The Wrong Remedy at the Wrong Time, Part 3
By Daniel Edstrom
DTC Systems, Inc.
The previous three parts to this topic related to the trustee and the beneficiary having the right to petition the court under California Probate Code 17200. This section will talk about the rights of the settlor to petition the Court under California Probate Code 17200.
California Civil Code 2934b says the following:
Sections 15643 and 18102 of the Probate Code apply to trustees under deeds of trust given to secure obligations.
California Probate Code 15642(a) says:
(a) A trustee may be removed in accordance with the trust
instrument, by the court on its own motion, or on petition of a
settlor, cotrustee, or beneficiary under Section 17200.
This appears to give the settlor (trustor) the right to petition the court under California Probate Code 17200.
California Probate Code 15642(b) goes on to describe the reasons for why a trustee can be removed. I would think the court would entertain petitions as to whether or not the trustee was validly substituted in the first place. The main reason being that if the trustee was never substituted, the original trustee is still the trustee – or at least that is what I would think. On the otherhand, California Probate Code 15643 says:
There is a vacancy in the office of trustee in any of the
following circumstances:
(a) The person named as trustee rejects the trust.
(b) The person named as trustee cannot be identified or does not
exist.
(c) The trustee resigns or is removed.
(d) The trustee dies.
(e) A conservator or guardian of the person or estate of an
individual trustee is appointed.
(f) The trustee is the subject of an order for relief in
bankruptcy.
(g) A trust company’s charter is revoked or powers are suspended,
if the revocation or suspension is to be in effect for a period of 30
days or more.
(h) A receiver is appointed for a trust company if the appointment
is not vacated within a period of 30 days.
So maybe there is no trustee. Remember that I am not an attorney and this is not legal advice. This is only for educational and informational purposes. For legal advice consult an attorney.
What are some possible reasons based on standards and practices in todays mortgage meltdown foreclosure environment?
Where the trustee (among other things):
- breaches the trust
- is unfit to administer the trust
- fails or declines to act
