Logically, the 4 year statute of limitations of Civil Code §387(1) applies to breach of a promissory note secured by a deed of trust.  But foreclosure on the deed of trust is not limited to the “normal” statute of limitations.  In Trenk v. Soheili, (Dec. 2020) B295434, (Los Angeles County Super. Ct. No. PC058343), the court analyzed the 10/60 year rule of Civil Code ╘880.020.  In 2001 a lawyer was sued for malpractice, he settled in 2003 agreeing to pay $100,000 secured by a deed of trust on his community property house.  The promissory note gave him three years to pay.  He paid $25,000 then stopped payments.  He owed $75,000.   In 2018 the plaintiff/creditor began foreclosure proceedings.  The debtor field an action to quiet title in the residence citing the statute of limitations and the Marketable Record Title Act (Civ. Code, § 880.020 et seq.) barred enforcement of the trust deed.  The trial court agreed.  The judgment was affirmed on appeal, but for different reasons.

The appellate court held that a power of sale in a trust deed is enforceable even if the statute of limitations has run on the underlying obligation if the trust deed does not state the last date for payment under the promissory note.  See Civil Code section 882.020,
subdivision (a)(2).  The key is if a date is set forth in the deed of trust for the last payment/due date.  The creditor may have 10 years, or would have 60 years to exercise the power of sale in the trust deed if no due date is stated.  It is also possible under Civil Code Section 882.020, subdivision (a)(3) to extend the applicable time period by 10 years by recording a “notice of intent to preserve the security interest.”

Read Civil Code section 882.020, subdivision (a)(1) provides that a power of sale may not be used to enforce a lien after 10 years from the last date fixed for payment, if that date is “ascertainable from the recorded evidence of indebtedness.”  Remember, Don’t confuse a judicial foreclosure (which has a statute of limitations) with a non-judicial which does not.

It is also good that Mr. Trenk, was married.  The Court of Appeal found that the power of sale is not enforceable for another reason. The Residence presumptively is community property. The wife did not execute the trust deed, she has the power to void it.  Fam. Code, § 1102, subd. (a)

Editor’s note: I have met Mr. Trenk, he’s a very nice guy, but he really should have paid his debt.


It is confusing which eviction notice to use and when the money is due, or not due, under the current Covid-19 eviction rules.  This chart may help point you in the right direction.  But use a lawyer, these are only basic instructions.  Click here to download this chart: Which Covid Forms to serve

The mail box rule survives.  Many leases, including the AIR leases, provide that notices are “deemed given” if they are “addressed as required herein and mailed with postage prepaid.” This case involved a certified mail letter, which does not require handing it to the post man, just “mailing it”.  The result is all a landlord or tenant needs to prove is that they mailed the letter, NOT actual receipt.  See Jenkins v. Tuneup Masters (1987) 190 Cal.App.3d 1

In the 9th Circuit case of Garvin vs. Cook, 922 F.3d 1031 (9th Cir. 2019)  the BAP affirmed the bankruptcy court’s order confirming a chapter 11 plan, over the objection of the United States Trustee, who objected because one of the chapter 11 debtors leased property to a tenant who grew marijuana.   The objection was that the chapter 11 debtor planned to use income from that lease to fund the plan.  The United States Trustee argued the lease violated federal drug law – namely, the Controlled Substances Act – therefore the plan was unconfirmable under Section 1129(a)(3) because it was proposed by means forbidden by law.

The Nineth Circuit overruled the objection and confirmed the chapter 11 plan.  It concluded that Section 1129(a)(3) directs bankruptcy courts to police the means of a reorganization plan’s proposal, not its substantive provisions.  The panel specifically found that the payment plan was not proposed was not forbidden by law, despite the alleged violations of federal law by the third party tenant.  In other words, it found the Trustee did not show that the plan “will result in bankruptcy proceedings being used to facilitate legal violations.”

