Jump to content

ThatTenant

Members
  • Content Count

    130
  • Joined

  • Last visited

About ThatTenant

  • Rank
    Contributor

Recent Profile Visitors

The recent visitors block is disabled and is not being shown to other users.

  1. To PG1067: That's about what I was afraid of: that it is not cut-and-dried. There goes another twenty grand. But thank you for your comments.
  2. Yes. Again, I have tried to ask a straightforward question limited to help me understand what, if any, interest would have been transferred by a grant deed that correctly described the physical boundaries of the property but overstated the fractional interest in the grantor. I was not asking for any actual evaluation of my particular situation, which is very involved and I don't mean to give you all a headache. Since I asked the question, I have found some information on what is required to effect a valid deed in California but all these sources are informal and, in my opinion, unreliable. One said, among other requirements, that there must be an "adequate" description of the property. Another just said the property description must distinguish the property from others. So I still don't know if the deeds I'm looking at are invalid or not on the single basis they contain magnitude errors as to the fractional interests. As far as I have been able to find, California's Civil Code does not explicitly define the three basic deeds we use: Grant Deed, Quit Claim Deed and (rarely) Warranty Deed although I did find what I believe to be the origin of them all: CC1092. That is surprising to me and I'm still assuming it's there and I've missed it but it could be that these deeds are only to be found in the case law. If Grant Deed, Quit Claim Deed etc were defined explicitly in the Civil Code, I should be able to go to the law library and read annotations to those sections. However, unless I can discover such code sections exist, it's not worth the trip. Thanks for your comments.
  3. To PG1067: I tried to ask a very limited question as to whether a grant deed would hold water when the legal description of the property was correct as to boundaries and incorrect, on the high side, as to the fractional interest in the grantor. I still don't see an answer to that. I have found several sources that provide the requisites of a valid deed. One of those requisites is an "adequate" description of the property. Unfortunately, what I have found in the couple of books on California real estate law I have checked have not cited civil code sections that might lead me to cases and law review articles to better understand what is "adequate." I also have not found the types of deeds in California directly and simply defined in the civil code. The closest I can get is CC1092, which appears to be the origin only of the means of transferring property generally. FYI, I never said I alleged fraud or that law enforcement declined to prosecute fraud. Adjuster Jack raised fraud speculatively in his first response and I fell for it hook line and sinker. In agreeing that there was "fraud," I only meant that I thought there was an intent by the borrower to get a loan based on false pretenses to the lender of the value of the property being offered as security for the note. I have not studied "fraud" in the strict legal definition and context and it's not my issue. As I think I described in a previous post, I asked the lender to voluntarily reconvey their trust deed because it was recorded after lis pendens of the partition action and the judgment rendered in that action disposed of the title contrary to the trust deed and the trust deed was therefore made void by that judgment as per CC1214. The lender initially refused my request but offered in writing to reconvey the trust deed for money I did not owe. So my complaint to law enforcement was for violation of Penal Code 523 (attempted extortion in writing). I also alleged Penal Code 115 (offering false document for recording). As I said, their response was that my allegations were a civil matter. Even if the facts don't support my allegations, they are allegations of crimes and it was invalid, at best, to term them "civil." By the way, I made a demand on the lender to provide a "Beneficiary Statement" under the law and obtained the current balance of the loan. It exceeds what the lender had offered to reconvey the trust deed for, proving that amount was not an offer to reconvey in return for paying off the borrower's note at my expense. As to the lender choosing not to allege fraud, the lender may not be aware of the defect in the property description in the deed by which the borrower alleged acquisition of a 1/2 interest. They are about to find out. Whether they want to go after the borrow is their business. I just want the trust deed off my property. I'm going to describe the situation to them. I think I'm going to persuade them. If they begin foreclosure or if they refuse to voluntarily reconvey, then it will be lawyer time (again).
  4. AdjusterJack: I was only asking a theoretical question of law and not meaning to ask for a complete assessment of my actual situation. That theoretical question was whether a grant deed that claims a greater fractional interest in the grantor that actually exists would nevertheless transfer the smaller fractional interest that the grantor actually did have. That's all. My analogy above is valid because the DA used as basis for refusing to prosecute that my allegations of multiple felonies by multiple people are obviated by my right to ask a civil court to pay me damages. If that is a valid theory of law, why is it applicable to me and not to those families, who were only tangentially the victims of crime. What is truly ludicrous, in my view, is that a DA would tell me, in essence, that criminal and civil prosecutions are mutually exclusive: that one precludes the other. His letter said he was not going to prosecute "because it appears to be a civil matter." He was not giving me friendly advice that I could go to civil court. He was saying he based his decision on the fact I might have a civil claim. His one and only job is to prosecute crime and he refused to do it. He did not state that my allegations were unsupported by the facts. He did not say the law did not support my conclusion that a crime was committed (although that might be read between the lines). Had he said that, I could have nuked it. In fact I did. I reported a redacted summary of my allegations in the local newspaper and the DA did not deny a single one.
