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socrateaser
socrateaser, Lawyer
Category: Legal
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Experience:  Retired (mostly)
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I reside in California. I am in the mist of a divorce and

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I reside in California. I am in the mist of a divorce and am trying to save my home and have applied for a loan modification. B of A, my lender is requiring my husband on the note to quit claim the propery over to me. He is willing to do so as he wants a divorce, and of course does not want finacial obligations. He does not want to be held responsible for the property because he defaulted in morgage payments and we are in a foreclosue status. The critical question is that I have a promissary note, called a "Separate Propery Note" attached to the Deed of Trust With Assinment Of Rents. The note was never recorded yet is notorized. The original mysteriously disappeared during my marital hardships. My main question to you, does the Separate Property Note that is notorized hold up in court if it was never recorded? ( In addition, I went back to the attorney that wrote the agreement and I recall her stating to me that I need the original, not a copy.) The San Luis Obispo County Recorders Office advised me that I may seek legal help by asking for a Lost Deed of Trust thereby having it recorded. What is my status and what do you recommend? Thank you. Robin XXXXX

Submitted: 1 year ago.
Category: Legal
Expert:  Phillips Esq. replied 1 year ago.
Thank you for giving me the opportunity to assist you. Kindly use CONTINUE or REPLY button to ask for clarification or follow-up questions.

Who does the Promissory Note benefit?
Customer: replied 1 year ago.

The Promissary Note, is called a Separate Property Note. Are they one and the same? The note benefits me and states, " I, XXXXX XXXXX England promise to pay to Robin XXXXX XXXXX (which is me) or order, the sum of One Hundred Forty Thousand and and No/100 Dollars ($140,000.) without interest.

 

Principal shall be all due and payable on demand, upon the dissolution of my marriage to Robin XXXXX XXXXX, or upon the death of Robin XXXXX XXXXX, payable to her estate as her sole and separate propery, whichever first occurs.

 

If suit be brought on this note to enforce payment, maker promises to pay costs of suit and such sum as the Court may fix as attorney's fees.

This note is secured by a Deed of Trust." Date. July 22, 2004

 

Please remember, that I learned today that this document that was attached to a Deed of Trust With Assignment of Rents was never recorded, and the original was stolen from me. I do have a copy. The Deed was notorized yet it was NOT recorded. Is this still a ligitament document? Also, do I need a Loss Deed of Trust, and how exactly does that work? If so, do I need a Real Estate Attorney to write this up for me? I am trying to finalize my divorce and am trying to save my home which is in foreclosure by applying for a loan modification. Since my husband and I have been separated, B of A, my lender, wants him to sign over a Quit Claim Deed and be recorded. My major question is will this void the Separate Property Note that he signed, because it is attached to the Deed of Trust With Assignment of Rents? Thank you for a very detailed response. Also, if I have any further questions regarding this matter, is this covered in what I paid and do I receive all info. from you on this site exclusively, or in my private e-mail?

 

Robin XXXXX

XXX-XXX-XXXX

XXX@XXXXXX.XXX
Customer: replied 1 year ago.

Thank you for your upcoming feedback. Approx. when should I receive a detailed answer and should I stay on this page or will answer be in my private e mail? Robin Aaron

Expert:  socrateaser replied 1 year ago.
Hello,

Different contributor here. Please permit me to assist.

A promissory note, regardless of how characterized (e.g., "separate property note"), is an unsecured promise to pay. The deed of trust, secures the note to real property, so that if the promissor doesn't pay the debt, the holder of the note, forecloses the property.

If your husband quitclaims his interest in the property to you, then he has no further interest in the property, and his note is instantly unsecured, as if there were no deed of trust.

Concerning the note being lost, without the original note, you could try to use the deed of trust to prove that there was a note. A family court judge is likely to believe that, because it's the sort of transaction that spouses make with each other. So, I think you can probably get credit in your dissolution for the value of the note, even if it never actually appears again.

And, since the deed of trust is worthless as security for the note, once you receive a quitclaim from your ex, that is at least some value for the deed of trust's continued existence (I'm assuming that the deed of trust was recorded -- notes, by the way, are never recorded -- only deeds of trust).

Hope this helps.
socrateaser, Lawyer
Category: Legal
Satisfied Customers: 33543
Experience: Retired (mostly)
socrateaser and other Legal Specialists are ready to help you
Expert:  socrateaser replied 1 year ago.

Hello again,

I see that you rated my service as "OK." Experience tells me that customers who rate at this level are generally not entirely satisfied with the service received. If you require further clarification or assistance with this question, please let me know and I will try to help.

Note: Please do not reply to this memo, unless you actually have a follow-up question. Otherwise, the system will force me to respond, even if you are simply saying, "no thanks."

Best wishes.

Customer: replied 1 year ago.

Did you just receive my note to you today, Friday, June 21st? I can't seem to pull it up on my computer.

Expert:  socrateaser replied 1 year ago.
I'm not following your question. I will have customer service contact you. No need to reply to this note.
Customer: replied 1 year ago.

Thank you.

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