Lent money on second lien to a rehabber who stopped communicating

Lent money on second lien to a rehabber who stopped communicating

Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes

Hello BP community, 

Really need some help and ideas on dealing with this situation. I know I probably shouldn't have done this deal, but I have lent on 2nd liens successfully before.  This one however, gone pretty bad.

Back in Sep, I was introduced to a rehabber/RE agent from Orlando FL. He was looking for a 42K loan and had 45K of his own cash in the deal. He had a 1st lien at 437K and was projecting 630-700K ARV. We agreed on personal and corp guarantees and a recorded 2nd lien. Everything was going good until about Dec when his contractor was out of town and he had to wait for him 4 weeks. After that things get murky... updates were hard to get and were far and few between... the last communication was that the original contractor was overpaid and didn't finish and he was talking to another one to complete the project...after threatening legal action he goes completely silent around beginning of March.

Now I start looking into it and find out that:

1. There is a third lien recorded for 42K

2. The first lien states that they do not allow any additional liens on their deals.

3. There is a person involved who is a title company owner and recorded mine and the third lien, who apparently brought the third lien to the deal and told them they were in second position. He is now claiming to have put his own money into the deal to bring the first lien current that was delinquent since Dec and that he speaks to the rehabber regularly and has some people involved who are going to finish the construction.

Sent the borrower a demand email, based on a clause in our contract that property must be listed for sale within 90 days or he is default... No response.

Had multiple people, including the person who introduced us and the title owner tell him to reach out to me... No response.

I also spoke to the third lien holder who believes his investment is safe. I think he might be comforted by his relationship with the title owner who keeps reassuring him he is not going to lose money... I am much less sure of that at this point.

Working on getting an attorney to send a demand letter, but I feel it will get the same response as my attempts to communicate. Looking for angles to pressure him to get back to the table, be open about the situation as crappy as it is and work together or step aside and let me take over the project, so it can be finished and sold as soon as possible. 

What are my options.. what would you do in my position? 

0Reply
57 views

Most Popular Reply

Jay HinrichsBusiness Member
Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
10y

@Olga Levin  Small seconds behind large first on construction deals are VERY VERY Risky as your finding out..   And especially in FLA were your foreclosures need to be done through the court system.

YOu can contact the first lender and tell them you want to buy their note for full face value and any payemnts that are owed.. this will put you into control.. and let you foreclose the owner out.

Waiting it out will only mean you will owe the first that much more money. .and especially if the first has default interest and all the court cost etc. Or you can hope that the 3rd position has the ability to buy the first and pay you off.. so that's the bottom line.. NEVER make a second position loan unless you have the wherewhithal to cash out the first.. IF you do not.. then its uber risky as your finding out.

@Bill Richard  love it.. but your over the top none of what you say will happen or should happen.

this person made a second position loan that they new was second position the buyer is defaulting happens every day.... Title company is not responsible for reading the mortgage on the first.. only if that clause was a stated encumberance on title.. its up to the lender to review and approve not he title company.  you completely off base here . LOL but love the enthusiasm.. sue the bastards 

See this reply in the discussion

32 Replies

Jump to latestLatest
  • Brooksville, FL · Member since 2012 · 429 posts · 220 votes
    10y

    You need to relax from the sounds of things.        My best guess is him recording a second and third with the first "not allowing it" puts him in default with the first and allows for the first to foreclose.    Worst case, pay off the first in that situation at the foreclosure sale and/or protect your lien with a higher bid.   

    Odds are this guy is in a little over his head and is really tight on cash.     You should re verify that the flip actually has equity and if it does I'd give him a bit more time to fix things.     Maybe verify that something is actually happening at the property too.    

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    @Leigh C Thank you for your response. 

    Yes I agree with your assessment, he is in over his head. There is nothing happening at the property and hasn't happened since Dec. The fact that he is not responding to communication and not coming forward to explain is the concerning part here. He was also obviously dishonest to begin with, telling me he has cash in the deal and then putting multiple liens on it. 

