šŸ˜µā€šŸ’«HELP!!šŸ˜µā€šŸ’«w/ Seller financed "agreement for sale/ contract for deed"

šŸ˜µā€šŸ’«HELP!!šŸ˜µā€šŸ’«w/ Seller financed "agreement for sale/ contract for deed"

Johnny McKeonPro Member
Rental Property Investor Ā· Mesa, AZ Ā· Member since 2016 Ā· 103 posts Ā· 72 votes

Hi biggerpockets šŸ‘‹


I'm working with an off Market seller who has five 4-plex's (20 units) in Mesa Arizona. 

Him and his wife are selling off all their properties except for a beach front property that they purchased in Madera beach Florida. They are selling everything because they are in their 60s and don't want to be in the rental business anymore and don't want their rental properties anymore and don't want them back and they want to move to their new property in Florida to redevelop it and they said they needed approximately $900,000 in their pocket to renovate their Florida property.

For the five 4-plex's they want to seller finance them. The buildings need interior renovations and the seller has approximately 6 empty units out of 20 and the rents are all below Market so this would be a value add project

Originally, they wanted to seller Finance doing a deed of trust and promissory note but now they want to seller finance doing an "agreement for sale" or "contract for deed" 

because they said they are worried about foreclosure. they don't want to go through a Lengthy foreclosure process and they just want to get their properties back easily if i was to default. 

They said part of selling to me is though they don't want their properties back and they just want to be done with them

I currently on 10 properties with 45 multi-family units in the Phoenix Arizona Metro Market and I showed them my bank account balance and I've showed them my credit score and that I've never missed a payment on any of my mortgages including the anyone deal that I did sell her financing and I paid back that seller. And the current seller finance deal that I have that I make payments on time every month

I am a licensed realtor here in the Phoenix Metro and I also am helping my 20yr old brother find a 4plex to house hack so he can follow in my footsteps. He's pre-approved with FHA 3.5% down at $600k so a little less than what some of the 4-plex's are selling for in the valley.

 The seller wants $720k for all 5 buildings but he agreed to sell one 4-plex to my brother for $600k but the $120,000 difference will be tacked on to my seller financed loan amount

Here's the seller financed purchase price when i buy the 4 buildings and my brother Purchases 1 building with FHA. The seller is not paying any commissions or any concessions

 Purchase price: $3,000,000 (4 buildings at $750k per)

Down payment: 10% = $300,000

Loan amount: = 2,700,000

Interest rate: 5.5% interest only

 monthly payment: $12,375 (due to sellers every month)


My main question and concern is does anybody have any familiarity with doing

 An "agreement for sale" or "contract for deed" that they can shed light on ?

I have done two seller financed deals where we just did a deed of trust and promissory note and I have some other properties that I just purchased out right using conventional loans, DSCR loans, VA and FHA for my house hacks

What are the pros and cons as a seller wanting to sell as an agreement for sale? 

And what are the pros and cons as a buyer wanting to buy as an agreement for sale?

How would this affect me remodeling the properties, getting a HELOC or doing a Cash out refinance later? From what I was reading it says I wouldn't actually own the property.

would you personally want to do an agreement for sale? Or Would you just explain better how a deed of trust and promissory note work?

Thank you so much to everybody for your help! I appreciate any wisdom or guidance that you can share

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Most Popular Reply

Lender Ā· Washington DC Ā· Member since 2015 Ā· 2k+ posts Ā· 2k+ votes
3y

Unless you solely own on title real estate you cannot refinance, it's considered a purchase loan if you want to get a loan.

Seller who remains ownership/title can refinance with cash out. If seller had to file BK the properties go into the BK. Any lawsuit on seller can get recorded on title as lis pendens and eventually be a judgement.

No down payment and 5.5 rate are great plus(es). However, how will you know if he pays off the existing mortgages? You can't get title insurance to cover you in the event of default/his probate if he dies/liens/... 

Who holds the wet signed contract? Is it recordable?

You need to vet the seller. Are you willing to marry him? ( I use this term often to demonstrate the level of trust you need.) 

See this reply in the discussion

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  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Caroline Gerardo @Steve Vaughan Not sure if they do anymore but I have certainly seen lenders treat property that is occupied by the borrower as a primary residence under a land installment contract OR a lease option as a refinance... complete with 3 day rescission period.

