1 Insuring after Judicial and Non-Judicial Foreclosures Montana Land Title Association Spring Education Seminar May 2014 David E. Lawson, Underwriter Fidelity National Title Group NOTE: deed of trust (DOT) is used to refer to Trust Indenture, Deed of Trust, or Mortgage, as applicable.
2 IDENTIFYING MATTERS THAT MIGHT SURVIVE FORECLOSURE UCC WITH PURCHASE MONEY PRIORITY ON FIXTURES Ineffective limited Subordination Agreements are common. SIMULTANEOUS DOT WITHOUT SUBORDINATION Title insurer relied only on instructions from the lenders. Consult with your underwriter Seller s purchase money DOT will have priority JUDGMENT JUNIOR IN TIME ARISING FROM FORECLOSURE OF A PRIOR ENCUMBRANCE
3 IDENTIFYING MATTERS THAT MIGHT SURVIVE FORECLOSURE GOVERNMENTAL CODE VIOLATIONS AND LIENS RELATING TO CODE VIOLATIONS GOVERNMENTAL CRIMINAL FORFEITURE RIGHTS Unless the government formally authorized the foreclosure. EASEMENTS AND AGREEMENTS If required by building permits or needed to use the property even though recorded later. Non-compliance with local codes if treated as extinguished? Contact your underwriter if you have any questions.
4 IDENTIFYING MATTERS THAT MIGHT SURVIVE FORECLOSURE LEASES TO PARTIES UNRELATED TO THE BORROWER. Often no notice given to lessees; or notice given but lender relies on the lease attornment & nondisturbance provisions to treat the lease as surviving. A lease is part of the cash flow & gives value to the property HOA LIENS: Unless they clearly create a lien only upon recording or upon delinquency, or CCR contains a provision granting the priority to this type of lender. Priority may hinge on a legal interpretation of the precise CCR wording. Maybe as of date of CCR recording?
5 IDENTIFYING MATTERS THAT MIGHT SURVIVE FORECLOSURE CAUTION: COPING WITH HOA LIENS If a lien clearly has priority or priority is questionable then just show the HOA lien and require a release. If lender has priority, will HOA recognize lien extinguished? Does HOA understand priority? Requesting unnecessary release - often provokes objection or attempt to collect the entire lien. Consider showing the lien and using the following: Note: Said lien appears to have been extinguished by the foreclosure of a deed of trust. This exception will be removed if the association claiming the lien confirms their records show the lien on the land was extinguished by foreclosure.
6 RECORDING SEQUENCE vs LOAN MODIFICATIONS AND SUBORDINATIONS Recording sequence only benefits a BFP without knowledge of another unrecorded document. Loan modifications frequently cause a lender to lose its original priority, but not always. Assume the foreclosing lender s priority was altered - as of date of most recent modification. If junior lender forecloses, don t assume it gained priority because of prior lender s later modification. Lender might argue about priority or assert partial priority.
7 RECORDING SEQUENCE vs LOAN MODIFICATIONS AND SUBORDINATIONS Subordination Agreements: Some are limited in scope and not fully effective. If initially effective, a Subordination might lose effectiveness when senior loan is later modified. Subordinations to any future modifications or advances are not always treated by the Courts as effective.
8 PARTIES WHO DID NOT RECEIVE NOTICE If lender intentionally does not provide notice to a junior party - the junior party s interest will survive. If failure to provide notice is unintentional, it is possible in some instances to re-foreclose. Terry L. Bell Generations Trust v. Flathead Bank of Bigfork Montana Supreme Court MT 152: first trustee s sale was invalid and ineffectual (as to only Bell), the second foreclosure action was appropriate the first foreclosure proceeding did not result in a merger of title and extinguishment of Flathead Bank s trust deeds.
