Legal Question in Real Estate Law in California

Affidavit of Intent, binding document?

I entered into a verbal agreement with my brother & sister-in-law to purchase over a home they were losing. I was in the process of purchasing a home for myself. When my sister in law(a mortgage broker)found out I had qualified for a loan, they approached me & asked me to purchase their property instead (insisting that it was a great move for me) & if they could, after 1 year, they would get it together & purchase it back from me. They continued living in the home & instead of paying me rent, they paid the mortgages directly or they would have to move so I could rent it out (stupid!!) They could not get a loan (they filed bankruptcy 1 year prior,never told me). I was informed by the holder of the 1st mortgage that all payments had been late, same with 2nd & prop taxes (also part of ageement). All of the statements were mailed directly to them. I now need to sell the property but they filed a quiet title action which has stopped everything (including an eviction I filed through an attorney). The loans & deed are in my name & they signed an affidavit of intent. Why can't I get the judge to drop the quiet title suit? We are in appeal right now, I am desperate to save my hide! Am I missing something?

Asked on 1/28/06, 2:21 pm

5 Answers from Attorneys


Re: Affidavit of Intent, binding document?

If you are "in appeal right now", then presumably, a judgment has already been entered. The landscape of appellate procedural and substantive law is quite different from the trial court level. And there are deadlines to which you must adhere. Get yourself a competent appellate litigator familiar with real property issues.

We are real estate litigators who routinely handle cases at both the trial and appellate levels. We have experience in title issues. If/When you are ready to proceed, feel free to call or email for a consultation. Good luck.

***No Legal Services or Attorney Client Relationship - Although this email may provide information concerning potential legal issues, it is not a substitute for legal advice from qualified counsel. You should not and are not authorized to rely on this email as a source of legal advice. Until a formal Retainer Agreement is executed, any communication between you and The Guerrini Law Firm cannot create any attorney-client relationship between you and The Guerrini Law Firm.***

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Answered on 1/29/06, 7:49 am
Carl Starrett Law Offices of Carl H. Starrett II

Re: Affidavit of Intent, binding document?

Your question is far too complex to be answered in this forum. The attorneys who volunteer to read and respond to questions here can only go on the information you provide and there is no information from you on the allegations of the quiet title action. If you have an attorney, pose your questions to him or her. If you don't have an attorney, get one because you are in way over your head without one.

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Answered on 1/28/06, 3:14 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Affidavit of Intent, binding document?

To start, an "affidavit of intent" is not a well-recogized legal term with a fixed meaning. I checked the term on WestLaw, and find that it appears only once in all the thousands of cases decided by the appellate-level courts of California, and that use is in the context of a child-custody matter, where one parent signed an 'affidavit of intent' not to leave the U.S.

So, in order to determine the legal effect or significance of this particular document, an attorney would need to read it, see who signed it and when (in relation to the timing of the other events), to whom it was given, and, in the context of this case, the attorney would need to determine whether it was being offered as evidence, and if so, whether it was admissible or not (it could be hearsay, for example) and for what purposes.

Further uncertainty as to how to answer your question arises because you say you filed an eviction (an unlawful detainer, I suppose) action and they countered with a quiet title suit, and matters are now at the stage of appeal. Do you mean the underlying matters were decided by the trial court and the cases are now before the Court of Appeal? If so, are you now represented by counsel? If not, why not? If you are represented, why do you feel you need to ask LawGuru?

Getting a judge to "drop" a lawsuit is not so simple a matter as you seem to believe. At various stages of a suit, there are processes which can be used to obtain a dismissal, such as a motion to strike, a demurrer, or a motion for summary judgment. There are others. The requirements for filing and arguing such motions are VERY technical and there are timing requirements as well. Judges don't just 'drop' cases based upon their feelings, prior to trial and judgment, about the merits.

Further, the requirements for pleading a quiet title suit are very simple, and obtaining a dismissal prior to trial based on technical inadequacy or availability of defenses is almost impossible. It sounds as though you are expecting the judge to quiet title in YOU; if you want affirmative relief of this sort, you will have to file your own quiet title suit, or perhaps file a cross-complaint in the brother and sister-in-law's suit.

It looks as though you are in Sonoma; most of my practice is in Sonoma County and most involves real-estate title matters, and if you would like a thorough and free personal consultation, please contact me by e-mail or phone.

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Answered on 1/28/06, 3:16 pm
Bryan Whipple Bryan R. R. Whipple, Attorney at Law

Re: Affidavit of Intent, binding document?

I should add to my previous answer a comment or two about the verbal nature of your agreement.

Ordinarily, agreements for the transfer of an interest in real property must be in writing, signed by the party to be claimed against, in order to be enforced. However, the absence of a written agreement can sometimes be overcome by part performance or by other written documents that sufficiently establish the existence and terms of the oral contract.

The affidavit of intent may be useful for that purpose. So might also any loan applications, escrow instructions, recorded or unrecorded deeds, or even admissions made in the lawsuit.

The actions of the lender need to be examined carefully -- did the lender get a preliminary title report? Title insurance?

When you say the loans and deed are in your name, I wonder if you mean "deed of trust" rather than "deed." There's an enormous difference! It would be very interesting to me to review all these deal documents. Sounds like a complicated and fascinating case.

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Answered on 1/28/06, 3:31 pm
Edward Ardzrooni Law Offices of Edward Ardzrooni

Re: Affidavit of Intent, binding document?

You are missing a written agreement. But there are ways to make up for that.

The quiet title case may furnish you a good opportunity; but lots depends on what is contained in all of the documents involved in the transaction. However, the quiet title case now pending does provide an opportunity for yo to have your side considered. You can either file a cross complaint in that action or, if the court's rules restrict that, you can file a separate action against your relatives and have that action consolidated with their quiet title action.

You will not be able toget the judge to dismiss the case simply by requesting it. You have to go through the process of establishing the facts to the satisfaction of the court.

One problem is this:you will have to pay the mortage to prevent losing the property to foreclosure.

Are you represented by an attorney now? Were you ever represented by an attorney in this matter? What is your role in the "appeal" that you mentioned.

I can advise you bertter if you furnish more information. Discussion back and forth will help.

If you wish, phone me at my office. Lwguru does not permit responding lawyers to put our phone numbers into our replies. But, I am listed in the phone directory and my e-mail is listed by lawguru along with my office location.

I wish you success in getting the problem resolved.

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Answered on 1/28/06, 3:50 pm

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