    @Tom Gimer: (Not trying to hijack the thread but)

    This just happened

    In a Probate sale, 3 heirs: John, Bob, Jill

    Jill is appointed Personal Rep (PR) No attorney involved.

    Jill notifies John but intentionally doesn’t notify Bob. John keeps quiet.

    Jill sells the property to a wholesaler who is in on the scheme, quickly for cash, at considerably below fair market value. (speed of sale )

    The Title & Escrow company was informed by an outside party, of this intentional omission but closes the sale of the property anyway to an innocent third party.

    Jill & John split the proceeds. (obvious honesty and probate problems & Jill omitted Bob on all probate & closing forms, but that isn’t the question here,)

    The paperwork from the probate court says Jill is the PR and has properly filled out the Probate paperwork.

    1. Is it standard procedure for a Title company to allow a closing when they know an heir has been intentionally omitted from probate?

    2. When Bob finds out he was scammed and wants his piece of the pie, the pie of which was diminished by a ā€œsweet dealā€ transaction, does he have recourse with the Title company?

    1. No, generally if a title agent becomes aware there is a possibility of someone who is not part of the sale may have an unrecorded interest be it an heir, an option holder or a grantee on an unrecorded deed, the agent would contact the underwriting department of the insurer for instructions on how to proceed.

    2.  Bob is not an insured so no, he doesn't have recourse against the insurer.  However, if Bob is an heir and has an interest in the property, he probably has a basis for a quiet title action against the grantee to establish he has a 1/3 interest in the property.  That should trigger coverage under the title policy issued to the grantee assuming there isn't an exception for Bob's interest in the policy.


  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Chris Seveney:

    @Peter Walther

    I agree but from my experience 90%+ are never recorded because purchaser does not use an attorney for the process and has no clue on how the process should work.

    I can't speak to percentages but have come across them recorded.  Because it's in my nature, I just searched the Orange County, Florida Public Records for Agreement For Deed(s) between 01/01/2023 and 09/30/2023 and much to my surprise found 14 of them indexed.  There must be so many of then the Clerk has set up the term as an instrument type search term.


  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Caroline Gerardo:

    What did the will say that Jill filed in the court? Was there fraud in her probate filing? She filed under penalty of perjury. Go get copy of what she filed, will likely omits Bob. Title company has access to court filings but they don't know what Mom's will said or what she intended.

    What or how was provided to Title Officer to prove the cloud that Bob is an heir? They needed to show another will and Mom was competent to change it.

    Without seeing what Jill did or what the unknown person sent to whom my guess is Bob has to sue Jill and John. Bob will need the last legal will and probably one with wet signatures to show the court. 

    My guess is Bob cannot win against the title company in court. If he wins against Jill in whatever county/state court he could overturn the sale and get damages, Jill might also get jail time if she defrauded everyone. (25 years in some states) @Account Closed


    I think Bob doesn't need to sue Jill and John since Bob's interest was not conveyed.  I believe Bob still has a 1/3 interest in the property though Bob may need to bring a quiet title action or a declaratory judgment action against the grantee to establish his interest, but it doesn't need to include Jill and John.  In fact, they may be improper parties to the action at that juncture.

    Now the grantee defendant may bring a third-party complaint against the wholesaler grantor and he in turn might third party in Jill and John, all for breach of the deed warranties (assuming the conveyances were not by quit claim deeds) possibly by the insurer if there's policy coverage.  Though if the wholesaler knew of Bob's interest he wasn't defrauded by Jill and John's action and there wouldn't be title insurance coverage even if the wholesaler received a policy.

    I suspect if Bob tried to file a police report about the situation he would be turned away because again, he hasn't been damaged by Jill, John or the wholesaler's actions.  Even the grantee may have difficulty since they may have a source of recovery for any damage through the title policy, unless the state's attorney is particularly aggressive about white collar crime.

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Peter Walther:
    Quote from @Caroline Gerardo:

    What did the will say that Jill filed in the court? Was there fraud in her probate filing? She filed under penalty of perjury. Go get copy of what she filed, will likely omits Bob. Title company has access to court filings but they don't know what Mom's will said or what she intended.

    What or how was provided to Title Officer to prove the cloud that Bob is an heir? They needed to show another will and Mom was competent to change it.

    Without seeing what Jill did or what the unknown person sent to whom my guess is Bob has to sue Jill and John. Bob will need the last legal will and probably one with wet signatures to show the court. 

