Only the Beneficiary May Make a Credit Bid at Auction

SO who is the beneficiary? We can’t take the word of the Trustee unless he has satisfied his duty to inquire.

33-810 Sale by public auction; postponement of sale

A. On the date and at the time and place designated in the notice of sale, the trustee shall offer to sell the trust property at public auction for cash to the highest bidder. The trustee may schedule more than one sale for the same date, time and place. The attorney or agent for the trustee may conduct the sale and act at such sale as the auctioneer for the trustee. Any person, including the trustee or beneficiary, may bid at the sale. Only the beneficiary may make a credit bid in lieu of cash at sale. The trustee shall require every bidder except the beneficiary to provide a ten thousand dollar deposit in any form that is satisfactory to the trustee as a condition of entering a bid. The trustee or auctioneer may control the means and manner of the auction. Every bid shall be deemed an irrevocable offer until the sale is completed, except that a subsequent bid by the same bidder for a higher amount shall cancel that bidder’s lower bid. To determine the highest price bid, the trustor or beneficiary present at the sale may recommend the manner in which the known lots, parcels or divisions of the trust property described in the notice of sale be sold. The trustee shall conditionally sell the trust property under each recommendation, and, in addition, shall conditionally sell the trust property as a whole. The trustee shall determine which conditional sale or sales result in the highest total price bid for all of the trust property. The trustee shall return deposits to all but the bidder or bidders whose bid or bids result in the highest bid price. The sale shall be completed on payment by the purchaser of the price bid in a form satisfactory to the trustee. The subsequent execution, delivery and recordation of the trustee’s deed as prescribed by section 33-811 are ministerial acts. If the trustee’s deed is recorded in the county in which the trust property is located within fifteen business days after the date of the sale, the trustee’s sale is deemed perfected at the appointed date and time of the trustee’s sale. If the highest price bid at a completed sale is less than the amount of that bidder’s deposit, the amount of the deposit in excess of the bid price shall be refunded by the trustee at the time of delivery of the trustee’s deed.

B. The person conducting the sale may postpone or continue the sale from time to time or change the place of the sale to any other location authorized pursuant to this chapter by giving notice of the new date, time and place by public declaration at the time and place last appointed for the sale. Any new sale date shall be a fixed date within ninety calendar days of the date of the declaration. After a sale has been postponed or continued, the trustee, on request, shall make available the date and time of the next scheduled sale and, if the location of the sale has been changed, the new location of the sale until the sale has been conducted or canceled and providing this information shall be without obligation or liability for the accuracy or completeness of the information. No other notice of the postponed, continued or relocated sale is required except as provided in subsection C of this section.

C. A sale shall not be complete if the sale as held is contrary to or in violation of any federal statute in effect because of an unknown or undisclosed bankruptcy. A sale so held shall be deemed to be continued to a date, time and place announced by the trustee at the sale and shall comply with subsection B of this section or, if not announced, shall be continued to the same place and at the same time twenty-eight days later, unless the twenty-eighth day falls on a Saturday or legal holiday, in which event it shall be continued to the first business day thereafter. In the event a sale is continued because of an unknown or undisclosed bankruptcy, the trustee shall notify by registered or certified mail, with postage prepaid, all bidders who provide their names, addresses and telephone numbers in writing to the party conducting the sale of the continuation of the sale.

D. A sale is postponed by operation of law to the next business day at the same scheduled time and place if an act of force majeure prevents access to the sale location for the conduct of the sale.

13 Responses

  1. dear jan, honestly i was days just days late with the water bill. my son was in the hospital and i needed to stay with him till he was out of the woods so to speak. i did call the water district to let them know i would be only 3 to 4 days late. the water district agreeded but shut the water off anyway on the scheduled date. i am the homeowner. lived hee all my life. dad built the house. but since the sale proceeded, not on the day scheduled but a day later, i could not reconnect the water because now wells fargo was the home owner. garbage was the same. called them too. i am considered a squater or what ever. i know im not the tenant because as i will state in court that wells fargo and i donot have a tenant/landlord relationship. correct? correct!. on the 16th of this month i will go to a motion to dismiss. at that time i think i will bring up the fact of water and garbage among other things on my list of facts. as far as taking the garbage to wells fargo office. who the heck knows where they are. trustee deed of sale states texas. that office was closed 2 weeks ago. i like your idea though dont get me wrong. while reading your message i got a little rush just thinking about it.
    thank you for the support.
    do you know anything about the trustee sale being held a day after the scheduled date? was i to be notified/
    sincerely
    laurie mendoza ldmendoza2003@yahoo.com

  2. to Laurie Mendoza:

    Since you are in “peaceable possession” of the premises the issue of “title” to the property is not relevant; in fact, you are either still the owner (if the sale was found to be voidable) or you are a de-facto tenant; in either case, Wells Fargo has Zero authority to go shut off water and stop garbage pick-up.

