Balancing the Scales of Justice for Pro Se Homeowners

Does/did the Notice of Default Comply with Paragraph 22 in your Deed of Trust?

Posted by on Sep 6, 2012

Have you ever sat down and read your Deed of Trust?  If not, now would be a good time to do so; and if yes, now would be a good time to read it again.  And I would encourage you to read paragraph 22 – in detail.

In many of the Deed of Trust instruments paragraph 22 is about the acceleration of the Loan based on a “default” and what is expected of all parties involved in the acceleration process.  Specifically, many of these Deed of Trusts contain a line that states,  “…the Notice shall inform the borrower of their right to bring forth an action to dispute the default and any other defense against the acceleration and sale”.

Now read your Notice of Default.  Does it not state, “you have the right to  request a  itemization of the amount of default” (or some variation)…and then in another section state, “after the date of expiration your only legal recourse is to pay the loan in full”?  READ THE ENTIRE NOTICE OF DEFAULT… do you see anything in that Notice that informs you of “your right” to bring forth an action disputing the default, or any defense against the acceleration and sale?

Now some people claim this is a “condition precedent” within the contract.  What is condition precedent? According to

                condition precedent

n. 1) in a contract, an event which must take place before a party to a contract must perform or do their part. 2) in a deed to real property, an event which has to occur before the title (or other right) to the property will actually be in the name of the party receiving title. Examples: if the ship makes it to port, the buyer agrees to pay for the freight on the ship and unload it; when daughter Gracella marries she shall then have full title to the property.

Google this term – investopedia, Webster, all of them pretty much say that a condition precedent is an event that has to occur before the title (or other right) to the property will actually be in the name of the party receiving title.    YOU MUST BE INFORMED OF YOUR RIGHT TO SUE THE BASTARDS BANKS before they can foreclose on you and take title to your property.

One could argue that if the Notice of Default FAILS to meet this condition precedent, then it is not legally sufficient and leaving it on the title could damage the homeowner’s interest in the title (as well as the homeowner’s credit reputation) and therefore should be cancelled and REMOVED from the County Recorder’s records.

This of course, means that you will have to bring forth an action against the parties who filed and recorded the Notice of Default.  One could also argue that since the Trustee and the “beneficiary” filed a defective Notice of Default and therefore did not comply with CCC Section 2924, their actions are not privileged by Cal. Civil Codes §§ 47 and 2924.   Now that should make for some really interesting discussions.

This is not a silver bullet by any means, but it is an interesting arrow  and should be one of the many arrows in your quiver to pierce the corporate mumbo jumbo shell game these banks and government entities are playing.   Stay tuned, we have more detailed info for paid members that include samples of other homeowners successfully pleading this argument and supporting case rulings.




Join the conversation and post a comment.

  1. Marina

    Also a condition precedent is 2924(a) where it ti states:
    “…the power shall not be exercised except where the mortgage or transfer is made pursuant to an order, judgment, or decree of a court of record”

    This has be overlooked, brushed under the carpet etc by both banks, courts and victims of fraudulent foreclosure.
    No matter what anybody tries to argue this is black letter law. Lets push this clause into the frontlines……we can be assured not a single FC has been done under the letter of the law in CA.

    Now take this and demand your selves right into court.

  2. Mark E

    I received my Notice of Default in 2008 … but lost my only copy.

    Is there a way to obtain a copy?


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