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Junior Liens Who Choose to Foreclose

By Edward Brown

Many lenders opt to only fund first mortgages because they believe that second mortgages are too risky, but is that always the case? Not always. Not all second mortgages are equal.

Many private lenders may choose to fund a junior lien where the first mortgage is relatively small in comparison to the second. For example, a $200,000 second behind a first of only $40,000 on a property worth $500,000 would be an attractive loan to fund for many lenders, especially if they can command a higher interest rate due to the fact that the loan is in second position. However, if there is a foreclosure in the future, the second will somehow have to deal with the first mortgage. This can be troublesome if the first is very large; especially if the second is relatively small in comparison to the first. Why?

In looking at a foreclosure, a lender has to strategize. In the case of the second mortgage, it is imperative that the first does not foreclose out the second as there is usually nothing left over from the foreclosure to pay the second. In California, the foreclosing party gets to “credit bid” its loan. This means that it can simply bid [at the auction/trustee sale] what it is owed. Non foreclosing parties need to come up with cashier’s checks in order to bid. This can be a potential hardship for the second mortgage if the first is the foreclosing party.

For example, if we look at a situation where the property has a value of $1,400,000, the first is $800,000 and the second is $200,000 and the first is the foreclosing party, the first would most likely credit bid its entire $800,000 [it does have the right to bid less than what it is owed, but, if the value is reasonably higher than what is owed to the first, it will normally credit bid what it is entirely owed. The times where the lender bids lower than its entire principal balance is when the lender does not want to own the property and is willing to take a loss just to get the loan off of its books, or the value of the property does not substantially exceed the balance of the first mortgage].

Any bidder at the auction/trustee sale would need to come up with $800,000 at the auction itself or more should any bid exceed $800,000 if the bidder wants to be the highest bidder. In this instance [where the first mortgage is the foreclosing party], the second is not allowed to credit bid its $200,000 balance. It would need to come up with the $800,000 to pay off the first and its $200,000 second mortgage in order to be made whole. True, the second would just get its $200,000 back because that is what it is owed, but, unfortunately, in this case, since it was not the foreclosing party, it has to come up with cash just as any other bidder. Only the foreclosing party is allowed to credit bid.

For this reason, it is important for the second to have a strategy in place. The second wants to be the foreclosing party in most instances, driving the bus, so to speak. Borrowers usually go into default for two main reasons. First, they stop making payments to the lender. Second, the lender’s loan is due, and the borrower has not refinanced or sold the property. In the case where payments have not been paid, junior lien holders have the right to “cure” the first. One can usually do that simply by making the payments to the first. Since foreclosure in California normally takes three months and 21 days, one strategy is for the second to cure the first and start its own foreclosure.

However, this may be cost prohibitive, especially if the first is large and the arrearages on the first are a few months. When the first files for foreclosure, junior lien holders are to be notified. This gives them notice, so they can have the opportunity to cure the first. The second then files its own foreclosure [either because the borrower has probably also not made payments to the second mortgage or because most loan documents state that if a borrower is in default on any mortgage associated with the property, its loan is also in default whether or not the borrower has kept the second current with payments].

One strategy for the second lien holder is to cure the first as soon as possible to allow the second to be the foreclosing party. That way, the second would be allowed to credit bid its loan, but would not eliminate the first; it would have to take the property subject to the first and have to deal with them post foreclosure. However, what happens in the case where the second pays just enough to get the first to stop its foreclosure for the time being, the second starts its own foreclosure, and then does not any more payments to the first and allow the first to start its own foreclosure?

Let’s look at an example and see how this might play out; in our previous example, the property was worth $1,400,000, the first was $800,000, and the second was $200,000. Let’s presume that the borrower stopped making payments on both the first and second mortgages. Both loans have a maturity date five years in the future. If the first files foreclosure, the second could cure the first by making only one mortgage payment to them. Now it is true that most lenders will not immediately file a notice of default after 30 days, but the point here is for the second to make the first mortgage cancel or delay [even temporarily] its foreclosure, so the second mortgage can start its own foreclosure for two main reasons; it puts the second in a situation where in the first does not foreclose out the second, and it allows the second to credit bid its loan at the time of the trustee sale.

Now it is true that, if the second does not make any more payments to the first [other than the one to get the first to stop its foreclosure], the first may start a foreclosure again, but, the first’s foreclosure will be after the second mortgage has completed its foreclosure, buying time for the second to deal with the first [or sell or refinance the property] if the second is ultimately the high bidder at auction. If another bidder outbids the second, the first would get paid, the second would get paid, and the owner [borrower who defaulted] would pocket the difference.

