Re: Life Estate or Dower…? - Posted by David Krulac
Posted by David Krulac on July 29, 2007 at 15:20:59:
and it depends on the state. some states tax sales do NOT discharge mortgages.
Re: Life Estate or Dower…? - Posted by Bill H
Posted by Bill H on July 29, 2007 at 11:02:37:
That would be OK, however in a foreclosure all interested parties have to be notified. THis brings up the question again…does he own it??
What if one of the interested parties prior to the tax sale contest?
I deal in tax sales…I can tell you that a tax sale is NOT the panacea that the TV Gurus say it is…they can and do get overturned…everyday.
Start with quiet title and properly notify all interested parties and go from there.
Avid the hassles that can occur later.
Good Luck,
Bill NH
Re: foreclosing on a partial? - Posted by Ben (NJ)
Posted by Ben (NJ) on July 31, 2007 at 23:45:00:
Kristine, can you buy an already existing tax lien on the property? If not who is paying the taxes? If its you perhaps you should stop, there will then be a tax lien put on the property which you can buy in the name of another entity and then foreclose. In NJ tax liens don’t go to sheriff sale so there will be no outside bidding. That is key and CA may be different. The other option is a partition action.
Re: foreclosing on a partial? - Posted by michaela-CA
Posted by michaela-CA on July 31, 2007 at 10:28:22:
Kristine,
I don’t know anything about this, but could you hire someone to do some work on the ‘whole’ property - cut grass, repair roof, whatever. Then that person would create a mechanics lien against the whole property, which you could buy as another entitiy and then start foreclosure proceedings against the whole property?
Just wondering.
Michaela
Re: foreclosing on a partial? - Posted by Kristine-CA
Posted by Kristine-CA on August 01, 2007 at 08:54:25:
Hi Ben. CA doesn’t haven’t tax liens, only tax deed sales, so there is no
option for me to buy a lien (unless I create it).
I’m trying to avoid partition. The value is too low to make that
worthwhile. If I’m not able to come up with a creative solution via
some kind of foreclosure, I will probably do a quiet title. I can use an
adverse possession claim by tacking on to the previous owner’s time of
possession and payment of taxes (20 years). OR, there is also clear
documentation that the other half was bought by the previous owner
(purchase agreement and cancelled checks) but no deed was recorded.
So there are options. I’m still looking into what’s fastest and cheapest.
Kristine
Re: foreclosing on a partial? - Posted by Kristine-CA
Posted by Kristine-CA on July 31, 2007 at 13:30:45:
Hi there. I should have started a new thread with this because this
could have lots of interesting ideas. And hopefully it’ll not get as
inflammatory as some of those threads initiated by the Legend in His
Own Time. I agree with Rick Harmon on this–we need to be able to
post creative ideas and brainstorm with others about the pros and
cons.
Mechanics lien might be a good idea. Some of kind of judgement lien
might be better. I have doubts about getting the best value at a
sherriff’s sale in my area though. The players in foreclosure and
sherrifs sales in my area pay a lot less than the rehabbers I sell to.
Especially now. I think I could do better if I could acquire title and re-
sell.
I don’t know all the details of the mechanic’s lien procedures for CA, so
I’ll have to look it up. Thanks for the idea. Kristine
Re: foreclosing on a partial? - Posted by Rick, the Probate Guy
Posted by Rick, the Probate Guy on August 01, 2007 at 12:13:16:
Hi Kristine -
I’ve been trying to figure out the riddle of your kind of scenario for a long time. Forgive me if I rant without offering much of a solution, but here’s where I am, to date in my understanding:
My buddy Cantu says that my motto ought to be: “We make simple things complicated.” He’s spot on, too.
CA mechanic’s lien laws are such that, after a short time period (60 days?) the creditor would have to initiate a suit to continue to enforce his claim. While that isn’t impossible to complete, it adds another moving part into a low budget deal.
As for getting another judgment and doing a judical foreclosure, that can also be problematic. In CA, judicial foreclosures on AJ’s concerning residential real estate require more prove up and due diligence in noticing. If I understand this right, there is much more required by the foreclosing creditor and the levying officer (Sheriff or Marshall doing the sale) in order to protect the rights of a possible residing owner.