    My guess is Bob cannot win against the title company in court. If he wins against Jill in whatever county/state court he could overturn the sale and get damages, Jill might also get jail time if she defrauded everyone. (25 years in some states) @Account Closed


    I think Bob doesn't need to sue Jill and John since Bob's interest was not conveyed.  I believe Bob still has a 1/3 interest in the property though Bob may need to bring a quiet title action or a declaratory judgment action against the grantee to establish his interest, but it doesn't need to include Jill and John.  In fact, they may be improper parties to the action at that juncture.

    Now the grantee defendant may bring a third-party complaint against the wholesaler grantor and he in turn might third party in Jill and John, all for breach of the deed warranties (assuming the conveyances were not by quit claim deeds) possibly by the insurer if there's policy coverage.  Though if the wholesaler knew of Bob's interest he wasn't defrauded by Jill and John's action and there wouldn't be title insurance coverage even if the wholesaler received a policy.

    I suspect if Bob tried to file a police report about the situation he would be turned away because again, he hasn't been damaged by Jill, John or the wholesaler's actions.  Even the grantee may have difficulty since they may have a source of recovery for any damage through the title policy, unless the state's attorney is particularly aggressive about white collar crime.


     I should have written "to establish his interest of record"

  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    Gimer Law516 Reviews
  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y

    @Peter Walther @Chris Seveney

    I believe Bob has a 1/5 interest... meaning the buyer owns only 40% of the property.

    Here's the law on failing to record LIC in Maryland...

    Within 15 days after the contract is signed by both the vendor and purchaser, the vendor shall cause the contract to be recorded among the land records of the county where the property lies and shall mail the recorder’s receipt to the purchaser. This duty of recordation and mailing of receipt shall be written clearly or printed on the contract. Failure to do so, or to record as required under this section within the time stipulated, gives the purchaser the unconditional right to cancel the contract and to receive immediate refund of all payments and deposits made on account of or in contemplation of the contract, if the purchaser exercises the right to cancel before the vendor records the contract.

    Oh and @Account Closed yes, you hijacked the thread.

    Gimer Law516 Reviews
  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y
    Quote from @Peter Walther:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Caroline Gerardo @Steve Vaughan Not sure if they do anymore but I have certainly seen lenders treat property that is occupied by the borrower as a primary residence under a land installment contract OR a lease option as a refinance... complete with 3 day rescission period.

    @Tom Gimer: (Not trying to hijack the thread but)

    This just happened

    In a Probate sale, 3 heirs: John, Bob, Jill

    Jill is appointed Personal Rep (PR) No attorney involved.

    Jill notifies John but intentionally doesn’t notify Bob. John keeps quiet.

    Jill sells the property to a wholesaler who is in on the scheme, quickly for cash, at considerably below fair market value. (speed of sale )

    The Title & Escrow company was informed by an outside party, of this intentional omission but closes the sale of the property anyway to an innocent third party.

    Jill & John split the proceeds. (obvious honesty and probate problems & Jill omitted Bob on all probate & closing forms, but that isn’t the question here,)

    The paperwork from the probate court says Jill is the PR and has properly filled out the Probate paperwork.

    1. Is it standard procedure for a Title company to allow a closing when they know an heir has been intentionally omitted from probate?

    2. When Bob finds out he was scammed and wants his piece of the pie, the pie of which was diminished by a ā€œsweet dealā€ transaction, does he have recourse with the Title company?

    1. No, generally if a title agent becomes aware there is a possibility of someone who is not part of the sale may have an unrecorded interest be it an heir, an option holder or a grantee on an unrecorded deed, the agent would contact the underwriting department of the insurer for instructions on how to proceed.

    2.  Bob is not an insured so no, he doesn't have recourse against the insurer.  However, if Bob is an heir and has an interest in the property, he probably has a basis for a quiet title action against the grantee to establish he has a 1/3 interest in the property.  That should trigger coverage under the title policy issued to the grantee assuming there isn't an exception for Bob's interest in the policy.


    It's possible the buyer didn't obtain TI... also possible the claim would not be covered by the policy because if he/she was aware of the undisclosed heir, the buyer created or assumed the problem.

    Gimer Law516 Reviews
  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y
    Quote from @Tom Gimer:

    @Peter Walther @Chris Seveney

    I believe Bob has a 1/5 interest... meaning the buyer owns only 40% of the property.

