Legal Question in Real Estate Law in California
One more question related to my last.....( thanks for the answers I received )
I signed a note for a secured second on real property for a loan made to me by the real estate broker I worked for. The beneficiary of the note is the broker's Funding & Investment company. This note was the result of money borrowed in increments rather than borrowed in a lump sum.
The note was for 50K, secured by a deed of trust. In trying to verify the true amount borrowed, I find that the amount is closer to 42K.
How do I go about requesting accurate documentation of the actual amount? Also, what affect would this have on the validity of the note/ deed of trust?
Or, am I screwed?
1 Answer from Attorneys
Well, outside of a legal proceeding there is no "official" way to ask for an accounting of your debt. There is also a presumption that the amount on the face of the note, plus any interest called for, and less any payments, is true and correct, since you signed it. You can, however, initiate a legal proceeding for reformation of the note based on mutual mistake of fact. If you both thought it was $50k and it was $42k, you have a right to pay the correct amount. You do need to make sure you get that taken care of though, because if the lender assigns and endorses the note to a good faith assignee for value without notice of the error, the new owner of the debt will take it free and clear of your right to have the note modified to the correct amount. The amount in the deed of trust is advisory only, however, since even with a conventional loan once payments are made the face amount on the deed of trust is not the actual correct amount of the secured debt.