Nuts & Bolts of Seller Financed Transactions

Transcription

1 Greg Parham Vista Title Company Order on-line at Nuts & Bolts of Seller Financed Transactions Subject To Assignment of Contract Wrap Deed of Trust Installment Land Contracts Lease Options

2 Price V. Terms

3 Assigning Contracts You are selling your contract, not the property. You contract to buy You sell (assign) your contract to new buyer New buyer becomes the actual buyer to close

4 Critical Items for Assignment Contract should allow it. Seller should know you might do it. You need to get paid. Buyer needs to know it s on the hook

5 ASSIGNMENT OF REAL ESTATE PURCHASE AGREEMENT This Agreement is entered into by and between {{ }}, (hereinafter called "Assignor"); and {{ }}, (hereinafter called "Assignee"). RECITALS A. Assignor as Buyer entered into that certain Real Estate Purchase and Sale Agreement for the purchase of {{ }}, a copy of which is attached hereto as Exhibit A and is incorporated herein by this reference; and B. Assignor desires to assign its rights and interest to said contract and Assignee desires to purchase such rights and interests pursuant to the terms of this agreement. NOW, THEREFORE, the parties agree: 1. For the sum of ${{ }} from Assignee to Assignor,,Assignor hereby assigns to Assignee the Buyer's right, title and interest in, and the Buyer's obligations under the Purchase and Sale Agreement (hereinafter referred to as the Agreement ). 2. Assignor warrants that (1) the Agreement is in full force and effect and has not been modified or amended, (2) Assignor owns and has the right to transfer the rights and interests covered by this assignment, free and clear of any previous transfer or other adverse claim or interest, and (3) neither Assignor nor, to Assignor's knowledge, the Seller under the Agreement is in default in performing any obligations under the Agreement. 3. By accepting this assignment, Assignee agrees to perform all of the obligations of the Buyer under the Agreement that first arise or become due on or after the effective date of this assignment. IN WITNESS WHEREOF, the parties have executed this agreement as their free and voluntary act and deed, on the date indicated by each signature. ASSIGNOR: ASSIGNEE:

6 When Things Get Sticky Buyer can t pay for assignment - Now What? Contract Release or Reverse Assignment (Seller pays for it) Buyer is worried that it won t close. Use Escrow Agreement

7 Assignment Don ts Don t assign short sale contracts unless lender specifically approves. Don t treat it as a commission paid by seller. Don t keep the seller in the dark.

8 Subject to What?? Typical Deed:! Greg Parham sells to buyer free and clear of all liens and encumbrances. Subject To Deed:! Greg Parham sells to buyer free and clear of all liens and encumbrances EXCEPT deed of trust from Greg Parham for the benefit of Big Bank in the amount of $100,000 dated January 1, 2006 recorded at Reception No

9 TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the grantees, their heirs and assigns forever. The grantor(s), for (itself/ themselves), (its/their) heirs, and personal representatives, (do/does) covenant, grant, bargain and agree to and with the grantees, their heirs and assigns, that at the time of the ensealing and delivery of these presents, well seized of the premises above conveyed, (has/have) good, sure, perfect, absolute and indefeasible estate of inheritance, in law, in fee simple, and (has/ have) good right, full power and lawful authority to grant, bargain, sell and convey the same in manner and form as aforesaid, and that the same are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature soever, except: Deed of trust from Greg Parham to the Public Trustee of Jefferson County for the benefit of Big Bank recorded on 4/1/06 at Reception No. 9999; and general taxes for the current year and subsequent years, and subject to easements, restrictions, reservations, covenants and rights of way of record, if any.

10 Doing Your Homework What are the terms of the loan you re taking? Prepay Adjustable rate High interest rate Status of Loan? What is the status of water/sewer/hoa? What is the tax status? Escrowed? Can your seller sell? Title Insurance?

11 Critical Items Payoff statement for loans HOA status from Management Company Water/sewer/ statement Tax certificate Homeowners insurance statement Title Insurance

12 Contract Drafting Make the Contract Match The Deal Does it mention subject to? Does it show the correct price? What is the subject to amount? Who gets the tax & Insurance escrow? Who pays closing costs?