9 SPECIAL RISKS IN JUDICIAL FORECLOSURES Notice by publication Default orders Orders determining priority contrary to apparent priority rights Lack of a recorded lis pendens Foreclosures of smaller encumbrances History of claims - challenges to foreclosures when significant equity or value is lost
10 FEDERAL REDEMPTION RIGHTS FOLLOWING ANY FORECLOSURE IRS: 120 days, or such longer period as is allowed in the foreclosure. Possible to obtain a waiver of redemption right, but if equity IRS will often require payment. Other agencies of the United States: one year, even for Trustee s Sales Examples: Junior SBA loan, or Judgment in favor of the U.S. or one of its agencies
11 JUDICIAL FORECLOSURE REDEMPTION RIGHTS Read the Order - what redemption period applies? Conventional Mortgage 1 year from the date of sale. If Small Tract Financing Act trust indenture or DOT used then not entitled to any right of redemption. But recent foreclosure orders sometimes grant a 30 day redemption right upon request of lender. First State Bank of Forsyth v. Chunkapura, 226 Mont. 54, 57, 734 P.2d 1203, 1205 (1987). Steven L. Cavanaugh v. Citimortgage, Inc., et al 2013 MT 349
12 JUDICIAL FORECLOSURE REDEMPTION RIGHTS EXTENSION OF THE REDEMPTION PERIOD by the Servicemembers Civil Relief Act: Period of military service not included in computing redemption period Redemption period extended for the length of service plus 90 days
13 JUDICIAL FORECLOSURE REDEMPTION RIGHTS ASSIGNMENT OF REDEMPTION RIGHTS General rule - assume redemption rights of the owner or any other party cannot be assigned independently of the assignor s interest in the property since redemption rights apply to the successors in interest. Issue has been a source of litigation in other states. Montana has court decisions on limited issues, but still room for additional litigation.
14 JUDICIAL FORECLOSURE WHO MAY REDEEM REDEMPTION RIGHTS Debtor, debtor's spouse, debtor's successor in interest in all or any part of the property. Any stockholder of judgment debtor corporation. Junior lien holder on any part of the property sold. Any stockholder of a junior corporation lien holder. Effect of redemption by debtor or debtor's spouse Debtor redeems: effect of the sale is terminated. Spouse redeems: spouse becomes the owner of the debtor's interest. All junior liens are revived.
15 JUDICIAL FORECLOSURE REDEMPTION RIGHTS Possession of lands during redemption period. Debtor if personally occupying as a home for the debtor and family. Otherwise the purchaser or assignee
16 CAN YOU INSURE PRIOR TO REDEMPTION RIGHTS EXPIRING? Complex topic - obtain your underwriter s approval. Purchaser at a sheriff s sale acquires most of the rights of the borrower That interest is not fee simple Does not fall within the chain of title without recording the Certificate of Sale. Subject to extinguishment upon redemption.
17 CAN YOU INSURE PRIOR TO REDEMPTION RIGHTS EXPIRING? If the purchaser at the Sheriff s Sale does not want to wait out the redemption period before selling: Can assign the Certificate of Sale. BUT if sale price exceeds the foreclosure bid amount, a redemptioner is not obligated to pay the mark-up. A lender to the holder (or assignee) of a Certificate of Sale will have its lien extinguished by a redemption, without any obligation on redemptioner to pay any amount to the lender.
18 EQUITABLE REDEMPTION Refers to purchase at or after foreclosure by an affiliate or relative of the borrower, or later repurchase by the borrower, relative or affiliate. Junior parties can assert their lien or interest is revived in the same manner as in a redemption from a judicial foreclosure, even if title is acquired by an LLC or in another manner than previously held.
19 SUBDIVISION COMPLIANCE ISSUES Lender failed to require creation of mortgage lot by borrower: Recourse - court order to require county and department of revenue to allow mortgage lot Conveyance of road right of way by borrower without a partial release: Lender has rights to foreclose on original boundaries. Adjustments of boundaries by COS: Lender has rights to foreclose on original boundaries. Trustee s deed often not recordable - original legal description not conforming to most recent survey.
20 SUBDIVISION COMPLIANCE ISSUES In most instances a lender cannot foreclose additional land acquired by borrower and added to the original parcel by recorded survey. ALTA policies, other than ALTA Homeowner s, do not insure against loss from subdivision noncompliance except to the extent a notice of violation has been recorded.
21 SUBDIVISION COMPLIANCE ISSUES CONDOMINIUMS: Underlying platted lots within a condo cannot be encumbered and foreclosed as independent parcels. They are common elements owned in undivided interests by the existing unit owners, even if designated for future unit development. Carefully review Declaration to determine the nature of areas designated for future units. Portions of common elements in which declarant has rights to create additional units are not capable of being owned, encumbered or conveyed separately from other existing units.