Also, if a creditor who is aware of the debtor’s death must make their claim in probate, not by obtaining an AJ. However, an existing AJ on a decedent may be enforced via a writ of execution.
FOr what it’s worth, my buddy Travis the judgment guy says that doing a judicial foreclosure on non-residental property in CA is a piece of cake.
So, what other solutions might be more attractive? Absent some form of security devise that was recorded on all or at least the interest(s) that you do not own, you’re left to punt. Going the AP route is both time-consuming, uncertain and oftentimes very risky.
However, if you could find a way to put pressure on the holders of the other interests, they may capitulate and cooperate just to make you go away. I call these the “burr under the saddle” tactics. While not perfect, they can be a lot more fun, less expensive, and I learn tremendously from every deal.
Your thought, Kristine?
Re: foreclosing on a partial? - Posted by michaela-CA
Posted by michaela-CA on July 31, 2007 at 14:45:43:
Kristine,
if the bidding didn’t go very high, could you be the high bidder and then own the whole property? Then you could turn around and sell it at full market?
Michaela
Re: foreclosing on a partial? - Posted by Kristine-CA
Posted by Kristine-CA on August 01, 2007 at 12:53:11:
Oh I forgive you. If you’re ranting, then sign me up for your next
seminar.
Indeed we do make simple things complicated. It seems to be my
niche now and I’m not entirely sure a continous supply of these types
of deals is what I’m after.
Mechanic’s liens are complicated and it appears would require service
to the the owners of record. One such owner is deceased. Creating a
debt in order to get to an abstract judgement also seems complicated.
And then there would be the issue of service again. I have very little
experience with collections and judgements. I’ve never gotten as far as
a sheriff’s sale of residential real property–have never seen one or
know of one in my farm county. So I really can’t tell if it’s worth it or
not.
In this case I own 1/2. The estate I bought my half from has a
relatively clear cut case to acquire ownership of the other 3/6. There
are original docs of a buyout agreement from the owners of the
3/6ths. There are also cancelled checks to all three parties, but no
deed was recorded. So one angle is a quiet title with missing
instrument or some such thing. The estate I bought it from used the
entire property and paid taxes on it for 20 years, so there is an adverse
possession option available as well.
I finally found an attorney very experienced with quiet titles and AP–
she knew right away to consider having me go back to the estate and
get some kind of assignment so I could tack on to their AP claim.
All that is well and good…and time consuming…and costly.
I have been trying to communicate with the other owners (2 living
owners, 1 deceased owner with 3 heirs). One owner is definitely
having memory problems. One has no memory of anything and is in
nursing care. The heirs of the deceased owner weren’t responding.
Then lo and behold I get a call from a family member today who is
wanted to understand the details and wants to work to get it cleared
up without a law suit. He believes he can present it to everyone so that
they will cooperate.
So, I don’t know. 2 deeds (one with power of attorney), 3 assignments
of interest. Then an affidavit to transfer real property. Is that better
than a quiet title suit?
Both my probate attorney and real estate attorney feel that a law suit is
a better fix than putting all the pieces together. They have a point
because a suit would produce an order and take care of everything. If I
end up missing any one of the pieces I need, I’ll need a quiet title
anyway.
So those are my thoughts. You are correct in that working with the
holders of interest is more fun and less expensive. And faster!
Kristine
Re: foreclosing on a partial? - Posted by michaela-CA
Posted by michaela-CA on August 01, 2007 at 12:39:54:
Rick,
id that mechanics lien is small, then couldn’t she just ‘acquire’ it and get the judgment herself in small claims court? That wouldn’t be that expensive. Then with that she could force a foreclosure.
Michaela
I would file Quiet Title Action… - Posted by JT-IN
Posted by JT-IN on August 01, 2007 at 15:42:54:
And continue to negotiate for the interest of any of the other heirs, who might contact you. Worst case you go all the way through the QTA. Best case, they decide to issue you a QCD to extinguish the potential action against them… Older folks get quite nervous and motivated when there are legal papers flying around, and sometimes they will do whatever is needed, just to get the concern over the action to stop.
I called it the “Velvet Hammer” approach. We will get there one way or the other; they get to choose whether we use the soft side or the hard side of the hammer.
