Due on Sale Foreclosure

Due on Sale Foreclosure

Member since 2018 · 48 posts · 9 votes

Hi all, I'm new at this, trying to get started with pre-foreclosure flipping.

Suppose someone is facing foreclosure, and I have enough cash to reinstate their loan. But not enough to pay off their loan. We come to an agreement for me to buy the house, assume their loan, immediately resell the house, and share the net gain from the equity. Of course that means I have to be able to pay the mortgage payments from the time I buy the house to the time I sell it.

But the lender won't give their approval for me to assume of the loan. Of course they have a due on sale clause. And the loan is for a lower interest rate than they could get today, so the lender is motivated to call the loan and re-lend the money at today's rate.

I buy the house anyway, and one minute later the lender calls the loan. I don't have the money to pay it off. The lender returns any mortgage payments on the loan I attempt to pay.

So my question is, what happens next? Do I get the standard foreclosure timeline? 60 days of being in default before the Notice of Default (Lis Pendens), then another 30 days before the Notice of Trustee Sale, then another 120 days before the auction date? Totaling 210 days from the day they call the loan to the auction date?

Obviously risking foreclosure is dangerous. But if the reason I chose this deal is because the seller has a lot of equity, I should be able to price the house low to sell quickly, and choose a bidder that looks serious and well able to close the sale. It seems to me it should be possible to do that and close well within 210 days. 

And if I can sell the house on the normal real estate market, through a real estate agent, and close the sale before the auction date, for far more than enough money to pay off the loan, is everything good? Aside from the risk of not selling in time and losing the home and having a foreclosure on my record, is there some factor I'm missing that won't allow this to work?

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Lender · Ladera Ranch, CA · Member since 2014 · 1k+ posts · 1k+ votes
7y

@Greg Lovern If you're flipping it, you should be good to go. Just make the payments on the loan on time and there's a 99% chance that you'll be able to rehab and sell before the bank even realizes what just happened. If you're dealing with a note investor and not a bank, communicate with them when they reach out to you and you should still be good since they'll like the idea of getting  a full payoff.

If you want to hold this as a rental, be prepared to refinance or sell the property if you hvae to.

And...you wouldn't get a foreclosure on your record, the borrower would. The lender and the borrower have a contract with each other. The lender does not have a contract with you which is why lenders don't like subject to's.

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  • Investor · Missoula, MT · Member since 2015 · 242 posts · 177 votes
    7y
    @Greg Lovern So I few things here that I see right off the bat. You are not going to assume the loan. You are going to buy the property Subject To the existing financing. You aren’t going to ask for permission from the lender. You are probably going to send them something that says the owner of the loan allows you to speak on their behalf. You will change the address and name on the insurance and bank mailing information. Very very few times does the bank ever use the due on sale clause, but I have never heard of anything like the situation you are talking about. They want a performing note and if you can make it performing, then 99% of the time they let you carry on. I would not want to count of the timeline of the foreclosure process for my repair work, nor would I want to count on it having to sell in a certain period of time like that in order to get my money back at all. I would not want to drag the seller back into it by making them go through more of the foreclosure process again. If you are planning on doing a Subject To deal, then it is a good idea to have a contingency if the deal goes wrong. In other words, having cash or other financing available to be able to cash out the lender in the event the due on sale clause is exercised.
  • Rental Property Investor · Queens, NY · Member since 2018 · 99 posts · 70 votes
    7y
    @Greg Lovern Start looking for hard money lender. You might want to pay off the mortgage to the bank with hard money and then hoping to sell it and pay off the hard money lender. This will only work if it has enough equity in the property.
  • Coppell, TX · Member since 2015 · 485 posts · 310 votes
    7y

    like @Dave Passey says, you don't work with the bank in assuming the loan. at closing the HUD-1 gets filled out and there is a "subject-to" line with the current mortgage balance.

    It is very rare that a bank will call a performing loan due and foreclose on it.

    you need an 3rd party authorization from the owner to communicate with his bank (change mailing address, phone etc)

  • Paradise, CA · Member since 2015 · 1k+ posts · 871 votes
    7y

    if its already in default and they see a subject to (They more than likely will when title changes or insurance changes), the chances of them calling it are greatly increased. If they return your funds, the old timeline still applies so, if they are close to sale, they'll be closer to sale by the time you realize it. If the notice of default hasn't been filed yet, and you are planning on flipping it right away, your risk is minimal.

    They don't care that its otherwise performing. It's not rare that the lender calls it due, and 3rd party authorization won't do much for you especially if your objective is to talk some sense into them.

     I'm not giving legal or financial advice.

  • Lender · Ladera Ranch, CA · Member since 2014 · 1k+ posts · 1k+ votes
    7y

    @Greg Lovern If you're flipping it, you should be good to go. Just make the payments on the loan on time and there's a 99% chance that you'll be able to rehab and sell before the bank even realizes what just happened. If you're dealing with a note investor and not a bank, communicate with them when they reach out to you and you should still be good since they'll like the idea of getting  a full payoff.

    If you want to hold this as a rental, be prepared to refinance or sell the property if you hvae to.

    And...you wouldn't get a foreclosure on your record, the borrower would. The lender and the borrower have a contract with each other. The lender does not have a contract with you which is why lenders don't like subject to's.

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