Closing a Subject to Deal right now, Need Help!

Closing a Subject to Deal right now, Need Help!

Real Estate Investor · montrose, CO · Member since 2011 · 13 posts · 1 vote

Hello everyone!

Any input would be greatly appreciated, especially if you have sub2 experience.

Heres the Scenario.

My partner wanted a Personal property for himself, called on a FSBO and the conversation went well.

After a meeting and few phone conversations the purchase agreement was made.

With the purchase Agreement there is a Subject To addendum stating that the buyer will be taking over the payments.

Now, here is where I need some help.

The Title company is unsure of how to close the deal.

I want to make sure that the seller will be able to foreclose if the underlying loan is not paid by the buyer.

To do this, I was going to use a Special Warranty deed with a vendor's lien secured by a deed of trust.

My questions:

1. The Title company wants to create a wrap around and have my attorney do this... doesn't make sense to me.

2. How do I close and still ensure that the seller will have the right to foreclose if the loan is not paid.

(we want to make sure because we will be closing MAPS deals in the future where we will not be the buyer)

3. Could I record the Vendors Lien and Record a deed of trust that mirrors the original while changing the beneficiary to the seller?

I'm confused!!! HELP ME

(The loan is an Option ARM and I have the original Note with all the details)

Thanks.

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Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
15y

You might try Canyon Title. Not dealt with them but I understand they can do more creative deals.

This should be just an ordinary closing. There will be additional disclosure documents warning everyone involved that the loan stays on the seller's credit, etc. And the title policy and deed will show an exception for the existing loan.

If you want the seller to have a security interest and the ability to foreclose, then a wrap (or AITD - All Inclusive Trust Deed) would be more appropriate than a subject to. You could do a mirror wrap where the terms of the new wrap mortgage exactly mirror the terms of the underlying mortgage.

See this reply in the discussion

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  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    You might try Canyon Title. Not dealt with them but I understand they can do more creative deals.

    This should be just an ordinary closing. There will be additional disclosure documents warning everyone involved that the loan stays on the seller's credit, etc. And the title policy and deed will show an exception for the existing loan.

    If you want the seller to have a security interest and the ability to foreclose, then a wrap (or AITD - All Inclusive Trust Deed) would be more appropriate than a subject to. You could do a mirror wrap where the terms of the new wrap mortgage exactly mirror the terms of the underlying mortgage.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    15y

    Filing a deedof trust with the same terms....that duplicates the liens. You were correct in using a Special Warranty Deed subject to the existing underlying DOT being paid as agreed.

    You can use a Quit Claim Deed with a seperate security agreementfiling the agreement (not the deed) that is similar to a contract for deed agreement that allows the original borrower to file the QCD in the event of default, This should be done by your attorney.

    Jon is correct IMO that this should simply be a purchase settlement and provide title coverage subjet to the payoff. A warranty deed can also be made to file upon paying off the mortgage if that makes them feel better. You probably are not having servicing on that, but I would and have the deeds in escrow with that servicer.

    If you are going to do sub-2s, CFDs, or what ever, you really need to iron out the closing requirements and how they are done in yourarea before you do your contracts. Your closing agent/title company shouldbe familiar with what you are doing before you walk in the door with an odd transaction. Suggest you see your attorney too. Good luck....

  • Real Estate Investor · montrose, CO · Member since 2011 · 13 posts · 1 vote
    15y

    THANK YOU THANK YOU.

    I have been working with an attorney.

    I live in Montrose Colorado and am having a tough time finding ANY Creative attorney's or title companies.

    I like the idea of creating a quit claim deed and recording a simple agreement...

    Heres a question?

    Why does EVERY subject to teacher and course out there say that the original seller will have the right to foreclose if the underlying loan is not paid.

    Every course also just glosses over the details... they just say...

    "tell the seller he will be able to foreclose if you don't make payments"

    To me, with the quitclaim deed being prepared and the agreement being recorded, this would be a Much swifter way for the Seller to get the property back...

    interesting...

    My "Assumption Special Warranty Deed with a Vendor's Lien" contains language stating that a deed of trust will allow the seller to foreclose. Just wondering what this deed of trust would look like.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    15y

    I have noidea what the gurus are teaching! In that instance, not paying the underlying mortgage is a default in the purchase terms, but not that the seller has a lien, per se, but could, but most likely it is not a foreclosure as much as a suit for damages and a judicial foreclosure if there is a security agreement with the sub-2, but not another duplicate DOT but one that referrences the underlying lien. Having a QCD and a seperate agreement should take care of that.

