In historical terms, the California deed of trust is a recent development. Originally parties used a “mortgage” in which the property was conveyed by the buyer to the lender, subject to payment of the debt. Prior to payment of the debt, the lender was entitled to possession of the property.…
I have posted before discussion of a decision which allowed postponing a trustee’s sale, and one which postponed the sale without requiring an injunction bond, because of claims the lender did not comply with Civil Code 2923.5. This section requires that, before filing the Notice of Default, the lender shall…
California lawsuits to set aside a trustee’s sale are generally suits in equity, and a borrower who seeks equity must do equity. One requirement of equity in this situation is that the borrower must pay, or offer to pay, all the secured debt or at least all of the delinquencies…
I have discussed the California Civil Code section 2923.5 requirement in a prior blog about an effort to stop a foreclosure. It requires that, prior to issuing a notice of default, the mortgage lender must contact the borrower by phone or in person to assess their financial condition, and explore…
A prescriptive easement is a right to use someone else’s land by using it continuously without permission. The rules for prescriptive easements have long been established in California. Laches is an equitable concept, which may be raised as a defense, when a party claims that the other side waited too…
A typical California commercial mortgage loan requires the borrower and/or its principals to execute a “bad boy guaranty” (a/k/a recourse carve out guaranty). This which provides for personal liability against the borrower and principals of borrower if certain listed ‘bad acts’ are committed by the borrower and its principals. It…
California Homeowners and Commercial Property Owners often hire contractors to do repairs, remodeling, or new additions to their structures. Most know to make sure that the person or company they hire is a licensed contractor (though you should not rely solely on the contractor’s state license board website). But experienced…
A California Real Estate Broker has a right to payment of a commission only when there is a signed written agreement that provides for a commission. The commission is not earned until the broker completes the performance, and satisfies the conditions, spelled out in the agreement. But, as a recent…
Sometimes a debt may be disputed between the parties. In the early days of my practice I heard stories of people sending a check to their creditor for less then it was due, marked “payment in full” with the hope that the creditor would not notice, cash it and be…
Court decisions in other states, as well as California bankruptcy courts, have implied that there are strict rules regarding assigning and recording assignments of Deeds of Trust and Promissory Notes. The Salazar bankruptcy court decision implied that the note had to be assigned, and in possession of the foreclosing lender.…