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Nicholas Roscha’s Answers

38 total

  • I received a Substitution of Trustee and Full Reconveyance letter from the county recorder's office.

    A few months ago I received a letter saying that my HELOC was forgiven. Now we have the Substitution of Trustee and Full Reconveyance letter, and there is a sentence that really bothers me. It says "This reconveyance is solely for releasing th...

    Nicholas’s Answer

    An answer to this question requires us knowing why the HELOC was forgiven in the first place. Remember that the HELOC is essentially a line of credit secured by your home. If the deed of trust securing the HELOC was reconveyed and they reserved their rights, then they are attempting to reserve their rights to sue you directly on the unpaid line of credit. If however, they also forgave the underlying obligation to replay the line of credit you may not have an issue. What exactly did the letter say a few months ago regarding forgiveness?

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  • After a UD judgement, How long before the Sheriff comes out?

    I got a UD judgement against me today. How long before the Sheriff comes out with a lock out order? Once the Sheriff gives me the lock out order, can I still file a Motion to Vacate Judgement in order to buy some extra time?

    Nicholas’s Answer

    I agree that timing is dependent on when the Writ was issued and delivered to the Sheriff, and how backed up the Sheriff's office is. In Contra Costa County it is typically taking 2 weeks from writ issuance to lock-out.

    If you require additional time, you could file a Request for Stay of Execution of Writ with the court, but typically the Stay requires consent of the landlord and the tenant paying rent to the court for the period of time requested.

    Yes, you could file Motion to Set Aside/Vacate the judgment, but I agree with the other responder that you should have grounds for filing the motion. If you file a spurious motion, you may not get the delay and you may end up being liable for added costs and attorney's fees.

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  • Owner's title insurance

    Owner's title insurance is purchased at the initial purchase, where as lender's title insurance is repurchased each time the property is refinanced. What happens if the title changes, without a sale. For example, would a new OWNER's title...

    Nicholas’s Answer

    I would agree with Mr. Chen and Mr. Roach on this, and you should contact your title insurance company to verify the cost and process to add the new insured to your owner's policy of insurance.

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  • I've given the 30 notice 0n a lease how many months do i have legally on a month to month rental before I have to leave

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    Nicholas’s Answer

    If you as the tenant gave a 30-day notice to terminate a month to month tenancy, then you must vacate by the date set forth in the notice. If you stay after expiration, you are illegally holding over and the landlord could commence an unlawful detainer against you.

    If you need more time, I would suggest discussing with the landlord, and the landlord could agree to extend the notice for a short period of time in exchange for receiving pro-rated rent. In such an event, the parties should memorialize the extension and consideration for the extension in a signed writing.

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  • Is my neighbor responsible for damages to my house and sheds from the trees on her property?

    trees fell on a shed crushing it and clipped the eaves of my house.

    Nicholas’s Answer

    Generally, the owner of property is responsible if trees located on their property fall and cause damage to property of another. When this happened to clients of mine in the past, we made a claim against the owner of the trees and asked that the claim be submitted to their homeowner's insurance. In most of those cases, the insurance stepped in and covered the claim.

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  • What is the proper notices to serve a tenant.

    Tenant has been in unit for more than 1 year and is 4 months past due in rent. I served a 3 Day or Quit and a 30 Day to vacate. Should I have served a 60 Day to Vacate?

    Nicholas’s Answer

    Yes, since the tenant has been in the property longer than 12 months, a 60-day notice to quit would be required; you can only serve a 30-day notice to quit if the tenant has been in the property less than 12 months. However, if the tenant fails to pay the rent demanded in the 3-day notice, you should be able to proceed on the 3-day notice to pay rent or quit.

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  • What should i do when seller is wanting to stay at the house 2 months more after selling the house to me?

    Should i have them fill out a rent back addendum before the final sale? Can they cancel the sale because of this?

    Nicholas’s Answer

    I concur with the prior responses - this should have been covered in the process of the offer-acceptance and counteroffers, and your agent/broker should be assisting and handling this. Typically, their is a CAR form that is used to cover a seller leasing back after close of escrow, and I would urge that you discuss with your agent/broker.

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  • Intra-spousal transfer of deed to a CA property

    Husband is buying out Wife's share of a property in CA. Divorce is happening in NJ and NJ attorneys do not seem to know about CA practice. Wife is receiving cash for her share of CA property. Property has no mortgage. The consent order sa...

    Nicholas’s Answer

    I concur with the prior responder that California counsel should be contacted for this matter and to assist in preparation of the proper deed.

    On the topic of avoiding fees, there are two financial impacts that should concern you. The first is the documentary transfer tax, which is assessed at recordation of the deed. However, CA Rev & Taxation Code section 11927 provides an exemption from the imposition of transfer taxes for deeds transferring property between spouses under judgment of dissolution of marriage. Language reflecting such a purpose of the transfer should be noted on the Deed and on the PCOR - Preliminary Change of Ownership Report.

    The second is reassessment of the property due to the transfer, and in California property is reassessed when there is a transfer of property that results in a change in ownership. However, Cal. Rev & Taxation Code section 63 states that a change in ownership does not include interspousal transfers in connection with property settlement agreements or dissolution of marriage or divorce.

    Your counsel in New Jersey should contact local California counsel to assist in the drafting of the documents.

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  • Unlawful detainer what is the process to go about discovery?

    Is there a form or procedure for discovery of evidence in unlawful detainer case in California in Riverside County???

    Nicholas’s Answer

    Yes, there is a discovery process, which is governed by Code of Civil Procedure sections 2016.010, et seq. There is limited space to respond here and I cannot summarize the full discovery process. Typically, the time to respond to written discovery in UD cases is shortened to five days after receipt of the demand.

    As for forms, the Judicial Council has an approved form of Form Interrogatories for use in UDs and there is form for Request for Admissions, and please see the link below. As for other written discovery, such as Requests for Production of Documents and Special Interrogatories, there is no set form.

    You likely want to contact a local attorney in Riverside County for assistance.

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