ASSET PROTECTION PODCAST

ASSET PROTECTION PODCAST

Rental Property Investor · Franklin, TN · Member since 2014 · 145 posts · 44 votes

Hey all..

interested to hear some discussion surrounding the recent BP Podcast on Asset Protection (the "YOU WILL GET SUED" issue)

So far I have 7 rental properties all multi unit having several units each, and they are just all under my name, which according to the attorney in the podcast, should NEVER be done for exposure reasons.

I feel like I've gotten a lot of mixed advice. Insurance Agents tell you insurance is the solution. Attorneys tell you LLC is the solution. My CPA tells me the LLC's are too expensive to operate and set up and that he's never dealt with people having issues not having properties under LLCs.

Wondering what all of you EXPERIENCED investors out there have done for your personal strategies, and do you find the statement true that, "it's not IF, but WHEN you'll be sued"?

My problems are at this point, the due-on-sale clause being possible if I transfer my properties to an LLC, and also, applying for financing. Do you all find issues with applying for financing under Trusts or LLCs?

Thanks

+Seth Mosley

Mosley Properties

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Brian BurkePro Member
Investor · Santa Rosa, CA · Member since 2012 · 2k+ posts · 7k+ votes
11y

@Seth Mosley , I agree with @Bill Gulley who are both experienced guys and didn't keep what they built simply because of entity structures. I'm in the same camp.  It's funny, the question of "to entity or not to entity" is one of the most asked questions on BP and the pro-entity crowd is typically dominated by folks that have bought between 0 and 10 properties in their investing career. The experienced investors are usually the ones saying that entities are most likely unnecessary. Coincidence??

I've made my opinion known many times but I'm happy to chime in again.  Let me begin by saying that I have entities. I don't have entities for asset protection, however. I have them for legitimate business purposes--to segregate groups of investors, varying ownership percentages between myself and my partners, and for branding.

I know that Bill and Jay have been lucky (good?) enough to have not been sued so if you have followed this thread this long you might believe that the "you will get sued" statement is untrue. I'll present the other side of that story. I believe that if you do enough of this for long enough it's most likely a matter of time. You will get sued. SO WHAT?!?!  It's a reality of business.

I've been in this business for 25 years. Bought over 700 properties. Owned over a thousand doors and currently around 500 or so (not counting interior doors, LOL).  So my exposure is high. My personally-owned rentals are just that--owned personally, as in my own name. Remember that my entity owned properties are for a business purpose?  That's why. Not saying that what's right for me is right for you, nor am I saying that it's right for me (I could be wrong) but it's worked out fine.  I have lots of insurance.

I've been sued several times. I can think of seven times off the top of my head. There may be more but I don't remember for sure. Why not?  Because they obviously didn't make a big enough impression on me to even matter. 

Let's talk about those suits. Two were in small claims court by tenant plaintiffs. Both tenants lost. Cost of defense: some wasted time showing up to court.  Another one of the suits was a guy I sold a flip to who claimed that my contractor didn't do something correctly.  It was true, but the homeowner wouldn't allow the contractor back in to fix it--he wanted to shake us down for $5K in small claims court. We offered him $1,500 in lieu of the contractor making the repair but he wouldn't take the money. In court the judge ruled in his favor and awarded him $1,500--so we lost but won.  

Three suits were cases where I bought a house on the courthouse steps at a foreclosure auction and the foreclosed-out homeowner sued their lender for botching the foreclosure and me for quiet title, misrepresentation (for evicting them when I didn't own the home that I paid for), and fraud (for what? Signing over a cashier's check?).  I won all three cases. One cost $30K to defend (settled with the lender rather early-they refunded my money, I gave them the house, and they paid me a bit for my trouble), one cost $20-30K (don't remember exactly but it got thrown out of court before trial) and the third cost over $170K and counting (this one went to trial, I won but now the idiot is taking it to the Court of Appeals so I'll be continuing to pay for who knows how long). In addition to those defense costs I'm out over $100K in holding costs for houses I couldn't sell during the litigation (the third one going on 4-1/2 years).  