  • Real Estate Investor · montrose, CO · Member since 2011 · 13 posts · 1 vote
    15y

    I talked to my Title company...

    They are going to do a Regular closing.

    Warranty deed. nothing special.

    They will create a Note and Deed of trust for the current Principle balance on the existing loan. (the principle has gone up because of a neg am loan) This will be recorded in second position.

    Simple, easy, and they are willing to do it for me and use the title attorney.

    Watcha think?

  • near Philadelphia, PA · Member since 2011 · 78 posts · 33 votes
    15y
    Originally posted by Jeremy Silva:
    ..........

    Heres a question?

    Why does EVERY subject to teacher and course out there say that the original seller will have the right to foreclose if the underlying loan is not paid.

    Every course also just glosses over the details... they just say...

    "tell the seller he will be able to foreclose if you don't make payments" ......

    Agree with that. I have read that phrase on many sites online too. And I've always thought "huh"? There has to be more to it than that. Besides that, it's something I would want to avoid. Foreclosures can linger on forever. leaving you in limbo.

  • Real Estate Investor · Long Beach, CA · Member since 2011 · 74 posts · 17 votes
    15y
    Originally posted by Nick Henson:
    Originally posted by Jeremy Silva:
    I talked to my Title company...

    They are going to do a Regular closing.

    Warranty deed. nothing special.

    They will create a Note and Deed of trust for the current Principle balance on the existing loan. (the principle has gone up because of a neg am loan) This will be recorded in second position.

    Simple, easy, and they are willing to do it for me and use the title attorney.

    Watcha think?

    Sorry about last post---
    The staff at your title agency had no experience with what you wanted so they had to call their attorney to check on it and, being an expert (hopefully) he/she knew how to do it. Standard operating procedure and they should have told you that they were doing that in the first place. Any time a title company says they can't do the paper work, tell them to check with their attorney.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    15y

    A title company can't do your contracts. They can only prepare closing documents. I doubt a title company attorney will draft your contract, but that will be their call.

    I suggest the buyer pays a third party servicer to ensure all payments are made. The buyer will need that servicing history for the next loan. Othersise, when proof of payment is required they may need to get copies of past checks.

    If the seller fails to deposit a check in a timely manner, that can give the buyer a late payment, the date it is written is irrelevant, it's the date it is deposited. Any late payment within the past six months will make it very difficult for the buyer to get a loan.

    A sub=2 is a wrap arrangement. The seller can always continue to make the payments and be reimbursed for the costs from any servicer.

    Filing the deed will prevent seller's creditors from attaching any liens if that Special Warranty Deed was used, it coveys title subject to the lien being paid. I suggest you see your attorney and get your ducks in a row. Good luck!

  • Real Estate Investor · montrose, CO · Member since 2011 · 13 posts · 1 vote
    15y

    Thanks everyone for your input.

    We ended up using a promissory note that referenced the original note for payments and figures.

    The note and deed of trust will be recorded in second position.

    This will allow the seller to foreclose if need be. If something were to happen, I would just deed the property back to him, but I'm not worried about that, the loan is very affordable, there is equity in the house and this is a personal deal. No profit, just a great deal.

    I'm not worried about future financing, and I don't want an escrow company, I'll be paying the lender direct, so I will know when payments are made.

    The sale will be final and of course the Deed will be recorded.

    We had our own Purchase Agreement and Subject-To Purchase Addendum, Our paperwork is good. However, I wanted to make sure that the title company was comfortable with everything so we could do this again in the future for a profit.

    They never drafted any legal forms for us, but rather sent me a few copies of paperwork that they have used in the past, I explained what I wanted to have happen and once the title closer spoke with her attorney, all was well... he knew what to do, and we are closing on Wednesday the 2nd of March at 9:00am

    The seller is happy and so am I.

    I'm not worried about the due on sale clause at all... but thanks to anyone who worries for me.

    After this, I'll be meeting with my attorney to cover any angles on deals we will be wholesaling in the future.

  • Real Estate Investor · montrose, CO · Member since 2011 · 13 posts · 1 vote
    15y

    I must say, BIGGER POCKETS IS AWESOME.

    Thank you again to everyone who replied, you really helped me think about this smarter.

    I will use all of the suggestions in future deals... I'm almost 100% sure of it.

    Next deal that I have (for profit), I'll be sure to throw up here and show you what I'm doing!

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