1- If there is a defect in trustee sale can the sale be canceled?

Yes. To the extend that the deed has not been issued to Bonified Purchaser. when there is a defect in the foreclosure which is discovered before the trustee's deed is delivered to the purchaser, there is no deed which creates the conclusive presumption of validity in favor of a bona fide purchaser. Therefore, if a defect in the foreclosure process is discovered after the trustee has accepted a bid, but prior to the delivery of the trustee's sale, the trustee can abort the sale, return any funds received to the purchaser, plus interest, and process another foreclosure." (Angell v. Superior Court (1999) 73 Cal.App.4th 691, 86)

2- Can a purchaser start the eviction process by serving a 3 day notice and filling for eviction if the deed is not recorded? 

No, unless Buyer record their deed within 15 calendar days  of the sale. If they do so, title is deemed perfected as of 8:00 AM on the morning of the auction (CA Civil Code 2924(h)(c)). This is nuance in law that some Buyer are unaware of and it renders their notices defective. 

3- If I make a partial payment after receiving the NOD, can my property still be sold?

“This rule, traditionally applied to trustors, is based upon the equitable maxim that a court of equity will not order a useless act performed. (Arnolds Management Corporation v. Eischen 158 Cal.App.3d 575. 578-579.) “A valid and viable tender of payment of the indebtedness owing is essential to an action to cancel a voidable sale under a deed of trust.” (Karlsen v. American Savings & Loan (1971) 15 Cal.App.3d 112 at p. 117.) The court goes on to say… “The rationale behind the rule is that if plaintiffs could not have redeemed the property had the sale procedures been proper, any irregularities in the sale did not result in damages to the plaintiffs.” [FPCI RE-HAB 01 v. E & G Investments, Ltd. (1989) 207 Cal.App.3d 1018, 1021.] The tenderer must do and offer everything that is necessary on his part to complete the transaction, and must fairly make known his purpose without ambiguity, and the act of tender must be such that it needs only acceptance by the one to whom it is made to complete the transaction.’ (Gaffney v. Downey Savings & Loan Assn.) (1988) 200 Cal.App.3d 1154, 1165, , quoting 86 C.J.S., Tender, § 27, pp. 570-571; ‘it is a debtor's responsibility to make an unambiguous tender of the entire amount due or else suffer the consequence that the tender is of no effect.’ (Gaffney v. Downey Savings & Loan, supra, 200 Cal .App.3d at p. 1165.)” (Nguyen v. Calhoun (2003) 105 Cal.App.4th 428, 439.)

​4- Do I have a better chance of canceling a sale if the purchaser was a third party and not the lender?

It depends on the circumstances  The winning bidder at sale receives a Trustee’s Deed which recites that everything was properly done and that law in California is that such sales are FINAL. “The purchaser at a foreclosure sale takes title by a trustee's deed. If the trustee's deed recites that all statutory notice requirements and procedures required by law for the conduct of the foreclosure have been satisfied, a rebuttable presumption arises that the sale has been conducted regularly and properly; this presumption is conclusive as to a bona fide purchaser, however, if there is substantial irregularity or fraud then the presumption is rebutted. (Civ.Code, § 2924; Homestead Savings v. Darmiento, supra, 230 Cal.App.3d at p. 431.)” (Moeller v. Lien, supra, 25 Cal.App.4th 822, 830-831

​5- What if the servicer did not call me to inquire pursuant to new civil code?

Civil Code Section 2923.5 gives the borrower is additional time. That means that if you catch the servicer messing up before the sale, you can delay the sale to buy additional time but if you wait too long and try to say they messed up after the sale is over, the point is moot and there is not remedy in that code section that will allow the borrower to set aside the sale. [“If a lender did not comply with section 2923.5 and a foreclosure sale has already been held, does that noncompliance affect the title to the foreclosed property obtained by the families or investors who may have bought the property at the foreclosure sale? No. The Legislature did nothing to affect the rule regarding foreclosure sales as final.”].) (Mabry v. Superior Court (June 10, 2010, G042911) 185 Cal.App.4th 208, ---- [2010 WL 2180530 at p. 1

​6- The Bank has lost a copy of my note, can they still foreclose on me?
Yes. The case of Huckell v. Matranga is illustrative in a circumstance where the beneficiary has lost the original promissory note. In that case, the Court found that Bank of America as Trustee was entitled to request a surety bond before issuing the reconveyance of the Deed of Trust. [Huckell v. Matranga (1979) 99 Cal.App.3d 471.] Accordingly, there is no requirement that the original promissory note is required in order to conduct a trustee’s sale in California, as the beneficiary can bond around the missing note. That said, a lawsuit on the lost promissory note can certainly slow things down and may be fairly effective in stalling institutional lenders. Private money lenders are less likely to have hypothecated the loans to such a degree as to cause confusion over the location of the note.

7- My bank was assigned the mortgage but not the note, can my house still be sold?
No. A promissory note is person property and the deed of trust securing a note is a mere incident of the debt it secures, with no separable ascertainable market value. California Civil Code §§ 657, 663. Kirby v. Palos Verdes Escrow Co., 183 Cal. App. 3d 57, 62. The assignment of a mortgage without a transfer of the Indebtedness confers no right, since debt and security are inseparable and the mortgage alone is not a subject of transfer, ” Hyde v. Mangan (1891) 88 Cal. 319, 26 P 180, 1891 Cal LEXIS 693; Johnson v, Razy (1919)181 Cal 342, 184 P 657; 1919 Cal LEXIS 358; Bowman v. Sears (1923, Cal App) 63 Cal App 235, 218 P 489, 1923 Cal App LEXIS 199; Treat v. Burns (1932) 216 Cal 216, 13 P2d,724, 1932 Cal LEXIS 554.  ”A mortgagee’s purported assignment of the mortgage without an assignment of the debt which is secured is a legal nullity.” Kelley V. Upshaw (1952) 39 Cal 2d 179, 246 P2d 23, 1952 Cal. LEXIS 248.A trust deed has no assignable quality independent of the debt; it may not be assigned or transferred apart from the debt; and an attempt to assign the trust deed without a transfer of the debt is without effect.” Domarad v. Fisher & Burke, Inc. (1969 Cal. App. 1st Dist) 270 Cal. App. 2d 543, 76 Cal. Rptr. 529, 1969 Cal. App. LEXIS 1556.

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