    Here's the law on failing to record LIC in Maryland...

    Within 15 days after the contract is signed by both the vendor and purchaser, the vendor shall cause the contract to be recorded among the land records of the county where the property lies and shall mail the recorder’s receipt to the purchaser. This duty of recordation and mailing of receipt shall be written clearly or printed on the contract. Failure to do so, or to record as required under this section within the time stipulated, gives the purchaser the unconditional right to cancel the contract and to receive immediate refund of all payments and deposits made on account of or in contemplation of the contract, if the purchaser exercises the right to cancel before the vendor records the contract.

    Oh and @Account Closed yes, you hijacked the thread.

    Oh and @Mike Hern "yes, you hijacked the thread." Thanks for the response, though. ;-)

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    I didn't catch the fact there were two deceased children, so yes Bob owns 20% of the property.  As I wrote above, I believe neither he and now the heirs of the two dead siblings, have been defrauded.  Unless of course the two deceased children either died intestate and without children in which case their siblings would inherit or died with a will leaving the property to them.

    I also should have added, Bob will need to go into mom's probate and have the court rule he is the legal child of mom and is entitled to a portion of her estate.  With the added fact of two deceased children, of course their estates will need to be probated to determine their heirs or beneficiaries.  In addition, Bob may have a cause of action for fraud against Jill and John if there was other personal property, including cash, that they divided up amongst the two of them.
  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y

    @Peter Walther @Tom Gimer:   Good info. I appreciate the insights. That's all I need at this point. Thanks

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Peter Walther:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Caroline Gerardo @Steve Vaughan Not sure if they do anymore but I have certainly seen lenders treat property that is occupied by the borrower as a primary residence under a land installment contract OR a lease option as a refinance... complete with 3 day rescission period.

    @Tom Gimer: (Not trying to hijack the thread but)

    This just happened

    In a Probate sale, 3 heirs: John, Bob, Jill

    Jill is appointed Personal Rep (PR) No attorney involved.

    Jill notifies John but intentionally doesn’t notify Bob. John keeps quiet.

    Jill sells the property to a wholesaler who is in on the scheme, quickly for cash, at considerably below fair market value. (speed of sale )

    The Title & Escrow company was informed by an outside party, of this intentional omission but closes the sale of the property anyway to an innocent third party.

    Jill & John split the proceeds. (obvious honesty and probate problems & Jill omitted Bob on all probate & closing forms, but that isn’t the question here,)

    The paperwork from the probate court says Jill is the PR and has properly filled out the Probate paperwork.

    1. Is it standard procedure for a Title company to allow a closing when they know an heir has been intentionally omitted from probate?

    2. When Bob finds out he was scammed and wants his piece of the pie, the pie of which was diminished by a ā€œsweet dealā€ transaction, does he have recourse with the Title company?

    1. No, generally if a title agent becomes aware there is a possibility of someone who is not part of the sale may have an unrecorded interest be it an heir, an option holder or a grantee on an unrecorded deed, the agent would contact the underwriting department of the insurer for instructions on how to proceed.

    2.  Bob is not an insured so no, he doesn't have recourse against the insurer.  However, if Bob is an heir and has an interest in the property, he probably has a basis for a quiet title action against the grantee to establish he has a 1/3 interest in the property.  That should trigger coverage under the title policy issued to the grantee assuming there isn't an exception for Bob's interest in the policy.


    It's possible the buyer didn't obtain TI... also possible the claim would not be covered by the policy because if he/she was aware of the undisclosed heir, the buyer created or assumed the problem.


     I agree it's possible the end buyer didn't receive a title policy.  I can tell you the bar for excluding coverage for a matter suffered assumed or agreed to is pretty high.  Some courts have ruled that not only does the insured have to have known about the matter (based on the information available I think created by wouldn't apply), but they also have had to understood the ramifications of assuming the matter.  That's why I would expect if the agent knew about Bob's interest, there's an exception in the policy.

  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y
    Quote from @Peter Walther:
    Quote from @Tom Gimer:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    I didn't catch the fact there were two deceased children, so yes Bob owns 20% of the property.  As I wrote above, I believe neither he and now the heirs of the two dead siblings, have been defrauded.  Unless of course the two deceased children either died intestate and without children in which case their siblings would inherit or died with a will leaving the property to them.

