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Incorrect Answer on Judgment Liens

May 16, 1999

Robert J. Bruss gave incorrect answers to the questions raised by the buyers of a home later found to have a "hidden" lien (Real Estate Q&A, March 21).

Contrary to Bruss' answer, judgment liens recorded against California real property may not be foreclosed by the creditor (California Code of Civil Procedure, Section 697); only deeds of trust given to lenders as security for loans may be foreclosed in California.

Judgment liens, which do not have "power of sale" provisions as do deeds of trust, are required to be paid only when the property is sold or refinanced through an escrow.

Also, contrary to Bruss' answer, the judgment lien never becomes the lien of the buyers, it is only a lien against the home. Thus, a notice sent by an attorney stating that the loan is due and payable has no legal impact upon the buyers, other than notifying them of the lien; the attorney may not commence foreclosure or other proceedings against the buyers of the home.

The remedy the buyers have for the lien recorded against their home "hidden" from them by the sellers is to sue the sellers for the full amount of the judgment lien, plus interest and the buyer's attorney's fees, to reimburse the buyers for all of the losses the buyers sustain if the buyers sell or refinance the property.




The writer is an attorney who has specialized in real estate law for 25 years.

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