Why the show me the note foreclosure defense strategy is not effective in California is the topic of this blog post.
This blog post is not intended as legal advice, however the one of the main reasons that production of the original note is not required is that California is a non-judicial foreclosure state.
Non-judicial foreclosure under a deed of trust is governed by California Civil Code Section 2924 which states in relevant part that a “trustee, mortgagee or beneficiary or any of their authorized agents” may conduct the foreclosure process.”
California courts have held that the Civil Code provisions “cover every aspect” of the foreclosure process, and are “intended to be exhaustive,”
Any person who is under the impression that the “show me the note” defense will work in California is sadly mistaken. It might buy a little more time but even that is not a sure thing. You can debate all you want. The cold hard fact is that the Courts do NOT agree with the show me the note defense. And a lender or loan servicer can always post a bond in the amount of the fair market value of the property, and then the defense is moot.
In California, the lender is not required to produce a Promissory Note to conduct a non-judicial foreclosure which is also known as a Trustee’s Sale. This is due to the fact that the power of sale comes from the Deed of Trust, NOT the Promissory Note.
Anyone using the show me that note defense runs the risk of not only losing in Court, but also blowing their chance to actually show some kind of valid defense to the Judge that might convince them to at least delay the foreclosure sale.
Several cases from the United States District Courts in California have stated that there is NO requirement under California law to produce the original note to proceed with a non-judicial foreclosure.
Putkkuri v. ReconTrust Co., 2009 WL 32567, *2 (S.D.Cal. Jan.5, 2009) (“Production of the original note is not required to proceed with a non-judicial foreclosure.”); see also Phillips v. MERS Mortgage Electronic Registration Systems, 2009 WL 3233865, 9 (E.D.Cal.2009); Vargas v. Reconstruction Co., 2008 U.S. Dist. LEXIS 100115, at *8-9 (E.D.Cal. Dec. 1, 2008).
Later blog posts will cover some valid claims that may convince a Judge to grant a request for a temporary restraining order to enjoin the trustee foreclosure sale.
Attorneys or parties in California who would like to view a portion of a 22 page sample complaint to stop a trustee foreclosure sale that includes a verified complaint, ex-parte application for temporary restraining order with points and authorities, sample declarations, and a proposed order sold by the author can see below.
http://www.scribd.com/doc/146074976/Sample-California-Complaint-to-Stop-Foreclosure-Sale-by-Trustee
The author of this blog post, Stan Burman, is a freelance paralegal who has worked in California and Federal litigation since 1995 and has created over 200 sample legal documents for California and Federal litigation.
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To view all of the sample legal documents for use in California and Federal Courts sold by the author of this blog post visit http://www.scribd.com/legaldocspro/documents
Copyright 2013 Stan Burman. All rights reserved.
DISCLAIMER:
Please note that the author of this blog post, Stan Burman is NOT an attorney and as such is unable to provide any specific legal advice. The author is NOT engaged in providing any legal, financial, or other professional services, and any information contained in this blog post is NOT intended to constitute legal advice.
These materials and information contained in this blog post have been prepared by Stan Burman for informational purposes only and are not legal advice. Transmission of the information contained in this blog post is not intended to create, and receipt does not constitute, any business relationship between the author and any readers. Readers should not act upon this information without seeking professional counsel.
