Note Investor from Folsom, California
In California, the statute of limitation on unsecured promissory notes is 4 years from the date of the first default (with several exceptions). More generally, the statute of limitation on written contracts is 4 years.
What's the statute of limitation on promissory notes secured by trust deeds ? I recently received a lead of a note available for sale, secured by a trust deed dated in 1996. I have seen the trust deed, but haven't seen the note yet. No payment has ever been made on the note.
I was going to wait until I gather information from various parties before asking the questions here, but then decided to ask here first, so that I know more about what questions to ask. I will ask more specific questions later once I have gathered more information.
Assuming that the note called for payments starting in 1996, which means it has been delinquent for over 16 years, how does the Statute of Limitation affect the note ? How does it affect the Trust Deed ? Will I have the right to foreclose (trustee sale) if I buy the note and Trust Deed ?
Real Estate Investor from Springfield, Missouri
I'd call that a stale note! I'd first want to know who was in the property. I'm not familiar with Cali but if the s/l was 4 years for contracts and unsecued notes I'd put my money betting on 4 years.
I'd weigh the option of proceeding regardless of the s/l as the borrower would need to bring that as a defense, I'd bet they don't if no payment was ever made.
Another issue, if a payment was never made it sounds like mortgage fraud that is another category getting to criminal charges, the s/l will be longer, 7, 10, 12 years, not sure, it depends too if the original was an insured lending institution or a private individual.
It also depends if the note was generated from an installment sale or was made as a cash loan, purchase or refi.
It will also depend on whois in the property and if the property has been sold over the past 16 years, we just had an example of a subject 2 deal going sour with subsequent sales and that can limit your security if the note holder fails to act in a timely manner.
Frankly, I wouldn't fool with this one, 16 years old, foreclosure notice gievn and never followed through, that's pretty much allowing the note to go stale and abandoning the claim of the amounts owed.
If the maker of the note is still in the property and you can contact them by phone or in person, you might be able to negoiate something holding the fraud claim over thier head, forgive some of it and modify it back to life, but they need to agree and you can certainly bluff your way along to a point. If another owner is in there and your note / dot was never picked up in title searches but was filed, you may have a claim with the title company, but I'd doubt you'd get far after 16 years, not sure the cloud wouldn't be quickly blown away by a judge. Really, I wondn't mess with it. Too much work and no guarantee at the end. :)
Not sure if you are looking to foreclose or sue on the note but in general there is no statute of limitations on foreclosure actions. The mortgagor would assert laches as a defense. It would be an equitable defense (because foreclosure is an equitable action.)
Obviously check with an attorney as this is just an overview of the SOL issue w/r/t to foreclosures.
Real Estate Investor from Springfield, Missouri
Very true William, a form of estoppel, laches as a failure to make a timely claim (you must be an attorney !) and is the underlying issue with "stale" notes. Been awhile since I've heard that! While claims in equity may survive as a practicle matter, if my security interests are not actively sought in a timely manner I may be barred from recovery. In Missouri we don't have a limitation to foreclosure, but the issue pointed out by William still applies and if a lender or creditor fails to actively seek remedies your security interest may be limited. However, a few months ago I had a note paid off arising from a sale transaction and it was stale, about 5 years old and a small amount remaining. A long story but I didn't make continued collection efforts and wrote it off, then got a phone call from the title company. The borrower wasn't represented and simply went to closing where he learned he was paying off the balance, what a surprise! He didn't admit being in default and I didn't mention it either, just took the money as if there was never a problem.
But 16 years old? I wouldn't go there unless a Cali attorney felt confident about collecting, or if you could work it out as I mentioned.
Real Estate Lender from Los Angeles , California
Just another quick item to take into account:
Trust deed lenders or trust deed investors can (and should) follow all the laws they want, but ultimately, it's pretty tough to do too much with real estate that is the collateral for a trust deed investment if you don't have title insurance coverage. The connection to this is that a title insurer may deny coverage in a case where no collection action has been taken for an excessive period of time.
Please remember, I said "might" deny coverage. They may also stand behind the coverage. (This relates to my experience in California.) Hard money lenders do see cases where title insurance carriers deny coverage on certain trust deed investments. California is where I work, so laws / practices may vary in your area.
Joffrey Long, Joffrey Long
Real Estate Investor from Carbon Canyon, California
Lost this thread since reading it back in 2012 (ok, 12/30/2012).
Got the definitive answer: properly recorded trust deed can be foreclosed on judicially or non-judicially for 10 years following the due date, if identified on the recorded security instrument (i.e., trust deed), or 60 years, I not so identified.
I must have been eating magic mushrooms to not immediately recall this, guys. Around 2003 I was involved with a very high profile probate attorney's whereby the decedent had fouled up title to the primary estate asset in a defunct corporation and clouded with some 23 judgment liens junior to a private party 1st.
The clean solution was to track down the little old lady who owned the ancient 1st TD which had not been paid on since about 1988. The bene had even lost the original note so I had her give me a lost instrument indemnification agreement along with the assignment of note/TD. I subbed in my corp as trustee, added 15 + years of back payments and completed a "friendly" foreclosure with the blessing and cooperation of the heirs.
This had the effect if wiping off the liens as no 3rd party bidders resulted in title reverting to me as assignee. Now that I had title, I negotiated a sale back to the estate, financed paying off the attorney's fees and my fee, as well as the foreclosure costs. Damn, this one was fun!
Rick Harmon, The Suburban Group
Deceased & missing owner property specialist. To Learn>Find>Profit, get my free e-newsletter
Real Estate Investor from California
Very interesting, Rick. What did you do in your spare time!!! LOL