Legal Question in Real Estate Law in California
Deed of Trust not recorded
We sold our house in October 2005, the buyer agreed to owe us $25,000 because the appraisal did not meet what we were asking for the house. The buyer signed a deed of trust and his agent and our agent payed the interest up front, the money is due in November 2007 that is in 9 months the problem is that the notary never got the deed of trust recorded we have copies. I'm afraid that if he sells or refinances I will not get my money since there is no lien on the house. What can I do to make sure I get my money? The county recorder said they need the original deed of trust in order to record it, the escrow company sent us the copies but wont give us the original when we call they say the notary does not work for them any more and always have an excuse for not being able to get the original deed of trust.
Thank you hope you can give me some advice since it is a large amount of money.
2 Answers from Attorneys
Re: Deed of Trust not recorded
The previous post seems confused. It seems as though your problem is that you did what we call an owner carry back, outside of escrow, but using a notary at the escrow office who kept the original deed of trust. (Known as a second "owner carry back.") This notary has flown the coup.
If your escrow instructions included this carry back mortgage, the escrow company would have had the responsibility to see that the deed of trust was recorded. The escrow company is liable, regardless of whether or not a former employee is there or not.
If you did this on the side, you will have to go after the notary and have the actual documents replevined, unless you can get your buyer to re-execute the missing document.
I do not agree with all of the lawsuits advised by Mr. Rothman, because your note has not yet matured and you do not have any loss. You may be able to solve this problem with a redrafted "original" deed of trust and a letter or a phone call.
Very truly yours,
Re: Deed of Trust not recorded
If the Buyers refuse to supply you with a new original deed of trust, you may check with the escrow officer. Without an original deed, you may have to file a lawsuit against the buyer to cause a lien on the property. You may also have an action against your salsperon and broker with a possible action against the escrow company which should be holding the original deed. Please call me if you need help or have any other questions. We would need to review the purchase contract and escrow instructions.
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