Blog
Partition:
When there is a disagreement between the co-owners about the sale or division of the property, any of them can bring a petition action to force the sale or division of the property.
Consent of other parties is not required. Partition has two phases: 1. Interlocutory judgment; and 2. Distribution of the proceeds of the sale.
1. Interlocutory Judgment: It is a judgment for the partition through sale or division. A referee is appointed to market or sell the property. The property is first offered to the parties to buy.
2. Distribution of the Proceeds of sale: If some co-owners have expensed more than others on the property (e.g., paid mortgages, repairs, etc.), they will get reimbursed. This phase is the accounting phase. These cases can take 90 days to 1 year. What makes partition longer is probate, Trust, and Estate issues. Also, when some parties do not pay their share despite a judgment against them, the case gets more complicated and longer.
Quiet Title Action:
It is an equitable remedy, and it is about fairness. The intent of parties, how each party performed, and what is fairness for each party are factors considered. A quiet title action may be used to establish a title against fraud, a right of way by necessity, boundaries, or a clear title free from liens, etc. Defenses to Quiet Title are when there is a plaintiff’s wrongful conduct, lapse of time, etc. These cases can take 2-3 years (if not settled sooner), and they start with filing a complaint in California Civil Courts.
Foreclosure Defense:
If there is a default or risk of default on payment of a first lien mortgage of a residential property, you may be qualified for a loan modification to avoid either default or foreclosure. The first step in foreclosure defense is loan modification.
A loan modification is the submission of the borrower’s application for modifying the loan in a way that makes it easier for them to pay (e.g., forbearance, reduction in the installments over longer years, etc.). The lender is not allowed to proceed with the sale until they issue a final decision about this request. Lenders are not obliged to accept or offer loan modification, but they must issue a final decision about that with their supporting reasons. Loan modification can be done by the borrowers themselves (without the help of real estate agents or attorneys). It is strongly recommended to document every conversation or contact you had with the bank with dates, times, name of the representative, and subject of conversations. If the lender proceeds with the sale without issuing the final decision of the loan modification, the borrower can prevent foreclosure under Homeowner Bill of Rights (HBR). Under HBR, the lender is required to provide a single point of contact to facilitate communication.
Contracts:
An attorney's role in contracting can include contract drafting, reviewing, and amending.
The attorney goes through the legal documents and starts spotting legal issues. Then, legal research is done on issues to figure out what consequences a provision has on the contract. Also, the attorney looks for alternatives that are in the best interest of her client. After the first review, the attorney discusses these findings with her clients. Then, the client and/or attorney discuss their concerns and rights with the other contracting party. If the parties reach an agreement, an amendment to the contract is made. Often, multiple areas of law are involved in a contract (e.g., contract, loaning, real estate, landlord/tenant, business, etc.).