assignment of trust deed

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Deed of Trust: Definition, Uses

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Table of Contents

Deeds of trust vs. mortgages

How does a deed of trust work, deed of trust by state, deeds of trust vs. warranty deeds.

A deed of trust is a real estate transaction agreement that allows a third-party trustee to hold the property title until the borrower repays the lender in full. The third party in a deed of trust is typically a title company or real estate broker [0] Cornell Law School Legal Information Institute . Deed of Trust . Accessed Jun 1, 2023. View all sources .

Over half of states use deeds of trust instead of mortgages , which involve only two parties. However, in many states, home loans are colloquially referred to as “mortgages,” although they may legally be deeds of trust.

The main difference between a mortgage and a deed of trust is that if you fall behind on loan payments, the property can be foreclosed on more quickly with a deed of trust than with a mortgage.

A deed of trust is not to be confused with a living trust , which is an estate planning tool that helps avoid probate. It also doesn’t transfer ownership of the real property as a property deed does.

Deeds of trust and mortgages are lending agreements that place a lien, or legal claim until debt repayment, on real property. Here’s how they’re similar:

They’re subject to state laws.

Both are public record.

Both allow for foreclosure.

Both are considered contracts as opposed to loans.

However, there are two key differences:

Number of parties involved. A mortgage involves two parties: the lender and the borrower, while a deed of trust involves three parties: the lender, the borrower and the trustee.

Foreclosure type and time. Mortgages typically have to go through a judicial foreclosure, while deeds of trust generally can use a nonjudicial foreclosure process without involving the courts. Because a nonjudicial foreclosure process tends to be faster and less expensive than a judicial one, it usually takes less time and effort to foreclose with a deed of trust than with a mortgage.

As a home buyer, you don’t have the option to choose between a mortgage or a deed of trust, even if you live in one of the nine states that allow both. In those states, the lender chooses which document to use.

A deed of trust works similarly to a mortgage by making a piece of real property the collateral for a loan. This means that if you don’t make your loan payments on time, your lender can foreclose on the property. Unlike a mortgage, though, a deed of trust typically allows for foreclosure without the need to first obtain a court order.

Here’s how the process works:

The trust deed includes a promissory note that spells out the exact terms of the loan including the principal, interest, occupancy, insurance and maintenance requirements. The borrower signs this note, agreeing to repay the borrowed money.

The trustee holds legal ownership of the property or in some states just holds the lien, which is a legal claim to the asset, but has no control over that property unless the borrower doesn’t make their scheduled payments per the terms of the agreement.

While the buyer is making payments, the lender keeps the promissory note. Once the loan is paid off, however, the promissory note is marked “paid in full” and the deed is returned to the buyer. At this point, the buyer will own the property outright.

Requirements to create a deed of trust

A valid deed of trust must always involve three parties:

The borrower, also known as the trustor.

The lender, also known as the beneficiary .

The trustee, which is typically a title company that holds legal title to the real property or, in some states, just holds the lien.

The deed of trust document should contain the following information:

The names of all the involved parties (borrower, lender and trustee).

A description of the property involved.

The original amount of the loan.

Loan inception and maturity dates.

Any fees or riders involved.

What will happen in the event of loan default.

Depending on the nature of the sale, any other relevant details.

The following states (and Washington, D.C.) use deeds of trust instead of mortgages:

California.

Massachusetts.

Mississippi.

New Hampshire.

New Mexico.

North Carolina.

Rhode Island.

Washington.

West Virginia.

Deeds of trust and mortgages are allowed in these states:

South Dakota.

All remaining states use only mortgages:

Connecticut.

New Jersey.

North Dakota.

Pennsylvania.

South Carolina.

A warranty deed is a document required by some lenders before they approve financing. It certifies that the seller is the true owner of the property and has the right to sell it and that there are no outstanding debts, liens, judgments or encumbrances on the property.

A deed of trust is a lending contract, while a warranty deed is offered by a seller to a buyer for the buyer’s protection.

You can deduct your loan interest payments on your income tax return for home mortgages and deeds of trust. To do so, just be sure the property has been recorded as your principal residence in your county records [0] IRS.gov . Publication 936 (2022), Home Mortgage Interest Deduction . Accessed Jun 1, 2023. View all sources .

If you have a loan secured by a deed of trust and your lender sells that trust deed, an assignment of trust deed assigns that deed of trust to the new buyer of your loan (typically another lender). The assignment of deed of trust grants the new loan purchaser all rights to the property and is recorded as public record along with the original deed of trust.

A reconveyance in a deed of trust is a transfer of property (minus the lien) to the borrower from the trustee or the lender. This happens when the borrower has paid off the loan and satisfied the terms of the debt, and it means the lender no longer has an interest in the property.

You can deduct your loan interest payments on your income tax return for home mortgages and deeds of trust. To do so, just be sure the property has been recorded as your principal residence in your county records

On a similar note...

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Assignment of Deed of Trust Vs. Deed or Grant Deed

A grant deed is used to transfer ownership rights in real estate.

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More Articles

•   1. What Is the Difference Between the Deed of Absolute Sale and the Deed of Assignment?
•   2. What is an Assignment of Trust Deed?
•   3. Warranty Deed Vs. Deed of Trust

Property rights in real estate are valuable and invariably the subject of a legal document called a deed. To transfer ownership rights in real estate, a grant deed is commonly used. When a loan is obtained to purchase real estate, a deed of trust is often used to give the lender rights in the real estate to secure repayment of the loan. An assignment of deed of trust is used by a lender when it sells its loan secured by a deed of trust.

