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Bankster Wins - CA AP CT holds statutory defect in late filing of substitution of trustee was "not substantial"

February 13, 2015

This conflicts w/former holdings that defects in failing to file substitution of trustee BEFORE NOD makes foreclosure VOID ab initio (as opposed to just "voidable") because there is now a conflict in appellate rulings on this issue, it has now become RIPE for CA Supreme Court REVIEW.

Ram v. OneWest Bank

Court: California Court of Appeal
Docket: A139055
Opinion Date: February 6, 2015
Areas of Law: Banking, Real Estate & Property Law

Plaintiffs purchased a home subject to a deed of trust. After they defaulted on their loan, nonjudicial foreclosure proceedings were initiated, and the beneficiary of the deed of trust, OneWest, purchased the property at the foreclosure sale. Plaintiffs sued, alleging that the sale was void due to irregularities in the foreclosure proceedings: the predicate notice of default was executed and recorded by an entity claiming to be the trustee of OneWest several weeks before OneWest signed and recorded documents formally designating that entity as such. The trial court dismissed. The court of appeal affirmed. There was no statutory defect in the manner or timing of the trustee substitution, but even if so, the entity was otherwise authorized to act for OneWest in filing the notice of default because it was alleged that the entity was at all times acting as the agent of OneWest. Alternatively, any alleged defect or omission was not substantial within the meaning of the law of foreclosure, making the subsequent sale at most voidable, and not void. Because the sale was, at worst, only voidable, the borrowers in default were required to allege tender and prejudice, which they did not do.

Read more.


Nancy Duffy McCarron, CBN 164780
Attorney, Real Estate Broker, BBB Arbitrator, CA Notary Public
Certified Forensic Loan Auditor, Property Manager


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