How to do "Action to Remove Cloud on Title" in California

[mjlcalifornia]

What is the name of your state (only U.S. law)? California

My mother purchased raw land approximately 30 years ago. The seller financed the sale and filed a deed of trust. About 25 years ago my mother paid off the loan - but she never filed the lien release. About 11 years ago my mother passed away and I inherited the property.

As we didn't know she had never filed the lien release and that it was likely somewhere among her files - we weren't looking for it and it almost certainly got thrown away in the process of shutting down her house and getting rid of all the unneeded household items. It is almost certain that the seller has long since passed away as well - he'd be nearly 100 years old by now. I assisted my mother toward the end of her life so I know that for at least the past 16 years there has been no contact from the seller - which is logical as the loan was fully paid.

It's been 11 years that I've owned the land and I'm now considering selling it.

My question is how do I go about removing this cloud from the title? I believe the proper procedure is an "Action to Remove Cloud on Title". is this the correct course of action? Is this something I can do myself or do I need an attorney? If an attorney is best, any estimation of cost and time needed to carry this out? The county is Santa Clara.

Any insight and advice is greatly appreciated. Thank you!

 

[Zigner]

What is the name of your state (only U.S. law)? California

My mother purchased raw land approximately 30 years ago. The seller financed the sale and filed a deed of trust. About 25 years ago my mother paid off the loan - but she never filed the lien release. About 11 years ago my mother passed away and I inherited the property.

As we didn't know she had never filed the lien release and that it was likely somewhere among her files - we weren't looking for it and it almost certainly got thrown away in the process of shutting down her house and getting rid of all the unneeded household items. It is almost certain that the seller has long since passed away as well - he'd be nearly 100 years old by now. I assisted my mother toward the end of her life so I know that for at least the past 16 years there has been no contact from the seller - which is logical as the loan was fully paid.

It's been 11 years that I've owned the land and I'm now considering selling it.

My question is how do I go about removing this cloud from the title? I believe the proper procedure is an "Action to Remove Cloud on Title". is this the correct course of action? Is this something I can do myself or do I need an attorney? If an attorney is best, any estimation of cost and time needed to carry this out? The county is Santa Clara.

Any insight and advice is greatly appreciated. Thank you!

Why don't you start with a title company of your choice and see what they say? They'll usually know the procedures that would need to be done.

 

[mjlcalifornia]

Why don't you start with a title company of your choice and see what they say? They'll usually know the procedures that would need to be done.

I did speak to the title company that first discovered the issue. They said they couldn't give legal advice and suggested contacting an attorney. So, unfortunately no joy there.

 

[Zigner]

I did speak to the title company that first discovered the issue. They said they couldn't give legal advice and suggested contacting an attorney. So, unfortunately no joy there.

They told you exactly what to do...contact an attorney.

 

[mjlcalifornia]

They told you exactly what to do...contact an attorney.

No. The tilte company was avoiding a question that was understandably out of their competence. I am hoping someone suitably informed on this forum might have experience these matters and could tell me whether this is able to be done without hring an attorney, and if so, how.

 

[Zigner]

No. The tilte company was avoiding a question that was understandably out of their competence. I am hoping someone suitably informed on this forum might have experience these matters and could tell me whether this is able to be done without hring an attorney, and if so, how.

No, the title company was trying to avoid committing a crime known as the unlawful practice of law.

It is my opinion that you cannot do this without an attorney. Not because it can't be done, but because your attitude about the matter doesn't lend itself to a successful conclusion.

 

[mjlcalifornia]

No, the title company was trying to avoid committing a crime known as the unlawful practice of law.

It is my opinion that you cannot do this without an attorney. Not because it can't be done, but because your attitude about the matter doesn't lend itself to a successful conclusion.[/QUOTWhen

Boy are you an idiot. You can't possibly wonder why people don't like you. Looking at your answers to other geniune questions in this forum it's clear you are a miserable little cretin who writes curt, irrelevant and caustic responses to geniunue queries. What an meaningless little life you have.

 

[Zigner]

Boy are you an idiot. You can't possibly wonder why people don't like you. Looking at your answers to other geniune questions in this forum it's clear you are a miserable little cretin who writes curt, irrelevant and caustic responses to geniunue queries. What an meaningless little life you have.

This is exactly why I wrote what I did.

 

[Ohiogal]

Boy are you an idiot. You can't possibly wonder why people don't like you. Looking at your answers to other geniune questions in this forum it's clear you are a miserable little cretin who writes curt, irrelevant and caustic responses to geniunue queries. What an meaningless little life you have.

Hire an attorney. Says this attorney. Zigner knows quite a bit and has the respect of many on this forum.

 

[Ohiogal]

This is exactly why I wrote what I did.

Hey Z. I love you!

 

[latigo]

What is the name of your state (only U.S. law)? California

My mother purchased raw land approximately 30 years ago. The seller financed the sale and filed a deed of trust. About 25 years ago my mother paid off the loan - but she never filed the lien release. About 11 years ago my mother passed away and I inherited the property.

As we didn't know she had never filed the lien release and that it was likely somewhere among her files - we weren't looking for it and it almost certainly got thrown away in the process of shutting down her house and getting rid of all the unneeded household items. It is almost certain that the seller has long since passed away as well - he'd be nearly 100 years old by now. I assisted my mother toward the end of her life so I know that for at least the past 16 years there has been no contact from the seller - which is logical as the loan was fully paid.

It's been 11 years that I've owned the land and I'm now considering selling it.

My question is how do I go about removing this cloud from the title? I believe the proper procedure is an "Action to Remove Cloud on Title". is this the correct course of action? Is this something I can do myself or do I need an attorney? If an attorney is best, any estimation of cost and time needed to carry this out? The county is Santa Clara.

Any insight and advice is greatly appreciated. Thank you!

Any court action to clear title to the property would be in the nature of a quiet title action. And that is an expensive, time consuming, paper eating, head wrenching process!

However, it is quite possible that you can avoid any legal expense by working with a title insurance company. Particularly one that you would choose to insure title in the name of a proposed buyer.

To explain, what should have occurred upon mother's payoff of the purchase price ( which should have been reflected in a promissory note from her to the seller) is that the seller/beneficiary should have executed and delivered to the named trustee the original promissory note marked paid in full together with a request for full reconveyance of the property to your mother.

Within 21 days of the receipt of those documents from the seller/beneficiary the trustee should have executed and recorded the deed of reconveyance and then forwarded the original note and deed of trust to your mother/trustor. This being mandated by the California Civil Code Section 2941(b)(1).

Obviously this didn't happen, ergo the deed of trust still remains of record and the underlying promissory note unsatisfied.

When such has not happened - meaning that for some reason the trustee did not record a deed of reconveyance - removing the lien of the deed of trust - the Civil Code provides to alternative remedies.

First, the buyer/trustor can cause the seller to be substituted as the trustee and issue a full reconveyance. (See: Sections 2941(b)(2) and Section 2934(a)

Secondly, if a full reconveyance has not been executed and recorded within 75 calendar days of satisfaction of the obligation, then a title insurance company may (upon fulfilling to a number of statutory prerequisites) "prepare and record a release of the obligation". (See: Section 2941(b)(3)

In my neck of the woods this process would entail having a title company (upon verification that that the deed of trust note has been paid) filing a "Lost Document Indemnification" on the strength of which it can insure marketable title.

So, first I would you consulting with an officer of a local title insurance company that is well acquainted with the cited code sections.