22 MINOR DEFECTS IN FORECLOSURES STRICT COMPLIANCE WITH CODE REQUIRED: Any variation should be run by your underwriter. SUCCESSOR TRUSTEE: No powers until appointment is recorded. MERS: Challenges in other states can occur here, too. Assume it can only assign the DOT. MCA The assignment of a debt secured by mortgage carries with it the security. MCA "Beneficiary" means the person named in a trust indenture as the person for whose benefit a trust indenture is given or the person's successor in interest
23 MINOR DEFECTS IN FORECLOSURES SCRIVENER S ERRORS: Errors in legal descriptions and names are commonly encountered. If the legal description is still adequate to describe the property, usually not a critical defect. Name discrepancies often not a problem as long as notice was given to the right parties. If uncertain, consult your underwriter.
24 CLAIMS - FAILURE TO SURRENDER POSSESSION Major title claim risk - challenge by a party who remains in possession after foreclosure. May assert lack of sufficient notice, invalidity in the foreclosure. May assert common law challenges or rights. Might have issues of competency impairing their understanding of the foreclosure. In general, confirm all parties whose interests were foreclosed have surrendered possession.
25 SHOULD YOU INSURE A BIDDER AT A FORECLOSURE SALE? Purchaser at a trustee s sale - not entitled to the statutory protections of a Bona Fide Purchaser. If there are foreclosure defects or the borrower has equitable or contractual claims against the lender, the sale can be set aside. Insuring a resale is much less risky if the purchaser is a bona fide purchaser for fair market value. Protections exist under MCA (2) and MCA Consult with your underwriter.
26 SHOULD YOU INSURE A BIDDER AT A FORECLOSURE SALE? Sometimes you might receive approval only if you show an exception in the policy for any challenge to or defects in the foreclosure. Below is a sample exception which can be considered: Right of any party interested to sue or petition to have set aside, modified, or contest a judicial or non-judicial foreclosure or forfeiture, or any deed pursuant thereto, through which title to the land described herein is derived; and any liens, encumbrances and/or ownership interests which may exist as a result of any acts or omissions of the foreclosing parties, or as a result of such suit or petition.
27 CONSTRUCTION LIEN RIGHTS RESALES BY INVESTORS Many investors fix up the properties or repair damage caused by the foreclosed borrower. Be aware It is important to determine if construction lien rights exist if providing extended coverage or ALTA Homeowner s coverage.
28 INSURING AFTER A DEED IN LIEU OF FORECLOSURE HELD IN ESCROW Clogging the Equity of Redemption Doctrine: Legal argument: a debtor cannot contractually give up rights of redemption prior to a final default and intent to surrender title. A deed in lieu deposited into escrow at the time a Contract for Deed is common practice. Sometimes a lender will require deposit of a deed in lieu to be recorded upon default. A deed in escrow prior to the final default might be construed as only a security document.
29 INSURING AFTER A DEED IN LIEU OF FORECLOSURE HELD IN ESCROW MCA allows a BFP to rely on a previously recorded deed in lieu. Policies have a duty of defense. There can be grounds to challenge a deed in lieu recorded without the grantor s consent. Remember, we do not know all off-record rights of the grantor to challenge the deed. Bankruptcy could invalidate or void the deed. If requested to rely on a newly recorded deed in lieu executed earlier, contact your underwriter. Option: obtain from the grantor a new estoppel affidavit or written consent to recording the deed.
30 NEW FRAUD TRENDS - FICTITIOUS FORECLOSURES & DEEDS IN LIEU A new wave of fraud involving purported assignments to fictitious lenders using names similar to national lenders. In most instances they insert the word Northwest or Southwest before the lender name, such as Northwest Wells Fargo Mortgage. The schemes are complex, appointing a new trustee, holding a foreclosure, purchase by a fraudulent affiliate (often a land trust) who tries to resell or borrow. In other situations we see a deed in lieu to the fictitious assignee, who attempts to resell. Probably the borrowers are in on the scam.
31 NEW FRAUD TRENDS - FICTITIOUS FORECLOSURES & DEEDS IN LIEU National Recovery REO Services, Inc. is often involved, being given a POA by the new assignee. These fraudsters go to great lengths to give the appearance of legitimate transactions, taking steps spread out over several months. We have seen the them go so far as to hire a legitimate attorney to obtain relief from a bankruptcy stay when a title company told them they violated it. *** Keep an eye out for anything out of the ordinary. Contact your underwriter if you see anything suspicious.
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