"Subject to" question regarding NPN's

"Subject to" question regarding NPN's

Lender · Austin, TX · Member since 2012 · 211 posts · 166 votes

I'm a little confused about the term "subject to" when it comes to non performing 2nd mortgage workouts.

I've been learning about various workout scenarios possible with non performing 2nd mortgage's and I see you can indeed forclose on the borrower from the 2nd position, subject to the 1st mortgagage. I googled what subject to means and here's what Wikipedia has to say:

"A second lien holder can foreclose when a homeowner stops making payments to the second mortgage holder, even if there is no equity in the house. The second lien holder can foreclose even if the homeowner is making payments to their first mortgage holder. When a second lien holder forecloses, they do so subject to the first lien. The second lien holder may purchase the primary (first lien) mortgage (which may still be in good standing), but they are not required to do so. Regardless, if the second mortgage holder forecloses, this will result in the homeowner losing their home to foreclosure."

MY QUESTIONS:

1. If the property in question has zero equity or is actually underwater, and I initiate and follow through with a foreclosure from the 2nd position, what are my responsibilities to the 1st mortgage?

2. I'm assuming the 1st gets paid first and in a zero equity situation the 2nd nets nothing?

3. My actual costs would be whatever I purchased the note for, and any legal fees involved in the foreclosure, but I would not be obligated to buy or satisfy the 1st mortgage from anything other than the sale of the property correct?

If I understand this correctly, this seems a tool to get LEVERAGE on folks who are unwilling to do a workout on the delinquent 2nd. If they don't work something out, the 2nd can foreclose and the trustee sale will pay the 1st mortgage off first. Then if there is anything left the 2nd gets paid. So in essence I as an investor may lose the money I put into buying the 2nd and all accompanied legal fees, but the owner lost the home.

This would seem to be the case but I may be mistaken.

Would appreciate some clarification from more seasoned investors.

Thanks!

Josh

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  • Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    12y

    I'll try to get the resident expert @Dave Van Horn to tell you how he handles these.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    12y

    I won't claim to be an expert on this topic. But here's my understanding. If you, as the second lienholder, foreclose you can take the property to auction. In a no equity situation, the amount of your starting bid, plus the balance on the first, means there will be no other bidders. You will take possession of the property. You are now the owner, once the state-specific procedures are satisfied. In some states, those take considerable time.

    In some sense, you are now the owner subject to the first. However, the first will be well aware of the situation. Why? Because you will have notified them of the situation. That's part of the foreclosure process. So, they will simply start their own foreclosure. They have zero incentive to work with you. They will foreclose. They will take the house or (if there really is some equity above their balance owed) someone else will win. If there is some excess, you, as the former owner, will get the excess. If not, you lose whatever money you've invested.

    If I understand what you wrote, you're thinking the first will get paid off from the proceeds of the sheriff sale that results from the foreclosure by the second. It will not. The foreclosure by the second will only be with respect to the second. It doesn't wipe out the first or any other senior lien.

  • Investor · Clairemont, CA · Member since 2011 · 3k+ posts · 2k+ votes
    12y

    I'm by no means an expert in this but have heard Dave and someone locally here in CA that spoke highly of Dave answer these questions.

    1. If you foreclose from 2nd position any money that may be paid at auction would go to you the 2nd lien holder. That is assuming someone bids. This may happen if someone doesn't know they are buying from the second, but more likely no one would bis and as Jon said you would now be the property owner.

    2. No as mentioned the first would only get paid first if they foreclosed, and then any overage would go to the 2nd.

    3. No

    Usually the foreclosure is somewhat a wakeup call for the borrower that they can't just ignore your loan. This motivates them into working with you to come to an agreement and get the loan reperforming.

    The NPN investor I spoke to said he has proceeded with the foreclosure and taken the property subject to the first on a few occasions and in some of those the first threatened foreclosure and never followed through. In others he began making payments to the first and was able to hold the property subject to that first loan and began to rent the property.

    I'm sure Dave can confirm or correct this from his experience since others have mentioned him in this thread. Hope this helps.

  • Dallas, TX · Member since 2013 · 4k+ posts · 744 votes
    12y
    Jon,

    You are very correct, and you are an expert.

