Recently, I was asked to describe the options and procedures that lenders may take when a borrower defaults on their real estate loan.  Understanding this process is vital to real estate professionals whether they are lenders, borrowers, agents or investors attempting to buy or manage property during the default process.

When a borrower defaults on his loan, most often by failing to make the monthly payments, the lender has several options.  Although not exhaustive nor mutually exclusive, these options include foreclosure, filing suit, self-help repossession or requesting that the court appoint a receiver to manage the property. 

The two most popular options differ in their order:  lenders can foreclose first or file a lawsuit first.  Therefore, the lender gets to choose its remedy: (1) foreclose first and then sue, or (2) sue first and then foreclose.  The order is important and it is significant to remember that the second step in either option is at the lender’s discretion.  This article only addresses the first and most popular option.  Next month, the second option will be discussed. 

1. Foreclose First and Then Sue

The first and most popular option by lenders is what I have entitled the foreclose-confirm-sue process.  The name describes the exact steps a lender takes. 

For example, Becky borrows $100,000 to buy her house.  Afterwards, the market declines leaving her house valued at $60,000.  Becky is unable to make her payments.  So, the bank begins the foreclosure process.  In order to do this, the bank sends Becky all the required notices and advertises in the newspaper for four consecutive weeks.  On the first Tuesday of the month after the advertisement has run, Becky’s house is sold on the courthouse steps for $60,000 – its market value.  Most real estate professionals understand this process.  However, many may not understand what can happen next.  In other words, what happens to the $40,000 deficiency? 

If the lender desires, it can pursue the $40,000 deficiency.  In order to do so, the lender must follow a two step process: confirm and sue.  First, the lender must apply to the court to confirm the foreclosure sale.  This confirmation hearing must be requested within 30 days of the foreclosure sale.  The purpose of this judicial hearing is to determine the fair market value of the property and both the lender and borrower are allowed to present evidence.  Once the court has determined the fair market value, it issues an order of confirmation.  This then allows the lender to, secondly, sue Becky for the $40,000 deficiency.

Because of this double judicial procedure and the likelihood that many judgments of this nature are uncollectable, lenders rarely pursue a deficiency action against residential borrowers.  Commercial borrowers are another story.  In today’s market, commercial lenders are pursuing deficiency actions with vigor. 

This article only addresses the most popular option: foreclose first.  Next month, I will address the second option: suing first and then foreclosing.  The second option is becoming increasingly popular in commercial loan defaults; the first is almost universally the choice of residential lenders.

Disclaimer: The information contained in this article is for informational purposes only and is not legal advice or a substitute for legal counsel.  It does not constitute advertising or solicitation. The information in this article may or may not reflect the most current legal developments; accordingly, this article is not guaranteed to be complete, and should not be considered an indication of future results.

It is the goal of this column to answer questions about QuickBooks and how it is used in the real estate investing arena. Submit your QuickBooks questions to me at Karen@SmallBusinessAdvisor.biz to get them answered here.

Q: I just purchased QuickBooks Pro 2013 and have my old file in my computer from an earlier version of QuickBooks. Do I have to start all over or can I upgrade my old file to 2013?

A: You can upgrade to the new version of QuickBooks once you have installed 2013.  Do not remove your old version of QuickBooks and do not allow the new version to “overwrite” it – install it in its own folder separate from the previous version. When the 2013 has been installed you will want to “Open a company” – follow the wizard to direct it to where your old version of QuickBooks “working” (QBW) file is in your computer. The window should be asking you to open the file.  When you click on open it will progress until it comes up with a window that tells you the file must upgrade – it will want to back up your old file first – this is why you still need the old version. Do the back up and then follow the wizard.  If you have issues with this process or are not comfortable doing this we are only a phone call away to set a time to do your upgrade.

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This is the big question that I get a lot! The true secret to success for a Real Estate Investor is finding sellers who really need to sell. I use several different targeted direct mail campaigns to locate different types of highly motivated sellers. Some examples of these types of mailings are out of state owners, estate and probate properties quit-claim deeds, expired listings, burned out landlords, vacant properties and pre-foreclosures, just to name a few.

The key to success using direct mail is customizing your direct mail piece and your list to reach exactly the kinds of motivated sellers you want to deal with in order to create the kinds of deals you want for your Real Estate Investing business. The very best way to do this is to locate mailing lists from reputable companies, refining them to meet your individual criteria, then mailing to these potential sellers again and again.

Investors often neglect to market to sellers in this way because they think the list is too difficult to get, or they only send the mailings once and quit. These are some of the easiest lists for you to obtain and it will be very profitable for you to do so. After having mailed thousands of letters and done hundreds of deals I can personally attest to the power of direct mail for finding all the motivated sellers you could want. Read More→

Many of the Sellers that are upside down on their home are stressed out and don’t know what to do.  First off, I want all Sellers to know that when they got a loan from the bank their money was given to the bank from an investor.  This investor could be a trust, reit, or maybe the government.  The bank guaranteed the investor or group of investors a set interest rate.  Many Sellers are attempting a loan modification hoping to keep their house.  I always ask my Sellers if could wave my wand what do you want from the bank.  Most of them will answer that they want the bank to reduce their balance on their loan or they want a certain amount for their monthly payment.  Here are some facts I want to share with the Sellers: Read More→

It amazes me how so many so called real estate investors who have been in the business for less than five years think they know enough about investing in profitable properties to be able to create a fortune. Think about this for a minute, if you have been an investor for 5 years or less the majority of your investing knowledge is based on trying to buy pretty houses, pay cash for them, or get institutional financing to fund your deals and at the same time believe you will eventually become wealthy using the plan you are currently using. If you got into the business when money was easy to get, your perception of what is a good deal is probably is not an accurate assumption.

Another important mistake beginning investors make is using dollars per square foot to determine the value of any property is not a prudent way to give you what any property is worth. Another reason I say investors who have been in the business less than 5 years is, almost everyone I meet who is trying to become a successful real estate investor think the only good deals are short-sale deals. In my opinion, this is failed, but constantly used way to buy property beginning investors use. Why you may be asking is investing in short-sale properties a failed plan? Here is some facts most potential short-sale investors don’t think about. First, if the investor needs fast money, short sales probably won’t be the answer to your needs. Most short-sale deals take months to close. Many take six to nine months to get through the short sale process. Read More→

Making creative offers is one of the most lucrative skills a real estate entrepreneur can master. Creative offers lead to creative financing and creative financing leads to faster financial freedom. I have built a portfolio of almost 400 units and I have never walked into a bank, qualified for a loan and put money down. I have a lot of bank loans now, but I took control of each property with some form of creative financing and then refinanced at a bank.

I did this by understanding one simple concept- “Solving people’s problems pays well!”

The first step to making offers that get accepted is to create an offer that solves one or all of these three problems; the seller’s problems, the properties problems, your problems.

You will need to gather a bit of information to effectively make your offer. Start by asking about the seller’s motivation to sell. Don’t always assume that money is the only motivation for a sale. Sellers often have other reasons for selling such as dealing with bad management or need to retire. Whatever the motivation is, finding a way to solve that person’s problem is key to writing an offer that gets accepted. A master lease works well for these situations. Read More→