All Forum Posts by: Peter Walther

 In my experience, many states view each failure to make a payment a unique default subject to its own running of the SOL.  So if a loan has been in default for ten years, the earliest four may be uncollectable but the later six and the remaining balance are.  The problem lenders get themselves into is when they accelerate the debt, then all payments are due and payable and are subject to the same SOL.  I had a claim in NY where a prior lender had accelerated a debt and filed foreclosure.  The borrower worked out a deal and brought the loan current and the foreclosure was dismissed.  At the time, NY required an affirmative act to revoke the acceleration which wasn't done.  I came into the picture when an agent issued a new loan title policy w/o obtaining a release of the prior mtg.  After some litigation the court rule the SOL had run on the prior mtg and my insured's lien was as insured.

I agree with what several others have posted and as the quote from a policy states, if the title is cured in a reasonable period of time, there is no loss recoverable.

I'm assuming this is a judgment lien and not a mortgage lien.  If so, if your buyer agrees, ask the insurer to authorize a new policy be issued to the buyer with an exception and affirmative coverage over the lien, to be removed when the lien is extinguished.  Or, you or the insurer could have the lien transferred to a bond removing it from the property.  While you don't mention what state the property is in or the amount of the missed lien you or the title insurer might be able to either put up the cash or buy a surety bond and post it with the court.

 You're welcome

Most of the Standard Exceptions on an Owner's Title Policy will be deleted if certain title evidence is provided at closing.  For example, if an acceptable survey is provided, the Standard Exception for survey matters will be deleted from the policy but a special exception for any matters shown on the survey will be taken.  Ask a settlement agent for more details about what they would require to delete them.

I believe the Enhanced ALTA Homeowner's Policy is not available in Florida because it contains certain affirmative coverages that insure against matters that may occur in the future.  That's considered casualty insurance which title insurers are prohibited by law from providing.

I've never heard of a flat fee settlement company in Florida or anywhere else.  I believe there are too many variables for that kind of model to work.

I think you may be mixing up some terms.  Your dad may be the Executor of you uncle's probate estate, but he'd be the Trustee of the Family Trust.

A number of different things may come into play.  Has the probate been completed and closed? What authority under the Trust does your father have to sell the property?  Are there any other beneficiaries under the Trust and do they have anything to say about selling you the property and any related terms and conditions?  As Trustee your dad has a fiduciary duty to all the beneficiaries and has to look out for their best interests.

I think both of you might want to get some professional advice about your particular situation before moving forward.

I think the Association either doesn't know about the estopple estopple, (sorry, I couldn't help myself) provisions or hopes you don't.  I assume you'll raise it with them so if you could let us know how it goes, I'd appreciate it.

I'm a little confused by your post.  You wrote that you bought a condo but that you're dealing with a homeowner's association rather than a condo owner's association.  You later wrote the property is in Florida.  If that's the case, HOAs are governed by F.S. 720; COAs by F.S. 718.  If it is a COA, F.S. 718.116(8)(c) provides:

(c) An association waives the right to collect any moneys owed in excess of the amounts specified in the estoppel certificate from any person who in good faith relies upon the estoppel certificate and from the person’s successors and assigns.

If it's an HOA, F.S. 720.30851(3) provides:

(3) An association waives the right to collect any moneys owed in excess of the amounts specified in the estoppel certificate from any person who in good faith relies upon the estoppel certificate and from the person’s successors and assigns.

Now there are Master Associations that have an HOA, and the MA has condos built inside them with a separate COA, so some condos can have two assessments, one for the HOA and one for the COA. However, in both associations, if they provided incorrect information that you relied on the purchase the unit, I believe the statute should protect you.

As far as the title insurer's denial, title insurance acts retrospectively, that is from the Date of Policy back in time and from the information you provided, as of today your title is as insured and there is no defect or cloud on your title.  If the Association decided for whatever reason the statute did not apply to your situation and filed a Claim of Lien to enforce the shortage you could resubmit the claim to the insurer and see if they provide coverage.  I suspect they'll again deny coverage, this time as a matter arising after the Date of Policy but I think it's worth a try.

The 4.1 endorsement doesn't help because again, right now it appears title is as insured as of the Date of Policy.

As the coverage letter states, a title policy is not a guarantee of title, it's an insurance policy that reimburses the insured for a covered loss and in some cases provides a defense against allegations in a filed lawsuit.  Though if I were handling claim like yours, I would probably call and talk with the Association's attorney and find out why (s)he thinks the statutes don't apply and then call and talk with the insured and explain the coverage decision and answer any questions before writing a confirmatory letter.  I was well aware that most insured don't have the knowledge to push back against an adverse party who may not themselves be aware of the law.

I hope this helps.

I agree with everything Don wrote.  My feelings won't be hurt if the seller tells me my offer is so low I'm either incompetent or looking to steal the property, so I'm not concerned if his are hurt because my offer says you (the seller) overpaid.

Also, if I'm really interested in the property rather than just looking for a quick yes to a low offer, I like to know who I'm dealing with.  I look up the seller's name on the appraiser's web site and then run it on the Clerk's web site to see how many transactions he has done before.  What kind of financial situation is he in.  How much gross profit did he make on the sales.  I also check to see if he's been involved in lawsuits either as a plaintiff or a defendant and if so what kind of suits were they and how did they turn out.

You're right, both about me thinking about HELOCs and not 2nds and the rational for the protection of the homestead.  The state didn't want to have to take care of the families of men who gambled the family farm away.  Again, not to split hairs, she's exercising her rights that arise because it's his homestead not hers.

Generally, a deed is prepared showing the grantor's marital status. If (S)he's a single person, no problem, that's the only signature required. If married, then there should be either a recitation the property is not the homestead of the grantor, or the spouse needs to sign. Same applies for a borrower on a DOT. Of course, if it later turns out the grantor/borrower lied and was married and the property was the homestead, the title insurer has a problem, unless the DOT was for the purchase of the property. That's a whole other discussion. I handled homestead claims more than once.