Foreclosure
Glossary
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Assignment Of Deed Of Trust
- A written document, that transfers the beneficial interest
in a note and deed of trust from one to another.
Authorization To Sign As Agent Agreement
- Written document given by a beneficiary
authorizing an agent to sign a document on their behalf
(such as a notice of default). |
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Bankruptcy
- A legal proceeding which allows a debtor
to discharge certain debts or obligations without paying
the full amount or allows the debtor time to reorganize
his financial affairs so he can fully repay his debts.
(A bankruptcy does not discharge obligations secured by
a deed of trust.)
Beneficiary - The
lender or their successor in interest for whose benefit
a trust is created and to whom the debt is owed.
Bid
Authorization Letter - Your written authorization
instructing the trustee to make the initial opening bid
at the trustee's sale on the lender's behalf. This form
will also advise our office of any additional amounts to
be included in the opening bid, (total Debt), such as funds
advanced by you to pay delinquent real estate taxes, etc.
Breach - The failure
without legal excuse to perform any promise made in a contract.
A breach is stated in the notice of default. |
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Declaration
Of Default - A written document that instructs
the trustee to prepare and record a notice of default and
if necessary, to sell the secured property in order to satisfy
the unpaid obligation. This document does not require the
acknowledgment of a notary public or recording and is merely
retained by the trustee in their foreclosure file.
Deed Of Trust - A
written document, describing the real property that is being
given as security for the repayment of an obligation.
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Endorsement/Datedown -
A continuation of the trustee's sale guarantee that reports any changes in the status of the property being foreclosed. Such "date downs"
are requested from the title company prior to preparation of the notice of trustee's sale and prior to the trustee's sale.
Eviction
- See "Unlawful Detainer."
Extension Agreement - An agreement (normally
written) giving additional time to pay an obligation. |
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Federal Tax Lien -
An obligation to the United States government as a result of nonpayment of federal income taxes.
Foreclosure
(non-judicial) - A popular term used to describe the procedure followed in enforcing a creditor's rights when a debt secured
by any lien on property is in default; however, the correct term for a "Foreclosure" involving a deed of trust is a "Trustee's
Sale Proceeding." |
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Important
Notice
- A written document required by California law to be a
part of the recorded Notice of Default. This document is
completed by our office and attached to the Notice of Default
(as page 1) prior to recording. It sets forth the reinstatement
amount as of a specific date and contains certain language
directed to the borrower and emphasizes the fact that a
foreclosure proceeding has been initiated.
Invalid - not legally
sufficient; no binding force. |
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Lien
- A legal claim upon real property recorded subsequent (or
recorded prior but has subordinated) to another legal claim
upon the same real property. |
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Limited
Power Of Attorney
- A recorded document which authorizes someone to act as
attorney-in-fact in a specific manner for someone else.
Lis Pendens - A
recorded notice of pending legal action, which notifies
prospective purchases and encumbrances that any interest
acquired by them in a property litigation is subject to
the decision of the court. |
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| Modification
Agreement
- A written document, signed by the beneficiary and the
borrower that alters the terms of either the note of deed
of trust. |
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Nonmilitary
Affidavits
- A sworn statement, in writing from the beneficiary or
his agent which declares that the property owner is not
entitled to any rights under the Soldier's and Sailors Civil
Relief Act of 1940.
Note - A written
document, (promise to pay), that sets forth the amount of
the obligation and the terms of repayment.
Notice Of Default
- A written document that gives constructive notice of a
trustor's failure to perform his obligation under a deed
of trust. This document does not require the acknowledgment
of a notary public and must be recorded.
Notice Of Rescission
- A written document that cancels or annuls the effect of
a notice of default when a default has been cured (reinstated).
This document does not require the acknowledgment of a notary
public, but must be recorded with the county recorder in
the county in which the property is located.
Notice Of Trustee's Sale
- A written document that sets forth the day, date and time
of the trustee's sale, describes the property to be sold
and gives an estimate of the unpaid debt as of the first
publication debt. This document is prepared by the trustee
and does not require the acknowledgment of a notary public
and must be recorded with the county recorder in the county
in which the property is located at least 14 days prior
to the scheduled sale date. We must arrange for the notice
of trustee's sale to be published in a qualified newspaper
in the city (or judicial district), in which the property
is located. This publication must appear for 3 consecutive
weeks, with the first publication date being at least 20
days prior to the sale date. |
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Postponement
- A verbal announcement made at the time and place of the
scheduled trustee's sale that establishes a new date or
time for the trustee's sale. The sale cannot be changed
from the originally noticed location.
Preliminary Injunction
- A judicial order granted by a judge of the Superior Court,
which prohibits the trustee from proceeding with any further
action on a specific foreclosure file until a trial is held
or settlement reached. This occurs when there is a dispute
between the owner of a property and the beneficiary. A Trustee's
Sale cannot be held any sooner than seven (7) days from
the dismissal of the action or the expiration of a restraining
order, injunction or stay from any court of competent jurisdiction.
