In fn 11, Judge Mann stated that she believed the CA Supreme Court would have followed the statutory requirements of the sections below (moot since Appellant Gomes did not go there).
fn 12 states that MERS is not the payee of the secured debt and thus could not satisfy the first requirement of CC 2932.5 in any event.
It seems that neither of these sections are averse to proper assignment of a trust deed and the transfer of authority that goes along with a proper assignment.
California Civil Code Section 2932.5
Where a power to sell real property is given to a mortgagee, or other encumbrancer, in an instrument intended to secure the payment of money, the power is part of the security and vests in any person who by assignment becomes entitled to payment of the money secured by the instrument. The power of sale may be exercised by the assignee if the assignment is duly acknowledged and recorded.
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California Civil Code Section 2936
The assignment of a debt secured by mortgage carries with it the security.
The way I’m reading these sections is that they are part and parcel of the “statutory scheme” of the longtime non-judicial foreclosure process in CA. A “substitution of trustee” merely has to be recorded in this instance prior to an NOD being filed. This is a commonplace occurrence and language of a typical trust deed (with or w/o an “assigment of rents” provision) encumbering CA real property provides for this procedure. The original “note” does not need to be located. The trust deed language gives the new servicer (publicly noticed) the authority to foreclose.
