Can you foreclose on Property - Posted by denverjohn

Posted by Rick Harmon on April 22, 2006 at 23:18:29:

The creation of junior lien may not trigger a due-on-transfer loan call, but a foreclosure of the junior lien and subsequent sale to 3rd party bidder or reversion to the lender/beneficiary is not protected.

Of course, I’d rather bet on my friend Joe K’s avoiding a due on sale because he talks a much better hunt than most investors.

I’ve been on both sides of this game many, many times. When it happened the first time to me, in 1985, I was terrified. So I refi’d. Now, if a loan were to be called I either pay the stinkers off or play the legal game, something that I sometimes do for sport because it’s more environmentally responsible than game hunting and few other people worry about attorneys losing a few feathers or taking buckshot.

In reality, it’s a big waste of time to worry about this. If a lender calls a loan, give them the money 'cause all they can do is take the property…they can’t eat you.

Here’s my little “G-St-G” summary that give to all the attorneys that call me looking for insight (or sympathy for their clients):

Garn St. Germain Act re: Loan Assumption

This whole issue was settled in the 1982 federal act called the Garn-St. Germain Depository Institutions Act. According to the Act there are only nine exceptions to a lender?s ability to enforce it?s due-on-sale clause and they are:

(d) Exemption of specified transfers or dispositions
With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon ?

(1) the creation of a lien or other encumbrance subordinate to the lender’s security instrument which does not relate to a transfer of rights of occupancy in the property;

(2) the creation of a purchase money security interest for household appliances;

(3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety;

(4) the granting of a leasehold interest of three years or less not containing an option to purchase;

(5) a transfer to a relative resulting from the death of a borrower;

(6) a transfer where the spouse or children of the borrower become an owner of the property;

(7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property;

(8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or

(9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board.

Can you foreclose on Property - Posted by denverjohn

Posted by denverjohn on April 20, 2006 at 15:34:13:

Just want to know the risks if you carry a second on selling your property. If the person stops paying on the second can you foreclose to get the money or property back? Do you record the second with the County Records department? Thank you in advance.

You can tame a Lion too… - Posted by JT-IN

Posted by JT-IN on April 20, 2006 at 20:52:07:

Yes, you can tame a Lion but that is only for specialists, and those that are not specialists, become Lion Dinner…

It is kind of like that with trying to protect yourself with a defaulted 2nd mtg. Let me explain here… Lets say that you sold a prop for 100K; 80K new 1st mtg, and you took back a 2nd for 20K. Of course when owners default on a mtg, they don’t just default on the 2nd mtg, they default on the 1st mtg, they default on the maintenace of the home, they default on just about everything (generalization, but based on lots of sperience). Sperience is a he!! of a lot of experience, in case you aren’t aware.

Anyway, back to the default… So the 1st is defaulted too, meaning that there may be anywhere from 3 to 12 back payments unpaid, plus late fees, and maybe Atty fees. So now the 80K has grown to maybe 90K, or could even be more… The deferred or defaulted maintenance on the home has devalued the asset, so it is no longer worth the same as on the day you sold it to them… So you see where this is going… Maybe the home is worth 90K and the 1st mtg is owed 90K+, and ticking, with each passing day.

In the above scenario, you have effectively been foreclosed out of you own 2nd mtg… In other words, there is no value left to be had. The numbers could be more or less, your percentages could be different, but it is rare that a fairly new 2nd that goes into default is ever worth chasing…

My advise is that if you plan on making 2nds, the day you make them recognize the risk involved. The risk of loss is great, no matter how you slice it… I never create a 2nd to sell a property, Personally, I would rather hold all the mtg, rather a small Jr position. Of course I only hold the financing thru a L/O, and not a transfer of marketable title. In the event of default, I can react quicker and elminate the problem, as opposed to the above scenario going on for much longer, and ending in foreclosure.

These examples will differ from state to state, based on the length of time to foreclose a mtg. Some states it can be done in the matter of several months, while others it may take over a year. So this advice could vary depending on location, and a few other factors… Hopefully it enlightens you to some of the actual risk that exists in Jr Mtgs, as the Ledner.

JT-IN

Re: Can you foreclose on Property - Posted by John

Posted by John on April 20, 2006 at 17:00:02:

Yes, you can foreclose for non payment but you will be subject to first mortgage. Getting the property back depends on if anyone bid at sale if noone does then you get the property, otherwise you get paid in full plus foreclosing costs. Yes, you record a second position deed of trust or mortgage with county recorder.

Re: You can tame a Lion too… - Posted by Hank FL

Posted by Hank FL on April 26, 2006 at 16:16:59:

I’ve said it before, but I’ll say your input here is priceless once more.

Re: Can you foreclose on Property - Posted by denverjohn

Posted by denverjohn on April 20, 2006 at 17:55:29:

Thanks for you help John.

Another Question for you: - Posted by Rob Ricker

Posted by Rob Ricker on April 20, 2006 at 17:44:48:

You said you’ll be “subject to the first mortgage”. Does that mean you can forclose on the second and take over payments on the first subject to their terms, or does the first have to be paid in full? This is one aspect that has always intrigued me.

