There can only be one Trustee at a time ANTHONY E. DIMOCK, Plaintiff and Appellant, v. EMERALD PROPERTIES LLC et al.

, Defendants and Respondents. No. D032454. Court of Appeal, Fourth District, Division 1, Cali- fornia. Jun 21, 2000.

To foreclose in California, a party must have the right to enforce the instrument creating the debt (the Promissory Note). In this case Recontrust as agent for Mortgage Electronic Registration Systems aka MERS or The Bank Of New York Mellon FKA The Bank Of New York As Trustee For The Certificate Holders of the CWALT, INC Alternative Loan Trust 2006 OA21, Mortgage Pass-Through Certificate did not have that right and thus cannot foreclose on a Trust Deed. The foreclosure was initiated on January 28, 2011. There was never any assignment of Deed of Trust from PHM Financial Inc. to any other beneficiary. The actual fact that defendant Bank Of New York was a the Holder of the note can not be evidenced at the time the foreclosure was initiated. The Trustee of record at the time of foreclosure was Chae H Bae (SEE EXHIBIT A) The Notice of default which was January 28th which would indicate that Bank of New York Mellon, did not have the right to foreclose prior to having any security interest (SEE EXHIBIT B) According to the CWALT 2006 AO2 Pass-through Trust documents filed with the SEC 11894 Bridgewood Way, San Diego, CA 92128 was not registered as a

property in the pool pledged as security. (See Exhibit C) On the original Deed of Trust Mortgage Electronic Registration Systems (MERS) was appointed as Nominee Beneficiary and at the time MERS was not registered in California to do business as per The California Corporations Code requires entities that transact{} intrastate business in California to acquire a certificate of qualification from the California Secretary of State. Cal. Corp. Code _ 2105(a). Recontrust ( Trustee ) was not substituted in as trustee at the time prior to the Notice of Default being issued and recorded, therefore is out of compliance. As per Deeds of Trust 35--Sale Under Power, Who May Convey, Following Substitution of New Trustee. Where the beneficiary of a deed of trust recorded a document that substituted a new trustee for the former trustee, and the substitution of the new trustee was never subject to any further recorded substitution by the beneficiary, the new trustee had sole power to convey the property. Under the unambiguous terms of Civ. Code, 2934a, subd. (a)(4), there r cording of the substitution of trustee transferred to the new trustee the exclusive power to conduct a trustee's sale. Upon the appointment being made under the power, the new trustee became vested, ipso facto, with the title to the trust premises and was clothed with the same power as if the new trustee had been originally named. Such a reading of the statute is consistent with practical necessity: To avoid confusion and litigation, there cannot be at any given time more than one person with the power to conduct a sale under a deed of trust. The beneficiary's agent was not able to effectively rein- state the former trustee by simply abandoning the internal foreclosure file it had created upon the subsituation. Civ. Code, 2934a, permits a substitution only by way of a recorded document, and the terms of the deed of trust itself did not provide any

alternative means of making a substitution. As a practical matter, if the validity of a recorded substitution was subject to the undisclosed, undocumented, and subjective decisions of agents of the beneficiary, the successor trustee's ability to provide marketable title would be severely hampered. [See 3 Witkin, Summary of Cal. Law (9th ed. 1987) Security Transactions in Real Property, 8.] (3a,3b)Deeds of Trust 35 Sale Under Power) There can only be one Trustee at a time ANTHONY E. DIMOCK, Plaintiff and Appellant, v. EMERALD PROPERTIES LLC et al., Defendants and Respondents. No. D032454. Court of Appeal, Fourth District, Division 1, Cali- fornia. 2000. Jun 21,