Property Deeds

Real estate transactions that involve the transfer of property rights require a deed to ensure the transfer of rights is effective. All deeds are written documents that include a description of the affected real estate and the names of the persons whose property rights are being transferred. Although not legally require to make the transfer effective, deeds are routinely recorded with the local government office responsible for recording real estate transactions. A recorded deed gives the public notice regarding property rights in a particular parcel of real estate, such as ownership, easements and liens. Recording a deed can also protect a property owner against future claims that his property rights are invalid.

A grant deed is used to transfer real estate ownership from one person to another. The transfer of ownership can be for a full parcel of real estate or just a portion of the real estate. Grant deeds are most often used in real estate sales between an unrelated buyer and seller. However, a grant deed may also be used to transfer ownership as a gift. When a grant deed is used, the person transferring ownership rights is promising to the person receiving ownership rights that these rights have not been previously transferred to anyone else.

Deed of Trust

A deed of trust is used in a three-party transaction involving the repayment of a debt. The first party is a real estate owner or buyer who is borrowing money that can be used for any purpose, but is typically used to fund the purchase of the real estate. The second party is the lender, such as a bank or other financial institution, providing the funds to the borrower. To secure repayment of the loan, the borrower signs a deed of trust which transfers legal title to his real estate to a third party, called the trustee, who can be any individual or company that does not have any interest in the loan or real estate. The borrower continues to have the beneficial use of the property with the trustee only taking action if the borrower defaults on his loan. If the lender and borrow cannot work out a resolution of the default, the lender can instruct the trustee to conduct a foreclosure sale of the real estate and deliver the sale proceeds to the lender to repay the loan.

Assignment of Deed of Trust

Loans that are secured by a deed of trust often include repayment terms that extend for several years or more. From a lender’s perspective, a loan secured by a deed of trust is a fairly safe investment when the value of the real estate is sufficient to repay the loan in the event of a borrower's default. This aspect makes existing loans secured by a deed of trust suitable for sale from the original lender to another lender during the life of the loan. To complete the sale of a loan secured by a deed of trust, the original lender uses a document called an assignment of deed of trust to transfer its rights in the deed of trust to a new lender.

• FindLaw: What Are Property Deeds?
• Cornell University Law School Legal Information Institute: Deed of Trust
• California Department of Real Estate: Trust Deed Investments -- What You Should Know?

Joe Stone is a freelance writer in California who has been writing professionally since 2005. His articles have been published on LIVESTRONG.COM, SFgate.com and Chron.com. He also has experience in background investigations and spent almost two decades in legal practice. Stone received his law degree from Southwestern University School of Law and a Bachelor of Arts in philosophy from California State University, Los Angeles.

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Using a deed of trust

A deed of trust is used to secure a loan on real property. Learn how this legal document can be an easy way for a lender to collateralize a loan.

Find out more about property owners

by   Brette Sember, J.D.

Brette is a former attorney and has been a writer and editor for more than 25 years. She is the author of more than 4...

Read more...

Updated on: February 1, 2023 · 2 min read

Understanding a deed of trust

Deed of trust vs. mortgage, wraparound mortgages, assignment of a deed of trust.

A deed of trust is a legal document that essentially puts a piece of property up as collateral for a loan. Although sometimes used in place of a mortgage, a deed of trust functions differently and makes foreclosing on the property simple for the lender.

A deed of trust is used with a loan when real property is used to secure the loan. The deed gives the lender the right to receive the proceeds of the sale of the property at auction if the loan is not paid. Unlike a warranty deed , which immediately transfers the owner's rights in the property to the buyer, a deed of trust is not intended to transfer title to a property unless the loan is unpaid.

A deed of trust has three parties:

• trustor: the property owner borrowing the money
• lender: the person or company making the loan, sometimes called the beneficiary
• trustee: the person or company (often an escrow company ) who holds legal title to the real property under the deed and has the responsibility of selling the property at auction if the trustor doesn't make the required payments on the loan

A mortgage and a deed of trust are both used to secure a loan, which is a separate document. One difference between these two legal documents is that a deed of trust has three parties (trustor, lender, and trustee) while a mortgage has only two (lender and borrower). In the case of a mortgage, if a borrower does not pay the associated loan, the property must be foreclosed on in court so that the lender can sell it. A deed of trust, on the other hand, does not require a court process. The trustee can sell the property without a court order if the trustor does not pay. Because of this, a deed of trust allows for a faster and less expensive process if the loan is not paid.

A wraparound mortgage, also known as an inclusive deed of trust, is used when there is an existing mortgage on the property that remains in place. For example, Sandra has a mortgage on her home. Marco buys the home with the promise to pay her the monthly mortgage amount she owes, which Sandra then uses to pay the mortgage in her name. This arrangement is made legally binding with a deed of trust. If Marco doesn't pay Sandra, she forecloses and gets the property back without a court proceeding. So in essence, Marco's loan wraps around the existing mortgage to cover it, hence the name for this type of deed of trust.

Like any deed, a deed of trust can be transferred from one person to another, similar to the way a bank can sell a loan to another bank. The document that transfers a deed of trust, called an assignment of a deed of trust, must be filed in the county clerk's office to be valid.

