviously more "thourough" than most. : : Yet my question is as to whether there is a minimum of information required by the Civil Code. : : I appreciate your help. Hopefully my question is more clear (it is clear in my head but I may not be transfering that to words). : : Thank you. : : Here is what ours says ... I think it is correct, but the former owners' attorney is attacking based on this: : : ... under the authority and powers vested in the Trustee designated in the Deed of Trust or as the duly appointed trustee, default having occurred under the Deed of Trust persuant to the Notice of Default and Election to sell under the Deed of Trust recorded on 1/1/01, instrument number 1234, of Official records. : : The opposing attorney says this reference should have been to the Notice of Default and not the Deed of Trust and therefore the Trustees Deed is invalid. I disagree and am looking for support of my view. : ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ : Steve - : The power to sell is given to the trustee (by the Trustor!) in the Deed of Trust, not the notice. The notice of default is only a delivery mechanism to notice the trustor or current owner(s) of interest. It (the notice) has no particular powers other than to upset the recipient. : If your attorney is impressed with this defense, get a new attorney. It's really pretty lame in my book. Every baby attorney thinks that s/he can attact validity of a non-judicial trustee sale based on defects of notice. : This is opposing counsel's way of saying: "were gonna make you suffer time, money and headaches and ultimately pay their side, irrespective of facts." Occassionally, you'll get one like this in this business (or most every business!) : Rick Harmon I understand the question now and agree with Rick. If your attorney is buying this, fire the idiot. The power to institute the non-judicial foreclosure is found in the initial trust deed signed by the BORROWER, not you. Everyone on the board should read one of those suckers once. Amazing what you agree to. Soapbox time. Do not assume the attorney that opposes you, or defends you (1) has a clue what the law really is (2) would be able to interpret the law if they did know, or (3) has a basic understanding of the facts of your case. They are running 100-300 files and have no idea who or what you are 90% of the time. Don't be intimidated by the clowns. There are now 200,000 members of the State Bar. Anybody willing to waste 3 years becomes one. In your specific situation, have your attorney move for Summary Judgment on the trust deed issue, then demand costs and attorney fees from the other side under Code of Civil Procedure Section 128.7. If your guy is not willing to do it, email me privately and I will give you the name and phone number of a buddy of mine who litigates by swinging baseball bats at heads. Crude but effective. Follow Ups: Re: CA Civil Code Reference help Steve-O 9:43 PM, 02/18/06 (1) Re: CA Civil Code Reference help Craig in LA 7:26 AM, 02/19/06 (0) Post a Followup: Name : E-Mail : Subject : Comments: : : : This Trustees deed contains more than the one we recorded. A search of several Trustees Deeds on public record show that about 90% do NOT have a reference to the recording date and doc number of the pertinent Notice of Default. Our Trustees deed refers specifically to the recording date and doc number of the Deed of Trust only (as do most others reviewed on public record). Yet if we want to support this in court, I doubt we can bring in several examples to show the judge as opposed to a reference to a portion of the Code showing what is needed would setttle the matter very quickly (as long as our Trustees Deed meets the minimum requirement). : : : This sample you provided is obviously more "thourough" than most. : : : Yet my question is as to whether there is a minimum of information required by the Civil Code. : : : I appreciate your help. Hopefully my question is more clear (it is clear in my head but I may not be transfering that to words). : : : Thank you. : : : Here is what ours says ... I think it is correct, but the former owners' attorney is attacking based on this: : : : ... under the authority and powers vested in the Trustee designated in the Deed of Trust or as the duly appointed trustee, default having occurred under the Deed of Trust persuant to the Notice of Default and Election to sell under the Deed of Trust recorded on 1/1/01, instrument number 1234, of Official records. : : : The opposing attorney says this reference should have been to the Notice of Default and not the Deed of Trust and therefore the Trustees Deed is invalid. I disagree and am looking for support of my view. : : ~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~~ : : Steve - : : The power to sell is given to the trustee (by the Trustor!) in the Deed of Trust, not the notice. The notice of default is only a delivery mechanism to notice the trustor or current owner(s) of interest. It (the notice) has no particular powers other than to upset the recipient. : : If your attorney is impressed with this defense, get a new attorney. It's really pretty lame in my book. Every baby attorney thinks that s/he can attact validity of a non-judicial trustee sale based on defects of notice. : : This is opposing counsel's way of saying: "were gonna make you suffer time, money and headaches and ultimately pay their side, irrespective of facts." Occassionally, you'll get one like this in this business (or most every business!) : : Rick Harmon : I understand the question now and agree with Rick. If your attorney is buying this, fire the idiot. The power to institute the non-judicial foreclosure is found in the initial trust deed signed by the BORROWER, not you. Everyone on the board should read one of those suckers once. Amazing what you agree to. : Soapbox time. Do not assume the attorney that opposes you, or defends you (1) has a clue what the law really is (2) would be able to interpret the law if they did know, or (3) has a basic understanding of the facts of your case. They are running 100-300 files and have no idea who or what you are 90% of the time. Don't be intimidated by the clowns. There are now 200,000 members of the State Bar. Anybody willing to waste 3 years becomes one. : In your specific situation, have your attorney move for Summary Judgment on the trust deed issue, then demand costs and attorney fees from the other side under Code of Civil Procedure Section 128.7. If your guy is not willing to do it, email me privately and I will give you the name and phone number of a buddy of mine who litigates by swinging baseball bats at heads. Crude but effective. 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