Legal Question in Real Estate Law in California

Re: Foreclosure of vendor's lien on real property

"One who sells real property has a vendor's lien thereon, independent of possession, for so much of the price as remains unpaid and unsecured otherwise than by the personal obligation of the

buyer." (Civ. Code sec. 3046.)

If you were assuming the second and first deeds of trust, then you were simply buying the equity. But your post mentions refinancing, which means you get a new loan that pays off the first and second. The statute I have referenced at the beginning indicates that you have not paid for the property.

As you can see, this post is a little ambiguous. It is not clear why the seller is foreclosing, because if you clients assumed the payments and paid the seller equity, he has no right to foreclose.

I could direct you to a more specific answer if more factual detail were provided. Feel free to contact me via e-mail.

Very truly yours,

Re: Foreclosure of vendor's lien on real property

You need to do research into the cases annotated to Civil Code section 3046. In a half hour of research, I've found at least two cases suggesting that your clients' tender of the amounts due did, or would, result in waiver or extinction of the vendor's lien if refused by the vendor. The cases are Haile v. Smith (1896) 113 Cal. 656, and Kaufman v. All Persons, etc. (1911) 16 Cal.App. 388.

The vendor's lien is an equitable, inchoate right of the vendor, and the trial is necessary to establish its existence. The judge has wide latitude in writing a decree. Further, all statutory rights of cure, redemption, etc. provided for judicial foreclosures in general seem to apply, with equal if not greater force, when the foreclosure is a vendor's, rather than a lender's lien. See, e.g., the last paragraph of the decision in Braun v. Kahn (1917) 176 Cal. 159.

Of course, the judge should inquire into whether your clients were truly "ready, willing and able" to cure their default or pay off the entire balance. If not, the argument that the vendor's lien was waived probably doesn't fly.

Re: Foreclosure of vendor's lien on real property

if you are an attorney why are you hankeling this matter as you do not sound experienced or competant enough to do so. i have followed the 2 attorneys who have previously answered this question and both seem substantially more experienced than you and in a very, very short time have annswered what seems to be the prime peremis of the claim and understand the law applicable to the defense with the most barest of facts --- get a co-counsel who have experience or else you will be on the end of a malpractice action relating to a transaction theat was naive if not stupid to beging with without leagal advive and a set up form the begining.