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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] getting interesting:next move Posted by Ellis on June 10, 2010 at 8:27 AM In Reply to: Re: uncooperative private lender in sub -2 posted by Ellis on June 05, 2010 at 10:31 PM The private lender sent me a note saying she is returning the check & not accepting payments from me as trustee . I am contemplating this as my next moves: 1) set up an escrow account & sending all current payments proving that I am making payments 2)sending a letter to lender saying that if she doesn't accept payments & attempts to file any foreclosure action, I as trustee for the trust will file charges of fraudulent lending/collection practice & unlawful foreclosure. Anyone have input on the soundness of this next move in Real Estate chess? Thanks in advance. Ellis : 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: Post a Followup: Name : E-Mail : Subject : Comments: : The private lender sent me a note saying she is returning the check & not accepting payments from me as trustee . : I am contemplating this as my next moves: 1) set up an escrow account & sending all current payments proving that I am making payments 2)sending a letter to lender saying that if she doesn't : accept payments & attempts to file any foreclosure action, I as trustee for the trust will file charges of fraudulent lending/collection practice & unlawful foreclosure. : Anyone have input on the soundness of this next move in Real Estate chess? : Thanks in advance. : Ellis : : 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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