Tuesday, February 21, 2017
Kalnoki v. First American Trustee Servicing Solutions
In this action to set aside a trustee's sale on numerous grounds, the court ruled in favor of defendant, holding in the published portion of the opinion:
- The substitution of trustee was valid even though a) the word "Inc." was omitted after the words "Wells Fargo Home Mortgage", b) it was signed by the company into which the original beneficiary merged because the legal effect of that merger was supplied by other documents of which the court properly took judicial notice, c) it was signed by the lender's attorney in fact, d) the power of attorney was not attached and e) the substituted trustee had previously been the agent of the lender, but this did not create a conflict of interest, as alleged by plaintiffs, because a trustee under a deed of trust is a trustee for very limited purposes and does not have any fiduciary duties to the owner during the foreclosure process.
- The assignment of the deed of trust was valid because a) even though the lender allegedly did not have physical possession of the note, California's nonjudicial foreclosure do not require it and b) an assignment to a securitized trust after the trusts "closing date" is voidable by the lender and assignee, not void, so the trustor does not have standing to challenge the assignment.
- The trustee's deed upon sale was valid where the lender credit bid at the sale,
- The Notice of Default was valid in spite of plaintiffs' allegations that it was "robo-signed" because plaintiffs did not dispute the accuracy of any of the salient facts, such as the amount owed or that their loan was in default.
- Plaintiffs were required to tender the amount owing on the debt because none of the exceptions to the tender rule applied, and plaintiffs did not do so.
Cal.App. 3rd Dist. (C073207) 2/1/17