    Joe Gore
  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    12y

    Jon pretty well covered it. Don't forget to the owner has redemption rights, if there is significant equity the may belly up and pay, that's your best hope. e

    Another issue, there are many who buy notes and get a property and keep it as if they bought it, you didn't buy the rights as a lender foreclosing, you have a collateral interest. It's a great way to get sued for wrongful foreclosure.

    Another aspect, stale notes that have not been actively administered with attempts for collections can be unenforceable if the holder abandons their rights, what you buy could be worthless so ensure some lender didn't just give up and walked away a year or more ago.

    Wrongful foreclosure issues are state specific, get an attorney's opinion before jumping in, the issue is in the public's eye more today with all the lending abuses compared to the old days when borrowers just walk away. :)

  • Lender · Austin, TX · Member since 2012 · 211 posts · 166 votes
    12y

    Thank you all for your feedback and comments. Seems like it's a little tricky as to the actual follow through from the 2nd position.

    Appreciate all your responses!

    Josh

  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    12y

    Any lien which grants an interest with an enforcement remedy of foreclosure can foreclose if the conditions to do so are met. Payment default, is one of those standard conditions although there are others.

    The establishment of seniority, usually through time (date of recording) has priority over interests that are granted or taken, later in time. Seniority in most cases, is first in time, first in right. What is essentially happening when a borrower (mortgagor) gives a lender (mortgagee) a security interest, is a granting of superior (to the mortgagor) interest in the equity of the property. To that extent, the mortgagor essentially subordinates their right to defend title to the property. By law however, the mortgagor retains a right of redemption. Since property equity is not infinite, each interest granted results in equity being reduced. Usually, we see the first interest granted being the most equity reduced. Continue in succession and reduction. When equity is present, the interests are secured, when equity is not present, there is no security.

    Right of repayment from the real property sale by foreclosure (distribution) is defined by seniority and is in succession of time as a chronological order which creates level of seniority. (Some interests, like those of the Federal Government, have a legal superiority by law regardless of order in time of lien) A first mortgage, is only first because there is no interest granted before them. The second mortgage, is second because before it is a first mortgage, etc.

    Imagine if you will, title to the property is simply a line from left to right. At the very left or starting point of the line is where the property owner takes ownership. Let's define that as B(0). Any event prior to (left of) B(0) is essentially why you get title insurance. It is assumed at B(0) all equitable and legal rights are bundled up in 100% and sold to the new owner. Anything prior to B(0) would mean, that 100% bundle is fragmented or less than 100%. The next event, let's say it is a mortgage, then becomes M(1). The next event, assume another mortgage is then M(2). And for example sake, let's throw one more on there, a third mortgage in M(3).

    So, here is my little text timeline:
    |-----------|-------------|---------------|---------->
    B(0) M(1) M(2) M(3)

    The M(2) is superior to M(3) but inferior to M(1). If conditions are met for P(2) to initiate a foreclosure, such as payment default, they can then do so which is granted by the mortgage and note. The action of including all parties (B and all M's) is called "joining". Foreclosure is the act of extinguishing rights of redemption on the joined parties. If a party is not joined, those rights can not be foreclosed (extinguished). (an important idea to understand as a junior lien holder) If a foreclosure only joins the mortgagor, then the rights of the junior liens were not extinguished, however in most cases, their junior lien holder does not 'improve' their rights. Further, the legal right to extinguish redemption (foreclose) is only for subsequent interests granted. That is, M(2) can only extinguish rights of redemption for M(3) and the mortgagor B(0) but can not extinguish the right of redemption for M(1). Since M(1) is the most senior, there is nobody to redeem from. This is where "Subject To" sort of comes from. The junior mortgagee M(2) has an interest in the property Subject To (inferior to) M(1).

    Each time the mortgagor grants a new interest, they in essence move to the right (inferior) of the mortgagee. To that extent, the mortgagor is Subject To the Mortgagee. So when M(1) is granted:

    |---------|------------->
    M(1) B(0)


    Then when M(2) is granted, in essence the following occurs:

    |------------|---------|------------->
    M(1) M(2) B(0)

    *Remember, these lines are first in line, first in right which is usually defined by time.

