Full question:
I have disputed the trustee sale on my home scheduled for May 13th. I am desperately trying to negotiate a modification but they are no longer the 'true owners' of the note/deed of trust. They cannot tell me who holds the note. I got further notice that they plan to go ahead with the sale as scheduled but put in a clause stating the following: 'IF THE TRUSTEE IS UNABLE TO CONVEY TITLE FOR ANY REASON THE SUCCESSFUL BIDDERS SOLE AND EXECUTIVE REMEDY SHALL BE THE RETURN OF MONIES PAID TO THE TRUSTEE AND THE SUCCESSFUL BIDDER SHALL HAVE NO FURTHER RECOURSE'. Is the trustee supposed to start all over again since the true owner is unknown and therefor his fiduciary duty has been breached and is a form of fraud? I also believe at my local home owner's association level and the real estate company that works with the community association has a buyer lined up. All my notices had been opened before I received them.
- Category: Real Property
- Subcategory: Foreclosure
- Date:
- State: Arizona
Answer:
Over the past decade, mortgages have frequently been sold and bundled into securities, often leading to the original note being lost or destroyed. If the lender cannot produce the original note, it may delay foreclosure proceedings and increase pressure on them to renegotiate the mortgage. Courts may accept electronic documentation as proof of ownership. In some cases, foreclosures have been halted due to the inability to produce the note, but the court will ultimately decide if the foreclosure can proceed.
Fraud involves intentionally misleading another party to induce them to act, resulting in injury or damage. To prove fraud, the plaintiff must show that the misrepresentation was made knowingly, that they relied on it, and that they suffered harm as a result.
In Arizona, most foreclosures are judicial. If you want to contest a non-judicial foreclosure, you must file a lawsuit to temporarily stop the process and resolve the legal issues. In court, you can present defenses similar to those in a judicial foreclosure. Common defenses include identifying the wrong party in the loan contract or proving timely payments. Lack of funds is not a valid defense. The goal is to demonstrate why the property should not be foreclosed upon.
This content is for informational purposes only and is not legal advice. Legal statutes mentioned reflect the law at the time the content was written and may no longer be current. Always verify the latest version of the law before relying on it.