    I also should have added, Bob will need to go into mom's probate and have the court rule he is the legal child of mom and is entitled to a portion of her estate.  With the added fact of two deceased children, of course their estates will need to be probated to determine their heirs or beneficiaries.  In addition, Bob may have a cause of action for fraud against Jill and John if there was other personal property, including cash, that they divided up amongst the two of them.

    Peter, most people are not going to understand the defrauded vs. attempted to be defrauded issue. And whether there is still a vested property interest vs. whether it has been stolen as intended. Think HomeTitleLock and how people perceive the effect of a fraudulent deed.

    The heirs are going to need to spend cash they may not have to protect their interests. If they do nothing, they've lost their inheritance. That's defrauded in my book.

    Gimer Law516 Reviews
  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y
    Quote from @Tom Gimer:
    Quote from @Peter Walther:
    Quote from @Tom Gimer:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    I didn't catch the fact there were two deceased children, so yes Bob owns 20% of the property.  As I wrote above, I believe neither he and now the heirs of the two dead siblings, have been defrauded.  Unless of course the two deceased children either died intestate and without children in which case their siblings would inherit or died with a will leaving the property to them.

    I also should have added, Bob will need to go into mom's probate and have the court rule he is the legal child of mom and is entitled to a portion of her estate.  With the added fact of two deceased children, of course their estates will need to be probated to determine their heirs or beneficiaries.  In addition, Bob may have a cause of action for fraud against Jill and John if there was other personal property, including cash, that they divided up amongst the two of them.

    Peter, most people are not going to understand the defrauded vs. attempted to be defrauded issue. And whether there is still a vested property interest vs. whether it has been stolen as intended. Think HomeTitleLock and how people perceive the effect of a fraudulent deed.

    The heirs are going to need to spend cash they may not have to protect their interests. If they do nothing, they've lost their inheritance. That's defrauded in my book.

    At least in Arizona, where this one is happening, the Attorney General is active in investigating the occurrences of Probate fraud, when made aware of them. But, I already knew that, and I was curious what a Title company would do.

    For some reason, according to the news here, there is an unusually high number of people selling properties they don't own, to unsuspecting people looking for vacation homes (to avoid what most of the country calls winter.) Buying as cash transactions and as Unsophisticated buyers who don't order Title.

    What's different here, is that it’s a Probate and I know the details. I know the Title company was made aware, yet they went on with the closing anyway. I'm suspecting that what @Peter Walther: said "That's why I would expect if the agent knew about Bob's interest, there's an exception in the policy." is likely what occurred.

    What makes it even more intriguing is that the wholesaler involved, filled out the Probate paperwork for the heir using intentionally defective information. The wholesaler is neither an attorney nor a licensed document preparer. The AZ Bar found that part to be interesting information as you might imagine. Fully documented.

    Once assigned and closed, the wholesaler got his assignment fee and abandoned the Probate without noticing creditors or heirs or filing taxes or completing the Probate. It was not a one time occurrence with the wholesaler. Next move will be the Attorney General’s.

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Tom Gimer:
    Quote from @Peter Walther:
    Quote from @Tom Gimer:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    I didn't catch the fact there were two deceased children, so yes Bob owns 20% of the property.  As I wrote above, I believe neither he and now the heirs of the two dead siblings, have been defrauded.  Unless of course the two deceased children either died intestate and without children in which case their siblings would inherit or died with a will leaving the property to them.

    I also should have added, Bob will need to go into mom's probate and have the court rule he is the legal child of mom and is entitled to a portion of her estate.  With the added fact of two deceased children, of course their estates will need to be probated to determine their heirs or beneficiaries.  In addition, Bob may have a cause of action for fraud against Jill and John if there was other personal property, including cash, that they divided up amongst the two of them.

    Peter, most people are not going to understand the defrauded vs. attempted to be defrauded issue. And whether there is still a vested property interest vs. whether it has been stolen as intended. Think HomeTitleLock and how people perceive the effect of a fraudulent deed.

    The heirs are going to need to spend cash they may not have to protect their interests. If they do nothing, they've lost their inheritance. That's defrauded in my book.


    I stand by my analysis Tom.  Assuming Bob could find an attorney to file a suit against Jill and John for fraud or if Bob filed it pro se, I suspect their attorney would have it dismissed on a motion.  If it were in Florida, they might even be able to receive an attorney's fee award for a frivolously filed suit (F.S. 57.105).  I believe one of the requirements for a successful fraud suit is damages.  Bob hasn't suffered any caused by Jill and John's signing a deed that does not and cannot convey his interest.  The probate court might take issue with their apparent misrepresentations to it.

