Legal Question in Real Estate Law in California

Mortage lein/Release

If a mortage co. fails to provide poor of claim within ten days, by remaining silent does that create an unconditional agreement and acknowledged an accepted of the new contract??? Tammy


Asked on 4/15/07, 3:49 am

1 Answer from Attorneys

Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Mortage lein/Release

If you will re-read your own question carefully, you may appreciate the difficulty a lawyer will have in understanding just what the heck you're asking.

Assuming "poor of claim" means "proof of claim" and substituting "acknowledge" of "acknowledged" and "acceptance" for "accepted," I searched WestLaw (an on-line lawyers' data base) for cases, laws and treatises where these words and phrases might appear together, or with the word "mortgage."

As best as I can tell, these words and phrases are not used together in any laws or cases, or at least not frequently.

There is a reference to a 10-day service period in mechanics' lien law; see Civil Code section 3154(d).

"Proof of claim" is a term often used in bankruptcy law, but nothing else in your question hints that you are asking about a bankruptcy situation. (I do not practice bankruptcy law).

Ten-day provisions are often written into contracts such as loans and leases as grace periods for making periodic payments, and so forth.

Contracts can only very rarely be created or modified by the silence of the offeree or party. When it can happen (silence as assent), it is usually because the trade practice and custom of the industry in which the parties participate allows formation or modification by failure to respond as part of its customs and tradition.

If you can re-ask your question with more facts and careful proofreading, maybe a LawGuru attorney can give you a better response.

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Answered on 4/15/07, 3:18 pm


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