Legal Question in Real Estate Law in California

The note is never recorded. A deed of trust is recorded, securing the note. If you do not have a deed of trust that was signed in the presence of a Notary Public, your note is not secured. You would need to file suit in court.

Mr. Koenen is correct, although I write separately to point out that a deed of trust can be notarized by acknowledging a signature, in addition to and in lieu of signing in front of a notary.

The promissory note is not normally recorded. It usually refers to a deed of trust, which is recorded. If the promissory note is secured by a deed of trust, you would need to foreclose. You need to understand that California has special laws that determine how and when you foreclose. For example, if you foreclose nonjudicially, through a trustee's foreclosure sale, Code of Civil Procedure section 580d prevents you from getting a deficiency judgment later if the property does not yield enough at the trustee's sale. There are other provisions, as well, which I will not go into here for the sake of brevity.

If the promissory note is not secured by a deed of trust, you would have to actually file a lawsuit for breach of contract in a court of law. In that situation, you could only look to the property once you obtained a judgment.

Regardless of the route you choose, I suggest you speak to a competent attorney before making any decisions.

The effect and importance of recording instruments such as deeds, deeds of trust, etc. is often misunderstood. Recording is not necessary to create an enforceable obligation between the borrower and the lender. Recording is a means of so-called "perfecting" a lien, i.e., giving legally-effective notice to everyone else in the World of the existence of a prior lien. As between the borrower, the lender, and others with actual or constructive notice of the note, recording is not necessary, although highly recommended!

Your rights against the borrower will depend upon the nature and terms of the documents the borrower signed. If the real property was pledged, you can foreclose, but you will have to foreclose in court unless you have, somewhere in your unrecorded documentation, a power of sale that might allow you to proceed against the collateral by trustee sale. As a practical matter, I think you are going to have to go to court and sue for enforcement of the note and judicial foreclosure of the collateral.