Full question:
I purchased a deed of trust that was in default. I have already filed the Notice of Default and had no response. Can I file the Notice of Trustee Sale myself and use one of my entities as the Trustee? I would like to use your forms to file a Notice of Trustee Sale. I need to know if I can do this myself.
- Category: Real Property
- Subcategory: Foreclosure
- Date:
- State: California
Answer:
A trustee sale is a sale by a property in foreclosure due to default in the loan made from the lender, who holds a trustee deed on the property. A foreclosure sale can take place at public auction. The property may be sold to a third party bidder or revert back to the lender for a specified amount.
In many jurisdictions, a deed of trust is required in order to conduct a foreclosure by the power of sale. A deed of trust conveys the property from the mortgage holder to the trustee, who holds the property in trust for the mortgage holder. In the instance of foreclosure, the trustee, not the mortgage holder, conducts the sale of the mortgaged property. The trustee is generally instructed by the mortgage holder to foreclose on the mortgage and is under no obligation to determine whether this foreclosure is justified. A deed of trust and trustee supervised foreclosure allows the mortgage holder to bid for the foreclosed property, provided the trustee and the mortgage holder are not closely associated. Otherwise, a mortgage holder cannot bid for the mortgaged property when the foreclosure is by power of sale. A deed of trust is similar to a mortgage, with one important exception. If the borrower breaches the agreement to pay off the loan, the foreclosure process is typically much quicker and less complicated than the formal mortgage foreclosure process. While a mortgage involves a relationship between the borrower/homeowner and the bank/lender, a deed of trust involves the homeowner, the lender, and a title insurance company. The title insurance company holds legal title to the real estate until the loan is paid in full, at which time the title company transfers the property title to the homeowner.
The provisions of any deed of trust or mortgage on real property may authorize any beneficiary, trustee, mortgagee, or his or her agent or successor in interest, to exercise any power of sale or other remedy contained therein upon the failure of the trustor or mortgagor to pay, at the times provided for under the terms of the deed of trust or mortgage, any taxes, rents, assessments, or insurance premiums with respect to the property or the loan. I suggest reading the terms of the deed of trust carefully to determine your rights and obligations regarding sale of the property. If you are authorized to sell the property, you may file the notice of sale without the assistance of an attorney or appoint an agent to do so.
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.
