J. Dean Heller Published in California Real Property Journal
"One Deed of Trust and Several Obligations: The Case for Layered Foreclosure"

J. Dean Heller's article, "One Deed of Trust and Several Obligations: The Case for Layered Foreclosure," was published in the July 2010 issue of the California Real Property Journal. In his article, Dean reviews arguments, legal and practical, regarding a contemporary revival of section 728 of the Code of Civil Procedure, and shows how it could be usefully applied in situations involving modern structured real estate financings, where the mortgage debt is held by a Real Estate Mortgage Investment Conduit, or "REMIC." According to Dean, California courts have looked upon section 728 as providing a partial foreclosure remedy only when it can be applied to a physically severable portion of the real property security. His article argues that logic, language and case law support a broader application of section 728, to permit foreclosure on an undivided "layer" of the real estate collateral while leaving the security interest intact as to the remaining, undivided fee interest in the property. Dean concludes that "if the occasion arises for California appellate courts to entertain the revival of layered foreclosures in the modern era, they should address the issue understanding that both precedent and practicality favor a flexible approach."