In our last communication we were in discussion on the Definitive Documents (DD's). We showed a list of important documents for establishing a Beneficial Interest in the subject property. In Season 2 we will discuss how these interests move.
Okay, let's start with the "Security Instrument" (aka Deed of Trust or Mortgage). Here are the elements (paragraphs) that help the "MoD" in identifying the veracity of progeny documents (Assignment of DOT, Substitution of Trustee and Notice of Default).
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A latin phrase comes to mind. Nemo Dat Quod Non Habit – no one gives what he does not have; no one transfers (a right) that he does not possess.
Look to the 4-corners of the document for the "language" that gives rights and authorities. Here are 3 documents that we have taken notice of.
Side Note: In order for any claimant to have authority over an MoD or MoD property it must be identified in the Definitive Documents or the progeny of the DD's.
DOT: Page 13@¶24. Substitute Trustee: IDENTIFIES a LENDER RIGHTS
LENDER, at its option, may from time to time appoint a successor trustee to any Trustee appointed hereunder by an instrument elected and acknowledged by LENDER and recorded in the office of the Recorder of the county in which the Property is located. The instrument shall contain the name of the original LENDER, Trustee and Borrower, the book and page where this Security Instrument is recorded and the name and address of the Successor Trustee. Without conveyance of the Property, the Successor Trustee shall succeed to all the TITLE, POWERS AND DUTIES conferred upon the Trustee herein and by Applicable Law. This procedure for SUBSTITUTIONS of trustee shall govern to the EXCLUSION of all other PROVISION FOR SUBSTITUTION.
DOT: Page 13@¶22. 22. Acceleration; Remedies (the Power of Sale): IDENTIFIES LENDER and TRUSTEE RIGHTS.
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LENDER shall give notice to Borrower prior to acceleration following Borrower's breach of any covenant or agreement in this Security Instrument (but not prior to acceleration under Section 18 unless Applicable Law provides otherwise).
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The notice shall specify: (a)the default; (b) the action required to cure the default; (c) a date, not less than 30 days from the date the notice is given to Borrower, by which the default must be cured; and (d) that failure to cure the default on or before the date specified in the notice may result in acceleration of the sums secured by this Security Instrument and sale of the Property.
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The notice shall further inform Borrower of the right to reinstate after acceleration and the right to bring a court action to assert the non-existence of a default or any other defense of Borrower to acceleration and sale.
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If the default is not cured on or before the date specified in the notice, Lender at its option may require immediate payment in full of all sums secured by this Security Instrument without further demand and may invoke the POWER OF SALE and any other remedies permitted by Applicable Law.
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LENDER shall be entitled to collect all expenses incurred in pursuing the remedies provided in this Section 22, including, but not limited to, reasonable attorneys' fees and costs of title evidence.
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If LENDER invokes the power of sale, LENDER shall execute or cause Trustee to execute a written notice of the occurrence of an event of default and of LENDER'S election to cause the Property to be sold.
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Trustee shall cause this notice to be recorded in each county in which any part of the Property is located.
LENDER or Trustee shall mail copies of the notice as prescribed by Applicable Law to Borrower and to the other persons prescribed by Applicable Law.
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Trustee shall give public notice of sale to the persons and in the manner prescribed by Applicable Law.
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After the time required by Applicable Law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder at the time and place and under the terms designated in the notice of sale in one or more parcels and in any order Trustee determines.
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Trustee may postpone sale of all or any parcel of the Property by public announcement at the time and place of any previously scheduled sale.
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LENDER or its designee may purchase the Property at any sale.
These 2 documents are the most abused by the "Parents of the Ghost Claimants" because no one bothers to look at who is signing the change of authority rights.
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For example if the party signing the Substitution Of Trustee is not the authority authorized (LENDER) in the original Deed of Trust, then all documents executed thereafter are done by "interlopers" and without lawful authority.
Hummmmm! We have THE PROPERTY to save.
[Season 1, Episode 8]