2nd Lien home Equity Loan

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California. App. Tribunal (1st instance) decides on the intention of the parties to determine the priority of the simultaneous lien records.

Recently, the Court of Appeal of California, First District, came to the conclusion that when two fiduciary agreements are simultaneously filed for record, the order in which they are indicated is not decisive for preference. Instead, according to the court, the intention of the party will prevail. On this occasion, an original creditor granted two credits backed by the same property and it was obvious that the anticipation was that the bigger loan would have precedence.

It had been decided by the Courts that the respondent was the holder of the lien even though the defendant's hypothec was indicated after the other hypothec. Subsequently, the tribunal determined that the defendant's lien would continue on the land as the primary lien holder and the respondent had no claim to the sales revenue from the plaintiff's out-of-court enforcement under California Civil Code § 2924k.

Also, the appellate tribunal found that the second lien was a home equity line of credit, as further assistance that the defendant's lien should have precedence. Accordingly, the appellate tribunal upheld the court's decision. During 2003, a single debtor received two mortgages from the same creditor, each of which was backed by a trustee for certain properties in California.

A loan was a $205,080 nominal value secured loan and the other loan was a $15,000 nominal value home equity line of credit. Loans were granted in the form of a loan with a nominal value of $205,080. On the same date, both fiduciary contracts were logged at the same moment with the district block flyer's bureau. For the equity line, the escrow was given tool number 2003-0603657 and for the covered loan, tool number 2003-0603058.

HELOC was then allocated to a banking institution through a number of remittances and the loan was allocated to another unit and served by the respondent. Once the debtor had fallen into arrears, the bank's suing fiduciary carried out an out-of-court fiduciary transaction on the real estate. Claimant got $105,000 from the sales.

Upon paying all due monies to the house and the charges and expenses of the sales, a excess of $73,085. There were three claims for the surplus: the debtor, the homeowner community and the respondent. By depositing the surpluses with the Tribunal, the Fiduciary filed an application to settle the dispute between the three plaintiffs.

However, the Tribunal held that the proposed action by the defendants would have precedence over the HELOC lien, which was covered at the same time. Since the lien of the respondent had precedence, the Tribunal came to the conclusion that the respondent had no claim to any of the revenues from the extrajudicial enforcement of the HELOC lien holder.

Instead, according to the tribunal, the real estate was resold under the defendant's security right of lien. Lamented servant of the encumbered security right has lodged an objection against the judgment of the Tribunal. The respondent to the appellate plea submitted that the number of instruments on the home equity line was lower than his lien.

Defendants stated that this made his lien Jr. on the home equity lien. What lien took precedence was a crucial judgment, because if the defendant's lien was lower than that of the HELOC fiduciary, the respondent would be eligible for part of the additional revenue from the fiduciary's real estate deal.

The Court of Appeals determined that under California Civil Code 2924k(a), the income from the purchase of a fiduciary must be allocated in the following order: 1 ) to the cost and expense of the exercise of the right to purchase and liquidate; 2 ) to the settlement of the commitments guaranteed by the escrow instrument which are the object of the transfer of the trustee; 3 ) to the performance of the debt owed to the settlor by subordinated pledges or charges in the order of their precedence; and 4 ) to the settlor or his successors in the interest of the settlor.

As the court added: "Even the date of the record is not decisive in this case. "Even if previously entered pledges have precedence over later entered pledges, both fiduciary agreements were filed in the flute offices at the same date and at the same inception. On the basis of previous judgments with similar facts, the Court of First Instance held that the parties' intention was decisive for preference.

Though one of the escrow instruments explicitly indicated that it should be the first lien, it was indicated by the recorders with a higher number than the other escrow instrument. On the basis of this case law the Court of Appeal came to the conclusion that the intention of the contracting partners determined the precedence of the two pledges.

This time, because the original creditor was the same on both credits, "the sensible assumption is that he would be securing the much bigger mortgages in the prime location. "The court found that the common notion of the link between a secured mortgages and an equity line also supported its closure.

Eventually, the first county dismissed the defendant's claim that the debtor had received a wind case by obtaining about $60,000 for the losses of their possession. According to the respondent, it should be able to claim these revenues since it had no remedy against the third parties who bought the real estate in the trustee's deal.

However, the court came to the conclusion that the protocol apparently notifies the buyer of the defendant's lien. In addition, the Titelbericht showed the two simultaneous registered pledges notified to the buyer according to the Court of Appeal, and he could have taken further action to establish their prioritisation. However, the court did not conclude that the buyer had actually noticed that he was buying the land pledged by the respondent.

Accordingly, the Appeals Tribunal confirmed the Court's finding that the intention of the notifying party will dictate the precedence of pledges registered at the same time.