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Guarantor Liability: Assignment of Note Doesn’t Automatically Assign Guaranty Too

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

Loan Modifications and Losing Lien Priority

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

How a Junior Lien Can Survive Judicial Foreclosure

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

Purchaser Has No “Notice” from an Erroneous Abstract of Judgment

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

Ninth Circuit Weighs in on “Preemptive” Challenges to Lender’s Authority to Foreclose

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

A Notice of Trustee’s Sale Does Not Necessarily “Disturb Possession”

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

Can a Loan Modification Waive the Borrower’s Right of Reinstatement?

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

When the Same Lender Has Both a Senior and Junior Deed of Trust (Revisited)

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

CC&R “Subordination” Provisions and Lien Priority

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

The Tender Rule — Reinstatement and Redemption are Different

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

Not All Deed of Trust Attorney Fee Clauses are Created Equal

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

Loan Guaranties: Statutory and Legal Defenses Can Be Waived, But What About Equitable Defenses?

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

Substandard Apartment Building Receiverships — Who Is On The Hook For Attorney Fees?

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

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