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
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
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
A judgment creditor can record an abstract of judgment, a document that identifies the judgment debtor and the amount of the debt.
The abstract usually does not identify specific property. As long as it properly...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
Almost two years ago, Money and Dirt covered a Fourth District California Court of Appeal opinion addressing an apparent split of authority regarding how a lender can enforce senior and junior deeds of trust on the same...more
5/20/2019
/ Appeals ,
Assignments ,
CA Supreme Court ,
Cal Code of Civil Procedure ,
Commercial Property Owners ,
Deed of Trust ,
Default ,
Deficiency Judgments ,
Junior Liens ,
Lenders ,
Mortgage Lenders ,
Section 580d ,
Senior Lenders ,
Split of Authority ,
Trustee Sales
In California, priority between competing liens on the same real property is usually determined by the “first in time, first in right” rule.
Under that rule, different liens on the same property have priority according to...more
3/2/2019
/ Appeals ,
Assessment ,
CC&Rs ,
Conditions of Participation (CoP) ,
Constructive Notice ,
Covenants that Run With the Land ,
First in Time Laws ,
Foreclosure Sales ,
Golf Courses ,
Land Use Restrictions ,
Lenders ,
Lien Priority ,
Recording Statutes ,
Residential Property Owners ,
Subordination
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
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
Guarantors of loans occupy a vulnerable position under California law.
While direct borrowers often benefit from California’s robust statutory anti-deficiency framework, those protections are often unavailable for...more
9/1/2018
/ Anti-Deficiency Provisions ,
Bad Faith ,
Commercial Bankruptcy ,
Contract Terms ,
Default ,
Equitable Defenses ,
Estoppel ,
Fraud ,
Guarantors ,
Laches ,
Lenders ,
Loans ,
Mitigation ,
Public Policy ,
Remedies ,
Unclean Hands ,
Unjust Enrichment ,
Waivers ,
Willful Misconduct
Under California’s State Housing Law (Health and Safety Code sections 17910-17998.3), if an apartment building owner fails to comply with a notice to repair or abate building standard violations issued by an enforcement...more
8/17/2018
/ Abatement ,
Apartments ,
Appeals ,
Attorney's Fees ,
Building Codes ,
Duty To Repair ,
Equitable Lien ,
Intervenors ,
Lenders ,
Public Housing Authorities ,
Receivership ,
Residential Property Owners ,
Reversal ,
Safety Violations ,
State Agencies ,
State Law Claims ,
Written Notice