In Black Sky Capital, LLC v. Cobb, the California Supreme Court holds that Code of Civil Procedure section 580d—that prevents a foreclosing creditor at a nonjudicial foreclosure sale from collecting a deficiency judgment—does not prevent the same creditor holding two deeds of trust on the same property from recovering a deficiency judgment when its junior lien is extinguished by the nonjudicial foreclosure of its senior lien. Continue reading
A “Trust Transfer Deed” that purportedly granted husband’s interest in real property to wife failed to accomplish a transmutation.
Pursuant to Family Code section 852(a) a transmutation is not valid unless made in writing by an express declaration by the party adversely affected. To satisfy the “express declaration” requirement the writing must state on its face that the characterization or ownership of the property is being changed. Extrinsic evidence is not permitted to prove an ambiguous writing. Therefore, the express declaration must unambiguously indicate a change in character or ownership of property for a valid transmutation. Continue reading
When real property is purchased at a foreclosure sale, it is frequently necessary for the new owner to institute unlawful detainer proceedings to recover possession. Is it necessary for the Trustee’s Deed Upon Sale to record before a valid 3-day notice to quit is served?
In Dr. Leevil, LLC v. Westlake Health Care Center, the California Supreme Court answered this question in the affirmative. In reversing the Court of Appeals, the Court held that duly perfected title, including the recording of the Trustee’s Deed Upon Sale, is required before a valid 3-day notice to quit may be served.
Practice tip: after purchase at a foreclosure sale, duly perfect title and do not serve a 3-day notice to quit before the trustee’s deed records.
The Court of Appeals determines that a standard interspousal transfer grant deed (ITGD) meets the requirements for a transmutation of the character of marital property under Family Code section 852.
Section 852 provides in pertinent part: “(a) A transmutation of real or personal property is not valid unless made in writing by an express declaration that is made, joined in, consented to, or accepted by the spouse whose interest in the property is adversely affected.” Continue reading
In Yvanova v. New Century Mortgage Corp the California Supreme Court held that in a case where a homeowner alleges a nonjudicial foreclosure sale was wrongful because of a void assignment, the homeowner has standing to sue for wrongful foreclosure.
In Sciarratta v. U.S. Bank National Association the question of “prejudice” left open in Yvanova was decided. Where a homeowner alleges foreclosure by one with no right to do so, do such allegations alone establish the requisite prejudice or harm necessary to state a cause of action for wrongful foreclosure? Or instead, to adequately plead prejudice, does the plaintiff-homeowner have to allege the wrongful foreclosure interfered with his or her ability to pay on the debt, or lead to a foreclosure that would not have otherwise occurred? Continue reading
In Glaski v. Bank of America, the appellate court held a borrower may base a wrongful foreclosure claim on allegations that the foreclosing party acted without authority because the assignment by which it purportedly became beneficiary under the deed of trust was not merely voidable but void. Subsequent appellate court opinions, for a variety of reasons, refused to follow Glaski.
In Yvanova v. New Century Mortgage the California Supreme Court considered the narrow question, considered in Glaski, of whether the borrower on a home loan secured by a deed of trust may base an action for wrongful foreclosure on allegations a purported assignment of the note and deed of trust to the foreclosing party bore defects rendering the assignment void. Continue reading
The Court of Appeals affirms, in Huntington Continental Town House Ass. v. Miner, that a homeowners’ association is required by the Davis-Stirling Common Interest Development Act to accept partial payments from an owner of a separate interest when the owner is delinquent in paying assessments. Continue reading
In an unusual move, the California Supreme Court ordered publication of an opinion issued by the Santa Clara County Superior Court, Appellate Division, in an limited jurisdiction unlawful detainer case: Bank of New York Mellon v. Preciado. The decision specified two errors in the unlawful detainer proceedings: 1) the proofs of service of the 3-day notice failed to show that personal service was attempted; 2) the post foreclosure plaintiff failed to prove its title was duly perfected. Each defect required reversal of the judgment and a new and different judgment in favor of defendants. Continue reading
The Appellate Division, County of Los Angeles, holds that the trial court must exercise its discretion and consider the merits of a motion for relief from forfeiture made pursuant to Code of Civil Procedure section 1179, where plaintiff has obtained a default judgment in an unlawful detainer action. Continue reading