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Bank of New York Mellon v Preciadp -- Question of Varying Trustees Appelate Decision
Bank of New York Mellon v. Preciado | 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.
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.
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.