The final case is one where I bought a house on the courthouse steps and evicted the occupant. She refused to move her stuff out of the house even after the statutory time in which she was allowed to retrieve it. I was entitled to dispose of it but I couldn't morally do it--her whole life was in this almost 3,000 SQFT house. So, I hired a moving company to move everything to storage units. When she reimbursed me for the moving cost I gave her the keys to the storage units. Three hours after giving her the keys to seven storage lockers I get a call from the police--she claimed we stole a pocket watch and all of this other stuff. How could she know that out of all of that stuff there is a missing pocket watch in only three hours when it took a crew of six guys three days to load it is beyond me. She filed suit for theft of over $1.2 million worth of property!  She produced a list of hundreds of items that we alledgedly "stole", and our private investigator found most of the items in the storage units during discovery (the rest of the items didn't exist)--the whole suit is BS but this woman is a serial plaintiff and hired a lawyer who has a a pending license suspension to represent her (birds of a feather...). This one is going to jury trial.

Now for the meat of my point:  All of the properties associated with these suits except one of the tenant claims were owned in an entity. Will someone from the pro-entity crowd please explain to me how having an entity (actually multiple entities) helped me???!!!  Or prevented this??

The practical risk, in my opinion, is not judgments, it's the cost of defense and having an entity does not eliminate the cost of defending yourself from frivolous lawsuits!  If you want to be in this business, you have to live with the fact that you are a target.  

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  • Rental Property Investor · Franklin, TN · Member since 2014 · 145 posts · 44 votes
    11y

    @Scott Smith

    I smell fear-mongering. It is a very effective sales pitch.

    For the record, I have not been able to find any substantial information related to your experience online anywhere.

    This is just one person's view point but I'm not sure I am going to go completely re structure my business based off the advice of one who's only been practicing law for under 2 years with little resume (available online anyway) to show for it.

  • Scott SmithPro Member
    Attorney · Austin, TX · Member since 2014 · 1k+ posts · 932 votes
    11y

    Sure Seth. I'm working on getting up a solid website with all of my credentialing, and I appreciate the feedback about that.

  • Scott SmithPro Member
    Attorney · Austin, TX · Member since 2014 · 1k+ posts · 932 votes
    11y

    @Bill G. Thanks for the insight Bill. I would be very interested in having some sort of series of informational videos or educational system built for investors to help get them up to speed on these issues quickly. Lawyers are expensive, and basically we are just people who have spent significant amounts of time, training, and education into a very specific field. I think anyone can do what I do. There is no magic to it. I agree with you is a way for people to become educated about real estate, taxes, insurance, litigation risk, and the like so that they have a complete picture of the business. If you know of anyone specializing in producing those types of materials please let me know, I would be very interested in working with them to save investors money over the long haul of their career by proper up front education. 

  • Investor · Dallas, TX · Member since 2009 · 718 posts · 913 votes
    11y

    @Bill Gulley has hit the nail on the head.

    I am a plaintiff's lawyer here in Texas and I can tell you the issue of asset protection is really, really overblown, at least for the vast majority of SFR investors. The vast majority of personal injury cases (e.g. slip and fall, dog bites, etc.), which is where most claims of liability come from, will never even be close to the standard $1M in liability coverage.

    Moreover, here in Texas, most lawyers are smart enough to almost always make a demand within policy limits once enough facts are developed.  (This is true even with wrongful death cases, unless there are extraordinary circumstances.)  The result is that if the insurance company turns down the offer, and the case goes to trial with a verdict in favor of the plaintiff that exceeds policy coverage, it is the insurance company, not the owner, who is on the hook for any excess judgment.  

    Another point to consider is that property that is highly mortgaged is worthless to a plaintiff's lawyer.  The mortgage lien trumps an unsecured, judgment creditor's lien.

    I also reject the suggestion that an insurance company might not defend an insured based on some nit picky exclusion.  The duty to defend in Texas (and most jurisdictions) is much, much broader than the duty to indemnify, and an insurance company get in big trouble for violating its duty to defend.  I have rarely seen a case where an insurance company has refused to defend if there was any possible basis for coverage.

    As a lawyer here in Texas, I can also tell you the bogey man of punitive damages is ridiculously overblown.  They are exceptionally difficult to obtain (there basically has to be overwhelming evidence of an almost evil intent, a paraphrase but that's what it is like in practice).  Moreover, even if you obtain punitive damages, they are very difficult to hold onto on appeal.  (They are often reversed.)  

    I also do not understand the claim that Texas has "passed statutes which entice claims that are very lucrative to Plaintiffs."  Texas is one of the most hostile states in the country toward's Plaintiff's claims and has led the way in tort reform.  

