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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Re: uncooperative private lender in sub -2 Posted by Ellis on June 05, 2010 at 10:31 PM In Reply to: Re: uncooperative private lender in sub -2 posted by Rick Harmon on June 04, 2010 at 7:25 PM Ok, I am repeating my Bottomfeeder mantra with pride. And yes, that stipulated order idea has got me searching on google with fervor & my creative real estate brain cells are working overtime. Thanks Rick : Say that with pride, Ellis: Bottomfeeder™ : In order for her to foreclose, she (the 1st bene) must declare a breach. : The only action that you'd be taking would be recording of Mr. Seller to Mr. Seller, trustee of his own trust, and perhaps a subsequent trust transfer deed to you as trustee of the bump-tee-bump trust. There would be no recorded taxable event as far as the world sees, nor the tax assessor. : If you don't show a proof positive breach, she'll have a hard time convincing a foreclosure trustee to proceed with a default, NTS and subsequent trustee sale. : If you really want to get devious, have seller agree to a stipulated order and get it signed by judge (Now I got you thinking, huh!). : Also, for your convenience, I've included a summary of the Garn St.Germain Act: : : Garn St. Germain Act re: Loan Assumption : This whole issue was settled in the 1982 federal act called the Garn-St. Germain Depository Institutions Act. According to the Act there are only nine exceptions to a lender’s ability to enforce its due-on-sale clause and they are: : (d) Exemption of specified transfers or dispositions : With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon – : (1) the creation of a lien or other encumbrance subordinate to the lender's security instrument which does not relate to a transfer of rights of occupancy in the property; : (2) the creation of a purchase money security interest for household appliances; : (3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety; : (4) the granting of a leasehold interest of three years or less not containing an option to purchase; : (5) a transfer to a relative resulting from the death of a borrower; : (6) a transfer where the spouse or children of the borrower become an owner of the property; : (7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property; : (8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or : (9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board. Follow Ups: getting interesting:next move Ellis 8:27 AM, 06/10/10 (0) Post a Followup: Name : E-Mail : Subject : Comments: : Ok, I am repeating my Bottomfeeder mantra with pride. : And yes, that stipulated order idea has got me searching on google with fervor & my creative real estate brain cells are working overtime. : Thanks Rick : : Say that with pride, Ellis: Bottomfeeder™ : : In order for her to foreclose, she (the 1st bene) must declare a breach. : : The only action that you'd be taking would be recording of Mr. Seller to Mr. Seller, trustee of his own trust, and perhaps a subsequent trust transfer deed to you as trustee of the bump-tee-bump trust. There would be no recorded taxable event as far as the world sees, nor the tax assessor. : : If you don't show a proof positive breach, she'll have a hard time convincing a foreclosure trustee to proceed with a default, NTS and subsequent trustee sale. : : If you really want to get devious, have seller agree to a stipulated order and get it signed by judge (Now I got you thinking, huh!). : : Also, for your convenience, I've included a summary of the Garn St.Germain Act: : : : : Garn St. Germain Act re: Loan Assumption : : This whole issue was settled in the 1982 federal act called the Garn-St. Germain Depository Institutions Act. According to the Act there are only nine exceptions to a lender’s ability to enforce its due-on-sale clause and they are: : : (d) Exemption of specified transfers or dispositions : : With respect to a real property loan secured by a lien on residential real property containing less than five dwelling units, including a lien on the stock allocated to a dwelling unit in a cooperative housing corporation, or on a residential manufactured home, a lender may not exercise its option pursuant to a due-on-sale clause upon – : : (1) the creation of a lien or other encumbrance subordinate to the lender's security instrument which does not relate to a transfer of rights of occupancy in the property; : : (2) the creation of a purchase money security interest for household appliances; : : (3) a transfer by devise, descent, or operation of law on the death of a joint tenant or tenant by the entirety; : : (4) the granting of a leasehold interest of three years or less not containing an option to purchase; : : (5) a transfer to a relative resulting from the death of a borrower; : : (6) a transfer where the spouse or children of the borrower become an owner of the property; : : (7) a transfer resulting from a decree of a dissolution of marriage, legal separation agreement, or from an incidental property settlement agreement, by which the spouse of the borrower becomes an owner of the property; : : (8) a transfer into an inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupancy in the property; or : : (9) any other transfer or disposition described in regulations prescribed by the Federal Home Loan Bank Board. 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