Legal Question in Real Estate Law in California

This is a classic case of resulting trust. Resulting trust is a theory whereby you can get title back on the fact that the person to whom you've given title to acts as trustee for you for the title to the property.

The burden of proof is by clear and convincing evidence. If you have the proof showing you paid for the property, ie. proof of source of down payment. Courts want to see in fact you came up with the down payment for the loan. I hope you've kept some receipts for it.

You can stop the sale by recording a lis pendens. For that you need an attorney.

She owns it, she is on title. The only way you're going to get anything is to file legal action for quiet title, constructive trust, and recovery of moneys paid and interest in the property. The burden of proof is on you. If serious about hiring counsel to help you in this, and if this is in SoCal courts, feel free to contact me.

I disagree with the previous answer. Not only is this not a perfect example of a resulting trust, it is not a resulting trust situation at all. I think Mr. Tan mis-read your facts. A purchase-money resulting trust would arise if you paid the down-payment for the property but your sister took title from the original seller instead of you. Here, as I understand it, you bought the condo previously, then got into financial difficulties and decided to transfer your ownership to your sister. That's not a resulting trust. It's a gift.

Unfortunately, in all probability, it was also a fraudulent transfer. You should read up on fraudulent transfers of real property, starting perhaps with California's version of the Uniform Fraudulent Transfer Act, codified in the Civil Code as sections 3439 to 3439.12. The definitions in section 3439.04 kinda sound like what you were trying to do by transferring the property to your sister.

The difficulty with trying to figure out any kind of pleading you could make to a court to try to get your property back is that the possibilities are generally equitable, rather than legal, in nature, and the "unclean hands" equitable defense comes to mind. That defense basically says that a court of equity won't go very far to assist someone who has not behaved well in the same transaction. See http://www.mccormickbarstow.com/showarticle.aspx?Show=221 for an interesting discussion.

Of course, your sister may well be "in pari delicto" as to the possibly-fraudulent transfer of the condo; a knowing transferee can be as guilty as the transferor.

In sum, based on the given facts, I don't see a really clear theory upon which you can reclaim your condo against an unwilling sister. The fact that you gave it to her as a gift instead of selling it to her for full price isn't going to provide an argument, at least not one that'll get far. What is the status of the mortgage, and does the lender know you gave away the collateral? That won't affect it as collateral, of course, but it's probably a violation of any due-on-sale clause in your loan and might trigger a demand to pay it off.

Finally, don't try to record a lis pendens until there is litigation under way. A "lis pendens" is a notice of pendency of litigation; a recorded notice that litigation affecting title to, or possession of, certain real property is currently pending in a court. Even then, your lawyer can prepare and file one, but a self-represented party needs prior approval of a judge.

I agree with Mr. Whipple. You have two big problems. The first is that there is a presumption that a deed is absolute on its face. You have the burden of proof of showing otherwise. This is going to require some incredible proof on your part, and a separate written agreement between you and your sister would help, but I suspect that all this was oral, which means the whole thing is a "he said she said."

Second, it would appear that you engaged in a fraudulent transfer to avoid creditors. This hurts you in seeking equitable relief from the court, such as quieting title.