    However, each time and in most cases, each subordinate interest granted retains a right to redeem. So B(0) retains a right to return to its original amount of right to the equity in the first line but only if the granted interest (M1-3) is extinguished.

    These concepts are also why any deed from mortgagor to a new owner would also be inferior to all things prior in time. The equity remaining has diminished, thus the new party can only get what is left. So if the mortgagor deeds to a new party without satisfying or extinguishing the interests of the prior parties, the new owner is still an owner, they just do not have equitable and legal rights greater than those before it.

    A junior lien can not force a senior lien to foreclose. So M(2) can not cause M(1) to extinguish (or attempt to) extinguish the right of redemption of M(2). Now, M(1) may do so at their will, provided breach has occurred. However, M(1) has no fear of loosing its superior interest in the property in the event of M(2) foreclosing since M(2) can only extinguish rights inferior to theirs along with the mortgagor.

    In the event M(1) forecloses and M(1) joins M(2-3), then any surplus from sale automatically accelerates and M(2-3) rights to the property are discharged. There is a caveat where if the mortgagor redeems, where they would only be redeeming M(1) then M(2-3) would be revived to their equity in the property, to that extent, equity is re-established. A redemption is a redemption only if the party had a prior interest (say through a mortgage) in the property.

    If M(2) chooses to foreclose, it can not foreclose M(1) but it can foreclose M(3). When M(2) has its foreclosure sale, it is the lien that is the subject of the sale. As such, it has priority of distribution. Priority of distribution is the seniority established by title to the real property. So M(2) gets distributed first and M(3) gets what's left over and then the borrower, if any. Notice, M(1) actually get's nothing. This tends to be the confusing idea for some. Since M(1) doesn't stand to loose it's equity by way of M(2) foreclosure, it is not joined in the equity from M(2) forward (M(3) and B(0)). So, M(1) stays in place and any ownership of the property is then "Subject To" (inferior to) the interests and rights of M(1). So a bidder at auction who exceeds the minimal bid given by M(2) 'wins' title to the property subject to M(1). If nobody bids, then M(2) takes back title in exchange for the satisfaction of it's debt. As such, M(3) and B(0) are wiped out and get nothing since nothing was paid. M(3) is still a debt owed but is not secured by the property any longer. Both M(3) and B(0) still have a right of redemption subject to the time defined by law they can exercise said right.

    Sometimes, M(2) can call for M(1) to be a necessary joined party so the balance due is officially calculated by court or trustee. This gives bidders at auction formal insight into the total amount due to gain clear title. Under the guise of those same definitions, M(3) is a proper party joined. So, M(1) is necessary to illustrate the path to clear title and M(3) is proper as they have to extinguished to grant title from M(2) forward. In that case, title may not be clear since M(1) is still in place.

    Because M(2) act of foreclosure may result in Subject To title. They may choose to not to finish foreclosure and wait for M(1) to foreclose and exerciser their right of redemption.

    When M(2) chooses to redeem, one of three things happen:
    (1) M(2) gains the rights equal to that of a third party buyer at auction, if no further redemption occur through expiration, then those rights turn into title.
    (2) M(2) simply causes the foreclosure judgement to be avoided. M(2) can then add the proceeds used to redeem to the balance owed and seek foreclosure with the new sum.
    (3) M(2) becomes subrogated to the rights of M(1)

    The term subrogation is the substitution of one person to the position of an obligee whose claim he has satisfied. The result of subrogation is that the person subrogated stands in the shoes of the one whose claim has been discharged by his performance. He succeeds to all of the rights, priorities, liens and securities of the former obligee.

    Great, now it is important to note, each state uses some form of the above but not all. So redemption rights are not the same in every state, you need to understand what those are for the state the mortgage is in. As such, redemption periods are not the same in all states. They may expire before or after sale by varying times. Also, state specific.