A deed of trust is a convenient way to avoid a court proceeding if a loan is not paid. This type of nonjudicial foreclosure is quick and inexpensive for the person or company lending the money. You can prepare a deed of trust yourself or you can use an online service provider .

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How Deeds of Trust Work

Deed of trust vs. mortgage.

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Deed of Trust: Meaning, How it Works, Benefits

Matt Webber is an experienced personal finance writer, researcher, and editor. He has published widely on personal finance, marketing, and the impact of technology on contemporary arts and culture.

Lea Uradu, J.D. is a Maryland State Registered Tax Preparer, State Certified Notary Public, Certified VITA Tax Preparer, IRS Annual Filing Season Program Participant, and Tax Writer.

A deed of trust (also known as a trust deed) is a document sometimes used in financed real estate transactions, generally instead of a mortgage . Deeds of trust transfer the legal title of a property to a third party —such as a bank, escrow company, or title company—to hold until the borrower repays their debt to the lender.

Although deeds of trust are less common than they once were, some 20 states still mandate the use of one when financing is involved in the purchase of real estate. States where trust deeds are common include Alaska, Arizona, California, Colorado, Idaho, Illinois, Mississippi, Missouri, Montana, North Carolina, Tennessee, Texas, Virginia, and West Virginia. A few states—such as Kentucky, Maryland, and South Dakota—allow the use of both trust deeds and mortgages.

Key Takeaways

A deed of trust is a document used in real estate transactions. It represents an agreement between the borrower and a lender to have the property held in trust by a neutral and independent third party until the loan is paid off.

• Deeds of trust are used as an alternative to a mortgage, but there are differences between these arrangements.
• A mortgage involves only two parties: the borrower and the lender. A deed of trust adds an additional party, a trustee, that holds the home’s title until the loan is repaid.
• There are also different foreclosure arrangements related to these two documents.

Deeds of trust are used in financed real estate transactions: that is, when someone borrows money to buy real estate. During such a transaction, a lender gives the borrower money in exchange for one or more promissory notes linked to a deed of trust.

The deed of trust performs an important role in these transactions: The deed transfers legal title to the real property to an impartial trustee , typically a title company, escrow company, or bank, which holds it as collateral for the promissory notes. The equitable title—the right to obtain full ownership—remains with the borrower, as does full use of and responsibility for the property.

This state of affairs continues throughout the repayment period of the loan. The trustee holds the legal title until the borrower pays the debt in full, at which point the title to the property becomes the borrower’s. If the borrower defaults on the loan, then the trustee takes full control of the property.

A deed of trust can be used as an alternative to a mortgage. A mortgage involves two parties: a borrower (or mortgagor) and a lender (or mortgagee). In contrast, a deed of trust involves three parties: a borrower (or trustor), a lender (or beneficiary), and the trustee.

Deeds of trust can be compared with mortgages. Deeds of trust and mortgages are both used in bank and private loans for creating liens on real estate—that is, establishing a property as collateral for a loan. Because of this, and contrary to popular usage, a mortgage is not technically a loan to buy a property; it’s an agreement that pledges the property as collateral for the loan.

A deed of trust is different from a mortgage in a couple of ways:

First, a mortgage involves two parties: a borrower (or mortgagor) and a lender (or mortgagee). In contrast, a trust deed involves three parties: a borrower (or trustor), a lender (or beneficiary), and the trustee. The trustee holds title to the property for the lender’s benefit; if the borrower defaults , then the trustee will initiate and complete the foreclosure process at the lender’s request.

Second, mortgages and trust deeds have different foreclosure processes:

• With a mortgage, the lender must pursue a judicial foreclosure . This is a court-supervised process enforced when the lender files a lawsuit against the borrower for defaulting on a mortgage. The process is time-consuming and expensive.
• In contrast, a deed of trust lets the lender commence a faster and less expensive nonjudicial foreclosure, bypassing the court system and adhering to the procedures outlined in the trust deed and state law. If the borrower does not make the loan current, then the property is put up for auction through a trustee’s sale.

Is a deed of trust the same as a mortgage?

No. A mortgage only involves two parties: the borrower and the lender. A deed of trust adds an additional party, a trustee, who holds the home’s title until the loan is repaid. There are also different foreclosure arrangements related to these two documents.

What is the advantage of a deed of trust over a mortgage?

A deed of trust has a crucial advantage over a mortgage from the lender’s point of view. If the borrower defaults on the loan, then the trustee has the power to foreclose on the property on behalf of the beneficiary.

Are trust deeds a good idea?

Trust deeds can be a valuable aid to financial stability, but they are not right for everybody. They are best suited to people who have a regular income and can commit to regular payments. This is due to the stricter, faster foreclosures available with deeds of trust vs. regular mortgages.

Deeds of trust are used as an alternative to a mortgage, but there are differences between these arrangements. A mortgage only involves two parties: the borrower and the lender. A deed of trust adds an additional party, a trustee, who holds the home’s title until the loan is repaid. There are also different foreclosure arrangements related to these two documents.

