MASTER THE MECHANICS OF FORECLOSURE - THE KEY TO BEING EFFECTIVE IN PRE-FORECLOSURE INVESTING

To confidently compete in the pre-foreclosure arena, every investor must master the mechanics of foreclosure. The events of foreclosure, the timeframes, the disposition of the proceeds of sale, and the effects of the sale these are all important landmarks in navigating through the foreclosure process. To be effective in pre-foreclosures, the investor must see through the foreclosure process as clearly as through glass. Understanding the mechanics of foreclosure allows the investor to effectively evaluate an opportunity, develop a strategy, provide a solution that satisfies all the parties involved and, as a result, come out with a profit.

Oregon State law chapters ORS 86.705 through 86.770 govern foreclosure procedures in Oregon. This is a must-read for all pre-foreclosure investors. With the understanding of this law and specialized real estate legal counsel, the pre-foreclosure investor will be well-equipped for profiting in this arena.

This article is oriented towards pre-foreclosure success. I, the author, am very effective in this field, Im not a lawyer. This article should not be taken as legal advice. The purpose of this article is to provide a clear view of the foreclosure process through the scope of pre-foreclosure investing. With that in mind, the reader will find this material informative, entertaining and valuable. Most pre-foreclosure investing takes place in the single family, and up to the 4-plex markets. These loans are secured by residential trust deeds, and it is here where we will focus.

The seeds of the foreclosure process are really planted at the moment a real property is financed by a lender through a secured loan. The lender, in order to feel confident of recovering the principal plus interest, requires the property owner to pledge the financed property as collateral. If the loan is not paid or defaults, the lender is entitled to use the collateralized property to get paid. This is called securing a loan by mortgaging a property. This system was most likely invented by the Babylonians at least 2000 years before Christ. Mortgages and foreclosure are indeed a very old business.

Well executed, legal, real estate financing has two components. These are the securing instrument and an obligation.

In the state of Oregon, the preferred instrument to secure real estate loans is the trust deed or deed of trust. The trust deed secures the financed property as collateral. The preferred instrument to delineate an obligation is the promissory note. The promissory note dictates the terms of payment of the secured loan. If there is a default in the terms of payment delineated by the promissory note, the trust deed will be used to secure performance by using the collateralized property. This is called foreclosure.

A trust deed is a means to convey an interest in the financed property to a trustee in order to secure a loan. The trust deed involves three parties: Beneficiary, Grantor and Trustee. Beneficiary is the person financing the property or its successor. This person is the lender, also known as the mortgagee. Grantor is the person obligated to perform (pay) as per the promissory note. This person is the homeowner, also known as the mortgagor. Trustee is a person employed by the beneficiary to make sure that the grantor performs. Financing a property is the equivalent of a shotgun wedding; if the groom does not perform he will be shot by the brides brother. The trustee in the trust deed is usually the title company which handled the real property financing transaction.

As you can see, the mechanism of foreclosure is put in place at the moment of financing. It is ready to be activated as soon as there is payment default. In the event of default, the beneficiary is entitled to exercise, through the deed of trust, the payment of his principal plus interest. In other words, the beneficiary (lender) will ask the trustee to foreclose the grantor (homeowner) in order to use the collateral (property) for making the loan perform (get paid). When this happens, the following events, timeframes and effects take place.

Events of Foreclosure:

  1. Succession of Trustee. The original trustee is usually the title company which handled the lending transaction. This arrangement remains in place through the life of the loan until default. The original trustees are title companies such as Ticor, Fidelity or First American Title. Title companies, although they can do it, are usually not in the business of foreclosing. Because of this, at default, the beneficiary usually selects a successor trustee. A successor trustee is usually an attorney firm specialized in the business of foreclosing. Northwest Trustees and Shapiro & Sutherland are two examples of such firms. The successor trustee is in charge of all matters related to foreclosure. From now on the successor trustee will be referred to as the trustee.
  2. Service and Publication of Notice of Default and Election to Sale (NOD) . The trustee must record and send a letter to all parties with a recorded secured financial interest in the property stating that the subject property will be sold in order to satisfy the secured loan. This letter is commonly known as the NOD letter. This letter must be sent to all parties by certified mail or served in person. Failure to not serve all secured parties may invalidate the process. The secured parties are usually second mortgages, lien holders, child support beneficiaries, tax lien holders, etc. The letter shall state the property description, amount of the principal, payoff value in full, amount needed to cure, and all contact information, as well as time, date and location of the scheduled auction sale.
  3. 3 Sale of Property. The sale of the property is held as per the time, date and location set in the notice of default and election to sell letter (NOD letter). Anybody can bid on the property except the trustee. The winner pays cash at the time of sale and receives, within 10 days a trustee deed demonstrating his ownership of the property. The new owner is entitled to possession of the property on the 10th day after the sale.