    If Bob failed to take any action, even if it is simple as recording an affidavit of interest, sometime down the road a court might quiet the title against him based on estopple and/or laches, but I'm not aware of any statute of limitations that would extinguish his interest. 

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Account Closed:
    Quote from @Tom Gimer:
    Quote from @Peter Walther:
    Quote from @Tom Gimer:
    Quote from @Account Closed:
    Quote from @Tom Gimer:

    @Account Closed If there are "heirs", there is no will to probate. How do you know who the true heirs are? What are Jill, John and Bob... 3 children of a deceased parent?

    The title company should be able to rely upon official probate paperwork, but once they are given notice of a potentially undisclosed heir, that may create a legal duty to inquire further and perhaps a duty to the undisclosed heir. If that is the case Bob would need to prove his case under some negligence theory (or quasi-negligence theory which allows purely economic damages) or some consumer protection statute in X state.

    So, IMO it's possible but not probable.

    No will.
    deceased spouse
    3 living adult children
    2 decesased adult children.
    This information comes from the Obituary

    Your comment: negligence theory
    Not one that I thought of - interesting though


    PR defrauded 3 branches of siblings/descendants... not just 1.

    If the buyer was aware perhaps take immediate action to attach the proceeds and unwind the deal.

    I didn't catch the fact there were two deceased children, so yes Bob owns 20% of the property.  As I wrote above, I believe neither he and now the heirs of the two dead siblings, have been defrauded.  Unless of course the two deceased children either died intestate and without children in which case their siblings would inherit or died with a will leaving the property to them.

    I also should have added, Bob will need to go into mom's probate and have the court rule he is the legal child of mom and is entitled to a portion of her estate.  With the added fact of two deceased children, of course their estates will need to be probated to determine their heirs or beneficiaries.  In addition, Bob may have a cause of action for fraud against Jill and John if there was other personal property, including cash, that they divided up amongst the two of them.

    Peter, most people are not going to understand the defrauded vs. attempted to be defrauded issue. And whether there is still a vested property interest vs. whether it has been stolen as intended. Think HomeTitleLock and how people perceive the effect of a fraudulent deed.

    The heirs are going to need to spend cash they may not have to protect their interests. If they do nothing, they've lost their inheritance. That's defrauded in my book.

    At least in Arizona, where this one is happening, the Attorney General is active in investigating the occurrences of Probate fraud, when made aware of them. But, I already knew that, and I was curious what a Title company would do.

    For some reason, according to the news here, there is an unusually high number of people selling properties they don't own, to unsuspecting people looking for vacation homes (to avoid what most of the country calls winter.) Buying as cash transactions and as Unsophisticated buyers who don't order Title.

    What's different here, is that it’s a Probate and I know the details. I know the Title company was made aware, yet they went on with the closing anyway. I'm suspecting that what @Peter Walther: said "That's why I would expect if the agent knew about Bob's interest, there's an exception in the policy." is likely what occurred.

    What makes it even more intriguing is that the wholesaler involved, filled out the Probate paperwork for the heir using intentionally defective information. The wholesaler is neither an attorney nor a licensed document preparer. The AZ Bar found that part to be interesting information as you might imagine. Fully documented.

    Once assigned and closed, the wholesaler got his assignment fee and abandoned the Probate without noticing creditors or heirs or filing taxes or completing the Probate. It was not a one time occurrence with the wholesaler. Next move will be the Attorney General’s.


    I wonder if Jill and John actually knew about the probate or if the whole thing is a fraud including the deed from them?

  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y

    @Peter Walther I've given this some more thought. 

    The only representative required to sign the deed and convey a 100% interest in the land signed it. Bob and the other 2 branches of heirs are only entitled to share in the residuary estate. Their signatures were never going to be required to convey the land. The power to transfer it lies solely with the PR.

    You're looking at this from a title insurance perspective. Look at it from the perspective of a bona fide purchaser for value... the end buyer. He/she has a deed to the land executed by the Estate's legal representative. Tell me upon what legal basis Bob still has an interest in the land rather than the proceeds.

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  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y
    Quote from @Peter Walther:
    Quote from @Account Closed:

    I wonder if Jill and John actually knew about the probate or if the whole thing is a fraud including the deed from them?