    I can also say that any decent plaintiff lawyer has zero fear of going against insurance lawyers.  Just as there is a wide variety of talent in the local bar, there is a wide variety of talent in the insurance defense bar.  As far as I'm aware, the insurance defense bar does not hold some vaunted reputation in the legal community.  

    I can say with absolute certainty that any decent plaintiff lawyer will prefer to go after an insurance company, not an individual.  It's really hard to collect in Texas and insurance companies at least understand the game of litigation.

    Finally, I'm not sure I understand the issue of fraud.  What are you doing to get sued for fraud?  Sure, anyone can sue anyone for "fraud," but in my experience frivolous claims get weeded out relatively quickly and certainly do not expose a defendant to catastrophic liability.

    These are just some thoughts off the top of my head.

  • Rental Property Investor · Franklin, TN · Member since 2014 · 145 posts · 44 votes
    11y
    Originally posted by @John Chapman:

    @Bill Gulley has hit the nail on the head.

    I am a plaintiff's lawyer here in Texas and I can tell you the issue of asset protection is really, really overblown, at least for the vast majority of SFR investors. The vast majority of personal injury cases (e.g. slip and fall, dog bites, etc.), which is where most claims of liability come from, will never even be close to the standard $1M in liability coverage.

    Moreover, here in Texas, most lawyers are smart enough to almost always make a demand within policy limits once enough facts are developed.  (This is true even with wrongful death cases, unless there are extraordinary circumstances.)  The result is that if the insurance company turns down the offer, and the case goes to trial with a verdict in favor of the plaintiff that exceeds policy coverage, it is the insurance company, not the owner, who is on the hook for any excess judgment.  

    Another point to consider is that property that is highly mortgaged is worthless to a plaintiff's lawyer.  The mortgage lien trumps an unsecured, judgment creditor's lien.

    I also reject the suggestion that an insurance company might not defend an insured based on some nit picky exclusion.  The duty to defend in Texas (and most jurisdictions) is much, much broader than the duty to indemnify, and an insurance company get in big trouble for violating its duty to defend.  I have rarely seen a case where an insurance company has refused to defend if there was any possible basis for coverage.

    As a lawyer here in Texas, I can also tell you the bogey man of punitive damages is ridiculously overblown.  They are exceptionally difficult to obtain (there basically has to be overwhelming evidence of an almost evil intent, a paraphrase but that's what it is like in practice).  Moreover, even if you obtain punitive damages, they are very difficult to hold onto on appeal.  (They are often reversed.)  

    I also do not understand the claim that Texas has "passed statutes which entice claims that are very lucrative to Plaintiffs."  Texas is one of the most hostile states in the country toward's Plaintiff's claims and has led the way in tort reform.  

    I can also say that any decent plaintiff lawyer has zero fear of going against insurance lawyers.  Just as there is a wide variety of talent in the local bar, there is a wide variety of talent in the insurance defense bar.  As far as I'm aware, the insurance defense bar does not hold some vaunted reputation in the legal community.  

    I can say with absolute certainty that any decent plaintiff lawyer will prefer to go after an insurance company, not an individual.  It's really hard to collect in Texas and insurance companies at least understand the game of litigation.

    Finally, I'm not sure I understand the issue of fraud.  What are you doing to get sued for fraud?  Sure, anyone can sue anyone for "fraud," but in my experience frivolous claims get weeded out relatively quickly and certainly do not expose a defendant to catastrophic liability.

    These are just some thoughts off the top of my head.

     John, thanks for helping to provide your insights. Great explanations.

    All of this has made me wonder what the bigger pockets screening process is for podcasts. This is an exaggeration but I feel like, based off this bar, I could be qualified to go on and offer expert advice on real estate investing, even though I've only been doing it successfully for 3 or 4 years.

    I'd be careful about letting people on the show, who are simply there to further their own agenda and essentially troll for business. I'm normally not one to be critical, as you never truly know the whole story, but this is one that I think deserves addressing and I'm glad to hear the responses so far. Would love to hear more from some actual buy and hold pros on this issue. 

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    11y

    @John Chapman 

    NIce rebuttal I was going to mention the same thing unless you own a bunch of assets free and clear, and or you like 90% of investors who have 80% LTV loans it would be rare for plantiff's to try to take over your property... an involuntary alienation of title could also call the loan leaving the winner to figure out what to do.

    And anyone committing a fraud should LOSE in my mind.

    The DST is a good option for accredited investors if you not accredited then you probably are fine going the LLC route and insurance... And if your leveraged up and have lets say mid west assets with limited marketability and suspect equity whats there to protect.

