Legal Question in Real Estate Law in California

Can an attorney-in-fact sign/notarize a substitution of trustee for its client as "clientname" rather than as "attorney in fact for clientname"?

Asked on 9/27/13, 11:05 am

2 Answers from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law
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I've spent about an hour researching your question, and I'm still not sure. Here are some of the closely-related laws:

Civil Code section 1095 says, "When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact." If a substitution of trustee were indeed "an instrument transferring an estate in real property," the answer would be obvious. However, a substitution of attorney doesn't transfer an estate in real property.

Probate Code section 4300 says "A third person shall accord an attorney-in-fact acting pursuant to the provisions of a power of attorney the same rights and privileges that would be accorded the principal if the principal were personally present and seeking to act." This also does not specifically answer your question.

There seems to be a conflict between the statute requiring clarity of a transferor's name for recording purposes (Civil Code 1095) and the statute giving attorneys in fact broad authority to act on behalf of their principals espoused in the Probate Code. I didn't find any law, case or treatise discussion in an hour of searching. It probably exists, but I didn't find it. Sorry.

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9/28/13, 12:27 pm
Anthony Roach Law Office of Anthony A. Roach
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Substitutions of trustee for deeds of trust are governed by Civil Code section 2934a. The substitution of trustee is supposed to be executed by the beneficiaries, or their successor's in interest, or the holders of more than 50 percent interest for beneficial interests in a series of notes. If the substitution of trustee is executed by someone with a power of attorney for someone other than one of those parties, the substitution of trustee is not valid.

When a person with power of attorney signs ("executes") a document, they must sign their principal's name, and then their name as attorney in fact. "When an attorney in fact executes an instrument transferring an estate in real property, he must subscribe the name of his principal to it, and his own name as attorney in fact." (Civ. Code, sect. 1095.)

Mr. Whipple thinks that a substitution of trustee does not do this, but I respectfully disagree. A property executed substitution of trustee changes which trustee may exercise the power of sale, which is what is conveyed by the trustee's deed upon sale at a nonjudicial foreclosure sale.

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9/30/13, 11:14 am

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