  5. PB1067: The grant deed reads as follows: "For a valuable consideration, the receipt of which is hereby acknowledged, Mr. X, the successor trustee for the Miss Y Revocable Trust, dated April 1, 2019, hereby grants to Mr X, as his sole and separate property the following described real property in the County of Gold Dust in the State of California: Blackacre." I agree the lender did not do "appropriate diligence." Just so things don't get too complicated, my question was only intended to ask if a grant deed would transfer what the grantor actually owned, no more and no less, even if the property description purported a larger fractional interest in the grantor than the record establishes. I think I understand a quit claim deed, had that been used rather than the grant deed, could have given the property description with or without specifying any claimed interest fraction and still transferred whatever the interest the granter actually had. So I think my question might reduce down to "does a grant deed transfer the same amount of real property interest as a quit claim deed if the grant deed overstates the fractional interest of the grantor?" I have seen conflicting descriptions online of whether a grant deed represents any kind of assurance, over and above that of a quit claim deed (but less than a warranty deed) of the reliability of the title being transferred. My expectation is that a grant deed does contain at least a promise that the grantor had the title the deed purports to convey. If that is true, then I hope that means no amount of interest in title would be transferred because the grantor made a promise they knew or should have known was false. (My understanding is a quit claim deed is caveat emptor as to the quality of the title being transferred, which I hope is at least part of what distinguishes it from a grant deed.) It's off topic but regarding your assurances on the oversight of District Attorneys, I wrote the California AG asking him to prosecute in the DA's stead, per Penal 923(a) and 923(c), where the local DA would not. I'd be glad to send you a redacted copy of the complete reply. It reveals the AG's view of decisions by DAs to be essentially sacrosanct. Here's one paragraph: "We understand it is not uncommon for members of the public to differ with the district attorney on the question of whether the filing of criminal charges is warranted. However, that decision rests with the locally elected official responsible for such a decision, the district attorney." I did file a formal complaint with the state bar. I'm not sure i could send you even a redacted copy of their 2 page reply but get this: "As the elected district attorney of [Lawless County], Mr. [SeeNoEvil] has the prosecutorial discretion to decide which cases his office should file and which cases to dismiss, based on the merits of the complaints, available resources and priorities in his office. He is not your attorney and owes no fiduciary duties to you. This is a matter that is outside the purview of the state bar." I'm sure you are correct on the law but if the AG and the state bar refuse to question the conduct of a DA, then, practically and respectfully speaking, I was correct in saying there is no oversight. I have consulted with several attorneys on this matter, at significant expense. Their advice has been contradictory. I'll hire another one if need be but I am determined to understand where I stand as best I can first. I hope to negotiate a resolution with the lender, who has already indicated a willingness to talk.
  6. Adjuster Jack: In the actual case I believe it WAS fraud but forget about jail. The jurisdiction involved told me they will NOT prosecute crimes involving real estate, period. Their supposed justification is that anyone harmed by real estate fraud can get it taken care of in civil court. My response was that Marcia Clark could have made the same argument to the families of Nichole Brown Simpson: "we won't prosecute OJ because you are going to go to civil court and sue him." I agree it is obvious that district attorneys have a duty to the entire state to prosecute crimes for the obvious purpose of preventing the accused from committing further such acts and for creating a disincentive for others to do the same. However, there is no recourse to the victims of crime if a DA would rather go fishing. It shouldn't be that way and I observe that in California, even judges are overseen by the Commission on Judicial Performance. DAs have no such oversight. The reason I didn't provide the many details that the question involves was to try to accurately reduce it to its essence to not waste your time. I realize a correction to the deed could be recorded but it in this instance it won't be because (a) the grantor is also the grantee (grantor as successor trustee to grantee as their sole and separate property) and (b) further conveyances of any interest the grantor may have held have already been recorded. A lender loaned money to the grantor in return for a trust deed on the false 1/2 interest as security for the loan. The grantor's interest, if any (that's my question), was later sold by court order (action in partition), with the proceeds of sale going to the grantor for their supposed 1/2 interest. The real nub of the question for me then is can the lender foreclose on either a 1/2 or a 1/4 interest in the property? There is an acceleration clause in the trust deed but my belief is that because the grantor received the value of their share (and then some) in cash, the interest that the trust deed purports to hold as security was converted to that cash. As such, I believe the trust deed is a claim on a property interest that was extinguished by that sale and no longer exists and, therefore, the trust deed is incapable of being enforced. All I think I really need to know is whether the grant deed transferred a 1/4 interest despite the fact the legal description in the deed of the grantor's fractional interest was incorrect on the high side. Thanks for your thoughts.
  7. Suppose, In California, a grant deed is made and recorded that incorrectly describes the interest to be conveyed to be an undivided 1/2 interest when the grantor actually only held title to a 1/4 interest. Would the grant deed effect a transfer of the actual 1/4 interest in the grantor, contrary to the legal description of the interest in property in the deed, or would it transfer nothing at all? Would a court determination of what was actually transferred hinge on whether the error in the property description was accidental or intentional?
  8. It's just land so I think it would have to be a cash sale anyway.
