CARNEY v. BANK OF AMERICA | California Dist. Court "TRO, MERS Interest Discrepancies, ReconTrust may NOT be the Proper Trustee w/ Legal Authority"

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CARNEY v. BANK OF AMERICA | California Dist. Court “TRO, MERS Interest Discrepancies, ReconTrust may NOT be the Proper Trustee w/ Legal Authority”

CARNEY v. BANK OF AMERICA | California Dist. Court “TRO, MERS Interest Discrepancies, ReconTrust may NOT be the Proper Trustee w/ Legal Authority”

UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA SOUTHERN DIVISION

MICHAEL M. CARNEY, Plaintiff,

vs.

BANK OF AMERICA CORPORATION, ET AL., Defendant

EXCERPT:

ANALYSIS

Mr. Carney has made a showing that ReconTrust might not be the proper trustee with legal authority to conduct the trustee’s sale scheduled for July 11, 2011. The issue is whether MERS properly substituted ReconTrust as trustee in place of First American Title Company prior to MERS assigning its beneficial interest in the deed of trust to US Bank, and whether US Bank has approved of the foreclosure sale. See FAC Ex. 9 (Corporation Assignment of Deed of Trust assigning MERS’ beneficial interest in the deed of trust to US Bank dated June 24, 2010 and recorded July 7, 2010); id. Ex. 6-2 (Substitution of Trustee listing MERS as the beneficiary and ReconTrust as the new trustee but not indicating the date of execution), id. Ex. 6-3 (Affidavit of Mailing for Substitution of Trustee by Code dated May 19, 2011); id. Ex. 6-1 (Notice of Trustee’s Sale listing ReconTrust as trustee and June 9, 2011 sale date); id. ¶ 72 (verified FAC alleging that no properly executed substitution of trustee was recorded prior to ReconTrust filing a Notice of Trustee’s Sale on October 29, 2010). Defendants have asserted in their opposition to Mr. Carney’s ex parte application that “MERS substituted ReconTrust as trustee in place of First American Title Company – and this substitution was recorded,” Opp’n at 5, but they have not produced the records indicating that this substitution properly occurred during the time period that MERS was the beneficiary.

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