    File a Complaint on an emergency basis with the water company and demand that they turn on the water (assuming you had the bill paid and they have no other excuses). Same with the garbage. You might also consider a bit of guerrilla warfare; take your garbage to the Wells Fargo offices, walk inside, and dump it on their floor. Then just walk out.

    Call up the news media, tell them that Wells shut off your water and interfered with your garbage collection, and let them take the “red face of shame.” What are they going to do? Try to have you arrested? Hardly likely; makes them look worse. Nothing like a bit of street theatre to liven up the day. (If you do this, take along a hundred bucks cash for bail money, and make note of the phone of a bail bondsman, just in case).

  3. Dying Truth, could you also direct me to any ud templets for jury trial. i cant seem to find them on this web site and i need for jury trial only. ive done all the other paperwork.
    thanks
    laurie mendoza
    ldmendoza2003@yahoo.com

  4. Dear Dying Truth, I am in California. I was notified that the trustee sale date was to be April 13, 2010. When i got the 3 day get out from Wells Fargo Attorney the notice stated that Wells Fargo is the owner of my property and that a trustee sale was held on April 14, 2010. I got the 3 day quit on April 16th, 2010. Also stated in the notice that the deed had been duly perfected. deed was recorded on April 29th, 2010 which they were in there 15 day time frame. But I was not given noticed that the sale was to be held one day after what I was notified of which was the 13th. I am now in UD court and I did ask for a jury trial. I just cant seem to get orginazed for this whole ordeal. Wells Fargo had the water shut off and garbage pick up stoped. No showers. uck.
    Any info would be greatly honored. Im getting kinda tired but I promise I wont give up.
    sincerely and thank you,
    laurie mendoza
    ldmendoza2003@yahoo.com

  5. Sorry for the delay. It was due to no service.
    We want to thank (zurenarrh, DyingTruth, colette mcdonald, and Jan van Eck), who were kind enough to give us thier time, and views on this matter.
    The answer to the UD was filed in time, on 4/23/10.
    Now we will need to prepare for the hearing on 5/16/10, and have everything ready for the judge.

    Jan van Eck, to date you have given us the most helpful input regarding this matter, Thank you.

    Everybody please continue to leave your thoughts, and we will keep you updated.

    P.S. We’re in NV, and I plan to use the NRS 107.080 par 5 along with AB284 for our case.

    KH

  6. to KH:

    your “sale” is most likely “voidable.” To be voidable you have to take some concrete step to void it. It is not necessarily “void ab initio” (but it might be). The difference is a bit technical. The Trustee has certain responsibilities as set forth by the Statutes in the State where you live (assuming it is a non-judicial foreclosure sale). He cannot just go “do whatever he wants to do” just because it is more convenient.

    YOur remedies include the following:

    1. File a Notice of Fraudulent transfer on the Land Title Records. Your Noticed would state roughly as follows: “Please take Notice that the act of Sale of the Property described as —[legal description] and known generally as 1234 Household Drive, Mytown, State, is and was not conducted in accordance with the Statutopry requirements of published Notice, and is invalid. the act of filing a transfer of ownership interest from XXX, the Owner, to YYY, the Buyer, is facially invalid due to insufficient Notice of Sale. The Transfer is Noticed as being fraudulent.”

    You can clean that up a bit to suit your particular requirements. What this does is put any further and subsequent Buyer on Notice that there is a cloud on title as to the validity of the Sale. If you do NOT put a public notice ont he land records, then a subsequent buyer becomes an “Innocent Buyer” and he will be impossible to displace from the ownership vested in him by virtue of the next sale (which will come soon enough). The current Buyer, now sitting on the House, is still exposed.

    2. You file Suit in your local court to “vacate” the Sale on the grounds of No Notice, and you ask for money damages. You can ask for a “show cause” Order requiring the trustee, the Buyer, and/or the Seller to “show cause” as to why the Sale should not be set aside and injunctive relief entered in your favor against them. An Order to Show Cause is typically granted upon your Showing, by accompanying notarized Affidavit, that the Sale was invalid (by being held before the announced date).