    Jill and John did actually know. Jill complained that the other party who made an offer, refused to fill out the paperwork for her and instead, referred her to a probate attorney. As he should have done, of course.

    The wholesaler made it "easy" and did all of the paperwork for her. She believes the wholesaler and co-operated with the wholesaler. And what the hay, it closed and they got their money. I don't think either of the heirs believes there is a consequence, other than getting money. 
  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y
    Quote from @Tom Gimer:

    @Peter Walther I've given this some more thought. 

    The only representative required to sign the deed and convey a 100% interest in the land signed it. Bob and the other 2 branches of heirs are only entitled to share in the residuary estate. Their signatures were never going to be required to convey the land. The power to transfer it lies solely with the PR.

    You're looking at this from a title insurance perspective. Look at it from the perspective of a bona fide purchaser for value... the end buyer. He/she has a deed to the land executed by the Estate's legal representative. Tell me upon what legal basis Bob still has an interest in the land rather than the proceeds.

    I think this is the direction they will end up going:

    "Probate Fraud takes place when someone submits an improper Will or false information with the intent to deceive.

    An Executor has an obligation to expeditiously bring the estate to a conclusion maximizing the beneficiary’s inheritance. The Executor must gather the estate assets, settle the deceased’s debts and then distribute what remains according to the Will or the Rules of Intestacy."


  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Tom Gimer:

    @Peter Walther I've given this some more thought. 

    The only representative required to sign the deed and convey a 100% interest in the land signed it. Bob and the other 2 branches of heirs are only entitled to share in the residuary estate. Their signatures were never going to be required to convey the land. The power to transfer it lies solely with the PR.

    You're looking at this from a title insurance perspective. Look at it from the perspective of a bona fide purchaser for value... the end buyer. He/she has a deed to the land executed by the Estate's legal representative. Tell me upon what legal basis Bob still has an interest in the land rather than the proceeds.


    Since Bob apparently was not party to the probate, I believe none of the actions are binding on him.  The same holds true for a creditor of the estate, unless the claim has been barred by a statute of limitation.  You cannot be a BFP against someone who's rights have not been adjudicated.

  • Specialist Ā· Winter Springs, FL Ā· Member since 2009 Ā· 1k+ posts Ā· 747 votes
    3y
    Quote from @Account Closed:
    Quote from @Peter Walther:
    Quote from @Account Closed:

    I wonder if Jill and John actually knew about the probate or if the whole thing is a fraud including the deed from them?

    Jill and John did actually know. Jill complained that the other party who made an offer, refused to fill out the paperwork for her and instead, referred her to a probate attorney. As he should have done, of course.

    The wholesaler made it "easy" and did all of the paperwork for her. She believes the wholesaler and co-operated with the wholesaler. And what the hay, it closed and they got their money. I don't think either of the heirs believes there is a consequence, other than getting money. 

    And for them there might not be since apparently they didn't defraud the court, the wholesaler, the wholesaler's grantee or their brother, who I believe still has an interest in the property.

  • Investor Ā· Scottsdale Austin Tuktoyaktuk Ā· Member since 2021 Ā· 4k+ posts Ā· 4k+ votes
    3y
    Quote from @Peter Walther:
    Quote from @Account Closed:
    Quote from @Peter Walther:
    Quote from @Account Closed:

    I wonder if Jill and John actually knew about the probate or if the whole thing is a fraud including the deed from them?

    Jill and John did actually know. Jill complained that the other party who made an offer, refused to fill out the paperwork for her and instead, referred her to a probate attorney. As he should have done, of course.

    The wholesaler made it "easy" and did all of the paperwork for her. She believes the wholesaler and co-operated with the wholesaler. And what the hay, it closed and they got their money. I don't think either of the heirs believes there is a consequence, other than getting money. 

    And for them there might not be since apparently they didn't defraud the court, the wholesaler, the wholesaler's grantee or their brother, who I believe still has an interest in the property.

    The fraud is that

    A.R.S. Sup.Ct.Rules, Rule 31
    (b) Definition. ā€œPractice of lawā€ means providing legal advice or services to or for another by:
    (3)
    preparing a document, in any medium, on behalf of a specific person or entity for filing in any court, administrative agency, or tribunal;
    (5)
    preparing a document, in any medium, intended to affect or secure a specific person's or entity's legal rights.

