Concepts Definitions

• Homestead Protection:

    ◦ Purpose: To provide limited protection to an owner-occupied dwelling unit against certain judgment creditor claims, aiming to reduce financial risks against future judgments and attachment liens. It may also offer protection in bankruptcy filings.

    ◦ Scope: Protects a specified amount of the homeowner’s equity, which is the difference between the property’s market value and the liens against it. For example, in 2021, an older Californian with limited income could claim up to $175,000.

    ◦ What it DOES NOT Protect Against: Secured debts (e.g., mortgages, trust deeds), mechanic’s liens, and property tax liens.

    ◦ Requirements (General): Owner-occupied, designated head of household (if applicable), proper filing/recording.

    ◦ Termination: Requires filing an “abandonment of homestead”.

• Liens:

    ◦ Definition: An encumbrance against property that renders it security for the payment of a debt.

    ◦ Voluntary Liens: The property owner agrees to the lien (e.g., mortgage, trust deed).

    ◦ Involuntary Liens: Placed on the property without the owner’s explicit consent (e.g., mechanic’s liens, tax liens, judgment liens).

    ◦ Specific Liens: Attach to a particular piece of property (e.g., mortgage, trust deed, mechanic’s lien, property tax lien).

    ◦ General Liens: Attach to all property of the debtor (e.g., judgment lien).

    ◦ Lien Priority: Determines the order in which creditors are paid from the proceeds of a foreclosure sale.

• Mortgages and Trust Deeds:

    ◦ Mortgage: A two-party instrument where the borrower (mortgagor) pledges property as security to the lender (mortgagee). In states like Florida, it involves a judicial foreclosure process.

    ◦ Trust Deed (Deed of Trust): A three-party instrument common in California, involving a borrower (trustor), lender (beneficiary), and a neutral third party (trustee) who holds “naked title” as security. In California, default on a trust deed typically leads to a non-judicial foreclosure (trustee’s sale).

    ◦ Promissory Note: A separate written promise to repay the debt, accompanying the mortgage or trust deed, and serving as “evidence of a debt.”

• Mechanic’s Liens:

    ◦ Definition: A statutory lien in favor of those who perform labor or furnish materials for the improvement of real property.

    ◦ Enforcement: Can lead to a foreclosure sale if the debt is not paid.

• Foreclosure:

    ◦ Definition: The legal process by which a lender or other lienholder takes possession of or sells a property to satisfy a debt when the borrower defaults.

    ◦ Process (California): Typically involves a Notice of Default, Notice of Trustee’s Sale, and finally a Trustee’s Sale (auction), usually taking at least 111-120 days.

    ◦ Right of Redemption: The homeowner’s right to reclaim property after default but before the foreclosure sale by paying all outstanding debt, costs, and interest.

• Equity: The financial interest an owner has in a property, calculated as the property’s current market value minus all outstanding liens and debts. Homestead laws aim to protect this specific portion of value from general creditors

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