11/5/2015. Kevin Heaney, Crowley Fleck, PLLP. Montana Land Title Association Fall Education Seminar

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1 Montana Land Title Association 2015 Fall Education Seminar The Difference Between Mortgages and Trust Indentures in the Foreclosure Process November 5, 2015 Kevin Heaney, Crowley Fleck, PLLP Familiarize you with the processes Explain Approaches and Rationale Won t become foreclosure experts, but familiarity will help with issue spotting Clarify misnomers Montana foreclosure law is different than those of other states Ask lots of questions 1

2 Mortgages Trust Indentures- Pursuant to the Small Tract Financing Act, Mont. Code Ann , et seq., a trust indenture may be used for property that does not exceed 40 acres in size. Contracts For Deed 2

3 Trust indentures are typically foreclosed nonjudicially pursuant to statute and do not allow for a deficiency if foreclosed non-judicially. (Trustee s Sale). This process generally takes days. Mortgages are foreclosed judicially and allow for a deficiency to be entered against the borrower(s) or guarantor(s). The judicial foreclosure process to take approximately one year, with an additional 1 year redemption period. Non-judicial foreclosure is generally preferred over judicial foreclosure because: Less costly and time consuming ( days) Borrower has no right of redemption No Lawsuit filed therefore no forum for the borrower to raise counterclaims or frivolous defenses to slow down the process * Note no deficiency upon completion of sale. 3

4 PRELIMINARIES TO FORECLOSURE Information Gathering Loan File Review Title Review. In the case of a mortgage foreclosure, this document is called a Litigation Guarantee, and in the case of the non-judicial foreclosure of a trust indenture, this document is called a Trustee s Sale Guarantee. UCC Searches Notice of Default Many documents provide that no notice of overdue payments or of acceleration is necessary, but it is suggested that notice nonetheless be given ALTERNATIVES TO FORECLOSURE Modification or extension of existing debt Work-Out Agreements Deed-in-Lieu of Foreclosure Deed-in-Lieu of Foreclosure (a.k.a. Deed in Lieu ) Mortgaged property is deeded to the lender by the mortgagor or grantor, usually in exchange for a covenant not to sue the debtor for the debt. Advantages Avoids the time and expense of foreclosure. Allows for immediate resale of the property. No right of redemption Avoids greater loss to a lender where the property is worth the same or less than the debt and the debtor has few or no assets to pursue by deficiency judgment. Avoids stigma of foreclosure and possible bankruptcy of the debtor. 4

5 Potential Problems Property is taken by the creditor subject to junior liens. Conveyance might be set aside under the Bankruptcy Code as a fraudulent conveyance if the amount of the obligation from which the debtor is relieved is not reasonably equivalent to the value of the property conveyed. Non-Merger Warranty Deed to deal with the first two points Lender will keep mortgage of record until property is subsequently sold Covenant Not to Sue cancelling debt can create issues with underlying security interest If deed-in-lieu is combined with an option for the debtor to repurchase the property, the deed may be construed as an equitable mortgage. Potential Problems (continued) Creditors Rights Endorsement No longer available Protected the lender against claims that the deed in lieu transaction represented a fraudulent or preferential transfer. Title insurers should still be aware these issues because basic title insurance covers fraudulent and preferential transfers existing in the past chain of title (from transfers before the present transaction being insured). Complex Legal Transaction Should include a settlement agreement, non-merger warranty deed, assignments, estoppels, etc. The title insurance company will presumably want to review. Potential Problems (continued) Lenders should obtain a new Owner s Policy and not rely only on the continuation of the coverage under the existing Loan Policy Obtain a date-down for the Loan Policy (see below). The Loan Policy does not insure the validity of the deed-in-lieu transaction or provide coverage for creditors rights issues in connection with the transfer of title and it provides different claim coverage than a new Owner s Policy. The lender should, in addition to obtaining a new Owner s Policy in connection with a deed-in-lieu transaction, request endorsements to the existing Loan Policy: a non-merger endorsement and an endorsement insuring the continuing validity, enforceability and priority of the mortgage lien upon consummation of the deed-inlieu transaction. 5

