Failure to Allege Lack of Default

By Daniel Edstrom
DTC Systems, Inc.

One of the main reasons many cases do not make it to daylight is because of the failure to allege lack of default. Despite many lawyers knowing that this is the case, and that there is no default, many still fail to make the allegation. On what basis can a lawyer allege lack of default for a homeowner facing foreclosure?

The Note and Security Instrument

The note is not the obligation but evidence of the obligation (for proof of this, in many cases the security instrument refers to the note as the evidence of the obligation). Lawyers usually describe the obligation arising when one party accepts money from another party. The note usually describes who the parties are that are obligated in the section titled OBLIGATIONS OF PERSONS UNDER THIS NOTE. This section of the note states:

If more than one person signs this Note, each person is fully and personally obligated to keep all of the promises made in this Note, including the promise to pay the full amount owed. Any person who is a guarantor, surety or endorser of this Note is also obligated to do these things. Any person who takes over these obligations, including the obligations of a guarantor, surety or endorser of this note, is also obligated to keep all of the promises made in this Note. The Note Holder may enforce its rights under this Note against each person individually or against all of us together. This means that any one of us may be required to pay all of the amounts owed under this Note.

Continue reading “Failure to Allege Lack of Default”

Interesting California Civil Codes

By Daniel Edstrom
DTC Systems, Inc.

Those who haven’t read these should read through them for educational purposes.

California Civil Code Selections

1044

Property of any kind may be transferred, except as otherwise provided by this Article.

1045

A mere possibility, not coupled with an interest, cannot be transferred.

1046

A right of reentry, or of repossession for breach of condition subsequent, can be transferred.

1047

Any person claiming title to real property in the adverse possession of another may transfer it with the same effect as if in actual possession.

1054

A grant takes effect, so as to vest the interest intended to be transferred, only upon its delivery by the grantor.

1056

A grant cannot be delivered to the grantee conditionally. Delivery to him, or to his agent as such, is necessarily absolute, and the instrument takes effect thereupon, discharged of any condition on which the delivery was made.

1057

A grant may be deposited by the grantor with a third person, to be delivered on performance of a condition, and, on delivery by the depositary, it will take effect. While in the possession of the third person, and subject to condition, it is called an escrow. Continue reading "Interesting California Civil Codes"