13 Disclosures Subject to not getting paid off The parties are fully aware that the Buyer is purchasing the property from Seller subject to existing mortgage(s)/deeds of trust secured by the property. The parties understand that the mortgage(s)/deed(s) of trust will NOT be paid off and released as part of the transaction, that the loan(s) will remain in Seller's name and may continue to appear on Seller's credit report, and that any title policy issued by Vista Title Company will identify the outstanding deed(s) of trust as exceptions to coverage. Due on Sale Clause- lender could call note The parties are fully aware that the mortgage(s)/deeds of trust securing the property contain(s) provisions prohibiting the transfer of any interest in the property without satisfying the principal balance remaining on the underlying loans and/or obtaining the lender's prior written consent (i.e., a "due on sale" clause), and that this transaction may violate said mortgage. Buyer and Seller specifically understand that their agreement requires Buyer to pay the loan(s) on a monthly basis. The loan(s) will NOT be assumed or paid off completely at this time, and the loan(s) will remain in Seller's name and may continue to appear on Seller's credit report. The title policy issued by Vista Title Company will identify the outstanding deed(s) of trust as exceptions to coverage. Seller and Buyer execute this disclosure form after having had the opportunity to seek legal counsel as to the legal and financial implications of the due on sale clause. The parties agree and understand that if said due on sale clause is enforced by the holders of said mortgages, the entire balance due under said mortgages/deeds of trust will have to be paid off. In this event, Seller and Buyer agree to take all reasonable steps to satisfy said lender, including both parties taking steps to obtain financing and/or Buyer submitting an application to formally assume liability for said obligations. Buyer understands that in the event that the underlying debt is not paid off, the lender holding the security instruments may foreclose the property which will extinguish Buyer's interest under the property.

14 Nervous Seller Solutions Agree to limit loan payoff period Escrow a Deed back to the seller Third Party Loan servicing Wrap Deed of Trust

15 Subject to vs. Lease Option Ownership/Title Can Resale Refinance Title Insurance Due on Sale Impact of Post Close Judgment/liens against Seller

16 Post Closing Issues Loan Information Power of Attorney Escrow Release Borrower s Authorization Insurance

17 Wrap Parties agree to a $110,000 purchase price and the seller has an existing loan of $100,000. Instead of the buyer taking a loan from the bank to pay off the seller s mortgage, the buyer will take a loan from the seller for the $110,000. That loan will be in 2nd position and all payments under the loan will go first toward payments on the seller s first loan, and the seller will pocket the remainder. When the buyer pays off the $110,000 loan, proceeds from that are used to payoff the underlying loan to the seller and the seller gets the leftover.

18 Wrap Requirements Contract spells it out. New Note references the underlying notes & allows buyer to cure 1st note default. Deed of Trust references underlying notes. Due on Sale applies just like subject to

19 Wrap-Around. There presently exists a note payable to, executed by the Seller dated, 20, in the present principal sum of $, with interest thereon at the rate of percent per annum payable in monthly installments of $, including principal and interest, which obligation is secured by a first deed of trust on the aforedescribed real property. Seller shall make all payments of principal and interest on said first deed of trust when due. In the event a default shall occur on said first deed of trust, Buyer shall have the right to cure said default or defaults. In the event Buyer shall cure any such defaults, Buyer shall have the option, in addition to any legal or equitable remedies available to Buyer, to apply all or any part of the amounts of money expended by Buyer in curing such default, including all reasonable costs and attorney fees, against the payment of the obligation created by the note from Buyer to Seller, described in Paragraph above. In the event that Buyer shall lose title to the property by reason of foreclosure of said first deed of trust, Buyer may take such legal or equitable remedies as may be available to recover all damages, including any unearned prepaid interest at the time of such trustee's sale, costs and reasonable attorney fees. However, Buyer's right to assert any action against Seller is subject to Buyer not being in default on Buyer's obligation to Seller.

20 Installment Land Contract Installment Land Contract (contract for deed) involves an agreement whereby the buyer pays installments over time and then gets a the deed when all the payments are made. The deed to the buyer is usually signed in advance and then held in escrow to guarantee payments by the borrower.

21 Installment Land Contract Concerns Tax Escrow Property Insurance Due on Sale Judicial vs. Statutory PT Foreclosure No title insurance Confusion

22 Greg Parham Vista Title Company Order on-line at Nuts & Bolts of Seller Financed Transactions Subject To Assignment of Contract Wrap Deed of Trust Installment Land Contracts Lease Options