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Category Archives: Foreclosure

HEY HO! TRUSTEES MAY NOT BE “DEBT COLLECTORS” UNDER THE FAIR DEBT COLLECTION PRACTICES ACT

The Ninth Circuit Court of Appeals, in a split decision subject to a dissent, has held that the trustee under a California deed of trust does not, by performing the statutory foreclosure requirements, become a “debt collector” subject to the federal Fair Debt Collection Practices Act (FDCPA). The decision in Ho v. ReconTrust Company, NA, 840 F.3d 618 (9th Cir. 2016) is still subject to being reconsidered en banc, i.e., by an expanded panel of eleven Ninth Circuit judges. If it is not altered by the Ninth Circuit en banc, the decision will likely be the subject of a petition for review by the United States Supreme Court. … Continue reading

Posted in FDCPA, Foreclosure |

The Salazar Saga Continues

Bankruptcy and foreclosure lawyers everywhere have been vitally interested in the fate of In re Salazar, 448 B.R. 814 (Bankr. S.D. Cal. 2011), which denied the lender’s motion for relief from the automatic stay to complete an eviction after a pre-bankruptcy foreclosure sale. The trust deed in Salazar named MERS as the beneficiary, but the foreclosure notices and trustee’s deed referred instead to US Bank. The opinion in Salazar concluded that California Civil Code section 2932.5, which states that the power of sale under a mortgage “may be exercised by the assignee if the assignment is duly acknowledged and recorded.” was not satisfied by off-record assignments under the MERS system.  Since the assignment to US Bank was … Continue reading

Posted in Foreclosure, Jurisdiction, MERS |