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Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 31785
Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by Thompson-Reuters
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I have a prommisory note that is overdue for payment to me.

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I have a prommisory note that is overdue for payment to me. I want to place a lien on the debtors property as he is anning to list it for sale. What type of lien do I need as this was a loan from me to him. ??

Hi - my name is XXXXX XXXXX I'm a Real Estate litigation attorney. Thanks for your question.

Was there any collateral pledged by the borrower in exchange for the loan?

Customer: replied 4 years ago.
Just that I could place lien on the house, or his truck. But he owes me about 45k and I am tired of waiting. He re-fied the house to try and pay me, that was a joke. He got $3227. After everyone was paid but me. Now he says he will have to sell the house to pay me.

Ok. Thanks.


If the note pledges the real estate and vehicle as collateral, you have a lien against these things already.


If you had the borrower sign a deed of trust for the real estate and if you recorded the deed of trust in the land records, you have a right to foreclose on the property for his default under the deed of trust.


However, if there is no deed of trust - - and just a promissory note - - the only thing you can do is sue the borrower in court for breaching the repayment terms of the promissory note. Once you obtain a judgment against the person for the balance due on the note, you can place a judgment lien against the person's real estate, vehicle any other property owned.


You can then take the judgment and use it to foreclose on your house; also, you could issue a writ of execution to force the sale of the borrower's personal property - including his truck.


You would have to use the proceeds from any sale to pay off any lienholders in front of you (like the mortgage loan or the vehicle note). Once any superior lienholders are paid, the remaining funds can be used to pay on your note.


You can also issue wage garnishments and bank levys against the person once you get a judgment.


Thus, there are several ways to proceed with liquidating property, but if there's no deed of trust for the real estate, you're going to have to file suit and obtain a judgment before you can enforce your lien against the person.

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