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socalusa
237 Posts |
 Posted - 05/03/2008 : 8:54:22 PM
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A client of mine has two (80/20) loans with now defunct New Century Mortgage. He has fallen behind about three months, and the Trustee has filed for a Notice of Default on 4-28-2008, only on the first 80% loan.
My client has already started getting a flood of vulture mail from Realtors and Attorneys, but nothing from the Trustee.
He has been asking me why the Trustee has not sent him a copy of Notice of Default? Doesn't the Trustee need to notify him via certified mail upon filing the NOD? Doesn't the Trustor need to send copy of the NOD by regular mail, as well in addition to the certified mail at the time of filing of the NOD?
His questions have really aroused my interest in this matter, and I would like to hear your opinion and experiences in this matter.
Thanks
socalusa@hotmail.com
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darkstar
15162 Posts |
Posted - 05/04/2008 : 04:01:35 AM
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| Is he in a BK, if not, where does the trustee come in?... |
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socalusa
237 Posts |
Posted - 05/04/2008 : 06:00:40 AM
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quote:
Originally posted by darkstar
Is he in a BK, if not, where does the trustee come in?...
Property is in California, a Trustee Sale state. Trustee files for NOD & NOT and then holds a Trustee Sale at the end to deliver title to the Beneficiary.
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slants
3803 Posts |
Posted - 05/04/2008 : 08:58:46 AM
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| No need for him to worry about notice, he WILL receive it. Does he get his mail forwarded? Is the mailing address on his Deed and on the mortgage account the same as his residence? It'll get there, make no mistake about it. |
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cpruitt
1586 Posts |
Posted - 05/04/2008 : 09:16:23 AM
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I don't know much about the foreclosure sale process in Trustee Sale states, but if lawyers are calling it must be on the public record somewhere already so he can get a copy of it. I bet not receiving has to do with a mailing address issue, or - as I have seen many people do when they get behind on mortgages - he got it and didn't recognize what it was because he had stopped opening mail which had to do with his mortgage.
Just idle speculation though. There's probably a Sheriff looking for him to serve it. |
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socalusa
237 Posts |
Posted - 05/04/2008 : 6:34:27 PM
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No, the address on the Notice of Default is absolutely correct. There is no forwarding of mail, either.
The bottom line is the Trustee has not notified the Trustors in writing, certified or otherwise. If the Trustee has opted not to notify the Trustor, or has neglected in doing so, would the NOD still be in effect, or would it become voidable?
What about the balance of the mortgages, would my client have rights to seek damages for the unpaid principal balance owed on the loan, if he does decide to take legal action against the Trustee?
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Originate_This
251 Posts |
Posted - 05/04/2008 : 7:17:40 PM
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The Trustee at this point is only required to file the NOD with the county, hence the flood of calls about it from third-parties. The Trustee has 90 days from that filing date before the Notice of Sale can be posted.
The client is then required to receive a copy of the NOS (by certified mail or service) once it's filed. Once the NOS is filed you then have 20 days before the sale of the property.
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haiku
408 Posts |
Posted - 05/04/2008 : 7:37:59 PM
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| NODs are sent to mailing address and property address. Client received it, or someone in the household received it. Regardless, the trustee has to do a certificate of service stating how, when, who, received the nod. Nothing client can do at this point but to pay arrears or fild a bk. |
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slants
3803 Posts |
Posted - 05/04/2008 : 9:58:31 PM
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quote:
Originally posted by socalusa
No, the address on the Notice of Default is absolutely correct. There is no forwarding of mail, either.
The bottom line is the Trustee has not notified the Trustors in writing, certified or otherwise. If the Trustee has opted not to notify the Trustor, or has neglected in doing so, would the NOD still be in effect, or would it become voidable?
What about the balance of the mortgages, would my client have rights to seek damages for the unpaid principal balance owed on the loan, if he does decide to take legal action against the Trustee?