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Deed of Trust

A deed of trust is an agreement that is made between a lender and a borrower, to allow a neutral third party to act as a trustee over a piece of property. The trustee holds legal title to the property until the borrower can pay off his debt. As he repays the debt, the borrower keeps the actual title to (and possession of) the property, and maintains full responsibility over the premises, unless the deed of trust says otherwise. The legal title to the property, however, is held by the trustee. To explore this concept, consider the following deed of trust definition.

Definition of Deed of Trust

• A document that secures a debt, in which a debtor places legal ownership of real property with a trustee, to be held in trust until the debt is repaid.

What is a Dead of Trust

A deed of trust is a legal document that a borrower and a lender agree to make, which permits a neutral third party to enter the fold as a trustee over a piece of real property. For example, the deed of trust permits the trustee to hold onto the property while the borrower repays his debt. During this time, the borrower keeps the actual title to the property, and remains fully responsible for the property. The trustee, on the other hand, holds on to the legal title.

Deeds of trust have become less popular as more people have opted for mortgages. One of the main differences between a deed of trust and a mortgage is that, with a mortgage, everyone involved in the transaction has a vested interest in the outcome of the arrangement. With a deed of trust, an impartial third party serves as trustee. For example, a deed of trust can only be sold by the trustee, who is not permitted to change the selling price to benefit either the borrower or lender.

Once the sale of a property under a deed of trust is finalized, the trustee distributes the proceeds to the lender, with the remainder to the borrower. The lender receives the amount necessary to fully satisfy the debt, and the borrower receives whatever is left over.

The term “trustee” refers to any person who is in a position of trust, responsibility, or authority for the benefit of another person. A trustee is “trusted” with another person’s property. Trustees may be responsible for carrying out certain tasks, but without the benefit of earning an income for their efforts. When it comes to real property, a trustee is a holder of the property, typically on behalf of a beneficiary . This means that the trustee holds the property for the beneficiary until the beneficiary is ready to take the property over.

Difference Between Deed of Trust and Mortgage

In order to better understand the difference between a deed of trust and a mortgage, it is important to first define promissory notes. A promissory note does as its name suggests: it contains a “promise” on the part of the borrower to repay the amount he is borrowing. A promissory note is essentially an IOU. Both mortgages and deeds of trust are considered promissory notes, and both use real property to secure the loan. This means that, if the borrower fails to make his monthly payments, the lender is permitted to foreclose on the property, based on the promise in the mortgage or deed of trust having been broken.

Many people believe that a mortgage is the loan that they take out on their property, but this is not actually true. The mortgage is the document that the borrower gives to the lender to allow the lender to place a lien on his property. If a property owner is unsure as to whether he has a mortgage or a deed of trust, the borrower can review the documents he received when the property was initially sold to him. The only time the difference between a deed of trust and a mortgage becomes an issue is if the property goes into foreclosure . This is because the foreclosure process is different for a property under deed of trust.

Foreclosure

Another difference between a deed of trust and a mortgage is the foreclosure process. A foreclosure is the sale of a piece of property by a lender when a borrower has failed to make his loan payments as agreed. The lender then sells the property to recoup what is owed so that the loan can be fully satisfied.

When a piece of property under a deed of trust goes into foreclosure, the foreclosure sale does not have to adhere to the same procedures that a foreclosure on a mortgaged property must heed. With a foreclosure on a mortgaged property, the rules are stricter, and the parties involved are held to a higher level of accountability. A foreclosure sale under a deed of trust, however, does not require court intervention in most states.

Power of Sale

A power of sale is a clause found in most deeds of trust that allow a trustee to sell the property if the borrower defaults on his loan, and the property goes into foreclosure. The courts have consistently held that a deed of trust with a power of sale clause effectively serves as the property owner’s permission for a trustee to conduct a nonjudicial foreclosure in the event that the borrower defaults on his payments. What this means is that the lender does not need to sue the borrower in state court. Instead, the lender instructs the trustee to mail or serve the required notices that the property will be auctioned off at a “trustee’s sale.”

Once the property is sold at the trustee’s sale, the borrower’s title is automatically terminated. The trustee then issues a deed transferring the legal title to the property to the highest bidder. The bidder then records that deed and becomes the new owner of record. This is why lenders prefer deeds of trust over mortgages. They can sell the property much more quickly, recovering the collateral of the loan without needing to incur the expenses that would be involved with suing the borrower.

The length of time that it takes to complete a trustee’s sale – or power of sale foreclosure – varies wildly, depending on the jurisdiction . Some states, like Virginia, have incredibly short time lines, Virginia’s being only two weeks. The process begins only when the lender or trustee records a notice of default, no matter how long the borrower has been in default on his payments. Poor economic conditions have also influenced states to extend the time in which to sell the property, understanding that it may take longer than usual to do so in a struggling economy.

Deed of Trust Form

For borrowers who wish to conduct their own real estate transactions, they can use a free deed of trust form, which can be found on the internet. They must file the completed and signed deed of trust form with the county clerk within the jurisdiction of their property. Filing the deed of trust form with the county clerk is crucial because the filing itself acts as a sort of notice to any interested parties that the property is being purchased under a deed of trust.

Assignment of Deed of Trust

An assignment of deed of trust transfers the interest that the original borrower had under the deed of trust to a new bank. Typically, the deed of trust is recorded shortly after the lender signs it. If further assignments of deed of trust are to follow, each must be recorded with the county clerk.