  • Investor · Corpus Christi, TX · Member since 2012 · 2k+ posts · 1k+ votes
    11y

    @Seth Mosley 

    I can only tell you this about insurance companies. There job is to protect their assets, not yours. I just filed suit against my insurance company for refusing to pay an indisputable claim. Do they care?  No, they will play this as long as they can before they settle. Does it matter that I'm out tons of money...well, the answer to that is also no. But I'm not naive enough to believe that an insurance company has any interest in doing what is fair and equitable when it impacts their financials.  

    You can choose to believe that insurance companies (or for that matter, any company) is interested in your best interests over their bottom line and you can use hope as your strategy when it comes to litigation and asset protection, but just keep a heavy checkbook ready because you may just need it once reality takes hold. 

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    11y

    @John Chapman good to see you back John, kinda what I thought, I was not aware that in Texas an insurance company could be liable beyond the limits of liability. Good to know.

    I learned long ago to be specific as to repairs, you don't say the plumbing was replaced unless every pipe and fixture was changed out, say it was a service line on or about some date. Never use the term "new" unless it is brand new, never used, your roof isn't new if it was replaced 6 months ago.

    Might be because of my approach to business dealings and experience that makes me feel immune to most matters others can't sleep with, I try to think before engaging mouth and I never provide anything in writing with thought.

    A tip; when I engage a customer/client, my phraseology is the same in every case on the same topic, I may use general conversation but I inject standard explanations. Doing that means that I can recall exactly what I said, I can repeat it in front of a judge or jury word for word. When I had misunderstandings, repeating what was said the someone usually jogged their memory to the point they knew I was right, even if they didn't admit it to save face. Using correct terms and being consistent can save your tail.

    I'd say that most newbies don't understand concepts of contributory negligence, tortuous conduct and implied warranty matters, contingent liabilities as to representations, or the different types of fraud that in most areas must be shown or proven and others that are assumed placing the burden on the accused such as mortgage and bank fraud by statute.    Basic stuff that needs to be understood by anyone in business.

    I have coverage that covers intentional acts, not criminal acts, even if I'm intentional in making a bad decision that has unforeseen consequences I'm covered. Insurance can cover being stupid, intent to cause harm is not, why I don't beat on folks, LOL Don't mean burning down my rentals, or as to insurance fraud, but something dumb you did intentionally isn't necessarily the type of matter to be excluded.

    Those that act as lenders take on much more liability than they probably realize, much greater than that of a landlord, not to get off topic, but take care in defining your business purposes, business activities with an insurance application as there are different policies for different types of risk exposure and the agent needs to inform you of the proper coverage. :)  

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    11y

    @Bill Gulley 

      That would be a great question... HOw many on BP or BP readers have actually been in civil business litigation jury trial.... I suspect less than 10% of 1%... would be my guess.

    Bill maybe you have as an expert witness... But in my 40 some years I never have and that spans lending building developing flipping sub too foreclosure sales you name it.

    Can't say it would never happen but the facts are in civil litigation if you do get sued these are 99% of the time settled in mediation and or arbitration... But yes judgements happen but I think many are defaults and such.. would be curious to see if anyone has gone all the way through to a Jury trial on a civil matter.

  • Investor · Houston, TX · Member since 2009 · 210 posts · 261 votes
    11y

    Can't fault the 2012 law grad for drumming up some business.

    @Bill Gulley

    is correct that, in Texas, if the insurance company declines a settlement inside the policy limits they can be responsible for the entire judgement even if is is greater than the policy limits.  Encourages settlements. 

  • Rental Property Investor · Franklin, TN · Member since 2014 · 145 posts · 44 votes
    11y

    good discussion - me being an investor from and in tennessee real estate, i wonder how all of these Texas laws apply in our case...I suppose that's something I'll have to look into - would accept advice if someone on here is a tennessean with any wisdom to share :)

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    11y

    Awe, @David J. if they decline to defend, I believe we have a similar aspect here in Mo. too now that you mention that, yes, that would be a motivation to go into battle, I like that. We also have time limits to make determinations, I'm sure we do as to P&C losses. Thanks!

    And David, welcome back too, another lost soul returns, LOL, guess the Bar seminars are over in TX. :)

  • Specialist · Portland, OR · Member since 2010 · 3k+ posts · 1k+ votes
    11y

    @Seth Mosley a reasonable approach might be the one Jeff Bennet, a RE expert and attorney who lectures to the REIA's in Portland OR and who is an investor: For the properties he owns by himself, and has mortgages on, no LLC; on properties he owns with partners he has them in LLC's.