Let me get this straight: your guy defaulted on his binding contractual commitment and now you think he should have grounds to "decide to take legal action against the Trustee and have rights to seek damages for the unpaid principal balance owed on the loan? He breached his contract and feels entitled to "seek damages"? How do you rationalize that others have "damaged" him when he defaulted on a loan that had been so generaously extended to him based on a "promissory note" to repay? Wow! People's sense of entitlement and lack of personal responsibility will never cease to amaze me. |
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socalusa
237 Posts |
Posted - 05/04/2008 : 10:51:33 PM
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quote:
Originally posted by slants
quote:
Originally posted by socalusa
No, the address on the Notice of Default is absolutely correct. There is no forwarding of mail, either.
The bottom line is the Trustee has not notified the Trustors in writing, certified or otherwise. If the Trustee has opted not to notify the Trustor, or has neglected in doing so, would the NOD still be in effect, or would it become voidable?
What about the balance of the mortgages, would my client have rights to seek damages for the unpaid principal balance owed on the loan, if he does decide to take legal action against the Trustee?
Let me get this straight: your guy defaulted on his binding contractual commitment and now you think he should have grounds to "decide to take legal action against the Trustee and have rights to seek damages for the unpaid principal balance owed on the loan? He breached his contract and feels entitled to "seek damages"? How do you rationalize that others have "damaged" him when it is his own default? Wow! People's sense of entitlement and lack of personal responsibility will never cease to amaze me.
A multi-million dollar company willfully neglecting to notify homeowners that they are in default, should stand to answer back about their actions. Wouldn't you think so?
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slants
3803 Posts |
Posted - 05/04/2008 : 10:54:52 PM
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quote:
Originally posted by haiku
NODs are sent to mailing address and property address. Client received it, or someone in the household received it. Regardless, the trustee has to do a certificate of service stating how, when, who, received the nod. Nothing client can do at this point but to pay arrears or fild a bk.
Mailing address, property address, address from the mortgage account and mailing address from the mortgage account. He will have received multiple copies before his redemption period is up. He can pay up or get out like everyone else. |
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slants
3803 Posts |
Posted - 05/04/2008 : 10:59:00 PM
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quote:
Originally posted by socalusa
quote:
Originally posted by slants
quote:
Originally posted by socalusa
No, the address on the Notice of Default is absolutely correct. There is no forwarding of mail, either.
The bottom line is the Trustee has not notified the Trustors in writing, certified or otherwise. If the Trustee has opted not to notify the Trustor, or has neglected in doing so, would the NOD still be in effect, or would it become voidable?
What about the balance of the mortgages, would my client have rights to seek damages for the unpaid principal balance owed on the loan, if he does decide to take legal action against the Trustee?
Let me get this straight: your guy defaulted on his binding contractual commitment and now you think he should have grounds to "decide to take legal action against the Trustee and have rights to seek damages for the unpaid principal balance owed on the loan? He breached his contract and feels entitled to "seek damages"? How do you rationalize that others have "damaged" him when it is his own default? Wow! People's sense of entitlement and lack of personal responsibility will never cease to amaze me.
A multi-million dollar company willfully neglecting to notify homeowners that they are in default, should stand to answer back about their actions. Wouldn't you think so?
How do you conclude they have willfully neglected anything? He is in the 1st week of his NOD. He WILL get his notice long before it is over. So your logic is that if he does not receive a notice he is not aware that he has defaulted on his obligation and has been living payment free? Oh, pulleeze, don't insult the guy's intelligence or your own! |
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slants
3803 Posts |
Posted - 05/04/2008 : 11:13:40 PM
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"Within 10 days of the recording, a Notice of Default is sent by certified mail to each borrower, and guarantor of the note at the address provided. Anyone who has requested to be notified of any recorded documents, by special request, will also receive a certified copy of the NOD."
BTW, the lender just has to prove that they sent it. If the deadbeat borrower refuses to receive it, he is still a deadbeat, not suddenly the aggrieved party.
Pretty sleazy to default on a promise to pay and then attempt to use that as a sleazy weapon to weasel out of his own actions and a situation of his own creation. Despicable!
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BrokerCA
2329 Posts |
Posted - 05/04/2008 : 11:20:36 PM
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quote:
Originally posted by socalusa
A multi-million dollar company willfully neglecting to notify homeowners that they are in default, should stand to answer back about their actions. Wouldn't you think so?