You have the right to reinstate - Posted by Marc Donovan

Posted by Marc Donovan on April 20, 2006 at 20:43:44:

Subject to the terms of your mortgage/td, if you are a junior lien holder, you have the right to pay the senior lien holder and charge the debtor for anything you have paid. This includes monthly payments as well as paying off the note. If you foreclose, you do not have to assume the note of senior lien holders (you are not liable personally - just the property is at risk). So you can resume/reinstate payments or pay off the senior at your choice. You basically step into the shoes of the owner without his liability - very similar to a subject-to without the due-on-sale threat.

Re: Another Question for you: - Posted by John

Posted by John on April 20, 2006 at 19:06:01:

I have not had to foreclose on a property yet.
I believe that you take over the terms of the first position mortgage, or pay cash your choice.
I would seek legal advise from a local attorney if you ever get in this position.

my bad … Thanks MARC *** - Posted by Rob Ricker

Posted by Rob Ricker on April 20, 2006 at 21:18:04:

nm

Wow Mark …this is great info for me - Posted by Rob Ricker

Posted by Rob Ricker on April 20, 2006 at 21:16:26:

Exactly what I had HOPED to hear. I’m a mortgage broker and subject to investor, and I’m in the process of putting together a plan which would ultimately include me buying seller held seconds at a significant discount. From what you’ve told me, I’d be in a win win situation as long as my numbers look good. If my seconds get paid, I’ll make a great return on my money. If they don’t get paid, I’ll basically have own another subject to house without the due on sale issue being a possibility . THANKS! THANKS! THANKS!

Thanks John - Posted by Rob Ricker

Posted by Rob Ricker on April 20, 2006 at 20:32:21:

I’ll ask an attorney’s opinion. Happy investing!

Re: Wow Mark …this is great info for me - Posted by The Frisco Kid

Posted by The Frisco Kid on April 20, 2006 at 23:23:52:

Rob

Sorry to rain on your parade, foreclosing on a junior loan does not eliminate the due on sale rights of the senior loan. The senior lender can enforce their rights if they want to, this is not an exempt transfer, but again thats if they want to.

Re: Wow Mark …this is great info for me - Posted by John Corey

Posted by John Corey on April 21, 2006 at 07:07:56:

The details need to be checked with a RE lawyer. I have read an article by Bronchick that indicates there is no DOS issue when a junior lien holder forecloses. Check the legal forum to see if the article was posted or otherwise discussed there. I received it from Bronchick’s mailing list.

What would be the logic?

Call it professional courtesy. Lenders are not always in a senior position. Also understand that if the lender was a bank in second after foreclose they can not hold the property. They are required to liquidate the asset. That will pay off the 1st in a reasonable amount of time.

When people invest subject-to they rarely find that they have a loan called due because of DOS. When you are in a junior line position you are even better off when it comes to DOS in that you have a legal exception to the DOS.

John Corey

Re: Wow Mark …this is great info for me - Posted by Rob Ricker

Posted by Rob Ricker on April 21, 2006 at 24:03:21:

Well that did rain on my parade a bit, but that’s info I needed to know …thanks!

Re: Wow Mark …this is great info for me - Posted by John Corey

Posted by John Corey on April 21, 2006 at 07:08:42:

Rob,

Go back up 1 post as I think “The Frisco Kid” is incorrect in this situation.

John Corey

Re: Wow Mark …this is great info for me - Posted by The Frisco Kid

Posted by The Frisco Kid on April 21, 2006 at 13:12:57:

John

Show me one law on the books anywhere that would stop me from enforcing a due on sale clause that was triggered by a change of ownership due to a junior lien foreclosing. There isn’t any. You cannot take my rights away except by use of a valid law, and the last time I checked, the court didn’t accept wishful thinking as a valid defense.

Re: Wow Mark …this is great info for me - Posted by John Corey

Posted by John Corey on April 21, 2006 at 17:12:07:

  1. DOS in most conventional loans came about because of a specific banking reform act. Something that ‘sounds like’ Garn St Germain. I do not have the correct spelling.

  2. The act did not address the DOS issues related to a junior lien.

  3. Check with Bronchick’s article on this as he explains why legally the right to enforce the DOS when there is a foreclosure from a junior lien was left open.

I know I am not a lawyer and from your logic I suspect you are not one either. Let the lawyer explain why what you are thinking might be more wishful than what I am saying.

As the act pertains to lenders who have banking licenses, etc. I am not sure if a private party could successfully create a loan agreement that precludes a junior lien holder from taking over the senior liens in the case of a default. I suspect to do so would also mean that the senior loan agreement would have had to exclude all future junior financing. Most loan agreements remain quiet on the issue of someone later taking out a junior lien (getting a 2nd, a HELOC, etc.)

John Corey

Re: Wow Mark …this is great info for me - Posted by Joe Kaiser

Posted by Joe Kaiser on April 21, 2006 at 14:17:48:

Ahhh, Garn - St. Germain would be one.

If acquiring a junior lien is does not trigger the due on sale, it only
follows that nothing resulting from that event would either.

Joe

John, this might help - Posted by Killer Joe

Posted by Killer Joe on April 21, 2006 at 18:47:16:

Hi John,

Here is a link that may be of use to you. I hope this doesn’t violate the rules. I’d hate to get banished to EH land for eternity…

KJ