    So to the OP Questions:

    1. The idea of no equity, would likely mean no bidder at auction. So then, the mortgage you hold would be extinguished and those rights would convert into title. The new rights in title are Subject To, the rights held by the first mortgagee. The first mortgagee is still entitle to it's payments and the lack thereof does mean default and possible foreclosure. There is contest in some states whether a first lien must recognize a junior lien holder as a successor in interest and thereby not be able to trigger Due on Sale. This same idea also applies to whether the first mortgagee has a duty to accept payments on the obligation since the paying party (you) is not a party to the mortgage contract they hold. So you could find the first demanding full payment or they foreclose or you could find the first willing to accept payments. Mind you, if you are not considered a successor in interest, then technically you would have to formally assume the mortgage which can only be granted by the Mortgagee.

    2. As explained above, (towards the bottom, I know it's long), if the second forecloses it should properly join all junior lien holders, those parties will be the parties who are distributed funds from sale. The first mortgagee is not joined in equity in the foreclosure of a junior mortgagee thus they do not get distributions. This is because they retain their superiority in title and equity.

    3. As a new junior mortgagee, you have no obligation to any superior interest. That is, no obligation is created under the law through the process. Unless, you actually assume the mortgage in superior position, you are not obligated or liable under the debt. However, if you do not take steps to protect your interests, the senior mortgagee can foreclose and you loose your investment.

    I know, it's a long post. But it is beneficial to the populous to have a fairly thorough explanation. Welcome to the world of mortgages.

  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    12y

    Well, my little timeline / seniorty text illustrations distorted when posted.
    Each " | " corresponds to the named party in the line below in order from left to right.

  • Lender · Greater LA/Orange County area, CA · Member since 2012 · 3k+ posts · 3k+ votes
    12y

    Hard to believe that anything concerning the topic of NPN trust deed/ mortgage investing has not been covered in this thread. I think one that may have come up is this:

    If you, as a junior trust deed holder foreclose and property reverts to you (meaning you take it to sale and there are no other bidders), can the senior lender foreclose on you? Yep. You do have a right to reinstate or redeem a defaulted loan, however the lender could easily call the loan on a new breech, like the notorious due-on-sale clause, and begin a new foreclosure.

    Had it happen to me once so I just paid off the bank loan, but not after warning them: "...but you'll never do business in this town again!"

    The Citibank attorney did NOT have a sense if humor (I hope he's processing short sales for Montelongo trainees somewhere).

  • Real Estate Investor · Audubon, PA · Member since 2009 · 13k+ posts · 8k+ votes
    12y
    Originally posted by @Dion DePaoli:
    ...

    Right of repayment from the real property sale by foreclosure (distribution) is defined by seniority and is in succession of time as a chronological order which creates level of seniority. (Some interests, like those of the Federal Government, have a legal superiority by law regardless of order in time of lien) ...

    Dion - your post was really detailed about this subject, but there is one item I have to point out. Just to keep the facts clear.

    Not sure about all Federal Government liens, but for the ones I most commonly come across - namely IRS liens - the snippet in the quote is not correct. The "urban legend" of IRS liens always being superior (I believe that "gurus" originated this misinformation) has been discussed a few times on BP, and it is dispelled in this next link:

    http://www.biggerpockets.com/forums/311/topics/91948-buying-hoa-liens?page=1#p574382

    IRS liens are only "special" in that the IRS retains redemption rights, as indicated in a link you can find under the topic I just linked here.

  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    12y

    Steve, was not meant to start a debate on lien priority per IRS and I agree IRS liens fall in line with redemption rights. That said, there are other types of liens that arise which are not uncommon such as federal estate tax liens and then state level and local level liens, which notably are not 'federal' liens, such real estate tax, special assessment and inheritance tax.

    The point was more to speak of the idea that some liens can arise, even without notice, that are legally superior regardless of recording time. The greatest example I should have used would be real estate tax liens, but hindsight is 20/20. That said, the list is at least in the thread for reference.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    12y

    Yes, tax liens are subordinate to perfected liens prior to the notice of federal tax liens. Priority may be clouded too in situations where the tax payer has divided interests to property as the lien only attaches to that interest.

    @Steve Babiak I'd say the misconception may come from the priority of creditors in bankruptcy.