This argument has no legal validity. You are wasting your time. |
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slants
3803 Posts |
Posted - 05/04/2008 : 11:29:43 PM
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quote:
Originally posted by BrokerCA
quote:
Originally posted by socalusa
A multi-million dollar company willfully neglecting to notify homeowners that they are in default, should stand to answer back about their actions. Wouldn't you think so?
This argument has no legal validity. You are wasting your time.
Yea, and the homeowner willfully neglected to honor his debt. Should he "stand to answer back about his actions"? Instead now you feel he should be justified to "seek damages for the unpaid principal balance owed on the loan" which he refused to repay, just because they are a "multi-million dollar company"? |
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socalusa
237 Posts |
Posted - 05/06/2008 : 08:50:45 AM
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quote:
Originally posted by slants
quote:
Originally posted by BrokerCA
quote:
Originally posted by socalusa
A multi-million dollar company willfully neglecting to notify homeowners that they are in default, should stand to answer back about their actions. Wouldn't you think so?
This argument has no legal validity. You are wasting your time.
Yea, and the homeowner willfully neglected to honor his debt. Should he "stand to answer back about his actions"? Instead now you feel he should be justified to "seek damages for the unpaid principal balance owed on the loan" which he refused to repay, just because they are a "multi-million dollar company"?
Slant, with all respect, you sound like someone died and the flock have elected you to be the Queen of Morality. People who visit this bulletin board are mortgage loan brokers. At best we compare ourselves to attorney's, and at worst to car sales people.
When someone comes to us and asks us sincere advice about what's the best for them, we usually give him the best suggestion that we can.
Now, this deadbeat despicable client of mine has a slight chance to relieve himself from a huge obligation due to some administrative errors, willful or not. Why not? Why take the high road of morality.
The following statement is made by you in the past replies:
"Within 10 days of the recording, a Notice of Default is sent by certified mail to each borrower, and guarantor of the note at the address provided. Anyone who has requested to be notified of any recorded documents, by special request, will also receive a certified copy of the NOD."
Well the 10 days has been upon us, and yet no certified or regular mail has come my client's way. I think you should agree that the Trustee, Agent of Beneficiary, has done something wrong. willfully or not.
They make us pay the price when we make mistakes. We lose our licenses and go to jail if we harm our clients. Why not a million dollar company? How can they be punished?
I think the idea merits at least an initial consultation with a Real Estate Civil Attorney. I'll suggest that to my client, and will post the outcome later on.
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dkendall1979
8143 Posts |
Posted - 05/06/2008 : 08:58:46 AM
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| The notice was posted in a public place, according to CA law, that is all that is needed. The "tenant" need not be notified directly so long as the trustee posted the notice in a public place in occordance with the law. By right, the trustee can file notice after 1 day of delinquent payments, but in CA, they typically opt for a 90+ day grace period. NOD is filed then 90 days an NTS may be filed. Then 21 days later the NTS will be held, again in a public place. |
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slants
3803 Posts |
Posted - 05/06/2008 : 09:46:00 AM
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quote:
Originally posted by socalusa
Slant, with all respect, you sound like someone died and the flock have elected you to be the Queen of Morality. People who visit this bulletin board are mortgage loan brokers. At best we compare ourselves to attorney's, and at worst to car sales people.
When someone comes to us and asks us sincere advice about what's the best for them, we usually give him the best suggestion that we can.
Now, this deadbeat despicable client of mine has a slight chance to relieve himself from a huge obligation due to some administrative errors, willful or not. Why not? Why take the high road of morality.
The following statement is made by you in the past replies:
"Within 10 days of the recording, a Notice of Default is sent by certified mail to each borrower, and guarantor of the note at the address provided. Anyone who has requested to be notified of any recorded documents, by special request, will also receive a certified copy of the NOD."
Well the 10 days has been upon us, and yet no certified or regular mail has come my client's way. I think you should agree that the Trustee, Agent of Beneficiary, has done something wrong. willfully or not.
They make us pay the price when we make mistakes. We lose our licenses and go to jail if we harm our clients. Why not a million dollar company? How can they be punished?
I think the idea merits at least an initial consultation with a Real Estate Civil Attorney. I'll suggest that to my client, and will post the outcome later on.