6 3 Related but Different and Often Misunderstood Concepts: One-Action Rule: There is only one action for the recovery of debt or the enforcement of any right secured by a mortgage upon real estate. In other words, the lender is prevented from waiving or ignoring the mortgaged property and suing directly on the note. Anti-Deficiency Statute: A deficiency judgment is not allowed when a trust indenture is foreclosed by advertisement and sale. See Mont. Code Ann This also bars recovery against any other person obligated on the note including a guarantor. First State Bank of Forsyth v. Chunkapura: A trust indenture may be judicially foreclosed as a mortgage. Mont. Code Ann (3). The lender is entitled to a deficiency unless the trust indenture is on an occupied, single-family residence. PRIMARY THEMES Authority. Trust indentures are a creature of the Small Tract Financing Act and exist and are regulated pursuant to Mont. Code Ann , et seq. Purpose. Trust indentures were created for the purposes of promotion of the financing of homes and business expansion using security instruments and procedures not subject to all of the provisions of the mortgage laws. Size. Limited to tracts of 40 acres or less. Trustee. There must be a transfer in trust to a trustee: An attorney licensed to practice in Montana. A bank, trust company, or savings and loan authorized to do business in Montana. A title insurance or title insurance producer or agency authorized to do business in Montana. Beneficiary may appoint a successor trustee 6

7 PRIMARY THEMES (Continued) Mortgage Treatment. Failure to meet all of the requirements of the statute will result in the trust indenture being deemed a mortgage. No Deficiency. A deficiency judgment is not allowed when a trust indenture is foreclosed by advertisement and sale. Judicial Option. A trust indenture may be judicially foreclosed as a mortgage, but see Chunkapura in a single-family residential dwelling situation. Junior Liens. Junior liens are eliminated, but a junior lienholder whose lien created by a trust indenture is extinguished by the foreclosure of a first lien may maintain a direct action on the note (an exception to the one-action rule). The steps in a non-judicial foreclosure in Montana are as follows: Obtain a trustee sale guarantee: a title guarantee issued at the start of foreclosure. It assists the foreclosing beneficiary and trustee with information such as owner of record, liens and encumbrances, parties required by law to be notified of foreclosure, etc. Record the notice of sale (must be recorded at least 120 days prior to sale) and mail to interested parties; Publish the notice of sale in a paper of general circulation; Post a notice of sale on the premises; Obtain an updated trustee sale guarantee; Record affidavits of mailing, publication and posting; and Public sale by trustee SALE The sale is to be held pursuant to the notice. Some attorneys have the title company record the notice of sale. Regardless, always obtain an endorsement to the Trustee s Sale Guarantee, changing the effective date to a time after the filing of the notice of sale. If there are any additional encumbrances or changes in title, those parties will need to receive notice Sale must be for cash to the highest bidder. A credit bid entered by the beneficiary/lender satisfies the requirement of payment in cash. The sale is complete when the highest bidder tenders the purchase price in cash and the trustee issues the trustee s deed. 7

8 Sale (continued): Postponement Trustee s Deed. Conveys to the purchaser, without right of redemption, the title of the trustee and the grantor and his successors in interest and all persons claiming by, through or under the grantor including such interests acquired by the grantor or his successors in interest subsequent to the execution of the trust indenture. Disposition of proceeds Possession The purchaser is entitled to possession 10 days after sale. Sometimes lender will consider cash for keys. Reinstatement Even if the obligations secured by a trust indenture have been accelerated, the grantor (or any subordinate lienholder), prior to trustee s sale, may pay all delinquent sums to the beneficiary and reinstate the trust indenture. Upon a reinstatement, the trustee sale proceedings must be cancelled. 8

