First real estate deal as a lender

First real estate deal as a lender

Dallas, TX · Member since 2016 · 78 posts · 31 votes

Hello BP! I am one step closer to officially being an investor. I have been presented with a promissory note secured by real estate by a borrower, but I am very nervous about how to proceed with the drafted note provided by the borrower.

Could you guys glance over this note and tell me if there is another note I should use or if I should spend the whopping $3,000 consultation with a real estate attorney.

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TERMS

FOR VALUE RECEIVED, the Borrower promises to pay to the order of Lender, at its principal office located at ________ or at such other place that is designated in writing by the holder hereof, the principal sum of XXX Dollars ($XXX), together with all charges and interest herein provided, payable at the rate and in the manner hereinafter set forth:

Borrower shall make the payments of principal and interest at the rate of TWELVE PERCENT(12%) per annum based upon a twelve (12) month term with the period starting from the day the amount borrowers has been deposited into the Borrower's bank account estimated to be on 2/20/17 and the term will end 6 months after on 7/20/17. The total interests amount will be paid at the close of escrow when the property is resold to a new buyer. There will be no monthly payments and no points or loan fees.

This Note is and will be secured by a priority security interest in the real estate property of the Borrower. The Borrower, Huong Tran will personal guarantee the principal sum amount and the interest due by securing and collateralizing the following properties owned under the corporation named XXX, LLC and under (INDIVIDUAL)..

i. Property 1

ii. Property 2

iii. Property 3

iii.Property 4

iiii. Property 5

The initial term of this Straight Note Agreement shall be for the term of Six Months (6) (the "Initial Term") commencing on the date this Promissory Note Agreement is executed by authorized officers of XXX, LLC and Lender (individual name)

Borrower shall have the right to prepay all (but not a portion) of the indebtedness evidenced by this Note at any time, by paying the Lender an amount equal to the sum of (I) the principal balance then outstanding and (ii) all interest accrued to the date of such prepayment.

Lender and Borrower intend that the relationship created and evidenced by this Note and the Loan Documents shall be solely that of debtor and creditor. Nothing in this Note shall be construed as creating a joint venture, partnership, tenancy in common, or joint tenancy between Lender and Borrower.

In the event that the holder wish to withdraw any portions (with prior notice) of the principal amount during the term of this note, Holder will waive any/all interests earned and only the initial principal amount will be returned to the Holder. This note is subject to Section 2966 of the Civil Code, which provides that the LENDER of this note shall give written notice to the BORROWER, or his successor in interest, of prescribed information at least 90 days and not more than 150 days before any balloon payment is due upon requests.

All payments under this Note shall be made in lawful money of the United States of America. The principal amount of this Note may be prepaid, in whole or in part, at any time without penalty.

Should suit be commenced to collect this note or any portion thereof, such sum as the Court may deem reasonable shall be added hereto as attorney’s fees, the LENDER agrees to pay the costs of such additional sums as a court may adjudge reasonable as attorney's fees in any suit.

Documents shall be construed under the laws of the state CALIFORNIA of the UNITED STATES. Any alteration, change or modification of or to this Note, In order to become effective, shall be made by written instrument executed by both the Lender and the Borrower.


SIGNATRES AND NOTARIZATION BELOW

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I showed this to my attorney, not specialized in REI, and she said it's missing a ton of other aspects. Does anyone have any advice for me before I pay a RE attorney a grip of cash? Much appreciated!

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Lender · Los Angeles, CA · Member since 2015 · 399 posts · 174 votes
9y

Not a lawyer but 12% is usury in CA, unless you're licensed.  I presume the loan is in CA since your profile says San Jose.

Also, if it were me as lender I'd not agree up front to pay attorneys fees like your are, I would have borrower pay atty fees if collection is necessary.

Also, you better make darn sure know what the loan money is used for.  If the money is used for consumer purpose there are a boat load of disclosures, licenses and regulations you need to comply with.

Also, what is the value of the collateral, if should be substantially more than the loan amount or you could become partially unsecured both as a practical matter and subject to cram down or lien stripping if borrower decides to file BK.

Also, if you don't have a deed of trust to go with this note it's unsecured, it then becomes expensive toilet paper.

Also, you should get the deed of trust insured with a ALTA lenders policy.

Also, this may be a personal thing but I like monthly payments, not everything at the end.  Believe it or not borrowers tend to fall asleep at the wheel unless they have to write a check each month.

Also, you don't need to pay $3k to have this reviewed by a RE atty.  For $600-1000 a loan servicer or lending atty will draw docs (in your favor) for you, and charge it to the borrower.

Also, a RE attorney likely doesn't know jack about lending laws in CA, you need a lending atty.

Also, you should know, the state of CA has determined you cannot lend more than 10% of your net worth (exclusive of your house and auto) should you decide to go through a RE broker.  I personally don't agree with the 10% but you should probably make sure the loan amount isn't more than you are will to lose.

Other than that you're likely good to go.

See this reply in the discussion

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  • Dallas, TX · Member since 2016 · 78 posts · 31 votes
    9y

    @Account Closed my head is spinning. Making me dizzy and scaring the pants off me. Seems like the vibe I'm getting is that it simply is a bad idea to be 2nd overall. I am pretty certain the other 5 properties are not free and clear, i will probably be 2nd on those as well.

    If I get a promissory note and DOT, should I be concerned about he not being able to pay me back because the project goes sour? Or should I be more concerned about he ripping me off? Or equally both?

  • Lender · Los Angeles, CA · Member since 2015 · 399 posts · 174 votes
    9y

    @Ken T.

