See Commentary.Equitable liens
See Commentary.Equitable liens
The excess, if any, of value of property above the total amount of debt secured by the property.
In the context of real property security, the right of the debtor to redeem the property from a lien after default and before foreclosure by paying the secured creditor the entire amount of the obligation then owing, including principal, interests, costs, and penalties. In the context of personal property security, this right is referred to simply as the right to redeem. See UCC 9-506.
A written statement of fact subscribed by a party with an interest in real property describing that parties interest in the real estate, obtained by an interested party for the purpose of estopping the subscribing party from later claiming a different state of facts. For example: (1) a prospective lender to be secured by real property may seek from the holder of an existing lien on the real property a statement of the balance of the indebtedness secured by the existing lien; (2) a title insurance company may seek from a debtor a statement that the debtor has given a deed in lieu of foreclosure and that the deed is intended to be an absolute conveyance of title rather than another (disguised) grant of security; (3) a prospective purchaser of rental property was seek from tenants a statement that lease payments have not been prepaid and that the current landlord has not violated any provisions of the lease.
See Commentary.Enforcement of Judgment.
In a context other than a bankruptcy proceeding, property of a debtor that is not subject to either attachment or enforcement of a money judgment by an unsecured creditor. In the context of a bankruptcy proceeding, property of a debtor that is removed from property of the bankruptcy estate such that a bankruptcy trustee is not entitled to its possession, use or liquidation. State law (supplemented by some non-bankruptcy federal law) defines property which is exempt from attachment or enforcement of a money judgment. Bankr. Code 522 defines property exempt in a bankruptcy proceeding, partially by reference to or incorporation of state law. See Commentary.Exemptions and Commentary.Introduction to Bankruptcy.
Goods that have become so related to particular real property, such as by physical attachment to real property, that an interest in them arises under state real property law.
A deed of trust with more than one beneficiary. For example, if two people each loan $50,000 secured by a deed of trust on one parcel of real property, the deed of trust will name each as a beneficiary of a 50% interest in the real property.
Procedure for satisfaction of a money judgment by reaching obligations owed to the judgment debtor by another. Garnishment of a judgment debtor's earned but unpaid wages (by service of an appropriate writ on the judgment debtor's employer) is the most common example. See also Commentary.Enforcement of Judgment. In some jurisdictions, garnishment requires the filing and generally summary disposition of a separate lawsuit naming as defendant the person or entity obligated to the judgment debtor. In other jurisdictions, garnishment is subsumed within the execution process.
Pre-judgment garnishment of wages is prohibited by statute in most, if not all, states. Pre-judgment garnishment of other obligations owing a defendant may be subsumed within a state statute permitting pre-judgment attachment.
Residential real property owned by a debtor which is exempt under state or bankruptcy law. Under some state law, the exemption may be available only if the debtor also occupies the real property as a principal residence. The amount of the exemption varies widely among states and may differ significantly from the amount of the exemption available under bankruptcy law.
An account established by a lender to facilitate the payment of recurring expenses (e.g. real estate taxes, homeowner's insurance, private mortgage insurance) relating to the property which is security for the loan. By contract, the debtor agrees that the account will be funded by a portion of the debtor's monthly mortgage payment and the lender agrees to pay specified expenses from the account as they become due. State law may restrict cases in which an impound account can be required by a lender (see, e.g. Cal. Civil Code 2954 and 2954.1) or may require that the lender pay interest on the amounts in the account (see, e.g. Cal. Civ. Code 2954.8).
"[C]ompensation [to a creditor] allowed by law or fixed by the parties for the use, or forbearance, or detention of money." Cal. Civ. Code 1915. The term is a familiar to anyone who has taken out a student or an automobile loan or who has used a credit card. The federal Truth-in-Lending Law, which mandates creditor disclosure to consumer debtors of the cost and other features of consumer credit, subsumes interest within a broader concept known as "Finance Charge." Regulation Z, 12 C.F.R. 226.4. A Finance Charge is the cost of consumer credit as a expressed as a dollar amount and may include a variety of charges (such as points, appraisal fees, and credit or property insurance premiums) which are imposed by a creditor as an incident to or condition of the extension of credit.
Under the terms of a promissory note, interest may fluctuate. For example, a lender may offer an adjustable rate loan, often referred to as Adjustable Rate Mortgage ("ARM"), in which the interest rate is tied to fluctuations in stated market rates of interest. Or, a developer (particularly of new homes) may offer an "interest-rate buydown" as an incentive to purchase, paying the financing lender to reduce for a stated period of time the interest rate charged to the purchaser/borrower.
Payments on a promissory note or other obligation equivalent to the amount of interest accrued during an installment period (e.g. a month) such that the principal amount of the obligation remains constant over time. In such a case, the principal amount of the obligation must be paid through a balloon payment.
See Commentary.Enforcement of Judgment.
Foreclosure of a consensual lien on real property (and fixtures) through use of the judicial process (filing a complaint and obtaining a judgment of foreclosure). Compare Non-Judicial Foreclosure.
Any lien on property of a debtor obtained by a previously unsecured creditor through use of the judicial process. Such liens include those obtained through attachment (attachment lien), execution (execution lien), and recording (judgment lien).