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REAL ESTATE

ANAND LAW represents consumer and corporate clients in a variety of real estate matters

Commercial Transactions

Landlord/Tenant

Mortgage & Foreclosure

Partition & Quiet Title

Mortgage & Foreclosure FAQ

Can my lender refuse to accept a payment for the amount I am in default and foreclose?

They cannot refuse to accept your payment for the full amount of default at any point prior to 5 days before the sale (Cal Code 2924c).  Up until then, you have a statutory right to “reinstate” the loan by paying the default amount, and they are required to file a Notice of Rescission of the Notice of Default.

Do I have the right to pay my lender to purchase my property back after a foreclosure sale?

In California, almost all foreclosure sales are “non-judicial foreclosure” sales, meaning they take place without any court action.  A “judicial foreclosure” takes place after a court case is filed, and a Judge rules that the foreclosure action can take place.

 

After a non-judicial foreclosure sale is held, you do not have the right to purchase the property back from the lender (unless they are willing to do so, but you don’t have the right to force the sale back to you), except for foreclosure sales held by the holder of an HOA lien, in which case you have 90 days to do so.

If my home is sold at a foreclosure auction, will I get any of the money?

The proceeds from property sold at foreclosure sale must be distributed in the following order of priority:

 

  1. to the foreclosure trustee for costs and expenses of conducting the sale;
  2. to the lender(s) for the balances owed on their loan(s), in the order of their liens;
  3. to the former owner or former owner’s successor-in-interest.

 

If you believe you are owed money after your property was sold at foreclosure auction, contact ANAND LAW PC today.

My lender offered me a trial modification which was to become a permanent modification after three months of payments. I made all payments and they are now refusing to give me a permanent modification. Can they legally change their mind?

If your lender stated they would permanently modify your mortgage payments if you made three trial modification payments on time, they must honor this promise. If you are facing this situation or one similar to it, you more than likely have a valid claim for breach of contract against your bank. Call Anand Law, PC today to discuss your rights with a qualified attorney.

Is there a limit on the interest rate a lender can charge?

In general, the limits are:

 

  • 10% interest on a loan primarily for personal, family or household purposes;
  • For loans that are not for for personal, family or household purposes, the higher of 10% or 5% over the amount charged by the Federal Reserve Bank of San Francisco on advances to member banks on the 25th day of the month before the loan (including loans to be used primarily for home improvement or home purchase).

 

There are, however, exceptions to these limits including the “broker-arranged” exception.  Click here for more information on interest rate limitations.

 

If you have been charged a usurious rate, you are entitled to all amounts you have paid in excess of the principal. Call Anand Law, PC today to discuss your rights with a qualified attorney.

Mortgages

Security interests in real property in California are most often created through the execution of two documents, a deed of trust and a promissory note. A deed of trust grants the beneficiary a security interest in property that secures the loan, while the note creates an obligation for the borrower to pay the debt (a contract). The parties to a deed of trust are typically the trustor (the borrower), the beneficiary (the lender), and the trustee (the party in whom the deed to the property is placed, in trust, until the obligation memorialized in the accompanying note is paid). See generally 4-111 California Real Estate Law & Practice § 111.04.

Power of Sale Clause in Mortgages

The parties to a deed of trust are typically the trustor (the borrower), the beneficiary (the lender), and the trustee (the party in whom the deed to the property is placed, in trust, until the obligation memorialized in the accompanying note is paid).  If a borrower defaults on payment, the trustee is authorized to sell the property by virtue of the power of sale clause in the deed of trust.

 

As part of the California Homeowner Bill of Rights (a series of laws which took effect in January 2013 in response to the foreclosure crisis affecting the state), prior to filing a notice of default to commence a nonjudicial sale, the law now requires that a mortgage servicer, beneficiary, or trustee contact the trustor/borrower in person or by phone in order to assess the borrower’s financial situation and discuss options available to the trustor/borrower that may avoid foreclosure. Cal. Civ. Code § 2923.5(a)(2). After this initial contact is made, the mortgage servicer, beneficiary, or trustee must wait 30 days before attempting to record a notice of default. Cal. Civ. Code § 2923.5(a)(1)(A).

 

The law also prohibits a mortgage servicer, beneficiary, or trustee from recording a notice of default if the trustor/borrower has submitted a completed application for a first lien loan modification until the trustor/borrower has been provided a written determination of your application. Cal. Civ. Code § 2924.18(a)(1).

 

Record Notice of Default

 

After contacting the trustor concerning your financial circumstances in the manner described above, a beneficiary or trustee may record a notice of default in the county where the property is located to begin the process of nonjudicial sale. Cal. Civ. Code § 2924(a)(1). For residential property of no more than four units, the trustee or beneficiary must also provide to the trustor a summary of the notice of default and notice of the sale in English and other languages specified by statute. Cal. Civ. Code § 2923.3.