    Second position can work but it's much less forgiving then 1st and requires a lot knowledge.  Given your experience level I think you should stay away.

    I'm guessing the borrower offered you so many properties as collateral because none of them have any equity, it just looks safe.  That note is so borrower biased it's laughable.  The borrower is in charge here, not the lender ... that's opposite how it should be.  You should be following the golden rule ... he who holds the gold rules, not he who receives the gold rules.

    You pretty much can't get ripped off if you have a well secured loan with title insurance. If the loan is not well secured with title insurance you can lose money. I'm guessing the combined LTV is up around 80%-100% which is too high for 1st and insane for 2nd position. If the CLTV was below 50% a 2nd position might be fine.

    Ironically, chances are everything would work out just fine no matter how many guidelines you violate, but you just can't count on it.  For most of us this is hard earned money we lend, you need a good amount of certainty.

    If you know what you're doing the risk is very low, if you don't it's very high ... my favorite quote:

    Risk comes from not knowing what you're doing.

    -- Warren Buffett

  • Dallas, TX · Member since 2016 · 78 posts · 31 votes
    9y

    He will be using a HML. The purchase price is about $460k, he needs me to cover $100k. Sounds like it must be crazy than.

    Warren Buffet quote is short but extremely eye opening

  • Dallas, TX · Member since 2016 · 78 posts · 31 votes
    9y

    @Account Closed I really appreciate you giving me your perspective. Advice based on success and failures, a great free lesson for all BPers.

    With all factors considered, is there a middle ground that can be negotiated here to make a deal out of the given scenario? 

  • Northern, CA · Member since 2014 · 674 posts · 444 votes
    9y

    I've done a couple private money loans and just had my title company draw up the docs with no issues.  I wasn't using cross collateral however, that may make things more complicated.

  • Vendor · Bonney Lake, WA · Member since 2016 · 48 posts · 12 votes
    9y

    @Ken T....Congrats on your opportunity.  Find an experienced RE attorney and run this entire scenario past them...then listen to what they say. 

    As far as costs of the attorney...pass it thru to your buyers...or consider it an investment in yourself and the business you are building.  A loss would set your plans back or take you out of the game.

    Business situations plod along pretty tame...until questions about money surface...at which point it gets serious and comes down to being within the scope of the laws (i's dotted and t's crossed). 

    Here is an old saying to keep in mind:  "When a person with money meets a person with experience very often the person with experience ends up with the money and the person with money ends up with some experience".  I learned this the hard way many years ago on a business purchase and was 'parted' from a very large sum of money...the sting of which I have never forgotten.

    Read...then reread all the comments in this thread you started and work with an attorney on this one.

  • Investor · West Los Angeles, CA · Member since 2014 · 230 posts · 239 votes
    9y

    @Diane G.

    @Ken T. @Timothy Tung to answer everyone regarding losing $100k I didn't know what I was doing.  I invested $350k with someone who was dishonest.  It cost Me $100k in legal fees to get my money back which I did.  The guy is in federal prison.  

    So I'm just going to state the obvious.  This is a terrible deal and in my opinion there's no need to move forward to try & salvage this.  Don't come from a scarcity mentality there's plenty of opportunity out there.  Here's what's going on.  There's no equity in the property that you're lending on.  That is why he's cross callateralizing it with 5 properties.  Those properties have very little to no equity either hence the personal guarantee (which is worthless btw).  He's pitching it to you because you're inexperienced.  Experienced investors would pass on this.  You don't want to be in the collection/foreclosure business you want to be in the lending business.  The fact that's he's pitching you 12% on a second where's there's no equity is B.S.  way too much risk & he knows it.  I did a deal last year in 1st position for 13% plus a point. As for a personal guarantee in order for you to collect you need to go to go to court (time & money) then he files BK & you're done.  In order for you to cover a 2nd if it goes belly up is you need to be able to step in & pay for the first in cash.  You're being sold a bill of goods.  Don't fall for it.

    Maybe check out some of the crowdfunding opportunities. 

    Good luck

  • CA · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    @Account Closed

    I am learning a lot from you and hope to learn more.....Lol

    On your recent deal of 13%, did you do this on your own, or did you give your money to a professional HML? Thanks

  • Investor · West Los Angeles, CA · Member since 2014 · 230 posts · 239 votes
    9y

    I did it on my own.

  • CA · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    @Account Closed

    I know it is Friday late and you are probably busy with kids etc....When you have time to get back to this, can you share some details on this deal - what was the situation, how did you access risk, how did you find it etc etc etc...

    Thank you for sharing your knowledge and help those of us trying to learn here....

  • Investor · West Los Angeles, CA · Member since 2014 · 230 posts · 239 votes
    9y

    @Diane G.

    If you are looking to lend money start by networking in your area.  Find out who the developers are in your area.  Look at their current and previous projects and go to the physical job site.  Don't tell people you're interested in lending money because people will come out of the woodwork pitching you their deals.  Maybe narrow down 2 developers & take them out to coffee. Then if you are comfortable with them start talking about being a private lender on one of their houses.  Get references from them about current investors & call them to see what their experience was.  Once you decide to move forward make sure everything is reviewed by an attorney.  Another way is to work with a local hml and have them do the deal.  Be careful even with hml that they don't put you in a bad deal.

    Good luck

  • CA · Member since 2016 · 1k+ posts · 1k+ votes
    9y

    @Account Closed

    Thank you for pointing me a path to this, that is really really helpful....

    I will look for local developers right away.... Hope you have a good weekend......

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