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    10y

    Have you talked to the first Mtg holder?

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    @Wayne Brooks I tried... The wouldn't really release any info, just said they do not allow any additional liens behind theirs.

  • Brooksville, FL · Member since 2012 · 429 posts · 220 votes
    10y

    @Olga Levin    Has he been paying you?

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    @Leigh C

    No by the terms of the loan he pays the principal and interest at the end when the propeprty sells. I haven't seen many 2nd liens where that is not the case.

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    Would appreciate any wisdom BP has to share. I am sure someone has dealt with a partner that just goes silent. What do you do in that situation?

  • Investor / Landlord · Grayling, MI · Member since 2016 · 16 posts · 12 votes
    10y

    You will probably need to be "fair" (they will call it mean) on this one.  You'll need a lawyer on this one.

    Declare him in default. Also file on him for fraud.

    I believe since you are in second position, you have the right to assume the first. Do that (assume the first).

    File against the first guys errors and omissions insurance or his brokers. The state also has a fund for people that get ripped off by real estate agents/brokers. I think the limit on that was 50K, but it might have been raised.

    Take the title company guy to court for fraud. File against his errors and omissions as well. HE knew darn well that the first had that clause in it. If he didn't that's his error for not checking. Odds are though he did, especially since he brought in yet another lender in third position.

    Notify the TV stations of this. They love these kinds of stories. (Innocent, unsuspecting lender swindled by organized scam-broker, agent, title company).

    If you can take over and complete the project, great. If not, maybe you can get your money out of it.

    Just my opinion, but when people start giving me the run around and not returning my calls, it is saying "up yours" and hoping you will be too frustrated to follow up. Get yourself a werewolf type lawyer who will chew them up.  

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Olga Levin  Small seconds behind large first on construction deals are VERY VERY Risky as your finding out..   And especially in FLA were your foreclosures need to be done through the court system.

    YOu can contact the first lender and tell them you want to buy their note for full face value and any payemnts that are owed.. this will put you into control.. and let you foreclose the owner out.

    Waiting it out will only mean you will owe the first that much more money. .and especially if the first has default interest and all the court cost etc. Or you can hope that the 3rd position has the ability to buy the first and pay you off.. so that's the bottom line.. NEVER make a second position loan unless you have the wherewhithal to cash out the first.. IF you do not.. then its uber risky as your finding out.

    @Bill Richard  love it.. but your over the top none of what you say will happen or should happen.

    this person made a second position loan that they new was second position the buyer is defaulting happens every day.... Title company is not responsible for reading the mortgage on the first.. only if that clause was a stated encumberance on title.. its up to the lender to review and approve not he title company.  you completely off base here . LOL but love the enthusiasm.. sue the bastards 

  • Real Estate Professional · West Palm Beach, FL · Member since 2012 · 23k+ posts · 13k+ votes
    10y

    @Bill Richard You seem to be suffering from some misconceptions;

    No basis for "fraud", as to the 2nd mtg holder, from the facts given....default, yes.

    The 2nd mtg holder has no "rights" to assume the first....pay it off, yes.

    There's no real estate agent with E&O to go after....this person was not representing this lender/individual as an agent working for a commission....this person was acting as a principle, which their broker's E&O has nothing to do with.

    The title co. has no liability for the "no seconds allowed" clause in the 1st mtg......that's a breach/default issue between the 1st mtg lender and the mortgagor.

  • Investor · Midlothian, VA · Member since 2015 · 980 posts · 823 votes
    10y

    @Olga Levin,

    I do not deal with seconds much, but from what little I have heard I believe it would be better to get your foreclosure in before the first tries to foreclose. That way you will control the deal. You should be able to set the price at auction vice the first who has no incentive to protect your interest. Or you can take the property subject to the first and try to salvage it. This all assumes that you have a legal lien on the property and there is equity.

