Quote: topguncrdtadvsr said:
So my ??? is if there was an assignment after origination should there of been a new trustee named then? It's kinda strange I know. I found out the foreclosure group that foreclosed on me not only substituted the trustee when they foreclosed they noticed the original lender instead of the lender the debt was assigned to. This was also done after foreclosure.
Take a look at my posted response (03/13/11 at 04:09 PM) within the David's Forum message thread "Who owns the title?" (03/07/11 at 06:41 PM):
You need to distinguish between the owner of the legal title to the deed of trust and the owner of the legal title to the property.
The identity of the trustee tends to remain fixed across assignments of the deed of trust unless and until a substitute trustee is appointed.
The owner of the deed of trust probably has the authority under the instrument to make such an appointment. But UNLESS and UNTIL such appointment is actually made, the person or entity appointed as substitute trustee is essentially a stranger to the title and usually has no authority whatsoever.
Although Massachusetts is a mortgage rather than a deed of trust state, that state recognizes private powers of sale. Re-read the Ibanez decision.
But BEFORE you run out and start calling attention to the possible defect in title created by the non-judicial sale, VERY CAREFULLY ASSESS THE FACTS AND LAW WHICH APPLIES IN YOUR SITUATION.
I would be VERY CAREFUL even in discussing this with an attorney unless you can be ABSOLUTELY ASSURED that the attorney actually has YOUR BEST INTERESTS AT HEART (e.g. the attorney is your father or uncle).
The substitute trustees deed may actually be VOID rather than merely voidable. But here is the rub. IF you actually defaulted on your deed of trust, this MIGHT be readily corrected by simply doing a new non-judicial foreclosure.
Now you MIGHT have a valid cause of action as a result of being prematurely dispossessed of the property. But one problem with that is that you might have had some duty to NOTICE this defect and seek a remedy immedately (to mitigate your damages).
But you may also have another even more valuable and effective alternative strategy. CHECK THE STATUTE OF LIMITATIONS OF YOUR JURISDICTION AS TO SUITS ON A NEGOTIABLE INSTRUEMNT OR NON-JUDICIAL FORECLOSURE UNDER A PRIVATE POWER OF SALE. You are likely to find that the limitations period is 4 to 6 years. The period usually does NOT begin to run until either the due date of the note OR the date of acceleration.
Next, check the limitations period for a suit to quiet title or a treaspass to try title. The correct cause of action varies from jurisdiction to jurisdiction. This limitations period might very well run for ten or twenty years!
You MAY be able to WAIT until the limitations period expires on the suit on a note or the remedy of private non-judicial sale (4 to 6 years) and still be well within the period to set aside the substitute trustee's deed!
In this way, you could recover the property with little or no further risk of additional foreclosure.
The notice of acceleration thereby becomes your ticket to the complete discharge of your outstanding mortgage indebtedness.
Those who encourage you to run to the lender and bring this defect to their immediate attention are very foolish and either do not have your best interests in mind OR fail to appreciate the nuances of this unique and delicate situation.