CA Attorney for Dodd-Frank seller financed questions

CA Attorney for Dodd-Frank seller financed questions

Rental Property Investor · La Quinta, CA · Member since 2014 · 1k+ posts · 779 votes

Hi All-

    I've read many contradicting things with regards to how Dodd Frank impacts seller financing, both here on BP and elsewhere.  In particular if it applies to non-owner occupied properties, or raw land, what exactly the guidelines are for the up to 3 seller financed properties per year, etc.  I'd also like to make sure I am not violating any CA usury laws.

     Can someone recommend a CA attorney that's 100% up to speed on all of this?  I think it's worth it to me to shell out for one very expensive hour or two of an expert's time, as opposed to getting this wrong.

   Also if someone has a document they can reference that provides solid background that'd be awesome too......perhaps to frame the above conversation.

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  Some of my questions are related to:

-Difference in rules between 1 property per year, and 3 per year seller financed, as an individual, or as an LLC, and what happens with multi-member LLCs and who's "count" those properties applies to

-Whether Dodd Frank applies to raw land, improved land, properties the buyer is not planning to owner occupy, etc. and if any of those are exempt, what paperwork I should have the buyer sign at closing to state this.

-In cases where balloon payments are frowned on, can you require principal reductions?

-If the interest rate is fixed, what is the max interest rate, assuming the buyer has the ability to pay?

-If there is a certain minimum loan term, or if a very short period is OK, if the buyer has the ability to pay.

-If I need to verify ability to pay from buyers who will not be occupying the property or using it as their residence.

Appreciate any help!

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Investor · Dallas, TX · Member since 2014 · 2k+ posts · 1k+ votes
12y

@John D. 

Dodd-Frank doesn't impact non-owner occupied properties and isn't designed to protect investors.  Investors are deemed to be able to protect themselves.  Dodd-Frank was designed to protect individual borrowers - homeowners - from predatory lending practices.  The best and most understandable discussion I've seen about Dodd-Frank's impact on Seller Financing is courtesy of the National Association of Realtors.  You can find it here...

http://www.ksefocus.com/billdatabase/clientfiles/172/4/1720.pdf

Depending upon what strategy you are looking at leveraging, a lawyer may or may not be necessary. Why? Because I would strongly - in the strongest way - encourage you to use an RMLO licensed to do business in your state. Leveraging them protects you from any potential liability related to seller financing. If you have more expansive concerns about Dodd-Frank's impact on REI in general, then definitely seek out the advice of an experienced real estate attorney.

One of the things that make Dodd-Frank so intimidating is the fact that the Act leaves a great deal for each individual state's discretion.  Dodd-Frank lays out some very broad restrictions & requirements and then charges the states with figuring out how they interpret Dodd's requirements and how they will implement them.  You're going to need a lawyer to sort through those. 

Hattie

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  • Investor · Dallas, TX · Member since 2014 · 2k+ posts · 1k+ votes
    12y

    @John D. 

    Dodd-Frank doesn't impact non-owner occupied properties and isn't designed to protect investors.  Investors are deemed to be able to protect themselves.  Dodd-Frank was designed to protect individual borrowers - homeowners - from predatory lending practices.  The best and most understandable discussion I've seen about Dodd-Frank's impact on Seller Financing is courtesy of the National Association of Realtors.  You can find it here...

    http://www.ksefocus.com/billdatabase/clientfiles/172/4/1720.pdf

    Depending upon what strategy you are looking at leveraging, a lawyer may or may not be necessary. Why? Because I would strongly - in the strongest way - encourage you to use an RMLO licensed to do business in your state. Leveraging them protects you from any potential liability related to seller financing. If you have more expansive concerns about Dodd-Frank's impact on REI in general, then definitely seek out the advice of an experienced real estate attorney.

    One of the things that make Dodd-Frank so intimidating is the fact that the Act leaves a great deal for each individual state's discretion.  Dodd-Frank lays out some very broad restrictions & requirements and then charges the states with figuring out how they interpret Dodd's requirements and how they will implement them.  You're going to need a lawyer to sort through those. 

    Hattie

  • Investor · Sherman Oaks, CA · Member since 2008 · 6k+ posts · 3k+ votes
    12y
  • Rental Property Investor · La Quinta, CA · Member since 2014 · 1k+ posts · 779 votes
    12y

    @Hattie Dizmond Are you aware of anything that clarifies who is considered an investor, versus a homeowner, vs. a primary residence (owner occupied) homeowner?  

    You say "Dodd-Frank was designed to protect individual borrowers - homeowners - from predatory lending practices"....well if I seller finance a home to someone, regardless of whether they occupy it or not, are they that an individual borrower and a homeowner?

    I agree with you generally, but it's been awful hard getting clarity on the nitty gritty details.

    @Brian Gibbons Thanks I will give Terry a call.

  • Investor · Dallas, TX · Member since 2014 · 2k+ posts · 1k+ votes
    12y

    Unless they are an owner occupant, meaning they actually satisfy the requirements to be considered an occupant, they are not considered a "homeowner" for the purpose of Dodd.

  • Rental Property Investor · La Quinta, CA · Member since 2014 · 1k+ posts · 779 votes
    12y

    @Hattie Dizmond That would be great for my purposes.....is there anything you can reference that points this out specifically?  And are you aware of any type of standard doc I could have a buyer sign indicating they do not intend to occupy the property, that would help clarify things?

    Unfortunately my title company doesn't share your opinion at this time so getting something in front of them would be most helpful.

  • Investor · Dallas, TX · Member since 2014 · 2k+ posts · 1k+ votes
    12y

    Based upon your statement that the title company was really pushing on this, I did some additional research.  I can't even believe how part 2 of Dodd-Frank has now been interpreted.  But...Recent rulings and interpretations by the Consumer Financial Protection Bureau have shifted the original exclusion of non-owner occupied property...

    They are now considering anything collateralized by a 1 to 4 dwelling as being covered, regardless of the occupancy.  The only way it doesn't apply is if the lending instrument is an "open ended" loan. 

    This crap is changing and being reinterpreted by the month and is yet another example of nanny government activism.  Unbelievable.  If you want to do seller financing, use an RMLO...period.  It's the only way you can ensure you're not going to assume liability.

  • CA · Member since 2011 · 762 posts · 182 votes
    12y
    Originally posted by @Hattie Dizmond:

    The only way it doesn't apply is if the lending instrument is an "open ended" loan. 

     Maybe you hit on something.  If you write the loan open ended and fund it to the max an inception, isn't that basically the same as a closed end loan but know exempt from DF?  

  • Rental Property Investor · La Quinta, CA · Member since 2014 · 1k+ posts · 779 votes
    12y

    @Account Closed 

    An interesting concept. So long as the LTV was low enough and rate high enough, I would have no problem giving buyers and open-ended loan, although it would be a bit of a pain to administer. You could probably even require increases in LTV over time to ensure some forward momentum.

  • Investor · Dallas, TX · Member since 2014 · 2k+ posts · 1k+ votes
    12y

    I know one of the ways @Brian Gibbons handles this is using the concept of "right of first refusal", rather than a traditional "lease option" for seller financing.  You can still require an upfront down payment.  However, it's listed as an Option Fee instead.  Brian can explain it much better.

    Again, using an RMLO continues to be the best way to ensure you're in compliance, even if you aren't doing straight owner financing.  Particularly since Dodd continues to be interpreted. 

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