Written by Tod Snodgrass | September 1, 2022
The number of NOD pre-foreclosures notices are on the rise. Fortune magazine reports they are up triple digits in 2022 compared to 2021. There are several factors causing the uptick: COVID mortgage forbearance overhang, the current recession, rapidly rising interest rates this year, etc. The increase in the number of homeowners and landlords in trouble is causing a lot of (both note and property) investors to start taking a hard look at how they can profit from these changes in the market.
- Depreciating prices. For those who came into the investor market after the last downturn, you may not be aware that residential property prices in many markets dropped by 40%, from peak (2008) to trough (2012). Some areas/types of real estate dropped by even more. The cautionary tale is to be sure to build in enough equity in foreclosure properties you seek to acquire. In an up market, where prices are appreciating double digits every year, how much equity you initially acquire is usually not the first box you check as an investor. However, as the old saying goes: That was then, and this is now. Assuming the recession worsens, you need to build in more of an “equity buffer” into each deal to protect yourself from making no profit (or actually losing money) when you go to sell the property or note.
- Judicial vs. non-judicial states. The number of virtual wholesale note and property deals are increasing nationwide; wholesalers need to be knowledge about what laws apply in the state in which the investment is being made. About half the states in the nation are what is referred to as non-judicial. That means they typically employ what are known as trust deeds and trust deed notes. The foreclosure is undertaken without using lawyers and judges. Judicial states usually require you to go through the court system to adjudicate your claim. Non-judicial states usually cost less and take less time to foreclose. See https://retipster.com/judicial-non-judicial-foreclosure-states-list-map/ for a map, as well as details on the specifics for each state.
- Beware of Land Contracts (LCs). An LC is an agreement in which the owner/seller of a property agrees to act as the bank and personally finance the sale for the buyer instead of going through a 3rd party, such as a bank or credit union. The buyer makes monthly payments to the owner, but does NOT receive actual title to the property until the last payment is made; and the last one is often a “balloon” payment, i.e. for a very large amount (that the buyer perhaps cannot afford to make).
As an investor (of a property or a note secured by a property) who is about to step into this breach, you must give careful consideration to the LC contract that the owner has/had with the LC buyer. What you want to avoid is getting subsequently sued by the buyer after you bought out the interest of the seller.
For example, does the seller own the property outright, or is he still making payments to a lending institution? If the owner himself did not make regular payments for any reason, the property can be foreclosed upon, leaving the buyer with a worthless contract and no home. Land contracts also leave the new owner (you) tied to the property. If the buyer stops making their payments, you become responsible for the land—which means you could lose the property altogether if the buyer fails to insure it properly or pay their property taxes.
All of these tricky issues must be taken into account when you are considering an acquisition that includes a land contract. You need to have a very clear understanding of everyone’s rights and responsibilities beforehand. To play it safe, retain legal counsel to look everything over first.
- Watch out for Super Liens in 20 states. There are approximately 370,000 homeowner associations (HOAs) in the United States. Collectively, this represents more than 40 million households (or about 53% of the owner-occupied households in America). Statistically, about 26% of all Americans live in HOA communities. Typical HOA/association dues & fees run from $200-$300 per month—many charge more, some charge a LOT more.
In most states, when a lender forecloses on a property in a HOA, and the property owner has also defaulted on their association fees, odds are the condo association won’t get paid for those debts. That is because a successful foreclosure action by the holder of the first position mortgage typically wipes out all junior notes and many liens. However, in about 20 states (see the list below), “super lien” laws have been passed that protect the association from being wiped out completely.
A foreclosure by a bank or credit union can take many months. During that time the HOA is not receiving the monthly payments due to them. When the bank finally forecloses and sells the property, and surplus funds are left over, the HOA (in a Super Lien state) can typically petition the court to channel that money to the association, assuming the association has properly recorded a lien.
So, if you are a note or property investor, be sure to check carefully if the state in which you are investing (and where you could potentially foreclose on a property) is a super lien state. If so, you need to take that information into account, and build those costs into your bid price for the note or property.
To reiterate, about 20 states allow for some form of super lien. Each of the states has differing laws when it comes to how an HOA lien becomes a super lien. You can learn more about super lien states and their individual laws regarding super liens by looking up your state statutes which can usually be found online. The following states allow for super liens, or some version of priority liens for community associations: Alabama, Alaska, Colorado, Connecticut, Delaware, District of Columbia, Florida, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, Pennsylvania, Rhode Island, Vermont, Washington, West Virginia.
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