Bank of New York Mellon v. Preciado | Sup. Ct of CA - trustee's deed upon sale identifies one trustee, but the DOT identifies another. The trial court erred in accepting the recorded trustee's deed upon sale as conclusive evidence of compliance with § 2924, and the appellate division reversed

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Bank of New York Mellon v. Preciado | Sup. Ct of CA – trustee’s deed upon sale identifies one trustee, but the DOT identifies another…§ 2924

Bank of New York Mellon v. Preciado | Sup. Ct of CA – trustee’s deed upon sale identifies one trustee, but the DOT identifies another…§ 2924

SUPERIOR COURT OF CALIFORNIA

COUNTY OF SANTA CLARA
APPELLATE DIVISION

CCP § 1162 Notice Requirements; CCP § 1161a’s Required Compliance with CC § 2924

Bank of New York Mellon v. Preciado, Nos. 1-12-AP-001360 & 1-12-AP-001361 (Cal. App. Div. Super. Ct. Aug. 19, 2013): To be effective, UD notices to quit must be properly served: 1) by personal service; 2) or if personal service failed, by leaving the notice with a person of “suitable age and discretion” at the residence or business of the tenant (or former borrower) and then mailing a copy; 3) or if the first two methods failed, by posting a notice at the residence and mailing a copy. CC § 1162. Here, the process server’s affidavit stated that “after due and diligent effort,” he executed “post and mail” service. The trial court accepted this statement as evidence of compliance with CC § 1162, but the appellate division reversed. The statute indicates that “post and mail” is the last available method of service, not the first. Since the affidavit does not specifically assert that personal service was ever attempted, the trial court erred in assuming that service complied with CC § 1162. Further, defendants’ appeal based on defective service was not barred because they failed to assert it as an affirmative defense. Proper service is an “essential [UD] element” and tenants’ “general denial” of each statement in the complaint put service at issue.

Post-foreclosure UD plaintiffs must also demonstrate duly perfected title and compliance with CC § 2924 foreclosure procedures. CCP § 1161a. “Duly” perfected title encompasses all aspects of purchasing the property, not just recorded title. The trial court relied on plaintiff’s trustee’s deed upon sale, showing plaintiffs purchased the property at the foreclosure sale. The court ignored contradicting testimony alleging that the property was sold to the loan’s servicer, not plaintiff. Further, “to prove compliance with section 2924, the plaintiff must necessarily prove the sale was conducted by the trustee.” Here, the trustee’s deed upon sale identifies one trustee, but the DOT identifies another. The trial court erred in accepting the recorded trustee’s deed upon sale as conclusive evidence of compliance with § 2924, and the appellate division reversed.

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Sale in Compliance with Civil Code § 2924 et seq, and the Deed of Trust

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