If there is enough equity in the property, either the property will receive a high enough bid to pay off all of the liens, or the second [the foreclosing party in our example] should be able to flip the property fairly quickly or decide to keep the property, as they would be the new owner. If they choose not sell the property, they should very quickly discuss with the first some sort of agreement to either refinance [a new loan to the second who is now the owner] or make payments for a period that will allow time for a new lender. The above information is for discussion purposes only and, as always, one is advised to discuss real estate related issues with a qualified real estate attorney prior to any legal action.


Edward Brown

Edward Brown currently hosts two radio shows, The Best of Investing and Sports Econ 101. He is also in the Investor Relations department for Pacific Private Money, a private real estate lending company. Edward has published many articles in various financial magazines as well as been an expert on CNN, in addition to appearing as an expert witness and consultant in cases involving investments and analysis of financial statements and tax returns.

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Why Banks Do Not Allow Junior Liens

By Edward Brown

Ever wonder why bank’s voluminous real estate loan documents usually include a covenant that the borrower has to accept which prohibits junior [or secondary financing]? Most of the time, these covenants don’t even have language that allows for secondary financing with lender approval. They merely state that no junior liens are allowed. In fact, the language is strong enough to imply that placing a junior lien behind the bank’s 1st mortgage constitutes a default [most likely a curable one] {curable defaults are ones that can be remedied, such as placing insurance on the property if the current insurance expires or is cancelled, as compared to incurable defaults which cannot be remedied (or, undone) such as the borrower filing a Chapter 7 bankruptcy}. Placing a junior lien behind the bank’s 1st mortgage is usually curable if the junior lien can be re-conveyed and the property is put back in the same condition [title wise, that is] as it was at the time the bank made its 1st mortgage.

One might ponder why banks are so strict about not allowing junior liens. After all, a junior lien is behind the 1st mortgage. In fact, some non-bank lenders actually prefer subordinate financing because it is as though there is additional security – another party has an interest to protect; however, traditional banks do not view it in the same way. There are a few reasons for this. First, banks have strict underwriting guidelines wherein they look at the DSCR [Debt Service Coverage Ratio]. The DSCR is a ratio that analyzes the cash flow after normal expenses compared to the monthly requirement for the loan in question [both principal and interest]. Many banks have changed their DSCR ratio requirement, since The Great Recession, from 1.1 to 1.35. This can place a tremendous burden on the borrower to have to come up with a larger down payment, in most cases, thereby requesting a lower loan request by the bank, which, in turn, produces a lower monthly loan payment. Many borrowers find that they have to come up with upwards of a 35% down payment as compared to 25% [pre Great Recession] in order to satisfy the 1.35 DSCR. Adding junior liens may place the borrower in the default provision of the DSCR if the junior lien requires monthly payments.

Another point to consider is that the bank priced its loan based upon original underwriting guidelines and being the only mortgage and that no junior financing would be added. The potential risk of negative changes in the DSCR or possibility that the borrower stripped equity away by placing a 2nd mortgage had not been considered, and the bank was not compensated accordingly. The more debt on a property, the more likely there is for a chance of foreclosure. Although the bank may be protected in its 1st position [presuming that the property has not substantially declined], when a foreclosure is triggered, there is a strong likelihood that the bank may have to alter the asset class of the property from performing to non-performing or it may be categorized as a “troubled asset” or put on the “watch list” by regulatory bodies even if the bank is not at risk for losing money. For example, if the borrower put 35% down on a $1,000,000 building and borrower $650,000 from the bank, the bank’s 65% LTV loan may be considered conservative. However, if the borrower obtained a 2nd mortgage for 15% LTV, the property now is 80% leveraged. If the borrower defaults on paying on the 2nd, he may or may not default on paying on the 1st. If the borrower defaults on both the 1st and 2nd, the bank’s loan clearly has turned non-performing. Non-performing loans can have a devastating effect on a bank, as they are required to set aside reserves, and defaults exacerbate this situation. The more reserves required to be set aside means the less money the bank has to lend out and generate income. Since banks lend out in multiples of their deposits, any money that is set aside [that cannot be lent out] has a negative multiplier effect.

The 2nd may or may not cure the 1st and start its own foreclosure. Even if the 2nd cures the 1st, the bank is still left with a possible foreclosing party [the 2nd]. When banks make loans, they are usually looking/hoping for those loans to continue until maturity. Once a loan is made, there is less work the bank has to do. They collect the interest income and hope they do not have to use other resources to babysit a loan. The cost of these resources tax the bank’s bottom line. Banks are not in the business of taking over borrower’s properties. They do not want REO’s [Real Estate Owned properties]. It is much better for them to carefully underwrite loans in the beginning and avoid problems. If the 2nd ends up with the property because nobody outbid the 2nd at the foreclosure, the bank is faced with a new borrower. The bank may have to underwrite the new borrower. In fact, if the 2nd is outbid at foreclosure, the bank is still faced with a different borrower than they originally underwrote. This new borrower may or may not qualify under the bank’s lending guidelines.

