This material discusses the duties of the deed of trust trustee and what documentation he should be reviewing. If the trustee received those documents, it would benefit all of us. Well, most of us.

From the time I took my first r.e. courses in 1977, I was taught that the trustee should be given the original note and deed of trust to foreclose, along with evidence of the default. Title companies were the trustees named in deeds of trust, which makes sense because they’re in the business, they have staff attorneys, and real estate is "what they do". 

What the trustee should get is the note with all endorsements and the dot with
any and all assignments (which should have been recorded). There's no reason a borrower
should not get copies of these documents, as well, at least on request.
I’m pretty certain the handy ‘blank’ endorsement on a note first became widely and rampantly used in securitization and at the advent of MERS, although it’s always been available for legitimate use. The
‘old’ notes were likely endorsed to a named party and that was the party with the last assignment of the dot, also.

The trustee’s job for one is to receive and review the defaulted note and all endorsements, the deed of trust, and all assignments of the deed of trust. The trustee must ascertain that the party telling him to foreclose is the right party. Today’s trustees are not doing any such thing, and that is one of our CORE
problems. This failure is right there at the heart of what ails us. They don't get much of anything.
What they get, I'm told, is a password for the servicer’s database to go in and find the default in the database.  (And it's my understanding  this gives them carte blanche access to other borrower's private information, including social security numbers.) There is no regard given by the trustee for who owns the note and dot.  If he doesn't get the documents, he simply cannot know this. The trustee seems to be relying solely on the default showing in the database at the servicer's. Given that up until mid 2010, MERS made no attempt to show the noteowner in its own database, which information was made as a strictly voluntary entry by its members with no oversight in the first place,  it could not  be said that trustees had or have other sources of information beyond the default figures $$ shown in the servicer's system.  Even if a trustee could have or could now access noteowner / beneficiary information in MERS' database, by its own admission, MERS does not stand on the accuracy of that information.  There is no reasonable argument that such reliance by a deed of trust trustee, a party with such an important task, would be appropriate.

The trustees are actually vulnerable imo to a zillion lawsuits for breach of the ficuciary imposed by the deed of trust or alternatively or additionally for violation of the covenants of good faith and fair dealing. The trustee may only act for the beneficiary of the deed of trust, who to gain the benefit of the
collateral instrument, the dot, must also own the right to payment evidenced by the debt instrument, the note. The dot only authorizes a trustee to act for the proper party. 

 As evidence that the trustee isn’t getting these docs which define the proper party to command foreclosure, one need only look at all the unfortunate, court-clogging lawsuits. If a homeowner says ABC is a stranger to me,  ABC could just get their original docs back from the trustee or tender certified copies,  but they don’t and can’t because he never got them. And speaking of certified copies, if the lender will not release his originals to the trustee, as may be the case, the trustee should at least be given certified copies.

The trustee never got them because the endorsements on notes and assignments of the deeds of trust are non-existant and missing. The original note may be MIA, as well. This is the beginning of the crime (never minding other arguments about sec’n, swaps, insurance, never made it into the trust, etc.) of
wrongful foreclosure. If all the rules had been followed by the lender,  its successors and assigns, the trustee could and would be given the appropriate documents he is in truth to be given to perform his duties.

Today's players didn’t follow the rules and cannot produce these documents for the trustee. So today’s trustee’s are acting as mere collection agents for strangers, strangers even to the trustee.

The deed of trust is a three party instrument and the instrument was created that the trustee would act on behalf of the other two parties –  the beneficiary and the trustor (borrower) - so lenders could skip
judicial foreclosure – with the ‘aid’ of the trustee, a neutral party.
But trustees these days outrageously might be just any yahoos with little more than a pulse. When trustees abandon their duties to the deed of trust, they should be called out in whatever manner possible for dereliction of duty.

MERS enables and participates in a lot of bad acts, but that is no excuse for the trustee not fulfilling his obligations to the terms of the deed of trust. He just canNOT do this when he doesn’t
get the documents. I foresee many suits against any rotten-apple trustees in the near future.  Trustees are far from bit players; they are major players because it’s their mandate to follow the terms of the deed of trust, to protect the very significant interests of the other two parties,  and if they did, strangers wouldn’t be making off with real property, litigation would abate significantly, buyers could buy legitimate foreclosures and sleep at night, and title companies would not be put in a moral, legal, and economic, and thus unfair, catch 22 over insurance.