Quiet Title Action

California - There is a second on my home that was originally due to the builder. He went bankrupt just over ten years ago and at that time we stopped making payments to him. Basically, he just disappeared. It is my undertanding that if he has not made any effort to collect for 10 years, that the statute of limitations has run its course and that I can commence an action to remove his lien on my home.

I have no intention of doing this myself and will be hiring an attorney to proceed with this action if I have my facts right.

Thanks

carnut said:

California - There is a second on my home that was originally due to the builder. He went bankrupt just over ten years ago and at that time we stopped making payments to him. Basically, he just disappeared. It is my undertanding that if he has not made any effort to collect for 10 years, that the statute of limitations has run its course and that I can commence an action to remove his lien on my home.

I have no intention of doing this myself and will be hiring an attorney to proceed with this action if I have my facts right.

Thanks

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**A: it appears that you are getting confused between a second mortgage and a construction lien. The first runs with the title unless extinguished due to satisfaction or via court order. There is no sol on a recorded mortgage with respect to action to remove said mortgage.

Quiet Title

HomeGuru,

Thanks for getting back to me so quickly. Any thoughts as to what my options are to remove this lien from my property? Aside from an attorney with RE esperience, is there anything specific that I should ask about with regard to qualifications?

Thanks

carnut said:

HomeGuru,

Thanks for getting back to me so quickly. Any thoughts as to what my options are to remove this lien from my property? Aside from an attorney with RE esperience, is there anything specific that I should ask about with regard to qualifications?

Thanks

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**A: what is the lien for? One way to remove it would be to pay the amount due.

Ancient Liens and Mortgages

That is probably the worst advice I have ever read. Carnut, if you are living in California, there are statutes of limitations. Depending on the facts of your case, you have one of two situations:

1) The builder recorded a mechanic's lien against your property. A builder must file an action (in court) within 90 days of recordation (the document he recorded against your title at the county recorder's office) or the mechanic's lien is null and void. (Civ. Code section 3144.) (The builder can still sue you for breach of contract, depending on the underlying facts of that transaction.)

2) If you have an ancient mortgage recorded against your property, you actually probably have a deed of trust recorded against your property. California calls them mortgages, but they are really deeds of trust. Deeds of trust can be foreclosed judicially or they can be foreclosed nonjudicially. Judicial foreclosure of a deed of trust is generally governed by the 4 year statute of Code of Civil Procedure section 337. Although some mortgages have a perpetual waiver of the statute of limitations, this is curtailed by Code of Civil Procedure section 360.5, which will limit a waiver to four years after the time the statute would have expired.

3) Nonjudicial foreclosure is carried out through what is known as the "power of sale." At one time, before 1982, California case law had held that there was no period of limitations on the enforcement of a power of sale under a deed of trust. Carson Redevelopment Agency v. Adam (2nd Dist. 1982) 136 Cal. App. 3d 608.
This changed however, and there is now a period to exercise the power of sale in a deed of trust. In 1982, the California legislature enacted sections 882.020-882.040 of the Civil Code, which establish for the first time a statute of limitations on the exercise of a power of sale in a deed of trust. Miller v. Provost (1st Dist. 1994) 26 Cal. App. 4th 1703. This set of statutes has several provisions, one of which is a 10 year statute if the final maturity date is fixed and ascertainable from the record, but the 10 years runs from that date of the maturity. This may be the 10 years you were referring to.

Be careful who advises you in this matter. You need to seek out a professional lawyer who is experienced in real estate. This can be difficult, because most lawyers do not understand or have a firm grasp real estate law.

You sound like someone

who just passed the bar exam and has details just leaping out from your brain.

Am I right Anthony?

In any case, astute post. I am a nonattorney, but I am surprised at how often I am more informed on a legal topic than the attorneys I deal with. Though I usually am not dealing with real estate, the details in real estate are amazing, and not well known.

I am about to buy a property with an even more interesting potential cloud on the title: the owner of record is worried about an old potential claim from investors in adjacent land. That partnership voluntarily dissolved sometime in the last two years. If the partnership thought it had a worthy claim, I'm guessing they would have pursued it before dissolving. We actually might manage to get title insurance.

AnthonyRoachEsq said:

That is probably the worst advice I have ever read. Carnut, if you are living in California, there are statutes of limitations. Depending on the facts of your case, you have one of two situations:

1) The builder recorded a mechanic's lien against your property. A builder must file an action (in court) within 90 days of recordation (the document he recorded against your title at the county recorder's office) or the mechanic's lien is null and void. (Civ. Code section 3144.) (The builder can still sue you for breach of contract, depending on the underlying facts of that transaction.)

2) If you have an ancient mortgage recorded against your property, you actually probably have a deed of trust recorded against your property. California calls them mortgages, but they are really deeds of trust. Deeds of trust can be foreclosed judicially or they can be foreclosed nonjudicially. Judicial foreclosure of a deed of trust is generally governed by the 4 year statute of Code of Civil Procedure section 337. Although some mortgages have a perpetual waiver of the statute of limitations, this is curtailed by Code of Civil Procedure section 360.5, which will limit a waiver to four years after the time the statute would have expired.

3) Nonjudicial foreclosure is carried out through what is known as the "power of sale." At one time, before 1982, California case law had held that there was no period of limitations on the enforcement of a power of sale under a deed of trust. Carson Redevelopment Agency v. Adam (2nd Dist. 1982) 136 Cal. App. 3d 608.
This changed however, and there is now a period to exercise the power of sale in a deed of trust. In 1982, the California legislature enacted sections 882.020-882.040 of the Civil Code, which establish for the first time a statute of limitations on the exercise of a power of sale in a deed of trust. Miller v. Provost (1st Dist. 1994) 26 Cal. App. 4th 1703. This set of statutes has several provisions, one of which is a 10 year statute if the final maturity date is fixed and ascertainable from the record, but the 10 years runs from that date of the maturity. This may be the 10 years you were referring to.

Be careful who advises you in this matter. You need to seek out a professional lawyer who is experienced in real estate. This can be difficult, because most lawyers do not understand or have a firm grasp real estate law.

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**A: oh brother, another lame attorney who can't read,
First off, the case involves a SECOND MORTGAGE, not a builder mechanics lien. Next, i am not wasting my time on the other 2.

Quiet Title

Anthony- I would like to discuss the issue with you. Please let me know how I can contact you.

Thanks

carnut said:

Anthony- I would like to discuss the issue with you. Please let me know how I can contact you.

Thanks

Click to expand...

**A: he's busy taking real estate law classes.

HomeGuru said:

**A: he's busy taking real estate law classes.

Click to expand...

Or "googling" for information to give you....