9 Overview What is a mortgage? Every transfer of an interest in property, other than in trust, made only as security for the performance of another act, is a mortgage. Form of Mortgage. The typical mortgage is the standard document entitled mortgage. A very short form of mortgage is provided in Mont. Code Ann This mortgage, made the... day of..., in the year..., by A.B., of..., mortgagor, to C.D., of..., mortgagee, witnesseth: That the mortgagor mortgages to the mortgagee (here describe the property), as security for the payment to him of... dollars, on (or before) the... day of..., in the year..., with interest thereon (or as security for the payment of an obligation, describing it, etc.). A.B. Overview (Continued) A deed given as security for performance of an obligation is a mortgage. Montana is a lien theory rather than title theory state. A mortgage itself does not convey any title in the mortgaged property to the mortgagee. Remedy. Mortgagee s remedy is to foreclose the mortgage through judicial action: commencing a civil action against the mortgagor, seeking a judgment for the amount due on the mortgage, and obtaining an order directing the sale of the real estate. The Mortgagee cannot strictly foreclose and take possession and/or title from mortgagor without action. Caveats Power of sale clause (not used in MT) and contract for deed The One-Action Rule. Prevents the mortgagee from waiving or ignoring the mortgaged property and suing on the note. 9

10 Filing the Foreclosure Complaint Loan file review Litigation Guarantee. This product reveals the owners of the property and the encumbrances and liens of record. Have broader uses than just foreclosures (quiet title, condemnation and declaratory relief). In this setting, provides the existence and identity of all the parties that must be named as defendants. Other Searches. UCC searches, water rights search and any other pertinent collateral reports. Defendants. Name all parties holding liens, encumbrances or interests of record in the mortgaged premises obtained after recording of the mortgage (to which the mortgagee has not subordinated or released its mortgage). Filing the Foreclosure Complaint (Continued) Lis Pendens. Protects against parties acquiring an interest in the mortgaged property after foreclosure suit is filed. Filing. Some attorneys use the title company to check title and to file complaint and lis pendens to help avoid missing last minute defendants. Date-Down Endorsement. Obtain endorsement to title report after filing complaint, reflecting the filing of the lis pendens, and confirm that there are no additional parties in interest that have come of record between the time the initial title report was prepared and the time the lis pendens and complaint were filed. Foreclosure Sale Follow Judgment and Statutes on execution sales. Mont. Code Ann , et. seq. Posting. Notice must be posted for 20 days in 3 public places in the county where the property is situated and also where the property is to be sold. Publication. Publish once a week for 20 days in any newspaper published in county. Place of sale. Either at the courthouse or where property is situated. Conduct of Sale. By auction to highest bidder. Payment. Cash or its equivalent immediately or promptly after the purchase. The lender can credit bit. 10

11 Foreclosure Sale (Continued) Filing. Some attorneys use the title company to check title and to file complaint and lis pendens to help avoid missing last minute defendants. Date-Down Endorsement. Obtain endorsement to title report after filing complaint, reflecting the filing of the lis pendens, and confirm that there are no additional parties in interest that have come of record between the time the initial title report was prepared and the time the lis pendens and complaint were filed. Foreclosure Sale (Continued) Surplus or Deficiency. If bid price leaves surplus after paying the foreclosing mortgagee, the surplus may be deposited in court for payment to the person entitled to it. If bid price is less than amount owed to foreclosing mortgagee, deficiency judgment can be docketed against mortgagor. Certificate of Sale. The sheriff issues a certificate to the purchaser, which obtains the right, title and interest of the mortgagor, subject to statutory redemption rights and possible rights of possession. Lis Pendens. Protects against parties acquiring an interest in the mortgaged property after foreclosure suit is filed. Right of Redemption Possession. This is different from the debtor s right of redemption. The general rule is that an execution debtor who occupies the property personally as a home for himself and his family is entitled to possession during the period of redemption. Who may redeem. Judgment debtor, his spouse or successor in interest in the property and a creditor having a lien by judgment, mortgage or attachment subsequent to the encumbrance foreclosed. Time for redemption. Any time within one year after sale. Redemption price. The price paid at foreclosure, interest, taxes, repairs, etc. 11

12 Right of Redemption (Continued) Effect of Redemption. By judgment debtor restores the debtor is restored to his previous estate (any liens on the property junior to the lien foreclosed are restored) and by a judgment creditor - all rights of the foreclosure purchaser are transferred to the redemptioner. Waiver of Redemption Rights Sheriff s Deed Contact Information: Kevin Heaney

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