    I have never heard the priorities or interests in a mortgage or any note presented as Dion described. The main concept I suppose is along the path, but it's not equity that secures a debt, it's the value of any secured property that determines amounts that are available to be redeemed in the event of default. The owner only grants a security interest, not ownership rights or interests. An owner of any secured property has the right to redeem or obtain equity above the security interest granted from the sale or disposal of secured property, as to laws of equity, not having anything to do with the right of a borrower to "redeem" the collateral by paying off the debt secured under state laws.

    Priority of distributions of sale proceeds is determined by state law. Mechanic's liens, past due child support, judgments due the state or fines may have priority over the perfected security interest of any creditor in any forced sale.

    A lien does not transfer ownership, the basis for calling a mortgage or note due is not so much arising from the "due-on-sale" clause, it is a violation of the mortgage or note terms of keeping title free of encumbrances or in keeping debts created paid as agreed as such matters clouds title.

    One who subordinates their lien priority to another is simply allowing the other party to collect the value as allowed by law to be collected before the subordinated debt. When you have 3 or more liens, subordinations can be complicated as a senior lien holder may not subordinate the interests of junior lien holders. A second who subordinates to a new loan that has a third lien will move that second to a forth position, loosing their priority ahead of the third lien holder. The value allowed by state law meaning the outstanding debt including allowable costs of collection and sale.

    In a foreclosure the proceeds are first paid to the Trustee and costs of the sale, then to the liens in priority. State law will determine if a junior lien holder may secure property subject to senior lien holders, they don't force a senior lien holder to do anything, but what is more customary if a junior holder allowed to proceed includes the total amounts due the senior as a part of the junior amount, still paying amounts in full in priority, the joining of collateral interests.

    Keep in mind too that other forced sales can happen, it's not just foreclosures that cause us to address the priority of liens. Divorce, suits as to the partition of property, bankruptcy and contracts can force sales.

    That's enough.... :)

  • Dave Van HornPro Member
    Fund Manager · Wayne, PA · Member since 2009 · 1k+ posts · 1k+ votes
    12y

    Hi @Joshua Andrews

    1). Some of this is state specific and some of it depends on what the 1st is doing. Generally speaking, there is no responsibility to the first. If they’re not getting payments from you, usually they will eventually foreclose against you. If you took the title but you reinstated the 1st and made payments, it is extremely rare that they would do anything. I believe notification requirements are state specific. I’m not aware that we notify 1sts on a regular basis.

    2). I think a common place people get stuck is they confuse lien position with controlling the foreclosure sale. If the 1st is foreclosing, usually their bidding instructions to their attorney only cover their position. If the bid comes in higher, it goes to the1st, then the 2nd, then the borrower. But, if the 2nd forecloses, the bidding instructions come from the 2nd’s foreclosing attorney. If no one shows up to bid, we take the property subject to without paying the 1st. There are a lot of “what ifs” here. But, you can’t assume that the 1st gets paid, because that only happens if there’s a bid that satisfied the bidding instructions of the 2nd’s foreclosure attorney.

    3.) Your costs are typically the cost of the note and anything to protect your position. This could be legal, insurance, taxes, association fees, etc. Correct, you’re not obligated to buy the 1st, and it’s not your credit that would be affected if you don’t (it would be the initial borrower’s credit).

    Yes, it can be used as leverage. But, to clarify, the 1st would only get paid in the event that the 2nd forecloses and the bid is higher than the bidding instructions of the 2nd’s foreclosure attorney.

    I hope some of this helps!

    Best,

    Dave Van Horn

  • Dallas, TX · Member since 2013 · 4k+ posts · 744 votes
    12y

    @Dave Van Horn,


    I agree with you but with new comers buying 2nd non performing notes most of them do not know how to deal with the notes. I only buy 1st non performing notes, but I am not saying I want to buy 2nd non performing. Most owner finance notes where they are collecting the funds themselves are selling the notes base on the new law first of the year and that mean more business for me.



    Joe Gore

  • Lender · Austin, TX · Member since 2012 · 211 posts · 166 votes
    12y

    Thank you everyone for the very detailed responses. I am truly thankful for the wealth of knowledge and experience here on BP. I'm going to read through this thread a few times more to get the full effect :)

    Josh

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