Articles Tagged with deed of trust

underwood-how-does-lender-respond-partition-action-300x300A declaration of non-monetary status is a special type of court filing reserved for trustees under a deed of trust. These trustees have limited powers, but are often named as defendants in lawsuits by plaintiffs seeking to ensure proper joinder. 

Of course, being named in a complaint carries with it several responsibilities, chief among these being that every defendant must issue a responsive pleading, such as an answer. For the trustee included purely as a precautionary measure, this is frustrating. Not only will they need to file an answer, which is both costly and time consuming, but they will also consistently be served with court documents in a case they have no interest in litigating. 

To get around this hassle, trustees may file a declaration of non-monetary status, provided the relevant deed of trust is the “subject” of a lawsuit. Successfully filing this declaration means that the trustee no longer needs to participate in the lawsuit, provided the trustee also agrees to be bound by any court order relating to the subject deed of trust. 

underwood-deed-trust-vs-mortgage-300x300Civil Code section 2924 states that “every transfer of an interest in property, other than in trust, made only as a security for the performance of another act, is to be deemed a mortgage.” The “other than in trust” portion of the statute refers only to express trusts, however, because “under a deed of trust the trustee obtains none of the incidents of ownership, other than the right to convey upon default.” (Blair v. Blair (1941) 44 Cal.App.2d 140, 146.)

As such, the functionality of the deed of trust is more or less identical to a mortgage. In terms of semantics, however, the big difference is that the mortgage is a two-party transaction whereas the deed of trust involves three. In addition, there is also a difference with how title actually passes with deeds of trust.

Filing a successful partition complaint can be quite difficult depending on the circumstances. There are a great number of statutes that need to be precisely followed, otherwise the court is likely to toss the complaint out on a motion to demurrer. 

5122023-300x300“A trust is any arrangement which exists whereby property is transferred with an intention that it be held and administered by the transferee for the benefit of another.” (Higgins v. Higgins (2017) 11 Cal.App.5th 648, 662.) Essentially, a trust is a legal relationship that allows a person to hold property for the benefit of another person. 

In a trust relationship, there are typically three main people involved: (1) the settlor; (2) the trustee; and (3) the beneficiary. The settlor is the person that creates the trust and transfers the property he/she owns in the trust to be held by the trustee. The trustee is the person that administers the trust. The trustee holds legal title to the property transferred into the trust by the settlor and acts as a fiduciary to the beneficiary to protect the assets in the trust. The beneficiary holds equitable title to the trust property and is the person that benefits from the property in the trust. In some cases, the settlor and the trustee are the same person. 

In sum, a trust is a fiduciary relationship where property is transferred by one person to another on behalf of a third party. At the Underwood Law Firm, our attorneys are more than familiar with trusts and the requirements that follow. 

4212023-300x300Anytime a litigant wants to file a lawsuit, a threshold question is where the lawsuit should be filed. Specifically, the question is what county should get to hear the action. This process is called determining “venue,” and it can become quite a complicated endeavor. This is because the “correct” county for action will depend on a number of factors. 

One such factor is the “nature” of the action. If it concerns the “internal affairs” of a trust, then specific venue rules come into play. But making this determination isn’t easy. And filing suit in the wrong county could result in both a transfer and sanctions for the plaintiff who didn’t do their homework. 

What is Venue?

3152023-300x300When a loved one passes away, probate proceedings are hopefully not the first thing on their relatives’ minds. Probate is, however, an inevitability, even when a trust is present and effective. But inheritance is not always the blessing that the public conscious imagines it to be. The simple truth is that owning property in California is an expensive endeavor that carries with it tons of monetary responsibility. Faced with the possibility of inheriting something an individual simply cannot afford, there is an option: a disclaimer of interest. 

A disclaimer of interest is, essentially, a written statement to the probate court where someone who stands to inherit property or assets states that they do not wish to exercise that inheritance. They “disclaim” any right to receive the interest that they otherwise would. 

Specifically, Probate Code section 275 provides: “A beneficiary may disclaim any interest, in whole or in part, by filing a disclaimer of as provided in this part.” 

2242023-300x300A Heggstad petition is a unique legal maneuver in probate court that a party can use to establish the existence of a trust. Normally, if a party wants to show that the property at issue is in a family trust, they have to produce evidence of a transfer of the property into the trust. (Prob. Code § 15200 (b).) This is usually accomplished with a deed, which conveys the property from the owners (the “settlors”) to the trustees of the trust. 

But what happens when the settlor and trustee are the same person? That’s where Heggstad comes in. Under Heggstad, no formal transfer of the property by deed is needed. Instead, a written declaration of trust by the owner of the property is enough, provided the owner names themself as the sole trustee. (Carne v. Worthington (2016) 246 Cal.App.4th 548, 559.) 

Nonetheless, a successful Heggstad petition still requires proper planning and execution. A faulty property description, for instance, can doom the action from the outset. At Underwood Law firm, our attorneys know how tough a situation like this can be. Thankfully, our attorneys are well-versed in estate planning, and we know the best ways to tackle the disputes that accompany property in probate. Our team has the legal acumen and skills necessary to help you achieve your litigation goals. 

Underwood-Blog-Images-2-300x300A deed of trust is a commonly used mortgage document in California. Essentially, a deed of trust provides a lender with security for the repayment of the loan and effectively functions similarly to a mortgage.  A deed of trust is a deed that transfers a legal interest in a piece of real property owned by the lendee to the lender, or trustee, in order to secure the debt owed on the loan. Certain elements are required for a deed of trust to be valid. These elements are codified in the Code of Civil Procedure, section 2924. 

A deed of trust involves three parties: (1) the trustor, who is the person who received the loan, (2) the beneficiary, who is the person who loaned the money to the trustor, and (3) the trustee, who is the person that released the loan once it has been paid off. At Underwood Law Firm, our attorneys are more than familiar with a deed of trust and the elements required for a valid deed of trust. 

When is it common to have a Deed of Trust?

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