Texas Commercial Law Firm
Foreclosure
3. Recording appointment of substitute trustee. The appointment of a substitute trustee does not need to be recorded to be effective if the deed of trust does not require recordation. Browne v. Investors, Syndicate, 60 S.W.2d 1047 (Tex. Civ. App.--Dallas 1933, no writ); Stone v. Watt, 81 S.W.2d 552 (Tex. Civ. App.--Eastland 1935, writ ref'd). Where the deed of trust requires recordation of the appointment of substitute trustee, any acts undertaken as trustee prior to the recordation of the appointment are not valid. Feine v. Wilson, 192 S.W.2d 456 (Tex. Civ. App.--Galveston 1946, no writ); Smith v. San Antonio Joint Stock Land Bank, 130 S.W.2d 1070 (Tex. Civ. App.--Eastland 1929, writ ref'd). Acts taken by one prior to being appointed pursuant to the terms of the deed of trust such as posting notices and sending notices are not invalid provided the trustee is appointed in accordance with the terms of the deed of trust at least 21 days prior to the sale. Chandler v. Guaranty Mortgage Company, 89 S.W.2d 250 (Tex. Civ. App.--San Antonio 1936, no writ).
4. Omission of named trustee. In the event the deed of trust fails to name a trustee the beneficiary may appoint a substitute trustee under the terms of the deed of trust without reforming the deed of trust to name an original trustee. Mid-City Management Corp. v. Loewi Realty Corp., 643 F.2d 386 (5th Cir. 1981). However, the safer practice would be to bring suit to appoint a trustee unless the mortgagor agrees in writing to a named trustee.
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