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NOD Notice of Sale Trustee Sale FAQ

Notice of the time and place of sale is a prerequisite to a sale under a power of sale. [Civ. Code, §§ 2924, 2924f; for form of notice of sale, see § 4:110] Civ. Code § 2924b was amended effective January 2005. The actions specified in that section relating to recording a notice of default now also apply to a notice of sale. Additionally, the changes expand the list of persons authorized to make the recordings. The notice may not be given, however, until at least 3 months have elapsed after recordation of the notice of default. [Civ. Code, § 2924; for discussion of recordation of notice of default, see § 4:96] The notice of sale must be published, posted, and mailed as required by statute at least 20 days before the sale, and it must be recorded at least 14 days before the sale. [Civ. Code, § 2924f, subd. (b)]

The mailing, publication, and delivery of notices required by Civ. Code, § 2924, and the performance of procedures set forth in Civ. Code, §§ 2920 et seq. constitute privileged communications within Civ. Code, § 47. [Civ. Code, § 2924]

The notice of sale must state the following [Civ. Code, § 2924f(b) and (c)]:

(1) the time of sale and the street address and specific place at that address where the sale will be held.

(2) A description of the property to be sold. In addition to any other description, the notice must describe the property by street address, if any, other common designation, if any, and a county assessor's parcel number. If the property has no street address or other common designation, the notice must contain a legal description and the name and address of the beneficiary. [Civ. Code, § 2924f, subd. (b)(1)]

(3) the name, street address, and telephone number of the trustee or other person conducting the sale.

(4) the name of the original trustor or mortgagor.

(5) the total amount of the unpaid balance of the secured obligation and a reasonable estimate of the costs, expenses, and advances as of the initial publication of the notice. The trustee is not liable for a good faith error. [SeeCiv. Code, § 2924f, subd. (b)(1)] Civ. Code § 2924c(d) and Civ. Code § 2924d(a) establish the basis and determination of trustee and attorney fees.

(6) a special warning when the property is improved with a single-family owner-occupied residence and the secured obligation is subject to the Unruh Retail Installment Sales Act (Civ. Code, §§ 1801 et seq.).

(7) a statement of the personal property or fixtures to be sold where the sale of the property is to be a unified sale

The validity of the notice will be upheld despite erroneous or omitted information, when a legal description or a county assessor's parcel number and either a street address or other common designation is given. [Civ. Code, § 2924f, subd. (b)(1)] A premature notice of sale served by registered or certified mail and by first class mail, which does not prejudice the trustor, does not invalidate the sale. [Knapp v. Dogherty, 123 Cal.App. 4th 76]

The notice must be posted in a public place in the city (or judicial district if the sale is outside a city) in which the property is to be sold at least 20 days before sale. The notice must also be posted in some conspicuous place on the property where possible and not restricted for any reason. [Civ. Code, § 2924f, subd. (b)(1)]

The notice must be published once a week for three consecutive calendar weeks, in a newspaper of general circulation in the city or judicial district, with the first publication to be at least 20 days before the sale. If there is no such paper, publication may be had in a county newspaper of general circulation, or if none, in a paper of general circulation in the most populous contiguous county. [Civ. Code, § 2924f, subd. (b)(1)] "Calendar week" means Monday through Saturday, inclusive. [Civ. Code, § 2924f, subd. (a)]If there is no such paper, publication may be had in a county newspaper of general circulation, or if none, in a paper of general circulation in the most populous contiguous county. [Civ. Code, § 2924f, subd. (b)(1)]

The notice must be recorded in the county where the property or some portion of the property is located at least 14 days prior to the date of sale. [Civ. Code, § 2924f, subd. (b)(1)]

At least 20 days before the sale, the notice of sale must be mailed by registered or certified mail to all persons who are entitled to receive a notice of default. [Civ. Code, § 2924b, subd. (b)(2) and (3); for discussion of persons entitled to receive notice of default, see § 4:96] The term "last known address" as set forth in Civ. Code, § 2924b is the last known business address or residence physical address. An address is actually known if it is contained in the deed of trust or if the trustor provides subsequent notification in writing. Physical address does not include an e-mail or any form of electronic address. [Civ. Code, § 2924b, subd. (b)(3)] In addition to the notice by registered or certified mail, the notice must be mailed to the trustor or mortgagor by first-class mail, and the trustee, beneficiary, or mortgagee must execute and retain an affidavit of mailing. [Civ. Code, § 2924b, subd. (e)]

Civ. Code, § 2924b, subd. (c)(4) requires notice of sale to be sent to the IRS if a "Notice of Federal Tax Lien" has been recorded against the subject property.

Where a trustor died and the trustee became aware of the death through the trustee sale guaranty, a foreclosure sale and a resale were set aside although the public administrator failed to record a request for notice of default. [Estate of Yates (1994, 4th Dist.) 25 Cal. App. 4th 511, 32 Cal. Rptr. 2d 53] In the case of Moeller v. Lien (1994, 2nd Dist.) 25 Cal. App. 4th 822, 30 Cal. Rptr. 2d 777, the court came to a different conclusion in holding that a trustor's tender of the sums due 1 day after the sale, but before the trustee's deed was recorded, would not constitute a basis for setting the sale aside even though the successful bidder was clearly a speculator (who purchased the property valued at $350,000 for $86,000).

The trustee, beneficiary, or mortgagee has only the duty to discharge the responsibilities specified in the security instrument and statutes, and he or she has no duty to exert efforts to procure bidders other than to give the required notices. For example, he or she has no duty to give notice to any junior lienor except as specifically required by statute. [Sugiyama v. Cuneo (1962, 1st Dist) 208 Cal. App. 2d 397, 25 Cal. Rptr. 348] By statute, however, statutorily prescribed notice must be given in the case of federal tax liens [26 U.S.C.A. § 7425(b) and (c)] and state liens for postponed property taxes [Gov. Code, § 16187, subd. (b)].

A recording of a declaration of substandard property by a governmental agency does not give due process notice of demolition to a beneficiary. [D & M Financial Corp. v. City of Long Beach, 136 Cal. App. 4th 165, 38 Cal. Rptr. 3d 562 (2d Dist. 2006), review denied, (May 10, 2006)

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