    3. You ask for substantial money damages against the trustee and the Seller, If the “Buyer” turns out to be an inside player, then you ask for money damages against him, also.

    All that should put a damper on the players that have jerked you around. If you play your cards right, it will end up being cheaper for the players to hand you title to the house and walk away than to litigate the mess with you from now to the end of time.

    You have a great case! I love it when the bums screw up. the door is wide open for the mega-lawsuit.

    Good luck with it. Sock it to them. Hey, this is America; when in doubt, sue the bums.

  7. KH have you seen Neils letters to the trustee.

    http://livinglies.wordpress.com/foreclosure-defense-forms/letters-and-notices/

  8. KH, Where are you located? It sounds like Cali. Don’t believe anything vultures(aka “trustees”) tell you, their whole plan is to wash away substantial amounts of american citizens unalienable birth, successive, inherent property rights and civil liberties by attracting foreign investment “oppertunity” under the guise of “needing to heal the economy”. & YES make sure you follow the UD process VERY close they will most likely try and do you just like with the Trustee’s Sale. That’s exactly how they got me only I never had any advanced notice of the TS and then the UD they scheduled a hearing the court gave me notice of it but the same day they scheduled that they also set a Summary Judgement hearing 5 days before the other and I never got served or any kind of notice even though the said they did. & one OTHER THING MAKE SURE YOU MAKE IT VERY CLEAR IN EVERYTHING YOU FILE & EVERYTIME YOU ARE SEEN IN COURT THAT YOU ARE DEMANDING A JURY TRIAL AND YOU WILL NOT BE WAIVING THAT RIGHT NO MATTER WHAT. MAKE IT YOUR PRIMARY INQUIRY EVERYOTHER SENTENCE YOU SPEAK TO THEM, SERIOUSLY ITS PROBABLY YOUR ONLY CHANCE.

    Good Luck Let Us Know
    if you need any other 411

    DyingTruth

    PS Check out the forms section here
    & at Scribd for UD Templates u can fill out.

  9. KH–if you can prove that the sale was held a day early, sounds like you’ve got a valid claim. I would do exactly what you’re planning on doing–sue them into oblivion. At least answer the UD complaint.

  10. I welcome everybody’s input regarding the following;

    At the time an auction was to be held, the Trustee postponed it. The Trustee published the auction would be held 2 days later. The property was sold a day early w/o notice. I informed the auctioneer, the sale was not valid w/o proper notice, and they replied at least it was the Trustee that screwed up, and not us.
    I disagree with them. I believe both, the auction co. and the Trustee, knew the sale was held a day early, and that it was a conciense act, which is suppported by their failure to reset the sale. Further more they recorded a Trustee Deed with Fraud on it’s face. And now we were served a summons for a Complaint UD. I have to answer by this Friday. I’m going to fight them and request a trial on it’s merits.

    Please share your thoughts.

    Thank you.
    K.H.

  11. Interesting…so how can HSBC Bank USA be the Trustee of our Securitized Trust AND be the highest bidder at a “public” auction?

  12. Promissory Notes are Cash Equivalent Value of whatever their Face Amount is, Just Like Dollar Bills & Nobody is going to Destroy money for no reason(they are Deposited in a Bank FDIC insured). How else would CDs accrue Interest? by being pooled with Interest Bearing Notes(Promissory Notes). Think about it, if you sign a Deed of Trust/Mortgage putting up your House as Collateral Security for a loan, then what the Hell do they need a Promissory Note for? What do you think is used as the minimum bid by the Beneficiary, Servicer or whoever at the Auction? All Bidders have to be able to post Bond(Binding Agreement/Contract), the Beneficiary uses Your Promissory Note as the opening bid.

  13. In CA, under 2924h(b), only the beneficiary may credit bid and only to the amount owed to it. Failure to pay the bid triggers automatic rescission of the trustee’s sale under 2924h(c). Only problem is that CA trial courts pretty much don’t care about which bank appears as the beneficiary on the trustee’s deed. I’ve lost where the purported beneficiary didn’t even have an assignment of any sort in its favor in the public record. Even in the face of no record of any assignment of any kind, the court merely assumed that the foreclosing party was the beneficiary.

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