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In California, lenders can foreclose on deeds of trust or mortgages using a nonjudicial foreclosure process (outside of court) or a judicial foreclosure process (through the courts).
In the Title Theory, the borrower deeds his property to the lender. The mortgage converts title to the borrower when the property is paid for. In the Lien Theory, the borrower gives only a lien right to the lender. The borrower retains title to the property.
Texas is a Title Theory State. What is Title Theory? Title theory states that banks or mortgage lenders hold the title of a property until it is paid in full.
Under the lien theory, a mortgage only gives the mortgagee a lien on the property. This does not sever a joint tenancy. Under the title theory, a mortgage gives title to the land to the mortgagee the moment the mortgage is made.
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.
It is settled law that California is a ?lien? and not a ?legal title? theory state when imposing encumbrances/liens against the title of real property. California has a 150-year history of development and evolution in the way its courts have applied legal principles to mortgages and deeds of trust.
Instrument and Execution A mortgage secures a lien on real property. Deeds of trust are not used in New Jersey.
In lien theory, the borrower gets the title as soon as the purchase is made, while the lender holds a lien against the property. On the other hand, title theory has the lenders retaining the title until the loan is paid in full.
In lien theory states, the borrower holds the title to the property. Instead of a Deed of Trust, a Mortgage is recorded in the public record and acts as a lien against the property until the debt is paid off. With a mortgage, a homeowner has both legal and equitable title.
In contrast, a trust deed lets the lender commence a faster and less-expensive non-judicial 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, the property is put up for auction through a trustee's sale.