    All of what I said may be way off base so I will defer to people I know deal in a lot of second lien workouts (@Dave Van Horn, @Patrick Desjardins). They deal primarily with institutional stuff but are much more familiar with your potential way aheads than I. Good luck.

  • Investor / Landlord · Grayling, MI · Member since 2016 · 16 posts · 12 votes
    10y

    Sorry, got carried away. Not trying to give legal advice, just disappointed that these things happen.

    Best advice would probably be to talk to a lawyer and determine your best way to resolve this.

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Bill Richard  LOL you gave me a chuckle this morning thanks for that. 

    this is really a cut and dried situation but a good learning experience for those who are contemplating second position loans on rehab deals... probably the riskest of all loans out there other than the fool that gave the 3rd position loan  LOL

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Olga Levin in my HML days I have had this happen to me numerous times I ONLY made first position loans.. my loan docs had the same clause no junior loans to be recorded against the property otherwise that was an event of default.

    The reason is if you have a loan go TU you as the first lender are forced to foreclose all the juniors out or come up with money to take them out.. you preclude cash for keys or deed in Lu

    And as a lender without written authorization lender cannot give out info.. although I have to think this was a HML who was doing a rehab loan.. you should be able to get to someone who will talk this through with you.. I know I would have. But my position would be I am foreclosing you can pay the note off in full and all my costs and I will assigne the note to you.

    In most situations as you describe though I wiped out all the juniors .. as they did not have the funds to pay me off or the asset got butchered in the rehab process and there was not sufficient equity to throw good money after bad...

    I think your best hope is the third has dough and is dump enough to pay you all off  :)

  • Brooksville, FL · Member since 2012 · 429 posts · 220 votes
    10y

    @Olga Levin I really hope this property is worth what you think it is.   I'd strongly urge you to figure out the actual value of the property in it's current state.

    It sounds like this guy has nothing to lose and if there isn't an upside to the transaction he might just abandon it all together.    Each month he is further and further away from actually turning a profit for his effort.  Add to that if you are "annoying him" it may justify his unwillingness to himself to do the right thing and see the project to the end.      Leaving you to make the first whole or abandon your investment all together.

    I'd be curious on the address. His 630k ARV with him already into it for 510k is already a bit tight. If repairs are 40k lets say he is at 550k. Selling for 630k minus 8% to close lets say puts this in very dangerous waters of going red. I'd call the realtor's phone number from a different area code phone (a friend's phone) and just ask for an update and his plan. Tell him if he is in over his head you would like to offer assistance.

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    Thank you everyone for your input! I really appreciate it. It is so frustrating that these things happen @Bill Richard. A lot of people apparently operating in very shady ways and even fraudulent without caring about their reputation.

    @Jay Hinrichs surprisingly I couldn't find much discussion on 2nd position defaults on the forums. Not sure if people are not keen to share or if it's just not very common. 

    The third position was actually told by the title owner he was going to be in 2nd position (even though he prepared and recorded my loan as well) - which is fraud I believe. He was also the person who brought the deal to the third and who is now telling him he had put his own money in to pay the HML delinquency and that he has some rehab guys that are going to finish the project and he wouldn't allow for him to lose any money... The third lien actually believed him and extended his loan due date... I didn't get any proof or confirmation of this plan from the title owner even though I asked

    @Leigh C

    You are close in your calculations. There is 522K of liens on the property and with the title owners money and remaining rehab, it would be  570-580K. In it's current unfinished state, the property probably doesn't have enough equity to cover my loan and certainly not the third lien. If finished 630K is realistic. He even sent me a 700K offer contingent on completion of rehab before he stopped communicating, but if I have to go through a lengthy foreclosure process, this thin margin is going to be wiped out.

