Liens
Non-consensual liens
A lien represents a charge against property that secures debt. Non-consensual liens include judicial liens (e.g. judgment liens created by filing an abstract of judgment after obtaining a judgment for money), real property tax liens, income and sales tax liens, mechanics' liens, and condominium delinquent assessment liens. Issues as to the existence, priority, enforceability and the amount of debt covered by a lien are often the subject of law suits.
Trust Deeds
A trust deed creates a lien on real property to secure a promissory note. The borrower signs the note and deed of trust naming the lender as the promisee on the note and beneficiary on the deed of trust. A trust deed is a consensual lien and is of the same effect as a mortgage but allows for foreclosure by a non-judicial sale whereas a foreclosure of a mortgage is conducted by judicial process upon judgment rendered in a lawsuit.
Deed as a Mortgage
There is a situation where a deed is treated as a mortgage. That would be the case where a lender obtains a deed from the borrower as security for the loan rather than a mortgage or deed of trust. This also would be the case with an 'equity purchase contract' under which property being used as a residence is deeded while foreclosure proceedings are pending, the grantee does not intend to reside in the property and the grantee gives the grantor an option to repurchase it. In the first case the deed would be treated as a mortgage and in the second instance such would be presumed. However, in these instances a bona fide purchaser (with no actual, constructive or inquiry notice of the grantor's claim that the title holder's deed is really a mortgage) of the property from the holder of the deed takes good title thereto (i.e. as though the deed is a deed rather than a mortgage). Court proceedings (by way of quiet title or declaratory relief) might have to be initiated to validate title or mortgage with the appropriate party.
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