Besides Kristine, if you haven’t yet done one of the QTA’s, don’t you think it is about time…?
JT-IN
Re: foreclosing on a partial? - Posted by Bob Smith
Posted by Bob Smith on August 01, 2007 at 14:46:45:
How can you claim adverse possession? You own 1/2 the property, so your possession of it is by definition not adverse. Your interest is undivided, meaning you have equal right to possession of the entire property. You can’t say you occupied the property without your co-owners’ permission because you don’t need their permission.
Mechanics’s lien, then judgment, then F/C - Posted by Rick, the Probate Guy
Posted by Rick, the Probate Guy on August 01, 2007 at 22:10:23:
Michaela - I really don’t know the answer. Judgment liens are not my gig and just about the time that I think I get it, someone comes along and shows me an entirely new aspect that I either missed or just misinterpreted.
The problem that I see would be getting a judgment on a deceased debtor. However, if you didn’t have any facts as to their whereabouts or being alive or dead, that could change things. Probably cause more noticing issues and time delays.
Also, I thought that Kristine wanted to keep this simple, right? (Oh yeah, sure). Kristine and I are both attracted to fancy plays like moths to flames.
Re: I would file Quiet Title Action… - Posted by Rick, the Probate Guy
Posted by Rick, the Probate Guy on August 01, 2007 at 21:44:32:
I like your term “velvet hammer” as much-- or maybe more-- than my term.
Just another tactical “tool” to put in the toolbox.
Re: I would file Quiet Title Action… - Posted by Kristine-CA
Posted by Kristine-CA on August 01, 2007 at 19:42:14:
Do I think it’s about time? Are you kidding? Every time I get close to a
quiet title action I either get a deed or…the sellers/heirs decides not
to sell. I’m always thrilled to avoid the dreaded QTA.
I already started the qta process by hiring the attorney and ordering a
litigation title policy, etc. But I think this one will work itself out knot
by knot. While I don’t have your magic touch or soothing style, the
Velvet Hammer approach does appear to be working, both for the heirs
and for me.
I still have lingering issues with an adverse possesion property that I
have lots of time and money into. No doubt it will require a law suit
one day, so my opportunity awaits. Kristine
Parcels, partials and other dental work - Posted by Rick, the Probate Guy
Posted by Rick, the Probate Guy on August 01, 2007 at 22:01:41:
It’s adverse as to interest which Kristine does NOT own.
Here are the test points:
-
Actual, open and notorius
-
Hostile and adverse
-
Exclusive possession
-
Continuous and uninterrupted
-
Pay underlying property taxes for period (which varies from about two years to twenty, depending on the state).
Test against the interest of the other interest(s) and you see that Kristine’s position looks secure. It would be nice if she could tack on to a prior adverse possessor via what we kiddingly call “an assignment of tack.”
Also, decedent’s heirs and personal reps cannot adverse possess against the interest of a decedent.
Re: foreclosing on a partial? - Posted by Kristine-CA
Posted by Kristine-CA on August 01, 2007 at 15:22:06:
I understand what you are saying about the possession not being
adverse. However I have seen cases where heirs, whose possession is
also not entirely adverse, acquire title via adverse possession. Since I
haven’t read the files I don’t know what the prove up info was or how
the possession was described.
The truth of the matter is that not that many judges understand AP.
My attorney says this is changing now as they have seen more recently.
I’ll have to wait and see what she comes up with for my case. Kristine
Re: Mechanics’s lien, then judgment, then F/C - Posted by Kristine-CA
Posted by Kristine-CA on August 02, 2007 at 09:26:18:
As far as I know you can get a judgement against a deceased person,
it’s just not supposed to be valid. I’ve used that angle to get rid of
judgements on properties where the suit and judgement showed up
after date of death, for example with credit card judgements. But I
have to point this out to title and give them all the supporting
paperwork so they will insure title without paying the judgement.
How many people just pay the judgement to get the escrow closed,
without objecting, I wonder.
So, obviously, if credit card companies and insurance companies and
other creditors are getting judgements after the date of death, I can
too. I would just have to make sure I didn’t end up in any situations
when someone would object. Kristine