What about the scenario wherein the borrower borrows on a separate property and cross-collateralizes against the bank’s subject property? In this situation, the borrower is not attempting to strip out equity from the original property. The borrower may just be faced with the reality that he cannot obtain a loan for the target property unless he is willing to allow the new lender [on property two] to place this same loan on property one for added security.  Unfortunately, although this seems innocent enough, if the bank finds out that a junior lien was placed on the property, [original one] they still may consider their loan in default. A lender who cross-collateralizes against other properties may trigger a foreclosure on all properties they encumber in order to get the borrower to move toward a solution to satisfy their loan that is in default [under their terms…usually for non-payment of mortgage payments].

Public policy may state that a bank is not allowed to interfere with a borrower’s business and force him not to purchase/borrow on other property that the bank has no involvement. There also may be a question as to the validity of the “no junior liens allowed” as this may technically interfere with the borrower’s business, especially if the bank’s 1st mortgage is extremely low. For example, if the 1st mortgage only has a balance of 20% [either because the borrow put a substantial amount down or the 1st loan is so seasoned, that it has been amortized down to a low balance], there is very little risk of the bank not getting paid in full. Even if a 2nd is placed upon the property, one has to question how the bank is impeded should the 2nd start a foreclosure. In previous scenarios above wherein the DSCR was negatively altered due to a 2nd mortgage, a 20% LTV on the 1st should still satisfy a 1.35 DSCR in most circumstances. After the 2nd obtains the property [or a new owner should the property end up in a higher bidder’s hands], most new borrower’s would hopefully be qualified to service a low LTV. Of course, each circumstance is independent, and most banks will want to preserve their right to enforce the “no junior lien” clause.

Usually, only if the bank pulls a preliminary title report, are they aware of the junior lien. They are not usually automatically notified. The main question is whether the bank will automatically declare a default if a 2nd is placed on the property behind their 1st? When banks find out that a 2nd exists, they may either ignore it or send a letter requesting/demanding that the junior lien be removed as per the terms of the bank’s loan documents. Whether a bank decides to pursue its demand that the junior lien be removed is up to the bank; however, they want to preserve their rights by notifying the borrower that they have requested removal, and thus, have written evidence that they contacted the borrower, so the borrower cannot claim ignorance or non-notification of the break in the covenant of the bank terms. This notification protects the bank should the bank choose to start its own foreclosure due to the default.

Most borrowers who have asked permission for a junior lien to be placed behind the bank’s 1st mortgage have usually been told, “No”. That is why most borrowers figure it is better to ask for forgiveness than permission in hopes that the bank will not find out about the junior lien until the borrower either sells or refinances the property in question.

 


Edward Brown

Edward Brown currently hosts two radio shows, The Best of Investing and Sports Econ 101. He is also in the Investor Relations department for Pacific Private Money, a private real estate lending company. Edward has published many articles in various financial magazines as well as been an expert on CNN, in addition to appearing as an expert witness and consultant in cases involving investments and analysis of financial statements and tax returns.

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Liens and Encumbrances Affecting Real Property

By Dan Harkey

What is a Lien?

A lien is a legal right, usually referred to as a security interest, in real or personal property given to a creditor to hold and possess as consideration for a loan. The creditor /lender has a charging interest against the collateral and may seek possession in the event of default by the borrower. A borrower willfully grants the security interest in a real property by agreeing to sign instruments called a deed of trust or mortgage which are recorded in public records as an encumbrance to the real property in consideration for the loan. A lien refers to a monetary claim which may be attached to one or more properties.

What is an Encumbrance?

An encumbrance refers to a claim and/or agreement to enforce the rights and obligations relating to a property. There are literally dozens of items that may be recorded in public records that create either a lien or an encumbrance on the property. The first will be the original tract map. Then comes utility easements, other easements, government mandated requirements such as historical registries, association by-laws, ownership and partnership agreements leases; various public notices such as notice of weed abatement, notices of substandard condition, lis pendens, property settlements, divorce decrees, subordination, non-disturbance and attornment agreement (commonly abbreviated as an “SNDA agreement”) parking easements, reciprocal usage and parking agreements, signage easements, property tax, federal or state tax liens. etc.

The lending industry sometimes uses the terms lien and encumbrance interchangeably. However, a lien is a monetary charge against the property. All liens are encumbrances, but not all encumbrances are liens. They both create a claim against the property that impacts the transferability and restricts the free use until the claim is lifted or is conveyed.

How does an attachment to a property occur?

In the United States we have a government system referred to as the municipal recorder’s office. The recorder’s office has the task of maintaining public records, documents; and in this case, relating to real estate ownership. Additionally, their task includes recording and maintaining records, making those records available and identifiable to the public. Those public records can relate to both voluntary and involuntary rights and claims.