 

Notice of Sale if Default Not Cured

 

Three months after the notice of default is recorded, the trustee must give at least 20 days notice of the sale of the secured property. Cal. Civ. Code §§ 2924(a)(2), 2924f. The notice of sale must be posted conspicuously on the property, posted in a public place in the city where the property is located, and published in newspapers at least 20 days before the date of the sale of the property. Cal. Civ. Code § 2924f.

Reinstatement of Defaulted Loan

California law provides borrowers/trustors with the statutory right to reinstate defaulted loans. Cal. Civ. Code § 2924c(a)(1). Broadly speaking, this means that a borrower has until five days before the foreclosure sale to pay the amount in default plus other fees, such as interest, penalties, and costs of providing notice to the borrower, assessed by the lender/beneficiary. The lender (or its servicer) is required to provide the borrower with a “beneficiary statement,” which contains information on how much must be paid in order to reinstate the loan. Cal. Civ. Code § 2943.

What can a lender do after default?

In the event that a trustor (or borrower) defaults on the payments owed under the note, a beneficiary (or creditor) holding a deed of trust generally has three legal options to enforce his rights. The beneficiary can: (i) sue to enforce the note obligation by bringing an action to collect on the debt; (ii) seek judicial foreclosure of the property securing the debt; or (iii) have the trustee exercise its power of sale, if such power is expressly granted in the deed of trust. The timeframe in which a beneficiary can exercise these options (the “statute of limitations”) differs.

 

Suit for Nonpayment

 

In the event of default, a lender can file a lawsuit to force repayment of the obligation evidenced by a promissory note underlying a deed of trust. In other words, the creditor can sue the borrower for breach of contract. The statute of limitations for a breach of contract claim is four years. Cal. Code Civ. Proc. § 337. As such, after four years a creditor is barred from suing a debtor on the grounds that the debtor signed a promissory note containing an obligation to pay the creditor. This four year statute of limitations period begins once the cause of action accrues, or, at the time the debtor breaches the obligation by, for example, missing a payment. Cal. Code Civ. Proc. § 312; Spear v. Cal. State Auto Assn., 2 Cal. 4th 1035, 1042 (Sup. Ct. 1992) (“A contract cause of action does not accrue until the contract has been breached.”).

 

Judicial Foreclosure

 

A lender may also institute an action in court to foreclose on the property. Similar to a suit for nonpayment or breach of contract, a creditor is barred from bringing an action to compel a judicial sale of a debtor’s property (a judicial foreclosure) after four years from the date a claim to collect on a debt accrues. Cal. Civil Code § 2911; Cal. Code Civ. Proc. § 725a. A debtor is sometimes entitled to redeem the property after a judicial sale under certain conditions. See generally 5-124 California Real Estate Law and Practice §§ 124.30-124.40.

 

Nonjudicial Foreclosure – Exercising Power of Sale

 

If a power of sale clause is expressly contained in the terms of the deed of trust, then the trustee, on behalf of a beneficiary, may exercise its power of sale even after the statute of limitations to collect on the underlying debt is barred. See e.g.Summers v. Hallam Cooley Enterprises, Ltd., 56 Cal. App. 2d 112, 113-14 (4th Dist. 1942) (“the power of sale under a trust deed may be exercised after an action on the note is barred.”); See also Carson Redevelopment Agency v. Adam, 136 Cal. App. 3d 608, 610 (2d Dist. 1982) (“The running of the statute of limitations on the note underlying . . . [a] deed of trust clearly bars an action to enforce the note itself and an action for judicial foreclosure. . . . However, it is equally well settled that the power of sale under a deed of trust is not barred, or never outlaws, and that the power of sale may be exercised by the trustee who holds the title even though the statute of limitations has barred any action on the underlying note.”) (Internal citations and quotations omitted.)

 

In 1982, with the passage of the Marketable Record Title Act (MRTA) (codified as Cal. Civ. Code § 882.020 et seq.), the legislature changed the common law rule that the power of sale under a deed of trust “never outlaws,” or never expires. Instead, under the MRTA, a creditor (through its trustee) may exercise its power of sale at any time before the final maturity date of the obligation and for ten years after the maturity date included in the record. Cal. Civ. Code § 882.020(a)(1). If the record contains no maturity date, then the creditor has 60 years from the date the instrument was recorded to exercise the power of sale. Cal. Civ. Code § 882.020(a)(2).[1]

 

Note that unlike a judicial foreclosure, a creditor generally has no right to a deficiency judgment after a nonjudicial sale (see generally 5-120 California Real Estate Law & Practice §§ 120.22, 120.23) and also that a debtor is generally not entitled to redeem after a nonjudicial sale. Id. at §120.23.

 

In sum, although a beneficiary is barred from enforcing the note underlying its deed of trust and pursuing a foreclosure action in court, it can still choose, at any time up to either 10 years after the maturity date or, if no maturity date is included in the record, 60 years after recordation of the deed of trust, to compel a curing of the default and if it does not receive that repayment, elect to sell the property. Moreover, even if the beneficiary never exercises any of its rights with respect to its security interest, its claim will cloud title to the property until the expiration of the terms defined by the MRTA. This could adversely impact future sales or attempts to obtain other financing using the property as collateral.