  • Rental Property Investor · Franklin, TN · Member since 2014 · 145 posts · 44 votes
    11y
    Originally posted by @Jeff S.:

    @Seth Mosley a reasonable approach might be the one Jeff Bennet, a RE expert and attorney who lectures to the REIA's in Portland OR and who is an investor: For the properties he owns by himself, and has mortgages on, no LLC; on properties he owns with partners he has them in LLC's.

     What is the thought behind this? 

    Thanks!

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    11y

    Careful, filing false liens can get you in trouble and bankruptcy courts really don't like such ploys!

    There are implications of filing liens against your properties shows little or no equity, I can't speak to the lawyering but I can as to the intent of filing false liens to mislead creditors.....a no, no. Check your state statues as to filing false liens.

    I think we had this discussion before, might search "false liens" :)

  • Ned CareyPro Member
    Moderator
    Investor · Baltimore, MD · Member since 2008 · 17k+ posts · 13k+ votes
    11y
    Originally posted by @Jay Hinrichs:

    @John Chapman

    The DST is a good option for accredited investors if you not accredited then you probably are fine going the LLC route and insurance... And if your leveraged up and have lets say mid west assets with limited marketability and suspect equity whats there to protect.

    Does teh DST help in cases where your state requires "Foreign" companies to register.

    Ned "I hope to be accredited on day" Carey

  • Investor · The Colony, TX · Member since 2013 · 283 posts · 205 votes
    11y

    @John Chapman Thanks for your input.  

  • Real Estate Investor · Spartanburg, SC · Member since 2009 · 10 posts · 1 vote
    11y
    Originally posted by @John Chapman:

    @Bill Gulley has hit the nail on the head.

    I am a plaintiff's lawyer here in Texas and I can tell you the issue of asset protection is really, really overblown, at least for the vast majority of SFR investors. The vast majority of personal injury cases (e.g. slip and fall, dog bites, etc.), which is where most claims of liability come from, will never even be close to the standard $1M in liability coverage.

    Moreover, here in Texas, most lawyers are smart enough to almost always make a demand within policy limits once enough facts are developed.  (This is true even with wrongful death cases, unless there are extraordinary circumstances.)  The result is that if the insurance company turns down the offer, and the case goes to trial with a verdict in favor of the plaintiff that exceeds policy coverage, it is the insurance company, not the owner, who is on the hook for any excess judgment.  

    Another point to consider is that property that is highly mortgaged is worthless to a plaintiff's lawyer.  The mortgage lien trumps an unsecured, judgment creditor's lien.

    I also reject the suggestion that an insurance company might not defend an insured based on some nit picky exclusion.  The duty to defend in Texas (and most jurisdictions) is much, much broader than the duty to indemnify, and an insurance company get in big trouble for violating its duty to defend.  I have rarely seen a case where an insurance company has refused to defend if there was any possible basis for coverage.

    As a lawyer here in Texas, I can also tell you the bogey man of punitive damages is ridiculously overblown.  They are exceptionally difficult to obtain (there basically has to be overwhelming evidence of an almost evil intent, a paraphrase but that's what it is like in practice).  Moreover, even if you obtain punitive damages, they are very difficult to hold onto on appeal.  (They are often reversed.)  

    I also do not understand the claim that Texas has "passed statutes which entice claims that are very lucrative to Plaintiffs."  Texas is one of the most hostile states in the country toward's Plaintiff's claims and has led the way in tort reform.  

    I can also say that any decent plaintiff lawyer has zero fear of going against insurance lawyers.  Just as there is a wide variety of talent in the local bar, there is a wide variety of talent in the insurance defense bar.  As far as I'm aware, the insurance defense bar does not hold some vaunted reputation in the legal community.  

    I can say with absolute certainty that any decent plaintiff lawyer will prefer to go after an insurance company, not an individual.  It's really hard to collect in Texas and insurance companies at least understand the game of litigation.

    Finally, I'm not sure I understand the issue of fraud.  What are you doing to get sued for fraud?  Sure, anyone can sue anyone for "fraud," but in my experience frivolous claims get weeded out relatively quickly and certainly do not expose a defendant to catastrophic liability.

    These are just some thoughts off the top of my head.

