REAL ESTATE TRANSACTIONS SOMETIMES END IN FORECLOSURE. Landlords, Investors & Property Managers can use real estate ventures to make money. There are a variety of transactions that can be setup to enable a buyer to acquire residential and commercial properties. Our clients often enter into these transactions to enable another to purchase real estate.
STANDARD LOAN AGREEMENT. In a private loan agreement, money is lent to a buyer to purchase real estate in exchange for a promissory note and a mortgage. The mortgage is a lien on the real estate. Short term loans, such as those that enable acquisition and construction of a real estate project have very different terms than a long term fixed real estate loan transaction. The latter are more traditional of standard commercial lending institutions such as banks. But our clients also offer financing to buyers. We help with the transaction documents to enable the closing on the loan and purchase.
Unfortunately, at times, borrowers are unable to or unwilling to satisfy the payments due under the loan agreement. For the lender to recover, the lender has to commence a foreclosure action on the mortgage. The lender can also sue the borrow for the unpaid loan proceeds, but it is the mortgage foreclosure that provides the remedy of foreclosing on the property and its sale at the auction.
AGREEMENT FOR DEED. This is an agreement that enables a buyer to acquire real estate through an agreement that calls for the buyer to make payments and upon payment of an agreed upon sum, the seller will then sign over the deed to the real estate to the buyer. It is similar to an installment sales contract whereby title is not passed to the buyer until the payment of all sums due are paid.
Under Florida law, if a buyer breaches the agreement for deed, the remedy available to the seller is a foreclosure action. That is because Florida law vies agreements for deed as mortgages on the real estate.
LAND TRUSTS. A land trust is generally a revocable trust established for the purchase and holding of real estate. The land trust is ‘setup’ or established by a settlor. The settlor signs an agreement, call the land trust and designates who will be in control of the trust such as make decisions for the trusts’ activities. That role is called the trustee. The beneficiary is who will receive the benefits or disbursements of the trust. There is generally an original settlor that establishes the trust, but there can be more than one trustee as well as successor trustees who serve on behalf of the trust in the event a prior trustee is unable to. And there can be different types of beneficiaries and what they get from the trust can vary depending on several factors written into the trust agreement.
To acquire the property that is titled into a land trust, a loan may be obtained. In the event the loan is not paid back in accordance with the loan terms, the lender will start a foreclosure action to recover what is owed or the property. Because of some unique aspects of a land trust, the foreclosure process has differences from a traditional foreclosure.
OUTLINE OF A MORTGAGE FORECLOSURE:
Send Demand Letters and Default Letters – the Lender will send notice to the borrower that advises the borrower that they are in default and that a foreclosure lawsuit will be commenced if payments due under the terms of the promissory note are not paid.
File Lawsuit for Foreclosure of Mortgage and Breach of Promissory Note – the Lender will file a lawsuit in the county where the property is located for foreclosure of the mortgage. This seeks to close our any interests the borrower has in the real estate.
Obtain Final Judgment of Foreclosure – the final judgment of foreclosure is the judgment entered by the court that closes out any interests the borrower had in the real estate and directs the Sheriff of the county where the property is located to auction the property for sale at an upcoming auction.
Sheriff Sale – the Sheriff of the county where the property is located will hold a public auction selling the real estate to the highest bidder. The sales proceeds are paid to the lenders owed money on the property. The lender can also bid to purchase the property at the auction and in effect buy back its own paper promissory note.
Deed Issued to Buyer – after the Sheriff sale, the Clerk of Court will issue a title to the buyer at the Sheriff auction and have this title recorded. The property is then owned by the winning bidder at the Sheriff’s auction.
Sheriff Sale Proceeds Distributed to Lender – the Clerk of Court accepts the money from the Sheriff’s sale and uses some of the proceeds to cover expenses for the auction and then remits the money to the lender that brought the foreclosure lawsuit.
Redemption Rights – the borrower retains the right to pay off the money owed to the Lender under the promissory note and mortgage even after the Sheriff’s sale. And if that occurs, then the real estate remains owned by the borrower and the promissory note is satisfied and the Lender’s mortgage is satisfied.
Deficiency Claim – when the Sheriff’s sale occurs and the sales proceeds paid by the highest bidder is given to the Lender, there may still remain a balance due and owing on the original promissory note. That remaining balance can result in a deficiency claim the Lender still has, which is the right to demand payment of the balance still owing from the borrower.
Our law firm represents lenders and mortgage holders in
foreclosure actions against borrowers to recover the property and money owed.