All Forum Posts by: Tom Gimer

Quote from @Kevin Sobilo:

Quote from @Tom Gimer:

Quote from @Kevin Sobilo:

Quote from @V.G Jason:

You consider this unforgivable?

Submit your bid again, use a diff agent. Unforgivable is irreparable damage. You did not lose anything, you just didn't get what you were expecting to get. The agent is going to learn a hefty cost for this and that's your business. 

Life isn't forgiven, keep it trucking. 

You are right, the damage isn't irreparable. The question is how much money does the brokerage and agent or their insurance owe them.

They carry insurance for EXACTLY this sort of thing where their mistakes cost their clients.

Also, their bid was accepted, so why don't you think they didn't lose anything? They lost this deal apparently or at least would need to apparently pay significantly more to get it back. 

I would not be so certain that the brokerage owes the client anything. Could be expensive to find out. 

For starters, a purchase at the original contract purchase price could have resulted in a big fat loss. More…

Did the agent submit the bid? Or did the client? Was the agent in exclusive control of the information required by HUD? Or just expected by the client to submit it? If so was that expectation reasonable? What are the damages, if any? If there are any provable damages, was the action or inaction of the agent the proximate cause of the client’s damages? Or does the client bear some of the blame? In some jurisdictions if the answer to that last question is in the affirmative, no matter how small of a percentage, the claim is dead.

Its possible that the amount can be firmly established as from one of the responses it sounds like there is a possibility of getting the deal accepted again for a higher price. So, the difference in price & closing costs would establish firmly the amount.

As for the rest the poster clearly believes the agent had what they needed to take these actions, but did not. Yes, there could be a "gotcha" because of some unknown facts that would be the case in every single situation imaginable!

So, little to lose by threatening a lawsuit as this might get their insurance to make an offer to make it go away. Fighting a lawsuit is EXPENSIVE for the insurance company as well. So, if the facts are what they sound like they might very well prefer to settle but you won't get a settlement without taking an action!

The purchase would likely need to be consummated at the higher price in order to establish the "damages" to which you are referring... and then I would refer you back to the other potential issues I raised with respect to a negligence claim.

Responding to a demand letter with "go pound sand" is not the same thing as defending a lawsuit.

I just don't see any attorney taking this $12K case to trial and that is what you are suggesting as the end game.

Quote from @Kevin Sobilo:

Quote from @V.G Jason:

You consider this unforgivable?

Submit your bid again, use a diff agent. Unforgivable is irreparable damage. You did not lose anything, you just didn't get what you were expecting to get. The agent is going to learn a hefty cost for this and that's your business. 

Life isn't forgiven, keep it trucking. 

You are right, the damage isn't irreparable. The question is how much money does the brokerage and agent or their insurance owe them.

They carry insurance for EXACTLY this sort of thing where their mistakes cost their clients.

Also, their bid was accepted, so why don't you think they didn't lose anything? They lost this deal apparently or at least would need to apparently pay significantly more to get it back. 

I would not be so certain that the brokerage owes the client anything. Could be expensive to find out. 

For starters, a purchase at the original contract purchase price could have resulted in a big fat loss. More…

Did the agent submit the bid? Or did the client? Was the agent in exclusive control of the information required by HUD? Or just expected by the client to submit it? If so was that expectation reasonable? What are the damages, if any? If there are any provable damages, was the action or inaction of the agent the proximate cause of the client’s damages? Or does the client bear some of the blame? In some jurisdictions if the answer to that last question is in the affirmative, no matter how small of a percentage, the claim is dead.

Quote from @Carlo D.:

Quote from @Tom Gimer:

@Carlo D. There are law firms that specialize in this field. Privatelenderlaw.com comes to mind.

 Thank you @Tom Gimer. I'll definitely check them out. Do you personally use them?

I don't personally use them for loan docs... I prepare my own. But since we close a lot of hard money/private money deals we do see this firm involved frequently. I can attest to the doc sets being comprehensive and templates being excellent.
 

@Carlo D. There are law firms that specialize in this field. Privatelenderlaw.com comes to mind.

Quote from @Scott Esmail:

 @ tom Based on what I read on their website its with the state. So does this mean all that they can do is remove the equitment and nothing to do with liening the home for the remaining balance ? 

@Tom Gimerundefined

Your fact pattern states the owner purchased solar equipment. That doesn’t mesh with a chattel filing. 

But either way… I don’t envision an issue with the 2022 solar transaction.

Here’s why. Either the property owner leased the equipment and the UCC was intended to notify the world that a third party owns it (no, that vendor cannot now or later lien the subject real property) OR the property owner purchased the equipment and that 2022 lien is about to get wiped by the foreclosure of a first priority mortgage. It is a first mortgage being foreclosed, right?

@Scott Esmail You’ll need to find and pull the financing statement and review it carefully to get the answer. 

Is the UCC filed with the state OR is it recorded in the land records?

If it’s a chattel filing with the state, the foreclosure would not affect the secured party’s interest… they could still repossess the equipment. But if it’s a fixture filing recorded among the land records, then that junior lien may be extinguished in a properly-conducted foreclosure. 

Good luck. 

@Wesley W. i assume you’ve already confirmed how title is held and that the property will need to go thru probate.

So keep an eye out for the opening of an estate, presumably in the state where the owner currently lives. Estate records are often public and searchable — and the executor/personal representative would be listed. Ancillary probate might also be required in the state where the subject property is located… so you might have a local PR to deal with. 

Good luck. 

Unless the seller/lender is added to title as a joint tenant, which would be downright stupid, the only other way they are “getting the property back” after the death of the buyer/borrower would be to foreclose and be the high bidder at the auction.

The buyer and seller sign disclosures at closing outlining all of the various risks of a subject-to transaction; they agree and understand that they are voluntarily proceeding, having had the opportunity to obtain the advice of independent counsel; and of course they release everybody involved (including any real estate agents) from liability.

Ours even spells out exactly what will happen if they try to blame us for their own stupidity including agreeing to indemnify us for any attorneys fees and expenses we incur in defending and/or dismissing the complaint.

Quote from @Tim Silvers:

Quote from @Tom Gimer:

Quote from @Tim Silvers:

Quote from @Tom Gimer:

The fact pattern states the equipment was leased (owned by the solar company, not the property owner). That’s crucial. 

The solar equipment destroyed, there is nothing for the lender to remove. The lease is now unsecured debt… not a junior lien on the land.

So, the UCC-1 is now an unsecured debt against the decedent's estate, I assume?
Wood tile need in order to reconvey since the lien still shows up?
 

The unpaid lease may lead to a claim against the estate of the decedent but it’s not a title issue, IMO. 

Again, this is if the equipment was in fact leased. If purchased with financing and the security interest represented by the UCC was timely perfected, I would have a completely different opinion.

It is actually a loan, however, the panels are not attached to the property as is stated in the agreement:

"Personal Property. You and we both expressly intend that no portion of the Collateralized Goods will constitute a “fixture” attached to any real property, and that the Collateralized Goods will be removable personal property. You also agree not to take any action that might cause the Collateralized Goods to be treated as real property or as fixtures to real property. You agree that we may make a fixture filing, if we choose, provided that you and we agree that we may enforce rights in the Collateralized Goods under the Uniform Commercial Code and not under state real estate or mortgage law."

Even more reason to not worry about it. The security interest was in the personal property of a third party.

Can the title company still require a termination? Sure, they can. That's a business decision. But it's like requiring a release for a mortgage 3 owners back that has a verified $0 balance. What's the point? There is zero potential liability.