Expert: Los Angeles Bankruptcy Lawyer Leon D. Bayer - 11/8/2010

Question
QUESTION:    Would it be a violation of  the bankruptcy Decree if a creditor foreclosed on it's secured lien (deed of trust) that did not motion the court for an order to lift the stay during or after the bankruptcy ?

ANSWER: No, it wouldn't be, so long as the creditor waits until the bankruptcy case is finished. After that, they can go right ahead and foreclose.

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QUESTION: CALIFORNIA CIVIL CODE
SECTION 655

Can LAND be owned under this section in California? And if not which law or statute says you can own land?
Think outside your statutory box and keep looking!

655. There may be ownership of all inanimate things which are capable of appropriation or of manual delivery; of all domestic animals; of all obligations; of such products of labor or skill as the composition of an author, the good will of a business, trade marks and signs, and of rights created or granted by statute.
THANK YOU!

ANSWER: Yes. That section codifies the ancient common law about ownership of private property. The opposite would be communism.

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QUESTION: If a benny does not own the real property in foreclosure and requested the  disposing of the real property would the trustee or benny be in violation of this statute upon transferring the real property to the benny since neither have an interest in title pre-foreclosure

CALIFORNIA CIVIL CODE
SECTION 1091. An estate in real property, other than an estate at will or for a term not exceeding one year, can be transferred only by operation of law, or by an instrument in writing, subscribed by the party disposing of the same, or by his agent thereunto authorized by writing.

Answer
The deed of trust contains a future interest in favor of the appointed trustee, in which the owner is granting the trustee under the deed of trust a "power of sale." This allows the trustee to sell the collateral in the event of a breach of the owners duties under the deed of trust.

So, we see that it all is in writing, after all.

The beneficiary does not ever own the property simultaneously with being a beneficiary, because you can't foreclose on yourself. To trigger the foreclosure ball rolling, the beneficiary notifies the trustee of the breach, and the trustee takes it from there and commences the issuance of the Notice of Default.

You should read a deed of trust and promissory note. It's all there. The requirements of a writing are met.

The power of sale can not be exercised, except upon the owner's breach. The owner grants this special power to the trustee by signing the deed of trust, typically when all the escrow documents are signed. It's like saying, "loan me money, and if I default I have to shoot myself."

An easy way to grasp this is to see that a foreclosure sale is not an involuntary sale at all. It is actually authorized by the owner, usually at the time the money is borrowed, and in writing - because it's contained in the provisions of the deed of trust, to be exercised in the event the owner breaches the promissory note by failing to pay what is required.

Whew...