 

[1] The wording of Cal. Civ. Code § 882.020 creates ambiguity because it refers to a time limit upon enforcement of “the lien of a mortgage, deed of trust, or other instrument” despite the fact that the need for the statute arose because the power of sale was considered something other than a lien and therefore never “outlawed.” As a result of this ambiguity, different appellate courts have reached opposing conclusions concerning the meaning and application of the statute. Compare Ung v. Koehler, 135 Cal. App. 4th 186 (1st App. Dist. 2005) (finding entitlement to 60 year statute of limitations remained even after filing a notice of default containing a maturity date on the loan) with Slintak v. Buckeye Retirement Co., L.L.C., 139 Cal. App. 4th 575 (2d App. Dist. 2006) (finding the filing of a notice of default containing a maturity date triggers the 10-year statute of limitations). Although the 2006 amendment to Cal. Civ. Code § 882.020 did not clarify things, it is unlikely that this issue will have any bearing on the specific issues the you faces and as such, a thorough analysis has not been undertaken.

COMMERCIAL REAL ESTATE FAQ

Base Year

When real estate taxes, insurance, and operating expenses (sometimes referred to as Common Area Maintenance, or CAM, charges) are passed on to tenants, the amount passed on is based on the increase in these expenses as compared to the Base Year (the initial rent already takes into account these charges).

Building Owners and Managers Association (BOMA)

Organization of building owners and managers, engaged in lobbying and producing publications, including the BOMA standards.

CAM Expenses / NET Leases

A Triple Net Lease passes on to tenants a portion of the (1) Real estate taxes; (2) Insurance; and, (3) Operating Expenses (sometimes referred to as Common Area Maintenance, or CAM, charges, but often include maintenance outside of just “common areas.”  Other variations are Double Net (typically no operating expenses are passed through), and a Gross Lease.

 

Pass-throughs may be assessed at different times (per the lease), and often commercial leases will allow a landlord to retroactively apply assessed charges.  Sometimes a landlord will not assess any charges for years, but then choose to.  Negotiating the exact provisions is critical to predicting expenses and running a successful operation.  The extent of rights to audit is also a negotiable and important issue.

ESTOPPEL CERTIFICATES

An Estoppel Certificate is a document typically used in performing due diligence prior to the purchase of tenant-occupied property.  The purpose is for a lender and purchaser to have written confirmation from tenants of certain terms.  Important amongst these are: the rental amount; security deposit; duration of lease; and, as discussed further below, a “subordination” clause.

 

The subordination clause is used to confirm that the tenants have agreed, in their lease, that their interest is subordinate to future mortgages.  Without such confirmation, the tenants’ leases have priority over mortgages that are subsequently obtained.  Furthermore, only a tenant whose interest is subordinate to the mortgage can be evicted.  A purchaser (and their lender) may be stuck with tenants for an indefinite period without the ability to earn market rental values.  A tenant may be locked in for years, and potentially even forever—courts have upheld provisions giving the tenant the right to perpetual renewal of leases.

 

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Grey Box vs. Vanilla Box

Refers to the buildout a landlord will deliver.  a Grey Box includes the bare minimum: e.g. just walls,  no HVAC, no wiring.  A Vanilla Box may have: electrical wiring, flooring, dropped ceiling, HVAC and air ducts.  What the Landlord has agreed to buildout is critical.  Detailed plans and specifications are ideal.

Liquidated Damages

A LIQUIDATED DAMAGES CLAUSE in a contract specifies an amount of damages that party is entitled to for a particular breach of that agreement. The purpose is to streamline, or even deter litigation altogether by setting a fixed amount for the breach. They are very useful in eliminating unpredictability, and ultimately costs. However, there are several rules that must be followed, or the clause will be invalidated by a Court.

 

First, the liquidated damages cannot be a penalty—the amount specified must be reasonable under the circumstances, and cannot be “designed to substantially exceed the damages suffered, and…to serve as a threat to compel compliance through the imposition of charges bearing little or no relationship to the amount of actual loss.” Utility Consumers’ Action Network, Inc. v. AT&T Broadband, 135 Cal. App. 4th 1023, 1029 (2006); Cal. Civ. Code § 1671(b). A guiding principle is that any number picked cannot be arbitrary, and instead must be based on a reasonable attempt at determining a fair amount of compensation for the breach.

 

There are further rules if the clause is contained in a contract for the purchase or rental of personal property; a service used primarily for personal, family, or household purposes; or a residential lease. In those cases, a liquidated damages clause is allowed only when “it would be impracticable or extremely difficult to fix the actual damage.” Cal. Civ. Code § 1671(c) and (d).

 

Every situation is different, and should be evaluated by a qualified attorney. After all, if the clause unenforceable, it won’t save time, and may even ultimately cost more. It is always better to prevent problems before they occur, rather than waiting, and a well-crafted liquidated damages clause can be very effective in doing so.

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