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Bank Loses Appeal On Eviction After Foreclosure

Posted on: April 9, 2014

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In case of The Bank of New York Mellon v. Vidal A. Precacido, et al, (ordered published 3/19/14)

Appellate Div. No. 1-12-AP-001360, the Court overturned the trial court’s judgment for possession in an unlawful detainer action against the tenants in possession after the Bank foreclosed by Trustee’s Sale and overturned the trail court’s judgment in a concurrent related civil action for wrongful foreclosure filed against the Bank by the foreclosed borrower. The Bank’s foreclosure and eviction procedures were fatally flawed.

1) The unlawful detainer judgment was reversed because the proof of service was defective; the summons and complaint were properly served by ‘post and mail’ but the defect was in the proof of service; the serving Sheriff did not state in the declaration that he knocked on the door but no one answered.  The Court explained that in order for the ‘post and mail’ form of service to be valid, there has to be a declaration from the process server or testimony at trial that the server could not find anyone of suitable age at the property before posting the summons. The Bank proffered no such evidence and the Appellate Court held that the general denial of the defendants sufficient to challenge the form of proof of service attached to the complaint sufficiency of service. 

2) The Appellate Court also found that the Bank failed to put on sufficient evidence at the wrongful foreclosure trial that the Trustee Sale was duly performed or that the Bank had perfected title.  The only evidence the Bank presented at trial pertaining to its ownership of the property was a Trustee’s Deed Upon Sale.  The problem was, the deed was issued by the trustee that conducted the sale, but not the same trustee as named in the Deed of Trust upon which the foreclosure was based. The Bank did not present any evidence that there was ever a substitution of trustee and therefore the Appellate Court held that the Trustee Sale was conducted by the wrong trustee, and thus the trustee sale did not conform to Civil Code 2924 and was fatally defective. 

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