Posted by Rick Harmon on June 09, 2005 at 17:54:29:
Sounds to me like the closing agent made the error; that’s where I’d start. They should have E&O insurance. Also, if it was an insured sale, title company should bear the expense if you can establish that a loss occurred.
I’d refrain from recording anything unilaterally as this may permit the Buyer/Borrower “see your cards.” I’d much rather negotiate from (an assumed) position strength.
Is there any chance of contacting the Buyer who should have correctly signed as Grantor (as to encumbering HIS interest)? Also, I think that many/most title companies would have a hissy-fit about the Security Deed (with the error) that was recorded as it will still cloud title.
Have you reviewed the Promissory Note to determine if the Buyer signed as the Borrower? Of course, you could sue on the Note and then perfect your judgment, but that could easily be defeated by even the most sleepy-eyed homeowner.
Lastly (and I’d be reluctant to try this one) is to start foreclosure on the non-performing Note and act like it’s the real thing. Meanwhile, negotiate your best terms with the Owner of record to buy property or Modify the Note (and of course, perfect the title deficiencies).
Hopefully, you have contact with all parties concerned. I hope you don’t give any money to the Noteholder until the problem has been either resolved or that you can buy it (via assignment) for so cheap that you don’t care what the outcome is. Eventually, they’ll need to pay off the lien.
Rick Harmon