Frankly, Mr. Socal, I do not ever compare myself or any mortgage professional to attorneys nor car salesmen as I do not possess a law degree nor a bar license. Your attitude in this thread, however, is a big reason mortgage "professionals" get painted as no more than sleazy used car salesmen.
"When someone comes to us and asks us sincere advice about what's the best for them, we usually give him the best suggestion that we can." You propose that advising a consumer who has willfully defaulted on their obligation to try and find a loophole to get out of their commitment altogether is the best suggestion on the part of a mortgage professional? This lack of ethical responsibility is in big part the reason for the collapse of the housing market and the public perception of our profession as corrupt scoundrels.
BTW, the fact that you fail to read a calendar does not come as a surprise to me. The 10 days, if that is even the legal threshold, will not be "upon us" until 5/8, 3 days from today. Furthermore, verbiage pulled up from something found online is hardly the definitive legal requirement for notice. And no, I do not believe even if he doesn't receive a notice in the mail for 30 days that they have "done something wrong". As pointed out by at least 3 other posters, if your client's defense for his default is that he didn't know because he didn't receive his notice via certified mail, you are giving him very, very poor advice to spend money on an attorney and creating false hope that the NOD would be nullified and the entire mortgage will be rescinded. The argument is baseless and almost laughable. Quite frankly, as pointed out by others, your are acting far from the best interest of the client, the profession or the economy by providing false information and giving him false hope without any factual information or knowledge about what you preach.
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slants
3803 Posts |
Posted - 05/06/2008 : 09:59:54 AM
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quote:
Originally posted by dkendall1979
The notice was posted in a public place, according to CA law, that is all that is needed. The "tenant" need not be notified directly so long as the trustee posted the notice in a public place in occordance with the law. By right, the trustee can file notice after 1 day of delinquent payments, but in CA, they typically opt for a 90+ day grace period. NOD is filed then 90 days an NTS may be filed. Then 21 days later the NTS will be held, again in a public place.
Actually, a NOD is not posted, only the Notice of Sale.
"In addition, a copy of the NOS must be posted on the property and in a public place.
In theory, this prevents a tenant from finding out about the sale of the property after it has taken place. The Notice is posted so all occupants know what is going on.
The NOS must also be recorded with the County Recorder. This must happen no less than 14 days prior to the actual scheduled sale date."
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dkendall1979
8143 Posts |
Posted - 05/06/2008 : 10:07:23 AM
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I've filed countless NOD's and NTS's on people and gone through 3 myself. Believe me, the tenant does not need to be directly notified of the sale. It is for all the public to see and that original contract signed between the debtor and lender was breached. That is all that matters. He did not follow through on his obligation, the lender had the trustee file, it was posted in a public place (obviously county records is public and I'm willing to bet some form of publishing to accompany this) and they will proceed with the non-judicial foreclosure process.
No loophole here.
quote:
Originally posted by slants
quote:
Originally posted by dkendall1979
The notice was posted in a public place, according to CA law, that is all that is needed. The "tenant" need not be notified directly so long as the trustee posted the notice in a public place in occordance with the law. By right, the trustee can file notice after 1 day of delinquent payments, but in CA, they typically opt for a 90+ day grace period. NOD is filed then 90 days an NTS may be filed. Then 21 days later the NTS will be held, again in a public place.
Actually, a NOD is not posted, only the Notice of Sale.
"In addition, a copy of the NOS must be posted on the property and in a public place.
In theory, this prevents a tenant from finding out about the sale of the property after it has taken place. The Notice is posted so all occupants know what is going on.
The NOS must also be recorded with the County Recorder. This must happen no less than 14 days prior to the actual scheduled sale date."
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socalusa
237 Posts |
Posted - 05/12/2008 : 6:29:17 PM
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| My Client called to tell me that the Trustee has sent a flood of 4 certified and 6 regular mail NOD's. |
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slants
3803 Posts |
Posted - 05/12/2008 : 6:32:25 PM
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From above:
quote:
Originally posted by slants
Mailing address, property address, address from the mortgage account and mailing address from the mortgage account. He will have received multiple copies before his redemption period is up. He can pay up or get out like everyone else.
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ChuckPv
6 Posts |
Posted - 05/12/2008 : 6:43:09 PM
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| Recording a NOD is giving constructive notice and that is all that is necessary. |
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