    In Arizona, it's not lawful to file Probate papers for someone, if you are not an attorney or a licensed ā€œLegal Document Preparerā€

    Since the wholesaler is neither an attorney nor a recognized ā€œLegal Document Preparerā€, the AZ BAR is looking into their "possibly practicing law."

    I suspect that if they are decided to be illegally practicing law, the filing they did for Probate was fraudulent. In addition, I’d argue that they received substantial benefit (compensation) by getting the property at a discount by taking illegal actions. Getting paid to do legal work you aren’t allowed to do is probably a ā€œno, noā€.

    But, that is a different matter altogether, than my original question of what would a Title company do. So, I didn't want to confuse the issue by bringing it up. I only mention it since you brought up defrauding the court and yes, it looks like maybe they did.  

  • Lender Ā· Greater LA/Orange County area, CA Ā· Member since 2012 Ā· 3k+ posts Ā· 3k+ votes
    3y

    I haven’t encountered a Contract For Deed transaction for decades. They gained popularity in the late ā€˜70’s and early ā€˜80’s when interest rates were in the teens and money in short supply.

    They also became popular with promoters, ā€œdream merchant gurusā€ and fraudsters who saw an easy way to cut themselves into a deal without putting any of their own money into them.

    I do a lot of probate and trust litigation work and have completed several thousand of my own deals over (45) years as a specialist.

    However, I don’t think that’s going to be the issue here. The ones that I’ve seen go bad is because, operationally, title insurability becomes a big issue. Sometimes these were structured with an escrow that holds transfer deeds and funds. Sometimes a contract was recorded but perfecting title became a latent issue as other flaws attached to seller during the contract period. 
    In some cases, sellers ability or cooperation was interfered with and could not be relied on due to a plethora of issues.

    I would urge you to hire an older attorney who has plenty of experience with these transactions in the past. Also, I'd consider a way that your sellers could transfer now, record DOT's for your purchase money note(s) and have a pre-planned way to liquidate the notes should a default occur. They get their money and you, as buyer, would retain normal owner-in-default remedies.

  • Tom GimerBusiness Member
    DMV Ā· Member since 2017 Ā· 3k+ posts Ā· 3k+ votes
    3y
    Quote from @Peter Walther:
    Quote from @Tom Gimer:

    @Peter Walther I've given this some more thought. 

    The only representative required to sign the deed and convey a 100% interest in the land signed it. Bob and the other 2 branches of heirs are only entitled to share in the residuary estate. Their signatures were never going to be required to convey the land. The power to transfer it lies solely with the PR.

    You're looking at this from a title insurance perspective. Look at it from the perspective of a bona fide purchaser for value... the end buyer. He/she has a deed to the land executed by the Estate's legal representative. Tell me upon what legal basis Bob still has an interest in the land rather than the proceeds.


    Since Bob apparently was not party to the probate, I believe none of the actions are binding on him.  The same holds true for a creditor of the estate, unless the claim has been barred by a statute of limitation.  You cannot be a BFP against someone who's rights have not been adjudicated.

    The inquiry goes much deeper than that and it's definitely not so simple and clear. Whether this would be viewed under the BFP doctrine of well-developed AZ case law or whether the statutory framework for transferring real property by affidavit (outlined and analyzed in this case: https://caselaw.findlaw.com/court/az-court-of-appeals/146015...) would apply depends upon the property value and all of the facts of the case. If you read the above case Bob may lose under both... and be forced to pursue the fraud / breach of fiduciary duty claims.

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  • Kansas City, MO Ā· Member since 2017 Ā· 29 posts Ā· 3 votes
    3y

    @Erik Browning I noticed your a pro. "I'm currently seeking the expertise of a real estate tax professional. I believe that there may be untapped potential in my real estate investment strategy, and I want to ensure that I'm not leaving any money on the table. Your assistance and guidance in optimizing my tax strategy would be greatly appreciated. Please, I need your help."

  • Kansas City, MO Ā· Member since 2017 Ā· 29 posts Ā· 3 votes
    3y

    @Johnny McKeon Johnny I noticed your a pro "I'm currently seeking the expertise of a real estate tax professional. I believe that there may be untapped potential in my real estate investment strategy, and I want to ensure that I'm not leaving any money on the table. Your assistance and guidance in optimizing my tax strategy would be greatly appreciated. Please, I need your help."

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