power of sale – DTC Systems Inc

California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”

California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”

By Daniel Edstrom
DTC Systems, Inc.

Thank you to HYDROGENE for this one. According to this decision, the “if any” in the following of a Notice of Default voids the document:

TOGETHER WITH LATE CHARGES AS SET FORTH IN SAID NOTE AND DEED OF TRUST, ADVANCES, ASSESSMENTS AND ATTORNEY’S FEES, IF ANY

UPDATE NOTE added 1/9/2012: The Supreme Court of California denied review of this case but ordered that the opinion be not officially published (See California Court–Rules 976, 977 and 979)

Excerpt (fairly long):

Validity Of Notice Of Default
EMC sought to exercise the power of sale in the Deed of Trust on Anolik’s home based on Anolik’s alleged breach of various obligations secured by the Deed of Trust. Anolik alleged in the fourth cause of action in his second amended complaint (for wrongful foreclosure) that “the events of default as alleged . . . in the Notice of Default . . . [we]re false and untrue” and that “the Notice of Default and Election to Sell [wa]s void” as a result.

The trial court concluded the Notice of Default “was proper and is not invalid or void.” Anolik contends the trial court erred in this conclusion. We agree. “The procedure for foreclosing on security by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924 et seq.”5 (Miller v. Cote (1982) 127 Cal.App.3d 888, 894.) Because nonjudicial foreclosure is a “drastic sanction” and a “draconian remedy” (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 827, 830), “[t]he statutory requirements must be strictly complied with.” (Miller, at p. 894.) Continue reading “California Appeals Court: Notice of Default is Void if Description of Default Includes “if any””

The OCC Misses the Point on Toxic Waste

The OCC Misses the Point on Toxic Waste

By Daniel Edstrom
DTC Systems, Inc.
http://www.dtc-systems.net

We all see what we want to see. But when others control the conversation, it is easy to miss the point. As a regulator the Office of the Comptroller of the Currency should be taking the lead and controlling the conversation, but in reality, they have been bridled and are being led around by the nose. Conspiciously absent are numerous issues they as a regulator have the responsibility of dealing with. This article is timely in response to an article by Neil F. Garfield (http://livinglies.wordpress.com/2011/12/27/the-big-lie-banks-did-nothing-illegal/), which is a response to Yves Smith of Naked Capitalism article (http://www.nakedcapitalism.com/2011/12/more-msm-criticism-of-obama-nothing-illegal-here-move-along-stance-on-foreclosure-fraud.html), which is a response to a Reuters article (http://www.reuters.com/article/2011/12/22/us-foreclosures-idUSTRE7BL0MC20111222). But I found none of these articles until I was finished writing this post. Take the following random and critical issues:

Are the loans in the pool? Were the loans ever in the pool? Does the pool exist? Did the pool perfect interest in any of the loans? This issue is very political and the OCC in our opinion will never address this issue or look into this.
What loans are in default? Can a loan be in default? What comes first, the default or the loss?
Are there any compliance issues?

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Failure to Allege Lack of Default

Failure to Allege Lack of Default

by Daniel Edstrom
DTC Systems, Inc.

I came across the following on Google Scholar (http://scholar.google.com/scholar_case?case=16055101289176414591&q=Restatement+(Third)+Of+Property+(Mortgages)+%C2%A7+5.4&hl=en&as_sdt=2,5):

A. Failure to Allege Lack of Default

First, Nevada law is clear that “[a]n action for the tort of wrongful foreclosure will lie if the trustor or mortgagor can establish at the time the power of sale was exercised or the foreclosure occurred, no breach of condition or failure of performance existed on the mortgagor or trustor’s part which would have authorized the foreclosure or exercise of the power of sale.” Ernestburg v. Mortgage Investors Group, No. 2:08-cv-01304-RCJ-RJJ, 2009 WL 160241, at *6 (D. Nev. Jan. 22, 2009) (internal citations and quotations omitted). The plaintiff must establish that they were not “in default when the power of sale was exercised.” Id. (citing Collins v. Union Fed. Sav. & Loan Ass’n, 662 P.2d 610, 623 (Nev. 1983)). Furthermore, a claim for wrongful foreclosure does not arise until the power of sale is exercised. Collins, 662 P.2d at 623.

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