  9. Thanks again. I think RetiredinVA hit the nail on the head when he said title companies only insure titles where there is no need for insurance. I found a provision that would authorize a title company to cancel a DOT after notice giving the trustee time to produce evidence the DOT was still justified. They refused to initiate such a process even though they could have bailed if the trustee returned such evidence. This is why maybe I'm better off to just do nothing and explain the exception in the title report to my broker and she can explain to any potential buyers. Along those lines, maybe I should just pay for a letter opinion from an attorney that the lien is not enforceable. I'll rely on the next attorney to plan the strategy. My biggest problem now is finding an attorney I can have confidence in is competent in all the issues and honest enough to follow the most economical path if it means litigation.
  10. To RetiredinVA: I thought that just addressing one lien would take much less of an attorney's time than addressing all possible liens. When I meet with the next attorney I plan to ask about all these possible approaches and see what he recommends. I'd like to pursue the penalties for the harassment. That would probably cost more to prosecute but that CCP then opens the possibility of an award of attorney fees to the victor. While I have confidence I should prevail, I know being correct does not guarantee a correct decision (especially in that jurisdiction). Plus one of the two persons that made the threats and started this is judgment proof. (The other, however, is a business.) The other fly in the ointment is there are no good attorneys locally so I have to hire one in the big city 150 miles away. Hopefully he can appear by phone. Thanks again.
  11. To PG1067: I agree with what I think you are pointing out (on a literal-only interpretation of the law) that the DOT did not become void unless and until the judgment in the action was actually issued, which it was. I also agree that the judgment priority in the chain of title would revert back to the date of recording of the notice of action. I used the word "void" because that's the word CC 1214 used. I'd be interested to know if you (and/or RetiredinVA if he's listening) think either or both of the below code sections would be effective yet less costly than a quiet title action? All I really need is to nix the DOT, not clear the entire title from scratch: Civil Code 3412: Cancellation of Instruments Code of Civil Procedure 765.010 - 765.060: harassment liens ($5000 penalty) "Really" dumb is a relative term. Not all human wants have a price. I was threatened, after my attorney filed the partition action, that they would cost me as much time and money as possible and prevent me from ever owning the place. Thanks again
  12. To PG1067. I do not understand how you can say the DOT is not void given the language of CC1214. Assuming the final order confirming sale that concluded the partition action is a "judgment" for the purposes of CC1214, the DOT was not recorded before the notice of that action was recorded and, therefore, does not meet the exception stated in that law: "...unless the conveyance shall have been duly recorded prior to the record of the notice of action." It wasn't. My original attorney (now deceased) and even the trustor's own attorney both argued in court during post- final order motions that the DOT was not a valid lien and it appears the judge agreed based on his decision, which unfortunately was not written. So I may be utterly unqualified to say the DOT is invalid but those attorneys were both very experienced and held that view. I have spent thousands on other attorneys looking into this. The advice has not been consistent. I've learned in employing attorneys that one should study the subject as best as one can and watch them like a hawk or pay a heavy price. Attorneys have a financial incentive to take a path that is more in their interest than the client's. I may yet hire another attorney but I'm considering the option of just ignoring the DOT. I think I'd remain on solid legal ground to void any deed resulting from a trustee's sale and maybe I can sell the place despite the exception in the title report. A quiet title action might cost more than the unencumbered value of the property, especially now that it went up in a recent wildfire, so the only reason to fight is principle. Thanks for your thoughts on the matter.
  13. Thanks RetiredinVA. My attorney died. Could I have another attorney represent me to intervene in the partition action and ask the court to simply revise or amend his final order (2014) to declare the trust deed void? The notice of action was never ended so I'm hoping that makes it still not too late. I was not a party (directly) but I think I should have standing to appear in the action because I was the purchaser named in the final order. It seems so unnecessary to have to create a whole new lawsuit and argue over all the same facts just to deal with this one oversight by my attorney. I would expect the court would prefer to minimize its workload. Thanks
  14. I purchased a California property from a court appointed referee that had a trust deed recorded against it during a court proceeding for partition by a party to that action. The trust deed was recorded after a notice of action for that proceeding had already been recorded and was still in force. I believe the final order of the court confirming sale automatically voided the trust deed for being recorded after the notice of action per Civil Code 1214. However, the lender will not voluntarily remove the lien and two title companies I asked (subsequent to the sale due to an oversight by my now-deceased attorney) to provide policies of title insurance will not now provide a policy that does not include an exception for the trust deed I believe to be void. One told me they do not exclude liens on the bases of theories of law, such as Civil Code 1214, but on recorded documents. (My argument, to no avail, was Civil Code 1214 is not a theory of law, it is law.) I think the final court order confirming my purchase was such a recorded document but they disagree saying the document has to explicitly name the lien and say it is off so I have declined those offered title policies. Are the title companies wrong and, if so, how do I convince them to remove the exception for the void trust deed? Could I, as the buyer confirmed by the court, ask the court to revise its final order confirming sale (of 2014) to explicitly say the trust deed, which predated the original court order, is void so I can avoid a whole new lawsuit to clear my title? Thanks
  15. In conclusion, thanks very much to all for your comments. Very helpful as I now look for a new attorney.
×
×
  • Create New...