Legal Question in Family Law in California
As part of my divorce settlement with ex-wife a second trust deed on her house in the amount of a percentage of the net proceeds at sale or transfer of title was assigned to me. I received a letter from her next husband indicating she never had the second trust deed recorded with the County. I have verified this with the County Recorder�s Office.
If my ex-wife added her second husband to the title on her house or refinanced this property does that count as transfer of title or sale?
Do I first take legal action to force her to record the Second Trust Deed?
Please provide advice on what legal steps I should take to get the above situation corrected.
See details below:
Exhibit �A�
WIFE�S PROPERTY
5. That certain residence known as:
Legal description follows� of said County. Together with the encumbrances thereon and a second trust deed to `my name� in the amount of a percentage of the net proceeds of sale (less any capitol improvements made by wife after the divorce). Net proceeds are defined as; those monies left after deduction for real estate commissions, and the costs of sale. Husband can only collect his percentage share upon a sale or transfer of title to another party in interest.
I have a `Note Secured by Deed of Trust (receipt) for the second deed of trust signed by my ex-wife.
2 Answers from Attorneys
It was a big mistake to let the wife be responsible for recording the deed of trust. The lender should always take the deed of trust along with the Note and record it. At this point you need to prepare a deed of trust and demand she sign it for you to record. If she refuses, file a motion to have her held in contempt of the court judgment. You need to MOVE on this.. Anything done that affects title to the property before your DoT records, will take priority over your DoT.
I agree with Mr. McCormick. She should have executed the deed of trust and delivered it to you. You would then be responsible for recording it. Although recording is not necessary for a written instrument between parties, failure to record does not put the world on constructive notice, and you will lose priority to other liens and encumbrances.
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