Thus, there is a major substantive failure in the non-judicial foreclosure process and thetransaction cannot stand. In order for U.S. Bank to have proceeding the first instance under CivilCode section 2924 et seq., it was required to be record owner, which is was not.As such, Plaintiff U.S. Bank, N.A. is not entitled to obtain possession of the SubjectProperty as such evidence overcomes the rebuttable presumption of correctness of the sale.Secured interests in real property are demonstrated by recordation so that the entire worldwill know that a party maintains a secured interest therein. That’s why interests in real propertyare recorded and deeds are submitted as evidence to assert rights of interest and titleIt is a fundamental precept of property law that in order to enforce the power of sale, the beneficiary of a deed of trust must be able to prove the existence of their secured interest in thesubject property. Here, U.S. Bank has never demonstrated that it ever had such a secured interestand as such the Trustee’s Deed After Sale must be excluded from admission as evidence.
The public records of the Office of the County Recorder for Stanislaus County as itrelates to the property located at: 1312 Harbour Town Lane, Modesto, California 95357,(hereinafter “Subject Property”). Defendant Anthony J. Martin was the title owner of the SubjectProperty until Plaintiff conducted an invalid non-judicial foreclosure proceeding on May 15,2009. Prior to the execution of a Trustee’s Deed After Sale against the Subject Property,Plaintiff U.S. Bank, N.A. did not maintain a secured interest in the Subject Property. AlthoughPlaintiff alleges in general that the assets of Downey Savings & Loan (hereinafter “Downey”)were sold by the Federal Deposit Insurance Corporation (hereinafter “FDIC” to Plaintiff U.S.Bank, N.A., the public records do not reflect that the Subject Property at issue in this case wasever conveyed either by Downey, and the public records of Stanislaus County Recorder do notshow that an assignment of the Deed of Trust was ever executed and recorded.The ability to enforce the power of sale of a secured instrument in real property iscontrolled by Civil Code section 2932.5, which allows an assignee to proceed with a non-judicialforeclosure providing that the assignment is properly acknowledged and recorded. Here, noassignment was ever recorded by Downey, the FDIC or Plaintiff U.S. Bank. Plaintiff did notmaintain a properly acknowledged and recorded security instrument in the Subject Property, at
_____________________________________________________________________________________DEFENDANT’S MOTION IN LIMINE TO PRECLUDE ADMISSION OF THE TRUSTEE’S DEED AFTER SALE