Lenders buy and sell loans all the time, with usually little to no effect on the borrower. The assignment of deed of trust simply serves as permission for one lender to sell the loan to another lender. Once the loan is re-assigned, the new lender takes over the same lien on the same piece of property, essentially stepping into the shoes of the prior lender. The borrower can be provided with a copy of the assignment of deed of trust upon repaying his debt in full.

Deed of Trust Example Concerning an Assignment of Deed of Trust

An example of a deed of trust action can be found in the case of Maria Mendoza v JPMorgan Chase Bank. In November of 2007, Maria and Juan Mendoza took out a loan in the amount of $540,600 from JPMorgan Chase Bank. The loan was secured by a deed of trust. In the loan, the Mendozas were listed as the borrowers, Chase as the lender and beneficiary, and North American Title Company as the trustee. Unfortunately, by March of 2011, the Mendozas had fallen behind on their payments – to the tune of nearly $55,000.

On March 4, 2011, Chase reassigned the deed of trust to Chase Home Finance, LLC. California Reconveyance Company then replaced North American Title Company as the trustee on the loan. California Reconveyance Company issued a notice to the Mendozas indicating their default on the loan and the trustee’s intention to sell the property. Maria Mendoza filed a lawsuit challenging the assignment of the deed of trust, as well as the substitution of California Reconveyance Company as trustee.

Mendoza’s argument was that Colleen Irby, who had signed the assignment as an officer of Chase, was actually an employee of California Reconveyance Company. Mendoza had gleaned this information from Irby’s LinkedIn.com page, where she identified herself as an employee of the latter. Mendoza therefore alleged that Irby acted fraudulently in performing the assignment. Mendoza accused Irby of being a “robo-signer,” which is someone who simply signs documents, with no legal authority whatsoever. Mendoza argued that the substitution of the trustee was equally fraudulent.

The defendants filed a motion to dismiss , which was ultimately granted by the trial court. Mendoza then appealed to California’s Court of Appeals for the Third District. The Court of Appeals ultimately affirmed the dismissal primarily because Mendoza failed to provide enough factual evidence in her complaint , and in her appeal . The court explained its decision, stating:

“We uphold the trial court’s ruling because plaintiff lacks standing to challenge the assignment of her loan and deed of trust. Plaintiff makes the rote assertion that if afforded the opportunity, she would provide more facts to coincide with the emerging jurisprudence . That promise does not meet her burden of disclosing in her briefing what new facts she can now state to revive her wrongful foreclosure claim. As a result, the trial court did not abuse its discretion by foreclosing additional amendments.”

The Court concluded by saying that:

“[Mendoza] offers no new factual allegations to merit an opportunity to further amend her complaint or to demonstrate that the trial court abused its discretion. She has had three opportunities to state a viable claim against these defendants and has fallen far short of the mark.”

Related Legal Terms and Issues

• Collateral – Something of value pledged as security for repayment of a loan.
• Defendant – A party against whom a lawsuit has been filed in civil court, or who has been accused of, or charged with, a crime or offense.
• Lien – An encumbrance placed on a person’s property to secure a debt the property owner owes to another person or entity.
• Promissory – Containing, implying, or having the nature of a promise.

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A Deed of Trust can be Assigned Apart from the Note, and that often occurs just before a foreclosure. But What Does That Mean? Not Much, the Deed of Trust is Inseparable from the Note

Notes and Deeds of Trust are often assigned to different parties. The question posed is what happens if the Deed of Trust alone is assigned ? A typical assignment of the Deed of Trust alone will purport to assign “all beneficial interest under that certain Deed of Trust dated xyz..” But the long-established law in California is clear: the beneficial interest under a Deed of Trust is held by the party who holds the Note (or is entitled to enforce it), without regard to the assignment of the Deed of Trust .

The subject was again addressed by the California Courts in Domarad v. Fisher & Burke, Inc. (1969) 270 Cal. App. 2d 543 ). The Court noted that a deed of trust is a mere incident of the debt it secures and that an assignment of the debt carries with it the security. “The deed of trust is inseparable from the debt and always abides with the debt, and it has no market or ascertainable value, apart from the obligation it secures and that a deed of trust has no assignable quality independent of the debt, it may not be assigned or transferred apart from the debt, and an attempt to assign the deed of trust without a transfer of the debt is without effect. (emph. added)”

In Stockwell v. Barnum ((1908) 7 Cal. App. 413) the Court stated that this Code “is wholly foreign to deeds of trust, which, instead of creating a lien only, as in the case of a mortgage, passes the legal title to the trustee, thus enabling him in executing the trust to transfer to the purchaser a marketable record title. It is immaterial who holds the note. The transferee of a negotiable promissory note, payment of which is secured by a deed of trust whereby the title to the property and power of sale in case of default is vested in a third party as trustee, is not an incumbrancer to whom power of sale is given…” Stockwell @ 417.

And more recently “it has been established since 1908 that this statutory requirement that an assignment of the beneficial interest in a debt secured by real property must be recorded in order for the assignee to exercise the power of sale applies only to a mortgage and not to a deed of trust.” ( Calvo v. HSBC Bank USA, N.A. (2011) 199 Cal.App.4th 118 , 122.)

Why is that? There is a technical difference between the two security instruments. The mortgage only involves two parties –the borrower who grants the power of sale to the lender, and the lender who then holds the beneficial interest in the mortgage plus the power of sale. A deed of trust, on the other hand, involves three parties: the borrower, the lender, and the trustee who is granted conditional title to the encumbered property as well as the power of sale.

