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[ Follow Ups ] [ Post Followup ] [ The Forum Board ] [ FAQ ] Non-exemption still stands... Posted by Ward-CA- on June 12, 2003 at 9:11 PM In Reply to: Re: Not exempt from the due-on-sale clause. posted by David on June 12, 2003 at 11:18 AM : Ward, : Doesn't this Q&A at http://www.legalwiz.com/board.htm suggest otherwise? : 29. Can a junior lien holder foreclose without triggering a due-on-sale on the senior mortgage? - Top : The answer is "yes." Several court cases considered the issue and reasoned as follows: if a mortgage lien permits the borrower to further encumber the property with junior liens (ie, a 2nd mortgage), the the default and foreclosure of a junior lien is a reasonable consequence thereof. Thus, a 2nd lien holder can foreclose, take title subject to the 1st mortgage, and the due-on-sale has not been triggered. - Updated: July 12, 2002 : David =•=•=•=•=•=•=•=•=•=•= David, The supreme law of the land is federal law. And in my reply to your post I cited the federal Garn-St. Germain Depository Institutions Act wherein Congress allows the imposition of the due-on-sale clause in all cases with just nine exemptions, and taking title via the foreclosure sale of a junior lien is not one of them. Look up the Garn-St. Germain regs. and you’ll come to the same inescapable conclusion. Hope this helps. Follow Ups: As a practical matter.... Gary 9:55 AM, 06/14/03 (0) Post a Followup: Name : E-Mail : Subject : Comments: : : Ward, : : Doesn't this Q&A at http://www.legalwiz.com/board.htm suggest otherwise? : : 29. Can a junior lien holder foreclose without triggering a due-on-sale on the senior mortgage? - Top : : The answer is "yes." Several court cases considered the issue and reasoned as follows: if a mortgage lien permits the borrower to further encumber the property with junior liens (ie, a 2nd mortgage), the the default and foreclosure of a junior lien is a reasonable consequence thereof. Thus, a 2nd lien holder can foreclose, take title subject to the 1st mortgage, and the due-on-sale has not been triggered. - Updated: July 12, 2002 : : David : =•=•=•=•=•=•=•=•=•=•= : David, : The supreme law of the land is federal law. And in my reply to your post I cited the federal Garn-St. Germain Depository Institutions Act wherein Congress allows the imposition of the due-on-sale clause in all cases with just nine exemptions, and taking title via the foreclosure sale of a junior lien is not one of them. : Look up the Garn-St. Germain regs. and you’ll come to the same inescapable conclusion. : Hope this helps. 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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