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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: A few things to consider... Posted by Travis-CA on August 16, 2006 at 10:50 PM In Reply to: Re: A few things to consider... posted by Brian Lund on August 16, 2006 at 10:29 AM : Hi Mike, : I think you might be misunderstanding my objective in this specific instance. I am only looking to pierce the trust in order to lien real property. : For example: Someone owns title to a home (real property) in the form of a trust. My AJ will not attach to property via the judgement debtors name. If I examine the trust and find that the judgement debtor is the beneficiary of the trust, then the codes indicate that court will allow me to lien the real property being held in the trust. : I am not trying to seize the real property or force a sale, just lien it, so that if sold directly out of the trust, never being quit claimed back into the trusts beneficiary (i.e. the judgement creditor) name, that the AJ will be enforced. : This point is somewhat moot for refinancing, becuase lenders generally will not refi property with title held in trust, which I why you see quit claims out of, and back into trusts, just before new Trust Deeds are recorded. : I assume that if there are other interests in the trust besides real property, those would be fair game to go after as well, but that is not what this specific question is about. : I appreciate you feedback. : -Briannn Brian, I think the best way to achieve what you’re looking for is to ask the Court for a turnover order under CCP 699.040 ordering the debtor to turn over the beneficial interest in the trust to a levying so it can be levied on pursuant to CCP 709.010. Additionally, you can record your turnover order which will most definitely muck up the title. “Sole beneficiary of trust cannot be sole trustee of trust and, thus, where legal title and entire beneficial interest become united in single person, trust terminates.” Ammco Ornamental Iron, Inc. v. Wing 26 Cal.App.4th 409, 31 Cal.Rptr.2d 564 (Cal.App. 2 Dist.,1994) “If the settlor retains the power to revoke the trust in whole or in part, the trust property is subject to the claims of creditors of the settlor to the extent of the power of revocation during the lifetime of the settlor.” Cal.Prob.Code § 18200 (a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following: (1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody. (2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter. (b) The court may issue an order pursuant to this section upon a showing of need for the order. (c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court. Cal.C.C.P. § 699.040 - Travis Judicial Revenue Service Follow Ups: Post a Followup: Name : E-Mail : Subject : Comments: : : Hi Mike, : : I think you might be misunderstanding my objective in this specific instance. I am only looking to pierce the trust in order to lien real property. : : For example: Someone owns title to a home (real property) in the form of a trust. My AJ will not attach to property via the judgement debtors name. If I examine the trust and find that the judgement debtor is the beneficiary of the trust, then the codes indicate that court will allow me to lien the real property being held in the trust. : : I am not trying to seize the real property or force a sale, just lien it, so that if sold directly out of the trust, never being quit claimed back into the trusts beneficiary (i.e. the judgement creditor) name, that the AJ will be enforced. : : This point is somewhat moot for refinancing, becuase lenders generally will not refi property with title held in trust, which I why you see quit claims out of, and back into trusts, just before new Trust Deeds are recorded. : : I assume that if there are other interests in the trust besides real property, those would be fair game to go after as well, but that is not what this specific question is about. : : I appreciate you feedback. : : -Briannn : Brian, : I think the best way to achieve what you’re looking for is to ask the Court for a turnover order under CCP 699.040 ordering the debtor to turn over the beneficial interest in the trust to a levying so it can be levied on pursuant to CCP 709.010. Additionally, you can record your turnover order which will most definitely muck up the title. : “Sole beneficiary of trust cannot be sole trustee of trust and, thus, where legal title and entire beneficial interest become united in single person, trust terminates.” : Ammco Ornamental Iron, Inc. v. Wing 26 Cal.App.4th 409, 31 Cal.Rptr.2d 564 (Cal.App. 2 Dist.,1994) : “If the settlor retains the power to revoke the trust in whole or in part, the trust property is subject to the claims of creditors of the settlor to the extent of the power of revocation during the lifetime of the settlor.” : Cal.Prob.Code § 18200 : : (a) If a writ of execution is issued, the judgment creditor may apply to the court ex parte, or on noticed motion if the court so directs or a court rule so requires, for an order directing the judgment debtor to transfer to the levying officer either or both of the following: : (1) Possession of the property sought to be levied upon if the property is sought to be levied upon by taking it into custody. : (2) Possession of documentary evidence of title to property of or a debt owed to the judgment debtor that is sought to be levied upon. An order pursuant to this paragraph may be served when the property or debt is levied upon or thereafter. : (b) The court may issue an order pursuant to this section upon a showing of need for the order. : (c) The order shall be personally served on the judgment debtor and shall contain a notice to the judgment debtor that failure to comply with the order may subject the judgment debtor to arrest and punishment for contempt of court. : Cal.C.C.P. § 699.040 : - Travis Optional Link URL: Link Title: Optional Image URL: [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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