Промышленный лизинг Промышленный лизинг  Методички 

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promissory notes and mortgage notes create the security devices that become liens against the title to the property.

Once you understand the paperwork of real estate,you will be able to negotiate on an equal footing with lenders. All this paperwork comes down to contracts. All contracts come down to this: What does the paperwork say? When you understand what the paperwork says, then you can control what happens to property. See if this next illustration helps clarify the paperwork relationships.

Title

Grant Deed or Warranty Deed Grantor / Grantee (Seller) / (Buyer)

The Paperwork Security Devices Finance

(The Bridge)

Trust Deed-------------------Promissory Note

Trustor / Trustee Beneficiary (Lender)

Mortgage---------------------Mortgage Note

Mortgagor / Mortgagee (Borrower) / (Lender)

Negotiating before You Put the Agreement Together

We suggest negotiating with the lender before you have put any agreement together with the owner. That way, you know how the lender is going to behave. This will eliminate any nasty surprises from the lender down the road. You will need the owners permission to speak with their lender.



While we recommend that you dispose of properties quickly, especially foreclosures, you may have to hold on to a property longer than you planned. One of the most important areas to negotiate is how the lender is going to respond if you buy the owners equity and want to take over the existing loan. Most real estate loans have a due-on-sale clause and/or a prepayment penalty.

If the lender wants to play hardball, foreclosure proceedings can begin against you if you dont agree with what the lender wants to do with the loan vis-a-vis interest rates, assumption fees, payment amounts, or prepayment penalties. In this section we are going to give you an overview of the due-on-sale clause. We will also show you the difference between an assumable loan and a subject-to loan. And what is a prepayment penalty, anyway?

Due-on-Sale Clause

A due-on-sale clause is a type of acceleration clause in a promissory note, mortgage note, trust deed, or mortgage contract that gives a lender the right to demand all sums owed to be paid immediately if the owner transfers title to the property.

The legality of the due-on-sale clause was argued all the way to the U.S. Supreme Court in the 1980s. To unify all the states under one legal interpretation, Congress passed the Garn-St. Germain lending bill in 1986. Unfortunately, the due-on-sale clause is legal. It is enforced by the lenders.

Assumable Loan An assumable loan is an existing promissory note or mortgage note secured by a trust deed or mortgage contract, respectively, that is kept at the same interest rate and terms as when the original borrower financed the property.

When you assume a loan, you become primarily liable for the payments and any deficiency judgment arising from a loan default. The owner/borrower becomes secondarily liable for the payments and any deficiency judgment.

Remember, a deficiency judgment is a court decision that makes an individual personally liable for the payoff of a remaining amount due because less than the full amount was obtained by foreclosure on the property.



Lenders typically charge an assumption fee for you to assume a loan. They also want you to qualify for the loan as if you were originating a new loan rather than assuming an existing loan.

Subject-To Loan A subject-to loan is an existing loan for which the buyer agrees to take over responsibility for payments under the same terms and conditions as existed when the original borrower financed the property. However, the original borrower remains primarily responsible for any deficiency judgment in the event of a loan default.

The name subject-to loan comes from the fact that the buyer takes over the existing loan subject to the same terms and conditions. The interest rate is the same. The monthly payments are the same. Everything about the loan stays the same. There is no lender approval required for you to take over a loan subject-to as there is when you assume a loan.

We say it this way:When you assume a loan, you are entering into a formal agreement with the lender. When you take over a loan subject-to, there is no formal agreement with the lender.

Subject-to loans do not have a due-on-sale clause in their paperwork. Therefore, the lender cannot threaten you with calling the loan due-on-sale when you have made a deal with the owner to transfer title. Pre-1988 VA-guaranteed loans and pre-1986 FHA-insured loans are subject-to loans. Also, many privately held owner financing loans may be subject-to loans.

Prepayment Penalty

A prepayment penalty is a fine imposed on a borrower by a lender for early payoff of a loan or any early payoff of a substantial part of the loan. To find out if there is a prepayment penalty on a loan, as with the due-on-sale clause, check the loan documents. Most prepayment penalties lapse once the loan is on the books for five years.

The amount of the prepayment penalty is usually stated as a certain number of months interest in addition to the amount remaining on the loan as of the payoff date. Prepayment penalties can be six months interest or more. This can be quite a substantial amount.

What is the prepayment penalty on a loan if the remaining loan balance is $200,000, the annual interest rate is 7 percent, and the prepayment penalty is six months interest?



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