Each of the above creates a cloud on title that must be dealt with, either accepting to property with the conditions or clouds, removing from title, releasing, modifying, or rejecting the property because the risk of accepting all the conditions is go great or not practical.

Each document that is recorded on the property may also contains an agreement, considerations, prohibitions, and risk that must be dealt with.  A recorded trust deed may have 20-40 pages of legalese that need to be reviewed.  The document may contain clauses such as “due-on-sale”, “due-on-further encumbrance,” etc.  This subject relating to clauses in loan documents should be addressed in another article, because of its tremendous complexity.

Sometimes a property owner may record changes in amends ownership status.  An example would be changing or conveying the title of a property from “husband and wife as joint tenants” to a “revocable family trust”. Another example may be the recording of a divorce decree or a quit claim relinquishing one’s interest in the property.

This body of knowledge and law and the process of recording and maintaining the documents becomes very important when establishing the priority of a lien or encumbrance. California law regards lien priority as “first-in-time, first-in- right”.

What is a first, second and third lien priority?

Lien priority is related to the point of time that the document is recorded in the public records office.  When a document is recorded it is date stamped and given a sequential recording reference number.  If a borrower or his/her title company recorded 3 liens at the same time on one property, that would create a first, second, and third lien, regardless of the dollar amount of each lien. The first lien is considered a senior lien, the second and third liens are junior liens. with the second lien being senior to the third.  After the documents are recorded and scanned into the public records computers the borrower will receive the original documents back for safe keeping.

What insures the order of the recording.  How do you know that the recorder did not make a mistake and record the documents out of order?  You may order and pay for an insurance policy referred to as title insurance from a title insurance carrier. The policy guarantee’s your lien priority position or may be required to pay insured claim.   If you were to go to the recorder’s office yourself, stand in line, and have the documents recorded you could check the sequence of recording yourself.  But, generally your recording of documents is done by a title company in relation to a sale or loan transaction in which you are a principal party.

Let’s assume that there was a first lien of $100,000, a second lien of $50,000, and a third lien of $25,000. on a property that you own.  If you paid off the first lien, the second would become a first lien, and the third would become a second lien. If you were to refinance and consolidate all three liens, then all three liens would be reconveyed and removed off public records. A new recording, with a fresh date stamp and recording number would be placed on public records reflecting a new first lien position. A reconveyance is a written form instructing the recorder to remove and release the lien from public records.

There are written agreements that can be created by principal parties that modify the priority of a lien, or multiple liens. One is called a subordination agreement that can be recorded that may make a lien junior to another lien even though it was recorded earlier with an earlier date stamp.

California law regards lien priority as “first-in-time, first-in- right”. California law also provides for exceptions for some types of liens whereby some liens are given “skipping power” to the front of the line. Government mandate permits certain liens to be advanced so that they become senior in priority to other liens. Mechanic’s liens, meant to ensure that tradesmen and contractors are paid, is an example of a priority lien with “skipping power”. That right is protected by the California Constitution, and further enumerated in the California Civil Code (Section 3110 et seq.)

There are limits, however, on the “skipping power” of mechanic’s liens. These relate to technical requirements such as when the construction began and the process that the claimant must follow to enforce that lien. Even in situations where the mechanic’s lien appears to have been “wiped out” by a senior lien holder at a foreclosure sale, the lien is not automatically expunged. For more specific requirements for mechanic’s liens the lender should work with counsel knowledgeable about construction law and mechanics lien law.

Other exceptions relating to “skipping power” may include issues relating to property taxes, special tax assessment districts, and in some cases homeowner’s or mutual property associations.

As a rule, a written tenancy agreement has “first-in-time, first-in right” priority. Tenants who have written agreements with dates prior to the recording of a new trust deed will have a right of occupancy and enforcement that is senior to the new lien. The tenant’s rights will run with the property until the rights expire or are modified in writing.

A real estate lender may require some modification of the statutory priority by using a written agreement between the borrower, the tenant, and of course, the lender. There are times where it may be in the lender’s best interest not to preserve the tenancy in which case a straight subordination may be used. Any change in the chain of title, whether it is a sale, a new loan or a foreclosure, can cause the priority of tenancy to be lost.

In some cases, the lender may wish to preserve the tenancy of credit tenants in order to preserve the value of the property. A subordination, non-disturbance and attornment agreement (“SNDA agreement”) may be the appropriate document to have recorded. SDNAs are agreements between a tenant and a landlord that lays our certain rights of the tenant, the landlord, and other third parties, such as the landlord’s lender or a purchaser of the property.

If I can answer questions or I refer you to good service providers, I am only a phone call away. Please visit my web site www.danharkey.com to read more of my articles related business, real estate finance, and humor & prospective.

Thank You!

Dan Harkey

Business and Private Money Finance Consultant

Bus. 949 521 7115

Cell 949 533 8315

The article is for educational purposes only and is not intended as a solicitation