California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”
By Daniel Edstrom
DTC Systems, Inc.
Thank you to HYDROGENE for this one. According to this decision, the “if any” in the following of a Notice of Default voids the document:
TOGETHER WITH LATE CHARGES AS SET FORTH IN SAID NOTE AND DEED OF TRUST, ADVANCES, ASSESSMENTS AND ATTORNEY’S FEES, IF ANY
UPDATE NOTE added 1/9/2012: The Supreme Court of California denied review of this case but ordered that the opinion be not officially published (See California Court–Rules 976, 977 and 979)
Excerpt (fairly long):
Validity Of Notice Of Default
EMC sought to exercise the power of sale in the Deed of Trust on Anolik’s home based on Anolik’s alleged breach of various obligations secured by the Deed of Trust. Anolik alleged in the fourth cause of action in his second amended complaint (for wrongful foreclosure) that “the events of default as alleged . . . in the Notice of Default . . . [we]re false and untrue” and that “the Notice of Default and Election to Sell [wa]s void” as a result.
The trial court concluded the Notice of Default “was proper and is not invalid or void.” Anolik contends the trial court erred in this conclusion. We agree. “The procedure for foreclosing on security by a trustee’s sale pursuant to a deed of trust is set forth in Civil Code section 2924 et seq.”5 (Miller v. Cote (1982) 127 Cal.App.3d 888, 894.) Because nonjudicial foreclosure is a “drastic sanction” and a “draconian remedy” (Baypoint Mortgage Corp. v. Crest Premium Real Estate etc. Trust (1985) 168 Cal.App.3d 818, 827, 830), “[t]he statutory requirements must be strictly complied with.” (Miller, at p. 894.) Continue reading “California Appeals Court: Notice of Default is Void if Description of Default Includes “if any”” »