Thus, the deed of trust may thus be assigned one or multiple times over the life of the loan it secures. But if the borrower defaults on the loan, only the current beneficiary may direct the trustee to undertake the nonjudicial foreclosure process. “[O]nly the ‘true owner’ or ‘beneficial holder’ of a Deed of Trust can bring to completion a nonjudicial foreclosure under California law.” Yvanova v. New Century Mortgage (62 Cal. 4th 919) (2016)

An Alternative The Commercial Code also provides a mechanism for recording an assignment of the security if there has been an off-record transfer of the note but no recorded assignment of the deed of trust or mortgage. The buyer of the note can record a copy of the transfer agreement whereby the note was acquired, together with a sworn statement that a default has occurred, and in that event may proceed with a nonjudicial foreclosure. ( Cal. Com. Code, § 9607, subd. (b))

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Deed of Trust, Assignment of Leases and Rents, Security Agreement, Financing Statement, and Fixture Filing (Pro-Lender Short Form) | Practical Law

Deed of Trust, Assignment of Leases and Rents, Security Agreement, Financing Statement, and Fixture Filing (Pro-Lender Short Form)

Practical law standard document w-012-7159  (approx. 51 pages).

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REAL ESTATE LAW

What is a deed of trust with assignment of rents.

By Rebecca K. McDowell, J.D.

February 24, 2020

Reviewed by Michelle Seidel, B.Sc., LL.B., MBA

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• What Is a Corporate Assignment of Deed of Trust?

A deed of trust is a written instrument granting a lien on real property. While slightly different from a mortgage, they are functionally nearly the same. Some states use deeds of trust instead of mortgages while others allow both. Either way, a deed of trust used to secure a commercial loan may also include an assignment of rents , which gives the lender the right to collect rental income from the property in the event of default.

What Is a Deed of Trust?

A ​ deed of trust ​ is a document that a borrower may execute in favor of a lender to give the lender a lien on a parcel of real estate. Like a mortgage, a deed of trust secures the loan by allowing the lender to foreclose on the real estate if the loan isn't paid (although in some states that use deeds of trust, a foreclosure isn't necessary).

​ Read More: ​ How to Research a Deed of Trust

Deed of Trust vs. Mortgage

A deed of trust is very similar to a mortgage in that it pledges property to secure a loan. A mortgage, however, is simpler; the property owner executes a mortgage document in favor of the lender, and the lender records the mortgage and has a lien , but the property owner still holds title to the property.

A deed of trust, on the other hand, grants an actual ownership interest in the property to a trustee, who holds the property in trust for the lender until the obligation is paid.

What Is an Assignment of Rents?

An ​ assignment of rents ​ is extra security granted to a lender that provides a commercial loan. Commercial loans are loans that are not made for family or household use but for business purposes.

When a borrower grants a mortgage or deed of trust on real estate and the real estate has tenants who pay rent, the lender can demand an assignment of rents in addition to the mortgage or deed of trust.

The assignment of rents means that if the borrower defaults on the loan, the lender can step in and collect the rents directly from the tenants.

Deed of Trust With Assignment of Rents

A deed of trust may contain an assignment of rents clause for that same property. In addition to a clause in the deed of trust, the lender may also require the borrower to execute a separate document called an "Assignment of Rents" that is recorded with the register of deeds.

Whether the assignment is written in the deed of trust only or is also contained in a separate document, it is binding on the borrower as long as its language is clear and sufficient to create an assignment under state law.

Exercising an Assignment of Rents

When a lender decides to collect the rents on the borrower's property, the lender is said to be exercising the assignment of rents. The lender cannot exercise the assignment unless the borrower has defaulted on the loan. Once that happens, the lender can send a written demand to the tenant or tenants, requiring that the rents be paid directly to the lender.

Absolute Assignments of Rents

An assignment of rents most likely will contain language that the assignment is an ​ absolute assignment ​. In most states, an absolute assignment gives the lender an immediate interest in the rents. This means that the lender actually owns the rents and is simply allowing the borrower to collect them on license until an event of default. Once a default occurs, the lender can intercept the rents without taking any court action; a letter to the tenants is all that's needed.

Every state's laws are different; the law of the state where the property is located will dictate how a lender can exercise an assignment of rents.

​ Read More: ​ What Is the Difference Between a Deed and a Deed of Trust?

• Companies Incorporated: Mortgage States and Deed of Trust States
• American Bar Association: Commercial Real Estate FAQs
• Schulte Roth & Zabel: Sixth Circuit Upholds Assignment of Rents to Secured Lender
• Findlaw: California Civil Code - CIV § 2938
• Legal Beagle: What Is the Difference Between a Deed and a Deed of Trust?
• Legal Beagle: How to Research a Deed of Trust
• Legal Beagle: Documents Needed to Refinance a Mortgage
• Legal Beagle: How to File a Property Lien

Rebecca K. McDowell is a creditors' rights attorney with a special focus on bankruptcy and insolvency. She has a B.A. in English from Albion College and a J.D. from Wayne State University Law School. She has written legal articles for Nolo and the Bankruptcy Site.

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• Who Can Act As Trustee in a Texas Deed of Trust?
• The Definition of a Leasehold Deed of Trust
• How to Waive Right of Redemption After Foreclosure

Assignment of Deed

Table of contents, assignment of deed of trust.

