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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Here's my take: Posted by JK (the other JK) on August 12, 2006 at 8:08 AM In Reply to: Re: Clarification posted by Rick, the Probate Guy on August 10, 2006 at 7:08 PM : : : : The surplus funds themselves will probably be interpleaded by the foreclosure trustee who doesn't want to be in the middle of a dispute about who is entitled to get the dough. : : : : However, I disagree with the legal logic here, although the ethics are clearly pretty shakey. : : : : We don't know whether this Deed was, in fact, executed prior to the end of the five day right of rescission by a covered seller. In fact, we don't know if this was an owner-occupied property at all. So, without knowing that timeline and the simple facts, we can't assume that the flakey "buyer" violated and CC1695 codes. : : : : As far as recording the deed, that might even be valid, even though the buyer clearly defrauded the seller by not making good on the terms of the sale (meaning that the seller did not get the benefit of the bargain). We don't even know if there was, in fact, any written agreement as to what the terms and consideration were to be, so we can't jump ahead on this issue, either. : : : : Lastly, if it can be shown that consideration was to be paid (we would think so) then the seller (now homeless) might have to sue the buyer for a judgment and ultimately get a vendor's lien. : : : : I know that this is not a very popular response to the original post but I think that this could be a very real scenario. It says a lot about what sellers (and untrained investors) don't understand about real estate law. I'm certainly no attorney however I do know that these things are not simple, cheap or easy to resolve. I wouldn't want to be in either party's shoes. : : : : The foreclosing trustee would be wise to get out of the middle of this one a.s.a.p. : : : : Just my 19 cents worth. Anybody else have an INFORMED opinion? : : : Rick, : : : The buyer appeared the day before the scheduled sale date. The buyer had the seller sign the purchase agreement and the deed the night before the sale. The agreement called for a $50,000 payment to be made to the seller. The agreement stated that the buyer would occupy the property even though it does not appear as though he would as it would not make sense to move from where he resides to relocate to the area and type of house in question. The buyer told the seller that he attended the sale in Norwalk and based on the Date and Time stamp on the recorded document, he recorded the Grant Deed shortly after the sale. (Sale scheduled at 10:00 am in Norwalk and went to sale around 10:45am and Grant Deed recorded shortly after 12:05 pm. He wrote the contract on an EPA with addendums that would suggest he had taken a course of some sort. (Owner Occupant statement and receiving the deed hours before scheduled sale so that right of recission would not be in play). Note: The third party bidder did record trustees deed within 15 days of the sale. : : Seller was living in the property at time of sale. : =============================================================== : Bob - : These facts, as now provided, would not support a buyer's position to either a trustee or most judges (although stranger things have happened). So, I'm in agreement now that we have more facts. : Of course, the F/C trustee may still weenie out and insist on interpleading the funds however I'll bet some trustees would not have a big problem with this one. : For what it's worth, I have done some surplus funds deals, however I do it like this: : Seller gives me a deed and an affidavit of assignment of surplus funds (my own document) and I give the seller their money up front. Of course, I'm buying a pig in a poke. Also, they could file BK and make my life problematic so this isn't a play that I look for too often. It just makes sense when a seller wants to bail and get out of dodge and I may not want the inconvenience of owning the real estate, but rather let the T/S buyers grab for the house. Now, if I can just find a way not to have to make an extra trip to the bank to deposit checks, this business would be pretty easy... Here is what I predict: Both the Seller and the Foreclosure Buyer will get SCREWED. The Trustee will deposit the funds with the court througn an Interpleader. Both the Buyer and Seller will get attorneys and the litigation will take ALL of the money. Follow Ups: Re: Here's my take: Lughead 5:18 PM, 08/12/06 (0) Post a Followup: Name : E-Mail : Subject : Comments: : : : : : The surplus funds themselves will probably be interpleaded by the foreclosure trustee who doesn't want to be in the middle of a dispute about who is entitled to get the dough. : : : : : However, I disagree with the legal logic here, although the ethics are clearly pretty shakey. : : : : : We don't know whether this Deed was, in fact, executed prior to the end of the five day right of rescission by a covered seller. In fact, we don't know if this was an owner-occupied property at all. So, without knowing that timeline and the simple facts, we can't assume that the flakey "buyer" violated and CC1695 codes. : : : : : As far as recording the deed, that might even be valid, even though the buyer clearly defrauded the seller by not making good on the terms of the sale (meaning that the seller did not get the benefit of the bargain). We don't even know if there was, in fact, any written agreement as to what the terms and consideration were to be, so we can't jump ahead on this issue, either. : : : : : Lastly, if it can be shown that consideration was to be paid (we would think so) then the seller (now homeless) might have to sue the buyer for a judgment and ultimately get a vendor's lien. : : : : : I know that this is not a very popular response to the original post but I think that this could be a very real scenario. It says a lot about what sellers (and untrained investors) don't understand about real estate law. I'm certainly no attorney however I do know that these things are not simple, cheap or easy to resolve. I wouldn't want to be in either party's shoes. : : : : : The foreclosing trustee would be wise to get out of the middle of this one a.s.a.p. : : : : : Just my 19 cents worth. Anybody else have an INFORMED opinion? : : : : Rick, : : : : The buyer appeared the day before the scheduled sale date. The buyer had the seller sign the purchase agreement and the deed the night before the sale. The agreement called for a $50,000 payment to be made to the seller. The agreement stated that the buyer would occupy the property even though it does not appear as though he would as it would not make sense to move from where he resides to relocate to the area and type of house in question. The buyer told the seller that he attended the sale in Norwalk and based on the Date and Time stamp on the recorded document, he recorded the Grant Deed shortly after the sale. (Sale scheduled at 10:00 am in Norwalk and went to sale around 10:45am and Grant Deed recorded shortly after 12:05 pm. He wrote the contract on an EPA with addendums that would suggest he had taken a course of some sort. (Owner Occupant statement and receiving the deed hours before scheduled sale so that right of recission would not be in play). Note: The third party bidder did record trustees deed within 15 days of the sale. : : : Seller was living in the property at time of sale. : : =============================================================== : : Bob - : : These facts, as now provided, would not support a buyer's position to either a trustee or most judges (although stranger things have happened). So, I'm in agreement now that we have more facts. : : Of course, the F/C trustee may still weenie out and insist on interpleading the funds however I'll bet some trustees would not have a big problem with this one. : : For what it's worth, I have done some surplus funds deals, however I do it like this: : : Seller gives me a deed and an affidavit of assignment of surplus funds (my own document) and I give the seller their money up front. Of course, I'm buying a pig in a poke. Also, they could file BK and make my life problematic so this isn't a play that I look for too often. It just makes sense when a seller wants to bail and get out of dodge and I may not want the inconvenience of owning the real estate, but rather let the T/S buyers grab for the house. Now, if I can just find a way not to have to make an extra trip to the bank to deposit checks, this business would be pretty easy... : Here is what I predict: Both the Seller and the Foreclosure Buyer will get SCREWED. The Trustee will deposit the funds with the court througn an Interpleader. Both the Buyer and Seller will get attorneys and the litigation will take ALL of the money. Optional Link URL: Link Title: Optional Image URL: [ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] WWWAdmin 2.0a © 1997 Matt Wright and DBasics Software Company, All Rights Reserved

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