CA Civ Code 2934(a) and why EVERY Deed of Trust agreement is void!

The state of CA is a Deed of Trust state.  Which means there is a note and a deed of trust agreement attached with a real estate contract agreement.  The state courts use a non-judicial foreclosure process in which to administer a foreclosure procedure.  The idea of a non-judicial foreclosure process is that it gives the judicial power over to the trustee to administer the foreclosure through the rules of CA Civ Code 2924, which is known as the Power of Sale clause in a deed of trust agreement.  In a non-judicial foreclosure process there is a presumption of correctness that is given to the trustee by the court as it is the job of the trustee to act in the best interests of the court.  It was stated by the CA Supreme Court that the trustee be at arms length and independent of both parties to the agreement in order to create fairness.  It is the job of the trustee to protect the Title from any wrongdoing of either party during the life of the contract agreement.

The fact that the trustee holds no power to protect the borrower from any wrongdoing from the bank in a foreclosure process means that the idea of the trustee and a deed of trust are corrupted as the trustee is a strawman.

Read thoroughly through CA Civ code 2934a.  This code was changed in 1998.   Herein, we will look at the rules as they are written to be effective after January 1, 1998.  I urge you to take a look to a side by side review of the code as it was written prior to January 1, 1998.

In its changes it takes away the powers of the trustee. It gives the power of the trustee, to protect the Trustor’s title from the beneficiary, back to the beneficiary. Which means that the beneficiary is in control of protecting the Trustor’s title and not the trustee, as it is assumed and outlined in the Power of Sale clause, or Ca Civ Code 2924, of a Deed of Trust contract agreement in the state of CA.

The bank knows this, yet, gives the borrower a deed of trust agreement to sign without informing the borrower that the details in the deed of trust are false which make the Power of Sale clause invalid.  The bank does not inform the borrower that the borrower has no protections to their title as soon as they sign the agreement, and that the bank is able to do whatever it wishes to the borrower’s title whenever they wish to do it. This is fraud by the misrepresentation of a material fact.

Because the banks know this information and neglect to inform the borrower of this important detail, that the trustee to a deed of trust contract is a strawman, then there is not a meeting of the minds to the contract agreement. The contract was constructed by the bank against the borrower without the borrower having all of the same information as the bank, as per the rules of the contract. Due to there not being a meeting of the minds to the contract prior to the signing of the contract, and that the rules of the contract are deceptive in nature and benefit one party over the other to the benefit of the bank constructing the contract, this is fraud by the misrepresentation of a material fact.

This also goes against the rules of the CA Supreme Court as per the independence of the trustee necessary in order to protect the interest of both parties involved in a deed of trust.

Through the rules that dictate contract law, and through the Statute of Frauds(1677), it is given that any and all changes in any real estate contract must be done in writing and signed by all parties involved in the contract.  There must be a meeting of the minds of the rules governing the contract or the contract is to be deemed void.

There are currently 35 states in the United States that use a Deed of Trust agreement.  There is legislation in nearly all of the other states to conform to a deed of trust and non-judicial foreclosure process.  There are similar rules in all states that allow this to take place.

 

CA Civil Code 2934a

2934(a)(1) “…a trustee may be substituted by the recording in the county in which the property is located of a substitution executed and acknowledged by: (A) all of the beneficiaries under the trust deed, or their successors in interest…”

This states that the beneficiary is allowed to name a trustee to be substituted, and acknowledge that they have done so and file that in the county recorder’s office.

It is also the job of the trustee to be independent in nature and arms length from either party to the transaction, as per a CA Supreme Court ruling, in order to make sure that all of the rules of the Power of Sale clause are to be followed by both parties in order to protect the interests of either party as to their relationship with the Title. Therefore, if there are any changes to the deed of trust contract it is the obligation of the trustee to make sure that all of the rules are correctly followed and the documents are correct in their information.

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(b) “If the substitution is executed, but not recorded, prior to or concurrently with the recording of the notice of default, the beneficiary, or beneficiaries, or their authorized agents shall cause notice of the substitution to be mailed prior to or concurrently with the recording thereof…”

As it is the job of the trustee to make sure that all of the rules of the Power of Sale are followed by either party in order to protect the interest of either party in the transaction, the question then lies, “how could the substitution take place and be ececuted without the knowledge of the trustee, or the signing off by the trustor?”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(c) “If the substitution is effected after a notice of default has been recorded but prior to the recording of the notice of sale, the beneficiary or beneficiaries or their authorized agents shall cause a copy of the substitution to be mailed…”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

2934a(4)(d) “…the substitution of trustee shall be deemed to be authorized to act as the trustee under the mortgage or deed of trust for all purposes from the date the substitution is executed by the mortgage, beneficiaries, or by their agents. Nothing herein requires that a trustee under a recorded substitution must accept the substitution…”

this means that the beneficiary is in full control of the trustor’s title, the Power of Sale process, and that the trustee is indeed a strawman.

NOTICE: I am not an attorney and am not herein offering any legal advice. This is form informational purposes only. For legal advice please consult your own attorney.

 

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One thought on “CA Civ Code 2934(a) and why EVERY Deed of Trust agreement is void!

  1. Tara

    Has anyone in a CA court or bankruptcy used this argument and prevailed? Thanks..enjoyed reading. We are currently being DENIED DUE PROCESS in a Los Angeles Chapter 13 bankruptcy…..wanted to site this argument to bk Trustee if it has been SUCCESSFUL…..as I have been BARRED from OBJECTING to Secured Creditor And Proofs of Claim. Thank You.

    Reply

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