An assignment of deed is used to show the deed of a property changing from one party to another, such as when a sale is made. It is used as the written proof to show who has rightful ownership of the property. When someone is purchasing property and decides to sell it before they have paid it off, an assignment of deed form would be used to transfer the rights and everything associated with the property over to the new owner.

When a debtor transfers real estate to a creditor, the  Assignment of Deed  is the legal document used to record this transfer. This happens when a lawsuit is filed on a property owner for a default in payment and the court’s rule in favor of the creditor; this is one example of when the deed of assignment would be put in to use. It’s used to show that the property is being transferred from the ownership of the defendant and given to the plaintiff that won the case and awarded the property.

It’s important to understand what these documents mean as they pertain to public property records as well as  personal background checks  into an individual. This could be exactly the type of information you need to help you gain a better understanding on someone or his or her history. It could also be in your own public background information if someone knows where to look for it.

Public records will always contain the history of who owns real property and the details on that property as it exchanges hands or ownership is passed. Anyone who knows how can access basic information about a deed or its assignments.

When a property owner uses an assignment of deed of trust, they are assigning ownership of the property to someone else and this is a very important document that should be kept in a safe and secure place. There are also public records kept on these types of documents and you should be able to request a copy – sometimes at a fee – should you need one.

The  Assignment of Deed  will also specify the rights the other person will receive along with the deed. As property transfers ownership like this, a recital is usually included as well which shows how many people and the identities of who has owned the property before. This allows you to see how many times the property has transferred hands over the course of its history.

Now that you know more about this particular property document, you will understand it when you use it. Whether you need it for your property or you are searching the  property records  of someone else for some reason, this information will be very beneficial to you.

We know that these types of legal matters can be confusing to the average person and that’s why we strive to make it easier to understand by giving you the basics here. Assignment of deed of trust documents do not have to confuse you anymore.

Assignment of Rents – What, Why, and How?

Article by:

Madelaine prescott, esq., share this post:.

• November 29, 2023

These days, almost all commercial loans include an Assignment of Rents as part of the Deed of Trust or Mortgage. But what is an Assignment of Rents, why is this such an important tool, and how are they enforced?

An Assignment of Rents (“AOR”) is used to grant the lender on a transaction a security interest in existing and future leases, rents, issues, or profits generated by the secured property, including cash proceeds, in the event a borrower defaults on their loan. The lender can use the AOR to step in and directly collect rental payments made by the tenant. For an AOR to be effective, the lender’s interest must be perfected, which has a few fairly simple requirements. The AOR must be in writing, executed by the borrower, and recorded with the county where the property is located. Including an AOR in the recorded Deed of Trust or Mortgage is the easiest and most common way to ensure the AOR meets these requirements should it ever need to be utilized.

When a borrower defaults, lenders can take advantage of AORs as an alternative to foreclosure to recoup their investment. With a shorter timeline and significantly lower costs, it is certainly an attractive option for lenders looking to get defaulted borrowers back on track with payments, without the potential of having to take back a property and attempting to either manage it or sell it in hopes of getting your money back out of the property. AORs can be a quick and easy way for the lender to get profits generated by the property with the goal of bringing the borrower out of default. But lenders should carefully monitor how much is owed versus how much has been collected. If the AOR generates enough funds so that the borrower is no longer in default, the lender must stop collecting rents generated by the property.

Enforcement of an AOR can also incentivize borrowers to work with the lender to formulate a plan, as many borrowers rely on rental income to cover expenses related to the property or their businesses. Borrowers are generally more willing to come to the table and negotiate a mutual, amicable resolution with the lender in order to protect their own investment. A word of warning to lenders though: since rental income is frequently used to pay expenses on the property, such as the property manager, maintenance, taxes, and other expenses, the lender needs to ensure they do not unintentionally hurt the value of the property by letting these important expenses fall behind. This may hurt the lender’s investment as well, as the property value could suffer, liens could be placed on the property, or the property may fall into disrepair if not properly maintained. It is also important for lenders to be aware of the statutes surrounding the payment of these expenses when an AOR is being used, as some state’s statutes require the lender to pay certain property expenses out of the collected rents if requested by the borrower.

In addition to being shorter and cheaper than foreclosure, AORs can be much easier to enforce. In California, the enforcement of an AOR is governed by California Civil Code §2938. This statute specifies enforcement methods lenders can use and restrictions on use of these funds by the lender, among other things. Under CA Civil Code §2938(c), there are 4 ways to enforce an AOR:

• The appointment of a receiver;
• Obtaining possession of the rents, issues, profits;
• Delivery to tenant of a written demand for turnover of rents, issues, and profits in the correct form; or
• Delivery to assignor of a written demand for the rents, issues, or profits.

One or more of these methods can be used to enforce an AOR. First, a receiver can be appointed by the court, and granted specific powers related to the AOR such as managing the property and collecting rents. They can have additional powers though; it just depends on what the court orders. This is not the simplest or easiest option as it requires court involvement, but this is used to enforce an AOR, especially when borrowers or tenants are uncooperative. Next is obtaining possession of the rents, issues, profits, which is exactly as it seems; lenders can simply obtain actual possession of these and apply the funds to the loan under their AOR.

