Doing a "subject To" with land trust could put me in Jail?

Doing a "subject To" with land trust could put me in Jail?

Lonoke, AR · Member since 2017 · 43 posts · 16 votes

I was reading lease option and subject to deals by Wendy Patton. In her book she said if a investor put a deed in a land trust to cover up the due on sale clause, this action could be consider a mortgage fraud; because if a court rules that the intent was to keep the bank from exercising its legitimate rights by hiding an important fact (deed transfer), I can be accuse of mortgage fraud. I did some research on mortgage fraud, it's a serious crime, it could land me in jail for a long time because we are dealing with a large sum of money. 

I don't know how Wendy Patton got that theory, and I have no way to verify if her theory is actually true. I would argue that if a investor puts a deed in a land trust, he is simply taking advantage of the law not committing a fraud. 

If you are a loan officer for a bank, would you consider this a fraud? Are you aware of any laws or clause that would build a case for the bank to sue the investors for "subject to" deal with land trust? If you have a subject to deal and it's in a land trust, would you be worry about being sue for fraud? 

What is the worst case scenario? Would I go to jail for hiding the deed?  Hypothetically

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Real Estate Broker · Provo, UT · Member since 2013 · 689 posts · 511 votes
8y

Wendy is right - but there's a lot to consider when it come to fraud.

There are several types of fraud - most have to do with intent and the actions taken prior to, during, and after the fraud takes place - and all can be argued one way or another.

Pretty much every single purchase money loan has a due on sale clause - if you are maliciously trying to sell a property without paying off the loan, yes, that's Intentional Positive Fraud and you can get cracked on it pretty good.  I know a couple guys in my home town that served 5+ years in a federal prison for this.

If you're moving ownership into a land trust that you also control and have no intention of defaulting or selling and avoiding the payoff, it could for sure be argued as positive fraud, but the intent would more likely be for something like asset protection or some kind of investment arbitrage - which could still be fraud.  

If you were doing it as an investor with somebody else's ownership, that gets kind of messy.  Lots and lots and LOTS of stuff in this business can be construed as fraud. Some is, some isn't - so If you're serious about getting "creative", you really need to come up with a solid biz plan and consult with an attorney who can help you to put yourself in a defendable position with whatever strategy you come up with / engage in. 

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  • Real Estate Broker · Provo, UT · Member since 2013 · 689 posts · 511 votes
    8y

    Wendy is right - but there's a lot to consider when it come to fraud.

    There are several types of fraud - most have to do with intent and the actions taken prior to, during, and after the fraud takes place - and all can be argued one way or another.

    Pretty much every single purchase money loan has a due on sale clause - if you are maliciously trying to sell a property without paying off the loan, yes, that's Intentional Positive Fraud and you can get cracked on it pretty good.  I know a couple guys in my home town that served 5+ years in a federal prison for this.

    If you're moving ownership into a land trust that you also control and have no intention of defaulting or selling and avoiding the payoff, it could for sure be argued as positive fraud, but the intent would more likely be for something like asset protection or some kind of investment arbitrage - which could still be fraud.  

    If you were doing it as an investor with somebody else's ownership, that gets kind of messy.  Lots and lots and LOTS of stuff in this business can be construed as fraud. Some is, some isn't - so If you're serious about getting "creative", you really need to come up with a solid biz plan and consult with an attorney who can help you to put yourself in a defendable position with whatever strategy you come up with / engage in. 

  • Lonoke, AR · Member since 2017 · 43 posts · 16 votes
    8y

    @Blair Poelman 

    Thanks for your insight. You had many good points and I sure definitely rethink my bix plan as well. 

  • Rental Property Investor · East Wenatchee, WA · Member since 2014 · 10k+ posts · 16k+ votes
    8y

    Be careful with land trusts. Here it means you designate your property to conservation purposes and open space. Counties use it for land trusted to non-developement.

    While they may not be 'illegal in all 50 states' they are often a horrible vehicle to get you where you're trying to go. Investigate how they are recognized in your state.

  • Lonoke, AR · Member since 2017 · 43 posts · 16 votes
    8y

    @Steve Vaughan Thanks, I checked in my state, it’s legal. After hours of research, I just don’t like lease option and land trust now. I agree with you, it’s a horrible investment vehicle  because of uncertainty of when will the loan be call due.

  • Attorney · Orlando, FL · Member since 2014 · 94 posts · 85 votes
    8y

    I do a lot of land trust business in Florida where they codified by a statute that makes them a terrific vehicle for investors under the right circumstances. With that said, even in Florida, I don't recommend them for your purposes. 

  • Lonoke, AR · Member since 2017 · 43 posts · 16 votes
    8y

    @Laura Richards Thanks for the comment! I guess I will learn as I go, as long as my mistakes don’t cost me a arm and a leg I will be fine lol XD

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