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R. Ford McDonald, Senior Claims Counsel at Attorneys Title Insurance Fund, wrote an article on this subject recently and I would like to share some of the tidbits from it.
Apparently there are lots of "White Knight Claims" being made against title insurance policies. Here are some of the fact patterns:
1. Fraud in the Inducement:
A homeowner who is in financial distress for non-payment of the mortgage or taxes or whatever, is contacted by a company that promises to "save you from foreclosure" or whatever. They promise the homeowner that they will help them refinance the house to cure the financial distress and maybe give them some cash too. The homeowner has to sign a lot of documents that they are rushed to do, and one of them is a deed to the White Knight and usually a mortgage. If the homeowner asks about these documents they are told they are additional security and will not be recorded. However, the White Knight records the deed and the mortgage. Soon afterwards, the White Knight sells the property to a "straw man" with whom the White Knight is affiliated. The straw man then sells the property to a real buyer, usually a "new" unknowledgeable investor. The original homeowner still lives in the property and the new buyer thinks he is a tenant. Next step - the courthouse.
2. Friendly White Knight:
Here the homeowner approaches the White Knight for assistance. Usually the White Knight is a relative or neighbor or friend. The White Knight agrees (at his suggestion) to take title and refinance the home using his good credit. Title is passed and the refinancing does occur. There is an oral agreement that usually includes the homeowner continuing to live in the property; the homeowner pays the taxes and upkeep on the house and the mortgage payments; after a few years the White Knight deeds the property back to the homeowner; the agreement does not contemplate a default by the homeowner; the friendly White Knight gets no compensation. What goes wrong is that the homeowner messes up paying the mortgage or taxes or HOA dues and the White Knight must sell the property. Litigation is next.
3. White Knight Flip:
Not mentioned by McDonnald but one we have seen is where the White Knight sells to the straw man and then orchestrates a new, larger mortgage. The money in hand from the new mortgage, the straw man along with the White Knight disappear, leaving the homeowner with an even bigger mortgage and no title to the house.
BEWARE of White Knights! Some offer buy-back scenarios and I think that is the most familiar. At least there the homeowner has the ability to sue and treat the lease as a mortgage that needs to be foreclosed (the old "if it looks like a mortgage or smells like a mortgage, it must be a mortgage" statute).
These situations are VERY prevalent and all brokers should be attentive to anything that seems unusual.
Copyright 2009 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.
Disclaimer: ActiveRain Corp. does not necessarily endorse the real estate agents, loan officers and brokers listed on this site. These real estate profiles, blogs and blog entries are provided here as a courtesy to our visitors to help them make an informed decision when buying or selling a house. ActiveRain Corp. takes no responsibility for the content in these profiles, that are written by the members of this community.