Junior Lien Issue On My Foreclosure Purchase...

Junior Lien Issue On My Foreclosure Purchase...

Investor · Fernandina Beach, FL · Member since 2012 · 95 posts · 14 votes

Hello - I'm hoping someone on BP can point me in the right direction.

I bought and rehabbed a home at a foreclosure auction. I now have the home under contract for sale, but it appears I overlooked an issue with a junior lien on the property. I'm looking for advice on how best to proceed! 

Here is the situation...

The home had two liens against it - the original mortgage, and a line of credit. Both liens were held by the same mortgagee.

Lis Pendens were filed on both liens within a couple of months of one another. The senior lien then reached judgment, and went to auction, where I bid on the home and won. I assumed (incorrectly, of course, I'm a foreclosure newbie), that since the bank on each lien was the same, and that I was bidding on the action on the senior lien, that the junior lien would be resolved automatically.

My title agent is stating that since the mortgage company did not name themselves as a defendant on the senior lien lawsuit, that their junior lien is still outstanding and must be resolved before we can sell the house. So that’s the question - how best to proceed???

I think I have two options - I can contact the lender and see if they are willing to give me a lien release. The other option would be to file a lawsuit, which would take time and money, obviously. If I do this, would it be considered a quiet title action, an additional foreclosure, or what? Also, does anyone have tips on reaching the right person / group at the bank to discuss this? It's a regional institution.


Thanks for your help!

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Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
12y

Hey @Chad U. .  Yes, even though the same lender held both mortgages, they as the junior mortgagee would have to be listed as an additional defendant.  There really is no basis for a suit against the lender, the first or the second.  You are now the title holder, not a lien holder.  Some will suggest a Quiet Title suit, but that has no merit here, and could only serve to possibly, just possibly, get the 2nd mtg holder to the negotiating table, or so that's the theory of some.  I have seen instances where one lender holds the first and second on a property, and forecloses on the second, but not the first.  I wonder if that's intentional...hoping for some bidder's confusion or ignorance....or just happenstance.

Trying to negotiate out the second seems the best approach.  On this occasion, I would probably actually recommend having your RE attorney do it.  He can speak legalese, rattle some sabers, etc. in regard to proper foreclosure procedures, yadda yadda yadda.  Hopefully the foreclosure file contains the actual loan number which will help in identifying the specific loan.

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  • Residential Real Estate Broker · Chicago Suburbs, IL · Member since 2013 · 1k+ posts · 594 votes
    12y

    @Dustin DuFault 

    I know an attorney in Florida who deals with banks around the county to work things out on short sales and forclosures as her full time job; she negotiated a short sale I had waited 1.5 yrs to close on, in 2 days she made progress that the agent/attorney on the sellers side couldn't get done in 1.5 yrs. Apparently she knows the decision makers at the banks. Email me if you would like her contact info.

  • Dallas, TX · Member since 2013 · 4k+ posts · 744 votes
    12y

    I don't think the bank will release the lien to make you happy without payment just make then a fair offer to release the lien.

    Joe Gore

  • Investor · Fernandina Beach, FL · Member since 2012 · 95 posts · 14 votes
    12y

    @Kimberly H. Thank you, I will keep this in mind. Still mulling over my options.

    @Account Closed The thread Chronicles my research on a strategy to 're-foreclose' the original action, which would allow me to add in the junior mortgage. There is case law in Florida that allows me to do this as the purchaser at the original foreclosure auction. If I prevail in my strategy I'd be saving tens of thousands of dollars vs. paying on the lien, so that is the avenue I need to pursue. When I first found out about this junior lien I did not think I would be able to get rid of it without paying it off... but a reforeclosure action seems like it may save the day... 

  • Dallas, TX · Member since 2013 · 4k+ posts · 744 votes
    12y

    @Dustin DuFault,

    If you are in first position, you can foreclose on the junior lien, but you said it is a large amount so the lien holder of the junior lien might fight back, and then you will be going to arbitration. You might want to check your state laws and see once you foreclose that the property must go to auction.


    Joe Gore

  • Investor · Fernandina Beach, FL · Member since 2012 · 95 posts · 14 votes
    12y

    @Account Closed According to the research I've done - the course of litigation is determined by the right of redemption being foreclosed. In this case since the right of redemption being foreclosed would be that of a junior lien holder, their exercisable right of redemption would be to pay me off as 1st lien holder and take 1st position for a period certain (unlikely to happen since this would cost more than their lien to begin with). In other words the property shouldn't need to be auctioned off in this case. 

    There is a link on page 2 of this thread that does a decent job explaining the process. I should qualify all of the above by stating this has never been done in my district court, apparently, so YMMV (or should I say MMMV :-/ )

    I need to decide if I want to try and contact the bank myself tomorrow, or contact the banks council that filed the original foreclosure actions... or pay up and have my attorney file for the reforeclosure as a pre-emptive measure. 

    I'll post back when I decide, and what the results are!

  • Investor · Fernandina Beach, FL · Member since 2012 · 95 posts · 14 votes
    12y

    Hello All!

    I finally got resolution on my issue - and it's a happy ending! 

    My title company was able to reach out to the bank, who agreed to provide a lien release. I do not think I could have hoped for a better resolution. 

    So, in the end I was only out the $300 I spent in legal research before contacting the bank, and I did lose my sales contract on the house. So now I need to re-list it, which may be the biggest effect of this whole thing, really.

    Anyway, I came across this quote this week, which seems to have unending applications in Real Estate, and seems appropriate for my situation...

    Thanks to you all for chiming in with your ideas & support. It is much appreciated!!!

    Regards,

    Dustin DuFault

    @Wayne Brooks  

    @Chad U. 

    @Account Closed 

    P.S. Does anyone know what happened to K. Marie Poe??? I had asked her to chime in on this situation at the beginning - when we really didn't have any rapport between us - and she graciously did so. I know she was really active on BP. I wanted to be able to thank her for helping. :-/

  • Investor · Boca Raton, FL · Member since 2012 · 1k+ posts · 1k+ votes
    12y

    Congrats Dustin, glad to hear things turned out in your favor. 

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