However, the order or any amendment thereto may expressly
provide for an earlier sale date.
Pre-Publication Period
- The three month period following the recording of the
notice of default. Prior to 1986 this period was called
the reinstatement period.
Present Owner, Current Owner, New
Owner - The successor to the trustor named
in the deed of trust and now the owner of the property.
Promissory Note
- See "Note."
Publication Letter
- This letter is sent to the lender by the trustee. When
completed and returned, it authorizes the trustee to proceed
with the scheduling of the trustee's sale and preparation
of the notice of trustee's sale.
Publication Period
- This is the interval beginning the day after the pre-publication
period expires and ending with the conducting of the trustee's
sale. During the publication period, the notice of trustee's
sale is published, posted, recorded, and copies are mailed
to all entitled parties. The publication period is normally
30 to 40 days. |
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Reconveyance
- A recorded document which gives notice that the loan secured
by the identified deed of trust has been paid in full.
Rescission - See
"Notice of Rescission."
Reinstatement -
A curing of a default and restoration of the loan to current
status through payment of past-due amounts together with
the fee and expenses of the trustee.
Reinstatement
Period
- This is the interval from the date the notice of default
is recorded until five business days prior to the date of
sale during which time a default may be reinstated/cured.
Request For Notice
- A recorded document which requests a copy of any notice
of default and any notice of sale to be sent to the requester
at the address shown. See California Civil Code section
2924b(1).
Return And Account Of Sale By Trustee
- An itemization prepared by the trustee
or his agent and sent to the successful bidder at the sale.
It gives a complete accounting of the successful bid.
Request To Prepare Notice Of Default
- See 'Transmittal Form.' |
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Soldier's
And Sailor's Relief Act
- An act passed by Congress in 1940, for the financial protection
of those persons serving in the military service. This act
is the reason for the completion of the nonmilitary affidavit
forms.
Statement/Invoice
- An itemization of the trustee's fee and expenses incurred
at the conclusion of the foreclosure proceeding (cancellation,
reinstatement, payoff or completed sale).
Substitution Of Trustee
- A written document that appoints a successor trustee to
the trustee named in the deed of trust, (or present trustee).
This document must be acknowledged by a notary public and
recorded with the county recorder in the county in which
the property is located. |
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Temporary
Restraining Order (Tro)
- A judicial order which is granted by a judge of the Superior
Court. This order temporarily prohibits the trustee from
proceeding with any further action under a specific foreclosure
file until a trial is held or settlement reached. A TRO
is effective, generally, for a 21 day time period or until
a hearing is held and the judge decides whether a preliminary
injunction will be granted or denied.
Toll - To temporarily
stop. Frequently used to describe the tolling (stopping)
during bankruptcy of any further acts in foreclosure.
Transmittal Form (TS138)
- This is the "Request to Prepare Notice of Default"
transmittal form which is completed by the lender and forwarded
to T.D. Service Company together with the note, deed of
trust, assignments and other necessary loan documents. This
form sets forth all pertinent information to enable us to
prepare the default documents.
Trustee's Deed Upon Sale
- A written document which is prepared and signed by the
trustee when the secured property is sold at a trustee's
sale. This document transfers ownership to the successful
bidder at the sale; must be recorded with the county recorder
in the county in which the property is located.
Trustee's Sale -
The public auction of the real property, described in the
deed of trust, to satisfy the unpaid obligation.
Trustee's Sale Guarantee
- A Title report given to the present trustee when a trustee's
sale proceeding has been initiated. This report provides
the names of the current owner, all liens and encumbrances
recorded and other information pertinent to the foreclosure
process. The information is insured to be correct by the
title company.
Trustee's Sale Proceeding (Foreclosure)
- The term used to describe the non-judicial
procedure followed by the trustee in enforcing a creditor's
rights when a debt secured on real property is in default.
Trustor - The borrower
(or property owner) at the time the deed of trust was created.
Trustor is often used to refer to the current owner.
TS138 - See "Transmittal
Form." |
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| Unlawful
Detainer Action (eviction)
- A legal action to remove someone who has unjustly retained
possession of real property after one's right to possess
has terminated. |
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Valid
- A condition that is legally sufficient; that will be upheld
by the courts.
Void - Having no
legal force or binding effect. Incurable.
Voidable - A condition
capable of being made void, although not necessarily void
in itself. |
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DISCLAIMER:
Presentation of this glossary is for general purposes only.
No information on this page is to be viewed as legal advice
or as an official description of judicial process. These
terms are general and are displayed strictly as a service
to consumers. They are not intended to be all-inclusive
or to cover default situations in all states. Consumers
are advised to seek professional legal counsel in any default
proceeding.
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