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Sale Void if Petition Filed Before Trustee's Deed
That was the obvious move for quality loan services. I wondered what the
point of all this was since it is a 7. That should render the appeal
moot. too bad. He should have moved to convert to a reorganization after
the first decision was issued.
That was the obvious move for quality loan services. I wondered what the point of all this was since it is a 7. That should render the appeal moot. too bad. He should have moved to convert to a reorganization after the first decision was issued.
The post was migrated from Yahoo.
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FYI, Quality Loan Service filed another Motion for Relief from Stay
(Real Property) and it was on calender this morning. Judge Wallace
granted Relief allowing a new trustee's deed upon sale to be executed
and recorded. Quality Loan Service did not seek and Judge Wallace made
abundantly clear that he did grant relief to pursue an Unlawful
Detainer. Mr. Gonzales was pro se and attempted to argue state law
deficiencies regarding standing of alleged trustee of the deed of trust
to file and NOD and NOS, but since no written opposition was filed,
Judge Wallace ruled based upon the documentation provided the by the
lender in its motion. I was unaware of the prior decision and really
was not paying that close attention as I was appearing telephonically.
Mark T. Jessee
Law Offices of Mark T. Jessee
"A Debt Relief Agency"
50 W. Hillcrest Drive, Suite 200
Thousand Oaks, CA 91360
(805) 497-5868 (805) 497-5864 (Facsimile)
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On Tue, 3 Jan 2012 20:45:57 -0800, Giovanni Orantes wrote:
[Attachment(s) from Giovanni Orantes included below] Is
anybody out there following the Raul Gonzalez Case? In that case,
Judge Wallace denied relief from stay-unlawful detainer on the basis
that a sale had not been completed pre-petition because the Trustee's
Deed Upon Sale was not executed until after the debtor filed his
bankruptcy petition. Judge Wallace thoroughly analyzes
counterarguments I thought about when reading it.
As duplicitously as some banks have been behaving lately, I have one
or two cases in which this is an issue because the debtor thought the
property wouldn't be sold because the bank was negotiating a loan
modification, but the bank went ahead and sold the property, anyway,
and the petition was not filed until after the trustee's sale. The
Gonzalez case is in Riverside District Court - 6:11-bk-15665. I wonder
if anybody is volunteering to help Mr. Gonzalez, who is in pro per and
I don't think the district court will do the work for him, like Judge
Wallace did. I'm all the way in L.A. and quite swamped right now or I
would help myself. I attach the case hereto. Here is a brief excerpt:
DISCUSSION
Although there is a significant dispute between the
parties as to the precise time of the trustee's acceptance of
the final bid (and perhaps the only bid) at the nonjudicial
foreclosure sale, it is not necessary to defer a ruling on
Rancho Horizon's motion. As discussed below, Rancho
Horizon is not entitled to relief from the automatic stay
on the basis of unlawful detainer even if the acceptance
of the final bid by Quality Loan Service occurred prior to
1:46 p.m. on February 22, 2011. Rancho Horizon fails to
meet its burden of establishing a prima facie case because
it has failed to demonstrate facts that would support relief
from the stay under 11 U.S.C. 362(d)(1) or (d)(4).
A. Postpetition Execution of the Deed
At common law in earlier ages, the ownership of real
property was transferred by "livery of seisin", a ceremony
in which the grantor (then called the "feoffor") traveled to
the property to be conveyed and, in the presence of
witnesses, declared the contents of the grant and
delivered to the grantee a clod of earth or twig or bough.
2 William Blackstone, Commentaries *315. Modern law,
[*6] however, prescribes the use of written deeds to
convey real property. Section 1091 of the California Civil
Code provides that an estate in real property (other than
an estate at will or for a term not exceeding one year) can
be transferred only by deed or by operation of law.
The execution, delivery and acceptance of a
properly-drawn deed to real property are no mere
formalities or ministerial acts.5 Rather, they are the
essential acts by which ownership of, and title to, real
property are transferred from one person to another. A
deed is not merely evidence of a grant but is the grant
itself and operates to transfer title to the grantee. See Cal.
Civ. Code 1091; Hamilton v. Hubbard, 134 Cal. 603,
605 (1901); Drake v. Martin, 30 Cal. App. 4th 984, 994
(Ct. App. 1994). Of critical importance here is that there
can be no transfer of title to, or ownership of, real
property (including, of course, the Property) unless and
until a deed is executed in favor a grantee and such deed
is delivered to, and accepted by, such grantee, unless
through a transfer by operation of law.
5 One California case has suggested that the
execution of a deed is only a ministerial act.
Ballengee v. Sadlier, 179 Cal. App. 3d 1, 4-5 (Ct.
App. 1986). [*7] However, this case has been
limited to its special facts and, in any event, is of
questionable validity in view of its failure to
discuss or even cite section 1091 of the California
Civil Code. See Little v. CFS Serv. Corp., 188
Cal. App. 3d 1354, 1362 (Ct. App. 1987) ("We
believe that Ballengee should be limited to its
facts: an unsuccessful attempt by a junior lienor to
circumvent an antideficiency statute by arranging
for his trustee to withhold execution and delivery
of the deed to him after he had purchased at his
own sale.").
Giovanni Orantes, Esq.
Orantes Law Firm, P.C.
3435 Wilshire Blvd. Suite 1980
Los Angeles, CA 90010
Tel: (213) 389-4362
Fax: (877) 789-5776
e-mail: go@gobklaw.com
website: www.gobklaw.com
start="40aob85hp7c4@webmail.mysuperpageshosting.com"
charsetF-8
p{margin: 0;padding: 0;}FYI, Quality Loan Service
filed another Motion for Relief from Stay (Real Property) and it was on calender
this morning. Judge Wallace granted Relief allowing a new trustee's
deed upon sale to be executed and recorded. Quality Loan Service did not
seek and Judge Wallace made abundantly clear that he did grant relief to
pursue an Unlawful Detainer. Mr. Gonzales was pro se and attempted to
argue state law deficiencies regarding standing of alleged trustee of the deed
of trust to file and NOD and NOS, but since no written opposition was filed,
Judge Wallace ruled based upon the documentation provided the by the lender in
its motion. I was unaware of the prior decision and really was
not paying that close attention as I was appearing
telephonically.
Mark T. JesseeLaw Offices of Mark T. Jessee"A
Debt Relief Agency"50 W. Hillcrest Drive, Suite 200Thousand Oaks, CA
91360(805) 497-5868 (805) 497-5864 (Facsimile)NOTICE TO RECIPIENT:
THIS E-MAIL IS MEANT FOR ONLY THE INTENDED RECIPIENT OF THE TRANSMISSION, AND
THIS COMMUNICATION IS INTENDED TO BE PRIVILEGED BY LAW. IF YOU RECEIVED THIS
E-MAIL IN ERROR, ANY REVIEW, USE, DISSEMINATION, DISTRIBUTION, OR COPYING OF
THIS E-MAIL IS STRICTLY PROHIBITED. PLEASE NOTIFY US IMMEDIATELY OF THE ERROR BY
RETURN E-MAIL AND PLEASE DELETE THIS MESSAGE FROM YOUR SYSTEM. THANK YOU IN
ADVANCE FOR YOUR COOPERATION.
On Tue, 3 Jan 2012 20:45:57 -0800, Giovanni Orantes
<go@gobklaw.com> wrote:
The post was migrated from Yahoo.