The third and fourth options each require delivery of a written demand to certain parties, directing them to pay rent to the lender instead of to the landlord. Once the demand is made, the tenant pays their rent directly to the lender, who then applies the funds to the defaulted loan. These are both great pre-litigation options, with advantages over the first two enforcement methods since actual possession can be difficult to obtain and courts move slowly with high costs to litigate. The written demands require a specific form to follow called the “Demand To Pay Rent to Party Other Than Landlord”, as found at CA Civil Code §2938(k). There are other notice requirements to be followed here, so it is essential to consult with an experienced attorney if you are considering either of these options. California Civil Code §2938 specifically provides that none of the four enforcement methods violate California’s One Action Rule nor the Anti-Deficiency Rule, so lenders can confidently enforce their AORs using the above methods with peace of mind that they are not violating other California laws.

Whether you are looking to originate a new loan, or you are facing a default by your borrower, understanding what an Assignment of Rents is and how it operates can be extremely beneficial. Enforcing an AOR can be an easier option than foreclosure and can help promote a good relationship with your borrower when handled correctly. If you have any questions about AORs, or need further details on how to enforce them, Geraci is here to help.

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Mortgage electronic registration system (mers), explained.

Do you know who owns your mortgage? While this information isn’t essential for homeowners when they send monthly mortgage payments, it might come in handy one day — for example, if you decide to refinance your loan . This is when the Mortgage Electronic Registration System (MERS) comes into play. Let’s learn what exactly is MERS, its role in mortgages and how to look up your mortgage in MERS.

What is Mortgage Electronic Registration System (MERS)?

MERS is an American private electronic database created to track new mortgage loans, servicing rights and ownership of the loans. It provides free public access to information about home mortgages and is used by homeowners, local governments, servicers, lenders, municipalities and insurers, among others.

Every loan in MERS is assigned a mortgage identification number (MIN). This number stays the same throughout the loan's life, making it easier to track in the system, even if the loan is sold to another financial institution.

MERS and its role in mortgage transactions

Mortgages are bought and sold all the time. However, before MERS was created, the lender would have to prepare and file an assignment — a document that states a mortgage transfer — in county land records. Thanks to MERS, lenders can potentially save time and costs on filing assignments every time the mortgage gets transferred to another holder.

When you look into who owns your mortgage, you may also discover MERS itself documented as the loan owner. This is known as a MOM (MERS as Original Mortgagee) loan. However, even if MERS is mentioned as a mortgagee, it does not collect monthly payments and doesn't own the debt or service any loans. In actuality, MERS is generally only listed as a mortgagee for convenience. This way, every time a loan is transferred, MERS can act on behalf of the loan holder and eliminate the need for separate assignments.

Additionally, you should know that MERS cannot be a party to start foreclosure , even if it's mentioned as a mortgagee. If the MOM loan goes into foreclosure, MERS would usually assign the loan back to the current owner.

How to look up a mortgage in MERS

If you're a homeowner, MERS would have little impact on you or your mortgage. However, it may come in handy to learn who the holder of your loan is. This information is necessary for those who want to refinance their house, ask to modify the loan or update information about homeowners insurance , among others. You can search the registry online or by phone.

Homeowners can access MERS by providing:

• Property address
• Borrower's name and social security number (SSN)
• Mortgage Identification Number (MIN), which you can find on the deed of trust, loan statements or signed mortgage

If you cannot locate your MIN, the other details listed above are usually still sufficient to verify the current servicer. Additionally, you might have to confirm some identifying information to see the results.

Pros and cons of Mortgage Electronic Registration System (MERS)

As you learned earlier, MERS has little effect on regular homeowners. However, it does bring certain benefits and disadvantages to the whole mortgage management process.

Pros of MERS:

• Serves as a singular destination for loan information: MERS is a good place to start for any homeowner who needs to find out who holds their mortgage. It is also used nationwide by many players in the real estate industry for various reasons, such as finding undisclosed liens or establishing those responsible for maintaining vacant properties.
• May save money and time for lenders: MERS helps facilitate the process of transferring the loan and reduces the costs of consecutive assignment filings.

Cons of MERS:

• May be confusing for homeowners: If MERS is indicated as a beneficiary of the mortgage in its database, it may be misleading to borrowers who might think that MERS has more impact on their loan than it actually does.
• Makes it challenging to establish a loan owner in some cases: When it comes to MOM loans, it could be potentially more difficult to track a current loan owner since MERS is technically listed as one.

MERS is a private database created to facilitate tracking mortgages and any ownership changes. As a homeowner, you can use it to see who your loan holder is in case you want to refinance or modify your mortgage. For lenders, MERS provides the convenience of a singular place.

Mortgage Electronic Registration System FAQs

1. is mers the only way to see who owns a mortgage.

You can look up your mortgagee in a few different ways. For example, you can call or send a written request to your mortgage servicer or check the Fannie Mae and Freddie Mac websites. However, MERS was created as a unified database, so it could potentially be a good place to start your search.

2. Is there a MERS registration fee?

Yes, MERS may charge a small registration fee when the loan is recorded in its system. You should also know that as a homeowner, you can access the registry to find information about your mortgage service provider for free.

3. What is an MOM loan?

MOM stands for "MERS as original mortgagee." This is done to save time and recording costs: since MERS is listed on paper as the loan owner, the information about the mortgagee does not have to change.

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