    I am guessing best case would be to pressure him for a deed in lieu in this scenario and take over the project now before the first has int. and fees piled up enough to wipe everyone out.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    10y

    @Olga Levin you've been playing a very risky game.  The fact you had some success is no different than a gambler having a hot streak at the craps table.  Eventually you luck turns and you "regress to the mean".  My guess is that this investment is very likely a total loss.  Sounds like work is incomplete and stalled.  What's the property worth as-is?  Subtract some chunk off that for the price it will get at a foreclosure auction (months from now) and then subtract off another $20K for legal fees.  How does that compare to the first?  Is there enough to pay off the first and leave something for you?

    Are you sure you're really in second position?  Check public records yourself or pay some other company for a title search.

    Are you in a position to pay off the first?  Have you tried asking the first how much they would take to sell you that loan?  Have you tried offering your loan to the first lienholder for say $5-10K?  Eliminating you and the third makes life easier for the first.  Specifically deed in lieu of foreclosure becomes an option if you're the only lienholder where a foreclosure is required if there a junior liens.

    Definitely consult with an attorney.

  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Olga Levin  again for the good of the public forum.. what is a investor from Alameda doing with a 2nd position rehab loan in Orlando.  its risky enough if you live there but being across country this even worse..

    I have to assume you ran your loan through escrow and you got title insurance.. and as such you got to view the preliminary title prior to your loan funding.. and you gave escrow instructions that title company could record your lien if and when they could insure you in SEcond position.

    what transpired after your loan has nothing to do with you or your loan.. sounds like the owner is a fibber... Fruad would cost you more than you invested to figure out in a legal setting.

    all those that run to lawyers in these instances usally have never been through litigation or have any clue how quick you burn through 20 to 30k .

  • Brooksville, FL · Member since 2012 · 429 posts · 220 votes
    10y

    @Olga Levin    Deed in Lieu won't work as that doesn't zero out the 3rd and any other potential liens on the property.    If you got the deed though and wanted to make everyone whole its an option.    Though questionable if the deal has the money on it to do it.

    Maybe call the realtor's broker and ask for help, sometimes they stick their neck out to avoid future drama.    If you need the help I can run a quick title search if you don't know how.  

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    10y

    Deed in lieu only works with a single lien.  That's why first mortgage lenders in fix and flip situations like this forbid any seconds.  

    That said, with a big first and a couple of relatively small seconds, the first could buy the second and third.  The second and third are likely almost worthless.  If the first lienholder buys these two at a large discount, they can then release them and then do a deed in lieu.  Deed in lieu does require a somewhat cooperative borrower.

    Depending on the as-is value of the properly, @Olga Levin might get a few grand out of the first lienholder.  Its a long shot, especially if the value is tight vs. the unpaid balance on the first.

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    @Jon Holdman  I thought I understood my risks going into this deal, but I certainly didn't expect the borrower to be a dishonest person, who would refuse to be reasonable. 

    You are probably right.. if I have to go through the whole foreclosure process.. there won't be anything left. My recourse at that point would be personal/corporate guarantee for what it's worth. However, if the property is completed and sold within a month or two either by the original borrower or someone else there should be enough to pay everyone off. At this point, I believe there is still a chance it will happen.

    I have checked public registrar's office and it has my lien recorded as the second. I am not in a position to pay off the first and I will hold off on offering to sell to them until they initiate foreclosure or I see no other avenues to resolve the situation. Seems a bit early for that move. 

    @Jay Hinrichs

    Yes, he is definitely taking advantage of the fact I am not local. I didn't record through escrow because the funds from my IRA came with a delay and the title owner actually put his money in as a place holder, so do not believe I have a title policy on it.

    Agree on the legal expenses, I see that happening all the time and the results from pursuing fraud charges are minimal or will take forever to get. Will have to use one for a demand letter though.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    10y

    If you can't pay off the first, there is no point in foreclosing.  Should you proceed with the foreclosure your best possible outcome is that someone would bid enough to pay you off.  If nobody bids at your foreclosure sale, then you will get possession of the house, but the first will still exist.  Because of the transfer of ownership, the first will very likely foreclose.  For that matter, the first (and third) would need to be notified as soon as you start the foreclosure and the first would likely start foreclosure at that time.  When the first forecloses, if you're the second and nobody bids, you're wiped out along with the third.  If someone does bid and there is an overage, you would be in line for that overage.  That's why determining the as-is value is so important.

