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This is a very important and timely post by attorney Richard Zaretsky. He practices in Florida but everything he says is also potentially true of courthouse steps sales here in Nevada. It is critically important that the investor verify the position of the loan they wish to bid on before showing up at the courthouse with wads of cash. PS A subscription to Richard's blog is also highly recommended. (Comments are disabled - please respond to original poster)
Is this becoming an epidemic? Two foreclosure buyers in less than one week met with me for solutions to problems they discovered AFTER they purchased homes at a foreclosure sale. The problem is that the foreclosure sale was attractive because the value of the property was far above the amount of the foreclosure judgment. This is usually the case with the foreclosure of a homeowner / property owner or condominium association lien.
Unfortunately, the real scenario is usually not what the bidder expected. This is the usual background - The Association does not get paid its assessments and files its lien, and eventually its foreclosure of that lien. In the meantime, the first mortgage lender has also not been paid and may or may not have yet filed its foreclosure on the property. Using one of the real situations that I saw yesterday, the Association was foreclosing and at the foreclosure sale the high bid (my potential client) was $17,500. In the meantime there is also a foreclosure suit already filed as a separate case by the first lender for $186,000. The property is unoccupied, has had the appliances stripped from the property (as the potential client found out AFTER the foreclosure sale), and has a market value if it were in good condition of $55,000. So what seemed as a safe bet on the surface, without too much scratching came down to an ugly deal.
The solutions are not encouraging:
1. The potential client can try to buy the mortgage and note that is in foreclosure from the current lender. This has in the recent past been a very difficult undertaking because various issues that vary from lender to lender, but usually have to do with policy, securitization, and expense of dealing with one loan at a time instead of bulk sales. If the potential client were to acquire the mortgage and note, the foreclosure would still have to be completed. Also the purchase price would have to be economically viable for the potential client and commercially reasonable for the lender. Under the pricing strategy mentioned above, that $17,500 paid already is a significant economic issue.
2. The potential client can try to participate in the eventual foreclosure sale. This is public bidding event and there will be competition – competition from those that do not have $17,500 already invested and so theoretically have $17,500 more to invest than the potential client. Also, the lender has the potential to bid up to its judgment (its “credit bid”) without coming out of pocket. If it does that, or is the highest bidder, the lender will become the property owner and the property will eventually be sold as REO (real estate owned asset).
3. The last resort will be to buy the property if the property becomes owned by the lender – as an REO sale. This is going to be a market priced transaction, which again creates a bid disadvantage to the potential client because of that $17,500 already invested. On the other hand, this is the most likely scenario for acquiring (back) the ownership of the property for the potential client.
Another downside for the potential client is that as the owner, the obligation to pay the current association assessments (and any subsequent to the foreclosure sale which was not included in the judgment and not covered by the foreclosure bid) is also the responsibility of the potential client.
I felt really bad for these foreclosure buyers that thought they were getting a bargain but learned that they effectively just threw away precious cash. ANYONE seeking to acquire a foreclosure property at the foreclosure sale should have a careful review of the title to the property made so that they know what personal liabilities will continue and what liens (mortgages and taxes) may still be a cost to owning the property.
Copyright 2011 Richard P. Zaretsky, Esq.
Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.
Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.
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