Timeframes:

This is the time available for pre-foreclosure investing.

  1. Total Length of Process. In Oregon a minimum of 120 days between the date of service of NOD letter and date of auction.
  2. Notice of Sale Publication. A notice of sale is published in a newspaper of general circulation, once a week for four consecutive weeks. The last publication can be no later than 20 days prior to auction.
  3. End of Right to Cure. The mortgagor (or homeowner) as well as any other party secured by the property is entitled to cure the loan in default until up to 5 days prior to auction. Within those five days before auction, the only recourse to retain the property is to pay the loan in full. The beneficiary (or lender) is not obligated to accept the loan to be cured. They can do so according to their convenience.

Disposition of Proceeds of Sale:

The proceeds of the sale are distributed according to the following priorities. The very fact that the junior liens may not be paid creates the pre-foreclosure investment opportunity.

  1. Compensation for attorneys and trustees.
  2. Payment of obligation secured by the trust deed.
  3. 3 Payment to all recorded junior liens by order of priority.
  4. 4 Payment to the grantor (homeowner) if anything remains for him.
  5. Basically, the lawyers get paid first, followed by the first mortgage holder, then everybody after that. If there are any bones left, they go to the owner.

Effects of the Sale:

This is where buying at auction gets tricky and creates the pre-foreclosure investing opportunity.

Termination of Interests. All interests on property by liens junior to the foreclosing trust deed are terminated. All interests on property by liens senior to the foreclosing trust deed remain in force and must be satisfied. This means that the highest bidder at the auction, by buying the property, must now pay all taxes, senior mortgages and senior liens. These are not foreclosed out. For example, if the foreclosure is on a first mortgage, the buyer will not have to pay for the second mortgage and anything that came after. Most likely the buyer will only have to pay for the unpaid taxes, HOA and city liens. If, on the other hand, the foreclosure is on a second mortgage, then the buyer will have to pay for the first mortgage in addition to everything else.

Satisfaction of Obligation: The foreclosing trust deed is satisfied in full even if the lender does not get full payment of principal and interest or if there is a loss. All other interests in the property are foreclosed-out and have no further rights over the property.

Unpaid Parties: Any parties with secured interests foreclosed-out of the property and not paid, partially or fully, by the auction proceeds lose that secured interest in the property. Basically, they have nothing else to do with the property. However, the promissory notes of these obligations remain in force. Because of this, the foreclosed homeowner remains responsible for the payment of any unpaid balance. The result is that any party still owed on the property has to try to collect an unsecured loan. This is not easy. What are the chances that someone will pay a debt owed on a property that they no longer own? This is where the investor comes in.

Short Sale. The Pre-Foreclosure Business Opportunity:

Clear understanding the foreclosure process enables the pre-foreclosure investor to unravel the entanglement created by all the parties involved with the property in foreclosure. Usually, the total value of all of the principals and interest, taxes and liens is greater than the value of the property. As a result, there will be losses to everybody, including, sometimes, the senior lien holders. The goal of the pre-foreclosure investor is to obtain the property at a very convenient price by reducing the losses of all secured parties. This is called a short sale. A short sale happens when the creditors authorize the homeowner to sell a property for less than what they are owed. You, the investor, makes this happen through knowledgeable and skillful negotiation. Look forward to my future article on these negotiation techniques.

I hope this information puts you one step closer to achieving your own success in pre-foreclosures. Mastering the mechanics of foreclosure has worked for me and will work for you. Great profits will be your reward.


Please contact Oscar Mornate for Permission to post this article on your site. Credit for the article must be give to Oscar Morante, Best Short Sales
(C) 2006 Advanced Real Estate Concepts, LLC., Portland OR. All rights reserved. More information about the author can be found at www.bestshortsales.com. Offering Short Sale Products & Short Sale Seminars

 

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