  1. Mediate cases early, e.g. within the first few months of litigation!   It behooves all parties to settle the case BEFORE the attorney’s and clients ascertain the facts or law supporting or detracting from their case.  This sounds heretical, but most lawyers are lazy and do not begin to research their case until before a substantive hearing, mediation or trial.  Most lawyers only learn the facts of a case during a deposition, or mediation, when they are forced to sit and listen to their client (or the opposing party) speak.
  2. You attract more flies with honey than vinegar.  Be nice to the party paying the money. Make the lawyer or insurance adjuster have sympathy for your client.
  3. Ask the opposing side to help you settle the case.  Ask your opposition what does she or he think can be done to resolve the matter.
  4. Politely using the Socratic method (e.g. law school), ask the opposing side to help you understand the law/facts why his client does not want to pay what you proposed or why you should settle.  Maybe add that you want to learn the truth from the opposing lawyer, he’ll probably open up and spill the beans!
  5. If you are defense counsel for an insurance company, explain to the plaintiff’s attorney that there is a reservation of rights with serious coverage issues and if this case goes to trial and the defendant loses, there may not be coverage or an easy payment from the insurer .
  6. Encourage your client to have realistic expectations.  Usually sending a bill, or a written estimate for future attorney’s fees and costs to your client does the trick.
  7. Explain to an insured defendant that the policy has eroding limit provisions, also known as wasting policy limits, defense-within-limits, cannibalizing or self-liquidating limits, which will reduce the insurance coverage limits available to an insured as certain costs and expenses are incurred during the defense of an insured or payment of a judgment.
    1. If representing an insured defendant pursuant to a reservation of rights, explain the insurer may file a declaratory relief action to obtain a court order to withdraw from paying for the defense and may also obtain the right to recover its costs of defense due to lack of coverage.
  8. Blame the insurance adjuster or a third party for your client’s refusal to settle.  Explain to Plaintiff’s counsel that there is barely coverage so the adjuster is limited in what he can authorize to pay to settle.   Sometimes blaming a co-defendant or spouse who is interfering with settlement by encouraging litigation works.
  9. Get a bankruptcy attorney to send a pre-filing or credit counseling letter citing the Bankruptcy Abuse Prevention and Consumer Protection Act (BAPCPA) so the plaintiff knows the defendant is serious about filing for bankruptcy relief.
  10. Use depositions where all parties are present to settle the case. I settle 75% of my cases this way.  Once my client brought a Ouija board to a deposition and afterwards the parties settled after  communicating with their deceased loved one who knew something about the dispute. This is a 100% true event.  (I have also had a dead client call me, but that is another story.)

January 1, 2021, the new Civil Code § 2924f Click here for text of AB1079 and Civil Code 2924f prohibits bundled residential foreclosure packages to be sold. Sometimes lenders as part of the foreclosure would at auction bundle several properties together selling them to a single buyer. The new law requires foreclosed homes to be sold individually to give people who want to actually live in the home a fair chance at buying it. Special notices (forms) are now required and after the initial bids at the foreclosure auction are received, tenants, families, local governments, affordable housing nonprofits, and community land trusts have a 45-day window to offer a higher bid in order to buy the property. These provisions of SB 1079 apply to all residential properties with one to four housing units and will sunset in five years.

laciv221 In order to “constructively” serve a person by publication, or by serving the Secretary of State, you need to show due diligence to track down and to serve the defendant by “normal” means.    E.g. personal or substitute service.  The United States Postal Service provides this form and information to obtain a persons or businesses’ forwarding address if the USPS was provided with a forwarding address.  See  U.S. Postal Service FAQ on obtaining a forwarding address.  The same form is also available to fill out online then to print a copy here: Click here for an online form fillable version you can print of the Exhibit 5-2b form

Here is a nice checklist for obtaining your due diligence wanted by the Los Angeles Superior Court for an order to serve a defendant by publication.  Click here: LASC Checklist for Service by Publication – LACIV221


The current primary laws affecting residential tenancies are the CDC Agency Order Published September 4, 2020 and California’s AB3088 enacted August 31, 2020 aka The California Tenant, Homeowner, and Small Landlord Relief and Stabilization Act.  Commercial evictions for non-payment of rent may still be limited through Governor Newsom’s September 23, 2020 Executive Order extending the timeframe for the Covid-19 protections through March 31, 2021. The Governor’s Order can be used by local governments to forestall non-payment of rent evictions for commercial tenants suffering adverse financial impacts due to Covid-19.  Further, the new statutes limit local government’s ability to create additional relief for residential tenancies.  AB3088 also requires residential rent repayment to begin by March 1, 2021.

Read Michael Simkin’s detailed explanation of these new laws (and more) in his article published by the Real Property Section of the CLA (California Bar Association).  Click here: Article on AB3088 and other New Covid-19 Rent Laws

Most California commercial leasing transactions use one of the AIR CRE Commercial Leases (“AIR Forms”) or the CAR Commercial Lease form (“CAR Form”).  The AIR Forms are very inclusive at 20+ pages, are balanced for the landlord and tenant, but may not be the right choice for every commercial lease.  The CAR Form is user friendly at 6 pages, but only covers the basics.  The AIR CRE forms have specific leases for office, single, multi-tenant, ground leases and for shopping centers.  AIR also offers addendums for arbitration, options to extend, rent adjustments, right of first refusal, etc.  The primary difference between the AIR and CAR forms are detailed assignment of responsibility.    Read my article published by the CLA (of the California State Bar Association) to answer your questions about the forms.

Click here to read Simkin’s CLA Article comparing the AIR and CAR Commercial Leasing forms