Receivership is a provisional remedy within a court’s broad equitable jurisdiction. The statute most commonly used in obtaining a receivership is Code of Civil Procedure section 564. But other statutes sometimes apply, such...more
A foreclosure sale purchaser attempting to evict a tenant on the property can encounter pitfalls, as made clear in a series of court cases in recent years. Here is a summary, capped by an update on a recently filed...more
Obligations reduced to a promissory note are often accompanied by a written guaranty. The law treats the guaranty as an independent obligation.
A case recently decided by California’s First District Court of Appeal —...more
12/28/2023
/ Appeals ,
Cal Code of Civil Procedure ,
Deed of Trust ,
Foreclosure ,
Guarantors ,
Guaranty Claims ,
Investors ,
Lenders ,
Liability ,
Loan Servicing ,
Promissory Notes ,
Reversal ,
Settlement
Under California’s easement “merger” (merger of title) doctrine set forth in Civil Code sections 811 and 805, an easement (or servitude) is “extinguished” by “the vesting of the right of the servitude and the right to the...more
Owners of real property generally understand that their property rights can be impacted by litigation in which they are a party. However, what’s less clear, but perhaps equally important to understand and guard against, is...more
6/27/2022
/ Action to Quiet Title ,
Appeals ,
Asset Purchaser ,
Criminal Prosecution ,
Due Process ,
Foreclosure ,
Fraudulent Transfers ,
Grant Deed ,
Non-Parties ,
Property Ownership ,
Purchase Agreement ,
Real Estate Transfers ,
Reverse Mortgages ,
Void Contracts
One of the unresolved issues over the past several years in the realm of lender liability law is whether lenders owe tort duties to borrowers in connection with loan modification applications. Until now, case law has been all...more
4/29/2022
/ Breach of Duty ,
CA Supreme Court ,
Consumer Financial Products ,
Deed of Trust ,
Economic Loss Doctrine ,
Financial Institutions ,
Financial Services Industry ,
Foreclosure ,
Loan Modifications ,
Mortgage Lenders ,
Mortgages ,
Wells Fargo
Modifying a loan can sometimes cause a loss of lien priority. It all depends on the facts underlying the modification, and even the original loan....more
Under California’s Quiet Title Act, a third party who acts in reliance on a quiet title judgment retains its property rights even if that quiet title judgment is later declared void as long as the third party qualifies as a...more
A deed of trust beneficiary usually feels pretty confident with the validity of the deed as long as it is signed by an owner of the property.
But when the property constitutes community property of a married couple, is...more
Under California’s Revenue and Taxation Code, the purchase price of real property usually creates a rebuttable presumption regarding the property’s “fair market value.” However, for that presumption to apply, the sale must...more
Oscar Wilde is quoted for saying—“To expect the unexpected shows a thoroughly modern intellect.”
This advice certainly holds true for a senior deed of trust lienholder contemplating foreclosure on real property security. ...more
After a foreclosure sale by a senior creditor, California’s Civil Code section 2924k governs how the sale proceeds are applied in the following order of priority...more
Can a California real property owner challenge a lender’s authority to foreclose before a foreclosure sale has occurred? It’s looking less likely with each new appellate opinion....more
7/31/2020
/ Appeals ,
Assignments ,
Borrowers ,
Deed of Trust ,
Foreclosure ,
Lack of Authority ,
Lenders ,
Preemptive Challenges ,
Property Owners ,
Residential Property Owners ,
Split of Authority ,
Standing
Flashback: Five years ago, Money and Dirt covered the Salazar v. Thomas opinion from California’s Fifth District Court of Appeal holding that a Notice of Default does not “disturb possession” sufficiently to start the...more
6/29/2020
/ Action to Quiet Title ,
Appeals ,
Borrowers ,
Deed of Trust ,
Foreclosure ,
Foreclosure Sales ,
Home Equity Line of Credit ,
Lenders ,
Notice of Default ,
Notice Requirements ,
Property Owners ,
Real Estate Transactions ,
Reversal ,
Statute of Limitations ,
Time-Barred Claims ,
Trustee Sales ,
Trustees
Loans secured by a deed of trust typically provide that upon default (commonly, missed interest payments) the lender may elect to “accelerate” the loan, making the entire balance of principal and interest due....more
To be enforceable, a deed of trust must sufficiently describe the real property security.
There are several different ways to describe real property. Commonly used methods include referring to a block and lot number from a...more
Foreclosure can often have tricky impacts on lease rights... See Eviction After Foreclosure: California Supreme Court Weighs In and When a Lender Forecloses on a Leasehold Interest….
An opinion recently published by...more
10/28/2019
/ Appeals ,
Assignments ,
Breach of Contract ,
Commercial Leases ,
Commercial Tenants ,
Foreclosure ,
Fraud ,
General Partner ,
Joint and Several Liability ,
Judgment Debtors ,
Landlords ,
Limited Liability Partnerships ,
Money Judgment ,
Motion to Amend ,
Parking Lots ,
Reversal ,
Shopping Centers ,
Termination of Rights ,
Third-Party Beneficiaries
A trustee in charge of administering a trust has many duties.
A trustee appointed pursuant to a deed of trust, however, is different. The duties of a deed of trust trustee are exceptionally narrow.
A recent opinion...more
8/25/2019
/ Appeals ,
Assignments ,
Construction Loans ,
Deed of Trust ,
Default ,
Demurrers ,
Dismissals ,
Duties & Responsibilities ,
Fiduciary Duty ,
Foreclosure ,
Land Developers ,
Loans ,
Reaffirmation ,
Trustees ,
Verification Requirements ,
Wrongful Foreclosures
Under California’s “tender rule,” a borrower suing to halt or unwind a wrongful foreclosure sale generally must allege that it tendered the amounts due on the loan before the sale. The rationale underlying the tender rule is...more
1/21/2019
/ Accelerated Payments ,
Appeals ,
Borrowers ,
Default ,
Delinquent Borrowers ,
Foreclosure ,
Lenders ,
Mortgage Lenders ,
Mortgages ,
Redemption Agreement ,
Reinstatement ,
Reversal ,
Statutory Rights ,
Tender Rules ,
Wrongful Foreclosures
This week, the California Supreme Court issued its opinion in Dr. Leevil, LLC v. Westlake Health Care Center. The case reviewed the decision of the California Court of Appeal from March 2017...more
12/22/2018
/ Appeals ,
CA Supreme Court ,
Cal Code of Civil Procedure ,
Condition Precedent ,
Deed of Trust ,
Eviction ,
Foreclosure ,
Notice Requirements ,
Notice to Quit ,
Perfection of Title ,
Popular ,
Recording Statutes ,
Tenants ,
Transfer of Title ,
Trustee Sales
Lenders who prevail on claims arising from a deed of trust can always recover their attorney fees from the losing party as long as the deed of trust says something about fee recovery, right?
It’s not that simple....more
11/30/2018
/ American Rule ,
Anti-Deficiency Provisions ,
Appeals ,
Attorney's Fees ,
Borrowers ,
Contract Terms ,
Debt ,
Deed of Trust ,
Demurrers ,
Fee Agreements ,
Foreclosure ,
Lenders ,
Mortgage Lenders ,
Mortgages ,
Non-Signatories ,
Prevailing Party ,
Summary Judgment
For nearly three years, one of the rapidly developing areas of California foreclosure law has focused on whether a borrower has “standing” to challenge a wrongful foreclosure based on defective assignments of the note or deed...more