Understanding Subject to/Attorneys near Levittown, PA

Understanding Subject to/Attorneys near Levittown, PA

Member since 2019 · 15 posts · 1 vote

Hi everyone, I am a newer investor looking to understand the process of setting up a subject to deal. Ive read some BiggerPockets forums on this and I do understand that the bank has the right to proceed with the due on sale clause but not the obligation to do so. I also understand that there is not a minimum or maximum amount of time the bank has to take action on the due on sale clause if they find out. It was also mentioned in one of the forums that a good strategy to avoid the due on sale clause is to contact the lender and explain the intentions of the transaction that you plan to make with the seller. Im not sure if this is completely right because as I familiarize myself with this subject, it seems as though that the due on sale clause could be implemented more in certain times, such as when the interest rates are rising. From my understanding the banks in this scenario would prefer to not have someone take over someone else's payments and instead would rather foreclose and be able to process another mortgage at the higher interest rate, which in theory would cause an environment that would hold more potential for the banks to want to do this. I wanted to relay what I thought to be true about what I read and see if this is correct. I also wanted to see how this information could be applied to further lower the risks of having the clause be activated. I know this is a lot of information but I wanted to start a platform to clear up this topic as much as it can be understood for everyone on BiggerPockets. Another question I wanted to ask is about real estate attorneys and how you go about finding attorneys that can do these types of deals efficiently and help you create a contract that will cover all aspects of this type of deal so that you and the seller are covered. I am in the Levittown area which is close to Philadelphia and was wondering if anyone knew of attorneys in that area that could help me or anyone with this kind of deal. To close I wanted to ask if maneuvering through this type of deal successfully is the simple matter of writing up a contract with an attorney that knows subject to, and also to see if speed is important with the terms and length of time you(the buyer) decide to continue to pay the sellers mortgage before you refinance them completely out of the deal. Another question to add to the refinance process is how do you go about getting a bank to give you a loan to pay off an existing mortgage. I also wanted to know what makes a good subject to deal and what to look for so you know(as the investor)how and when you can use this strategy to bring value to not just you, but the seller. Any information would be appreciated and I hope this discussion brings value to everyone here on bigger pockets. thank you!

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  • Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    6y

    @Colin Roberts

    It depends on the situation. When I did a lot of work for banks, the Fannie/Freddie guidelines required the bank to foreclose when a due-on-sale clause got triggered. With portfolio loans, each bank had a different guideline. As a general rule, you should have a plan to refi if the underlying lender decides to call a default and foreclose on the property.

    To increase the likelihood of success, keep in mind is the principal balance of the loan. Let's say you have a property with an FMV of $200k and that you have a lender who is willing to lend up to 80% of the LTV. That means that you can borrow around $160k. That can help you determine what your options are if the original lender calls a default.

    You would also want to determine that the property itself is a good deal. The fact that you can get a seller to a subect-to deal doesn't mean that you should do it. The underlying deal still needs to make sense. 

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.

  • Member since 2019 · 15 posts · 1 vote
    6y

    @Chris K. Thank you for the information. That definitely makes sense to run your numbers based on the fair market value and what percentage of a bank would give you. I am meeting with a bank to discuss deals in the future to see what they would lend. I also am familiarizing myself with the area I want to focus on investing in. The last step for me would be finding a reputable attorney to help me construct the deal. I am in touch with an attorney now but I would definitely check with anyone that you may know in my area as well. If you knew of an attorney in the levittown area that I could talk with I would really appreciate that. Again I am thankful for the advice and glad we could have this conversation, I’m definitely excited to gain as much information so I can take action as soon as possible!

  • Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    6y

    @Colin Roberts

    I'll have to see who I know in your area. 

    Note that there is so much that a lawyer can do for you in a subject-to deal. You could structure these deals however you want. But at the end of the day, the mortgagee is the mortgagee. If they want to foreclose on the property, they can do so. Nothing that a lawyer does will change that. 

    One item I would note: no lawyer can give you a "contract that will cover all aspects of this type of deal." This is true whether it's wholesaling, subject to, or some other creative strategy. Over the years, many folks have messaged me looking for these contracts that can cover every situation. Every time, the message is from someone who is just starting on their real estate journey. I understand what they are looking for but it's not a realistic goal. 

    I mention this because working with a lawyer (or any other professional for that matter) is an art. The number one mistake from newer investors is that they lack enough knowledge to even know what to ask. This generally means the professional has to spend more time and ultimately charge more. That's fine if you are comfortable paying --- I have done my share of legal work where a wealthy client asks me to research some obscure, personal issue. But if you are budget conscious, you should come prepared. 

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.

  • Member since 2019 · 15 posts · 1 vote
    6y

    @Chris K. Thank you for the information! It definitely was very helpful to know that. As a newer investor I am doing a lot of research to familiarize myself with the topic, however there are things that I guarantee I am missing at the moment because I'm sure there is an array of questions to ask. I am grateful for the help so far and I understand if this is asking too much, but are there any questions that you know of that every newer investor should ask their lawyer to make sure their contract is drawn up correctly? 

  • Attorney · Nashville, TN · Member since 2015 · 1k+ posts · 1k+ votes
    6y

    @Colin Roberts

    That's a tricky question. You could ask generic questions like whether they had done a similar transaction before. But most practicing real estate attorneys will have experience doing similar deals and understand the consequences. A good, personal referral is always good since that builds a basis of trust from the beginning. 

    In my opinion, the best step you could take is to do your research and write some kind of email or memo explaining what you want and what you are unsure about. It also helps to have a deal lined up already --- at least in principle. That gives context to the discussion and narrows down the focus a bit. 

    When I see issues between new investors and their attorneys, the most typical issue I see is the lack of a clear scope of work. That's okay if you are willing to pay an attorney to hold your hands during the process. But that also costs more money because you are essentially asking the attorney to "handle everything" for you. They could easily spend several hours just reviewing your documents trying to figure out what you need. 

    I'll give you a real-life example: a few years ago, I had discussions with my CPA as to whether I qualify as a "real estate professional" for federal tax purposes. I could've gone into this conversation with minimal prep. But instead, I did my research and prepared an email that outlined the relevant facts, why I thought I qualified, some case law supporting my position, and areas where I had some doubts. That allowed the CPA to review my notes and my initial conclusion. Our discussion then got narrowed down to resolving some of the uncertainties that existed. All in all, we were able to agree on an answer fairly efficiently. 

    I share the above as an example of what an "efficient" communication may look like. Lawyers often have an easier time working with other professionals and institutional clients precisely because they have a good knowledgebase. They know what they want the lawyer to do so there is less misunderstanding between the parties. 

    Note that this is true when it comes to working with any professional on any reasonably complex project. 

    Disclaimer: While I’m an attorney licensed to practice in PA, I’m not your attorney. What I wrote above does not create an attorney/client relationship between us. I wrote the above for informational purposes. Do not rely on it for legal advice. Always consult with your attorney before you rely on the above information.

  • Member since 2019 · 15 posts · 1 vote
    6y

    @Chris K.Thank you again for your time and the information you gave. It definitely is an eye opener for me as to what I will have to do before meeting with a real estate attorney. This definitely means a lot and I hope other investors can find value in this conversation as well.

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