     John,

    To pick up on your point about a highly mortgaged property being worthless to a plaintiff lawyer, what about an equity striping program that places a lien on the property. I have read about these programs but I have not talked to attorneys  that implement them. It seems to me this would be a good strategy. Any one familiar with this?

  • Investor · Colorado Springs, CO · Member since 2015 · 40 posts · 40 votes
    11y

    @Seth Mosley  I would consult a TN lawyer. There is always devils in the details. Incorporating in one state for one benefit almost always bring one (or more) detriments in the other state.

    @Jeff S.  Not giving legal advice but that approach is sound. But please remember, he is an attorney so threats of litigation are not such a big deal. When I married my wife, I used to tell her ex not to pull any baloney as I heard she was sleeping with her attorney. She never went back to court after we got married.  

    To all: this is a vibrant, educated and opinionated group. I like it.

    Would anyone be interested in a podcast on due-on-sales clauses? This is an area where I see a lot of bad advice and google educated posts.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    11y

    We are getting off topic, equity stripping was what I was addressing above. I'd stay away from such tactics, there can be legitimate liens.

    Lots of gurus talk about there being no due on sale jail, bottom line, it can and is a matter that can really mess up your day, lead to suits and damages and is a concern if you can't meet any demand, if you can meet demands then don't be concerned, if you can't, might think a few times before you ignore the issue.

    We have 3 attorneys commenting in this thread, if each were asked to address all the concerns of the DOS I'd bet we'd have 3 different legal opinions, I'd bet I'd be making some other point and you'd have all kinds of public opinion. Best to address the DOS issue locally and specifically as to a lender and the circumstances as to realistic risks. IMO :)

  • Investor · Colorado Springs, CO · Member since 2015 · 40 posts · 40 votes
    11y

    @Doug Cobb  Not knowing the actual plan, I can't comment on that. However, the general idea is a bad one IF they are false liens (ie, debt/lien is not legitimate) and the creditor finds out, a court may void the lien. Then you have a judgment to deal with and the money you paid for the lien program wasted.

    @Bill Gulley   Your comments about DOSs were similar to my outline for the five minute podcast!

  • Accountant · Denver, CO · Member since 2014 · 6 posts · 3 votes
    11y

    @Seth Mosley If it were me, I would transfer all of those properties through quit claim or warranty deed to an LLC. LLC's are not expensive to maintain once you have it setup, a corporation will have more costs and administration, but not an LLC. I wouldn't try that with a corporation though because you would actually have to sell the propeties to the corp and the lender can call the note; whereas LLC is just a deed transfer.

    I currently have a few LLC's and an S Corp...Corp is always more cumbersome and expensive. If I were in your position, I would be concerned if a suit came along knowing that I personally have these assets; you have more to lose. Although I'm not an attorney I am in agreement with Tim Priebe through my own experiences both professionally and personally. @Tim Priebe (Tim your name is so familiar...do we know each other) 

  • Investor · Houston, TX · Member since 2009 · 210 posts · 261 votes
    11y

    @Bill Gulley 

    I think if you they did a podcast on the due on sale clause it would be about 3 minutes.  Here is the one my commercial lender puts in.

    12. DUE ON TRANSFER

    If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.

    Then we could get Dewey, Cheetam and Howe to spend the remainder of the time speculating on what every bank would do in every situation with their rights (if triggered) under the clause.

    What I have always wondered was who makes the decision to call the note pursuant to the due on sale clause at one of these national banks?  So many loans, so few people.  It is hard to get anyone to any kind of a decision at one of those places, so unless they create a computer program to automatically pull and call the notes........ Hope they are not reading this.

  • Realtor · Lafayette, LA · Member since 2011 · 296 posts · 175 votes
    11y

    Best thread of the year!  

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    11y

    @David J. 

     Virtually every mortgage or Trust deed or Deed to secure debt has the same verbiage.

    I did loans in 15 or so states and all of my security instruments had those and they were boiler plate for the closing attorney or Title company. 

    It really comes down to the policy of the lender or servicer..  or dumb luck... when I use to buy sub too before the equity stripping laws came into effect here in Oregon. out of the well over 100 sub toos I did only one got called. and that was a credit union and that was because the borrower walkin and told the credit union what she had done.

    And we had no subterfuge we took title in our name  Not a land trust in the name of the post owner ... and we sent in our company checks with the loan number on them.. we of course had the seller give us mortgage authorization prior to close. Etc etc.  but then again we could pay off any note that got called.. even if we had a run of them.

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