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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Not to fret... Posted by Ward-CA- on November 28, 2009 at 6:41 AM In Reply to: Assignment of Rents posted by Tom on November 27, 2009 at 10:57 AM Tom, Take a look at the Foreclosure Glossary on this site (see link in the left-hand, yellow column) for a definition of the term Assignment of Rents. 1. No, from what you have described, your deed of trust does not contain the verbiage of an Assignment of Rents clause. 2. No, absent the involvement of the debtor, you cannot unilaterally add additional terms to a recorded deed of trust. 3 a. No, the Assignment of Rents clause in one deed of trust doesn’t inure to the benefit of another deed of trust recorded against the same property just because the beneficiary of both trust deeds is the same party. But of course, if you owned the promissory note secured by a trust deed with an Assignment of Rents clause then you could exercise that clause to intercept the rents being generated on the property, during the foreclosure process of that trust deed. After all is said and done you probably don’t need the Assignment of Rents clause. You see, if the property in question is not an apartment house or office building with about 8 or more rental spaces then an Assignment of Rents is of little import. That’s because the rental stream would be too small to warrant the initial legal expense for an attorney to file a judicial foreclosure action to get into court to get a judge to appoint a court approved receiver. Hope this helps, -------------Ward ==================== 1. I have a third trust deed (about 7 years old) on a San Diego property. 2. I just used a short form deed of trust and have no mention of assignment of rents (I know, mistake, and all my recent TDs are better worded). The trust deed just references power of sale and then it does have the clause "together with the issues and profits thereof" and references the SD Fictitious Deed of Trust 3. The second lien is a small $6K loan secured by a trust deed that does have assignment of rents. This lienholder (family member of borrower) would work with me over their family member. My trust deed is much larger. Two questions: 1. Does my TDs language, either the "issues and profits thereof" or the fictitious deed of trust, provide me the assignment of rents benefit? 2. If not to # 1, ss there a process to get an assigment of rents benefit after the fact without borrower doing it voluntarily? 3. Since the second TD has assignment of rents, a. Can I purchase that note and get assignment of rents benefit for both notes? b. If not, can I and the second lien holder come to agreement for them to subordinate to me without going thru borrower? If we did that, since their language allows them to protect their position with anything senior to them, wouldnt the assignment of rents clause cover both notes? And then of course I could buy out their note. Any ideas and suggestions would be greatly appreciated. Follow Ups: Post a Followup: Name : E-Mail : Subject : Comments: : Tom, : Take a look at the Foreclosure Glossary on this site (see link in the left-hand, yellow column) for a definition of the term Assignment of Rents. : 1. No, from what you have described, your deed of trust does not contain the verbiage of an Assignment of Rents clause. : 2. No, absent the involvement of the debtor, you cannot unilaterally add additional terms to a recorded deed of trust. : 3 a. No, the Assignment of Rents clause in one deed of trust doesn’t inure to the benefit of another deed of trust recorded against the same property just because the beneficiary of both trust deeds is the same party. : But of course, if you owned the promissory note secured by a trust deed with an Assignment of Rents clause then you could exercise that clause to intercept the rents being generated on the property, during the foreclosure process of that trust deed. : After all is said and done you probably don’t need the Assignment of Rents clause. You see, if the property in question is not an apartment house or office building with about 8 or more rental spaces then an Assignment of Rents is of little import. That’s because the rental stream would be too small to warrant the initial legal expense for an attorney to file a judicial foreclosure action to get into court to get a judge to appoint a court approved receiver. : Hope this helps, : -------------Ward : ==================== : 1. I have a third trust deed (about 7 years old) on a San Diego property. 2. I just used a short form deed of trust and have no mention of assignment of rents (I know, mistake, and all my recent TDs are better worded). The trust deed just references power of sale and then it does have the clause "together with the issues and profits thereof" and references the SD Fictitious Deed of Trust 3. The second lien is a small $6K loan secured by a trust deed that does have assignment of rents. This lienholder (family member of borrower) would work with me over their family member. My trust deed is much larger. : Two questions: 1. Does my TDs language, either the "issues and profits thereof" or the fictitious deed of trust, provide me the assignment of rents benefit? 2. If not to # 1, ss there a process to get an assigment of rents benefit after the fact without borrower doing it voluntarily? 3. Since the second TD has assignment of rents, a. Can I purchase that note and get assignment of rents benefit for both notes? b. If not, can I and the second lien holder come to agreement for them to subordinate to me without going thru borrower? If we did that, since their language allows them to protect their position with anything senior to them, wouldnt the assignment of rents clause cover both notes? And then of course I could buy out their note. : Any ideas and suggestions would be greatly appreciated. [ 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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