Legal Question in Real Estate Law in California

Re: Can I attach property?

If you had used a promissory note secured by a deed of trust in standard form, with a power of sale in it, you could foreclose privately (without going to court) by trustee's sale. Even so, there are a lot of technical steps to foreclosure by trustee sale, starting with proper service of a Notice of Default on all concerned parties, including holders of other liens.

If you have nothing more than a bare promissory note that "lists" the house as security, you have a more difficult row to hoe, including the possibility that you have already lost your position in line to attack the collateral due to failure to record your lien.

OK, let's talk about the steps you propose taking:

(1) Attachment - requires filing a lawsuit first. Even then, usually requires a judgment. (It is occasionally possible to get a prejudgment writ of attachment if the defendant is deemed likely to try to hide assets prior to trial.) However, if the lawsuit affects title to real property, your lawyer can probably file and record a "lis pendens," which will be similar in effect to a lien or attachment.

(2) Restraining order - against what? The court can't restrain a debtor from continuing not to pay.

(3) Placement of a lien - you would already have a lien as of the date the loan was made if you had recorded some kind of notice at that time. We usually record a deed of trust or something other than the promissory note itself, since the note gives away more information than the public is entitled to, and also the note is usually not notarized. Unless you have some signed and notarized document from the borrower, you aren't likely to get a lien until you file a suit and get a judgment, and by then all kinds of other creditors may have jumped in line ahead of you.

All in all, I'd say you need to commence suit, but don't try to do it yourself! Enforcing a loan secured by someone's residence is ten times trickier than the average debt collection. Your first step is to have a real-estate lawyer advise you on the quality and properties of the note itself: whether the interest rate is usurious; whether the note is recordable; whether it grants you a security interest in identified real property or fails to do so; whether others have priority; and whether the note is ripe for a foreclosure action. I assume it will have to be foreclosed judicially, rather than by trustee sale.

Another aspect we haven't discussed is whether the note calls for arbitration, or if it contains an attorney-fee provision that conceivably could get you your fees paid by the borrower if you win.

I further assume this is not a purchase-money loan.