  • Developer · San Diego, CA · Member since 2015 · 1k+ posts · 1k+ votes
    10y
    Jay Hinrichs Would your scathing assessment on the risk of the (relatively small compared to the first) second position loan be different if the operator has a strong corporate record and/or I can verify that the principle's capital is significantly at stake? Or, is it really a property-by-property thing and there's a risk that any project can blow up. Of course, the market could blow up anything if bad stuff happened there, but ignore that for a moment. I *feel* secure holding seconds (or mezzanine) on projects run by long track record operators with personal and corporate guarantees who have at least as much capital in as the second position, but now I'm questioning that. I love how there's so much experience here - it's awesome!
  • Jay HinrichsBusiness Member
    Real Estate Consultant · Summerlin, NV · Member since 2014 · 45k+ posts · 66k+ votes
    10y

    @Justin R.  I am just going on personal experience..  If a borrower has enough liquidity to have a personal or corporate guarantee be worth anything in reality they are not usually looking for high cost mezz or gap or second funding.. that's for starters. 

    Even on all the first loans I did over the years I had PG's on every single one of them.. I have now come to the conclusion they are worthless by and large.. the cost and expense to litigate and secure a money judgment then collect on it will usually out strip the amount of money you lent especially in second position or that you can hope to collect, if you have to go to those steps usually the company is cratering and they will do whatever they can not to pay including hiding assets.. and going BK.

    If you have the wherewithal to pay off the senior debt at anytime then second position is not as risky it just becomes very time consuming and costly. But generally speaking its exactly like what this OP posted about.. she made a small second behind a larger construction first. and regardless of who is lying or what happened or the contractor ran off with the money or the market changed etc etc she is stuck..  all the other white noise is simply that white noise that makes people feel good to spread blame when in fact if you lose money lending the only one to blame is YOU...

    I do a very limited amount of this but let me describe how I do it.

    Operator Sponsor personally known to me..

     I know the senior lender personally I have met with them explain what I am doing and if my operator goes TU I let them know I am going to step in and take over we have the arranged ahead of time. 

    Last thing on earth I am going to do is going into a junior or subordinated deal with a lender I can't control having first position.... Other wise you have exactly what's happening to this lady a true cluster and pretty good chance of a complete wipe out of the junior lenders.  this is why running to an attorney at this point only poor's gas on it.. you spend 5k on attorneys fee's only to have the attorney tell you your SOL.. LOL...

    So in your deals.. as long as you know and trust your operator ( and there are hundreds of great operators) have open line of communication with the senior lender.. and have the ability to save your investment yourself not rely on your operator who may run into trouble) then I think you fine. Its also the reason I would not do one of these if I could not make 35 to 50% APR which is what I make on subordinated debt deals.. all day long every day !!! anything less than that in my mind is taking inordinate amount of risk and I would rather make 12 to 15% in first position and sleep well.

    The above are simply my personal opinions for what its worth..  LOL...  Since you asked !!

  • Investor · Alameda, CA · Member since 2012 · 47 posts · 10 votes
    10y

    Thank you again for everyone's advice... I have a very good idea what a worst case scenario is going to look like :) Will work on figuring out what else can be done to save what I can.

    @Justin R. This operator had skin in the game of his own 45K when I gave him my money and he didn't intend to pull it out or so he said. Nothing stopped him from borrowing more and placing another lien on the property two weeks later, I only found out about it after the deal started to fall apart and I researched the title records. He did the same thing to the first lien. Personal capital can be pulled out very easily from what I have learned.

Join the conversationCreate a free account to reply, vote on answers and follow this thread.