AZ STATUTE DEFINES BENEFICIARY and CREDIT BID: NOT “NOMINEE”

33-801. Definitions

In this chapter, unless the context otherwise requires:

1. “Beneficiary” means the person named or otherwise designated in a trust deed as the person for whose benefit a trust deed is given, or the person’s successor in interest. [Note that this does not include a nominee like MERS. There is a reason for that. The legislature intended to create certainty in contracts and actions on contracts. Using a nominee immediately creates the question of agency. The question of agency immediately raises the question of “who is the principal?” As long as that question exists, this statute is violated. If this statue is violated the deed of trust is void.]

2. “Business day” means any day other than a saturday or a legal holiday.

3. “Cash” means United States currency.

4. “Contract” means a promise or a set of promises for the breach of which the law gives a remedy, or the performance of which the law in some way recognizes as a duty, including but not limited to a note, A promissory note or provisions of any trust deed.

5. “Credit bid” means a bid made by the beneficiary in full or partial satisfaction of the contract or contracts which are secured by the trust deed. [Note that such credit bids are the rule rather than the exception and that the person making the credit bid is almost never the named the beneficiary. hence the sale is void]. [Note also that without an accounting for third party payments to the creditor in the securitization chain who has succeeded to the position of beneficiary BECAUSE THE SUCCESSION IS SHOWN IN THE COUNTY RECORDS, is voidable because the amount is incorrect, which is a question of fact that must be judicially resolved, which is why NO NON-JUDICIAL sale of securitized property is appropriate.] Such credit bid may only include an amount up to the full amount of the contract or contracts secured by the trust deed, less any amount owing on liens or encumbrances with interest which are superior in priority to the trust deed and which the beneficiary is obligated to pay under the contract or contracts or under the trust deed, together with the amount of other obligations provided in or secured by the trust deed and the costs and expenses of exercising the power of sale and the sale, including the trustee’s fees and reasonable attorney fees actually incurred. (e.s.)

6. “Force majeure” means an act of God or of nature, a superior or overpowering force or an event or effect that cannot reasonably be anticipated or controlled and that prevents access to the sale location for conduct of a sale.

7. “Parent corporation” means a corporation which owns eighty per cent or more of every class of the issued and outstanding stock of another corporation or, in the case of a savings and loan association, eighty per cent or more of its issued and outstanding guaranty capital.

8. “Trust deed” or “deed of trust” means a deed executed in conformity with this chapter and conveying trust property to a trustee or trustees qualified under section 33-803 to secure the performance of a contract or contracts, other than a trust deed which encumbers in whole or in part trust property located in Arizona and in one or more other states.

9. “Trust property” means any legal, equitable, leasehold or other interest in real property which is capable of being transferred, whether or not it is subject to any prior mortgages, trust deeds, contracts for conveyance of real property or other liens or encumbrances.

10. “Trustee” means an individual, association or corporation qualified pursuant to section 33-803, or the successor in interest thereto, to whom trust property is conveyed by trust deed. The trustee’s obligations to the trustor, beneficiary and other persons are as specified in this chapter, together with any other obligations specified in the trust deed.

11. “Trustor” means the person conveying trust property by a trust deed as security for the performance of a contract or contracts, or the successor in interest of such person.

6 Responses

  1. Hello. A google search of freddie mac and credit bid brought me to this website. I don’t understand half of what you all are saying, but comprehend most of it. Look, I run a halfway house here in Houston, Texas, in a leased home that was foreclosed on last summer. I knew nothing about the sale until receiving a “to occupants” notice about a week prior to the sale. It said the property would be sold by the mortgagee Bank of America by public auction to the highest cash bidder. I went to the auction at the courthouse. When nobody made a bid, I bid one dollar. The trustee then entered a credit bid from Freddie Mac for $36,000 and so went the house to Freddie Mac (who, by the way, is now ignoring the Protecting Tenants at Foreclosure Act and has recently filed an eviction case). I told the trustee I objected to the credit bid as Freddie Mac is not named as a creditor in any of the legal documents. The trustee accepted my $1 payment, but approximately two weeks later a lawyer claiming to represent both Bank of America and Freddie Mac returned my payment with a letter saying his clients had declined my tender. What they’ve done — is it legal? Would appreciate any advice? Thanks. My email is newbeginningshouston@live.com

  2. My post may be not that appropriate to this article but I’m wondering if deutch did credit bid how and when did they come into the picture. All that dkullduggery in between is what I wish to know and the fees and profits along the way whilst they ruined me and my lifey credit and everything I have ever worked for

  3. Foreclosed on the 21st despite being served but pretending they had not I arrive home after a 12 hr shift talking care of the sick there’s a note shoved in my door and business card a Scott Dexter of remax excalibre ( how dare he use that word excalibre) he’s an REO agent the note says deutch bank one west / indymac sent me and you need to call me to make arrangments to move out. Now this I’d the first I heard of deutch bank the foreclosure notice was indymac as beneficiary only thru transfer from vice president for the day of mers done one day befor Nots back in feb 09 so then one west get srvicing rights apparently hells Fargo is master servicer trustee of securitization trust xxxx I stopped them in bk court but to litigate the case I filed in federal court and so after service of process I came out of bk court. I had beaten them there and stopped the motion to lift stay however I voluntarily had the bk dismissed so that ibwould be under the jurisdiction of federal court that was probably a fatal mistake so yeh you guessed it open season on my home to steal it right out from under me without a single legal maneuver by those banksters I’m in az I’m in shock and I’m praying my attorney will come thru for me I simply cannot believe as someone once put it the huge atomic balls these fraudsters have to commit such henious frauds and get away with it they literally pretended they had not Bern served I do have evidence that they had cause to know and that they had played this out waiting fir the moment where they could strike I see that now every step of the way fraud

  4. This further illuminates the law regarding who, specifically is entitled to make a credit bid, using the remaining balance due on the mortgage as their reserve bid, to the exclusion of other interested bidders. This (credit bid inclusions) doesn’t include distressed debt buyers, vulture funds, foreclosure mills, MERS, defunct “trusts”. More should be made of this information. This is what I was getting at several months ago when I mentioned the proliferation of “bank owned” signs on foreclosed properties. They are not owned by the “banks” for the most part, and in being so mischaracterized, give people the wrong impression, of what is happening, especially when news clips of the “foreclosure crisis” are aired nationwide showing home after home with a “bank owned” sign in front of it. This is false advertising under the FTC and/or state laws. As Al Capone was put away on IRS violations rather than murder or racketeering charges, complaints to the FTC could precipitate a change in mindset among the public. Perception is everything, reality follows perception.

  5. I see where this can be used along with the current class action suit in Calif against BAC (TARP not applied.. etc.) to proclaim that the purported owner of the note cannot “credit bid” at a non judicial foreclosure because not all payments (as discussed here ,, TARP,Insurance and quasi insurance products etc.) have not been factored and therefore the amount of credit to be granted the bidder is unknown.

    I can see this as a way to force judicial review across the board and open discovery… additionally it would seem to be the kind of motion that could be “boiler plated” in a mad lib way. However I am thinking that this must be yet another class action or introduced as an argument at the current CA BAC suit..

    Am I looking at this correctly and if so how would this help people in Florida? I am not a lawyer ,, just caught up in the process….

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