The Problem of the Assignment of Deed of Trust
Andrew Noble is a director of dispute management at SRS Acquiom, where he manages post-closing merger & acquisition issues. Andrew previously represented mortgage lenders and servicers at a San Francisco-based law firm and is a former chair of the CLA’s Consumer Financial Services Committee. He may be reached at email@example.com.
Mortgage loan servicers frequently record an assignment of deed of trust in the public records. The assignment is typically from the originating lender, who purports to grant, assign, and transfer all beneficial interest in the deed of trust to the designated assignee. Reading this text, one might assume that (1) the assignor held title to the mortgage loan as of the date of the assignment, (2) the assignment effected a transfer of ownership in the deed of trust and with it, the right to foreclose, and (3) the assignee was entitled to enforce the deed of trust upon the borrower’s default by virtue of the assignment. Surprisingly, all three assumptions would be wrong.