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Ask Law Educator, Esq. Your Own Question
Law Educator, Esq.
Law Educator, Esq., Lawyer
Category: Real Estate Law
Satisfied Customers: 118789
Experience:  Licensed attorney practicing landlord-tenant, land use and other real estate law and litigation.
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I am trying to purchase the first trust deed of a friend's

Customer Question

I am trying to purchase the first trust deed of a friend's home who has run into financial difficulties so they can stay in their home. As such, I am trying to make it as difficult as possible for someone else to bid on the property. Questions:
#1 Can only the sheriff conduct a foreclosure sale? I've seen representatives who I don't believe were Sheriffs conduct the sale.
#2 - As the lender, can I conduct the sale?
#3 - If no to question #2, can I hire my own representative to conduct the sale?
#4 - If the Notice of Sale Date has already been published before I purchase the trust deed, and I postpone the sale, do I need to start the 21-day NOS process again?
#5 - If yes to #4, what are my publication requirements? Does publication need to be in the newspaper of greatest circulation in the county or can I use a small newspaper?
#6 - What are the minimum publication requirements? Address?
#7 - Can the sale take place in an inconvenient location as long as it is a government bui
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Law Educator, Esq. replied 1 year ago.
Thank you for your question. I look forward to working with you to provide you the information you are seeking for educational purposes only.
First of all, it is the owner of the deed of trust who has the OPTION of foreclosing or not foreclosing. So if you buy the deed of trust even if that deed is in foreclosure or pre-foreclosure right now, you do NOT have to continue to foreclose. So you do not need to file the foreclosure documents with the sheriff's office for foreclosure auction or you do not have to sell the property.
When a foreclosure takes place it is handled through the sheriff's office in the county where the property is located, you cannot circumvent the process by holding sales in an inconvenient location or making it as obscure as possible so as to avoid any bidders.
A deed of trust almost always contains a “power of sale” clause that enables the trustee or owner of the deed to simply sell the property should default occur. This is called a non-judicial foreclosure. In order to do so, you must file a notice of default in the clerk's office where the county is located and then you give the borrower 10 day notice of the notice of default. If payment or default is not cured in three months from the notice of default, the trustee then issues a notice of sale and records it with the clerk in the county where located. The borrower must get at least 21 day notice of the sale by mail, posting at the property, notice published at the courthouse and also published in the paper of general circulation in that county at least once a week for three consecutive weeks.
However, all of that is moot if you buy the deed of trust, because as new trust owner you do not have to continue to foreclose and do not have to sell the property off.