Deeds In Lieu Of Foreclosure : Make Sure Lender Is Offering The Real Thing
Each week I talk to several people about negotiating a deed in lieu of foreclosure with their mortgage lenders. Like so many people around the county, these clients are experiencing problems paying mortgages on their upside down real estate. I typically tell people that as long as they are current on their mortgage they are wasting time trying to convince a mortgage lender to accept a deed in lieu. Banks will not consider a deed in lieu, short sale, modification or any other work out proposal until the borrower is in default, and usually not until loan payments are at least three months past due. My clients report that it is impossible to negotiate a deed in lieu until the property is in foreclosure; one reason is that until a foreclosure lawsuit is started and both sides are represented by attorneys it is difficult for you or your attorney to reach a bank representative who has authority to negotiate a deed in lieu or modification.
So I was surprised today when a client reported that his mortgage lender readily accepted a deed in lieu on one of his upside down rental homes after he was only two months behind in mortgage payments. Was it true, and were lenders finally beginning to accept owner's offers to voluntarily deed back properties in lieu of foreclosure? Not exactly.
A deed in lieu of foreclosure is supposed to be a final settlement between owner and mortgage lender. The lender accepts a deed to the property in consideration for releasing the borrower of any further liability under the loan or mortgage. When my clients tell me they want to offer a deed in lieu they intend for the deed to the lender will end their liability under the mortgage loan. When I looked at this client's "deed in lieu" I found that the lender did not include a release of liability, and in fact the document referred to the borrower's continued liability for a deficiency. This client had negotiated a deed in lieu of foreclosure by not a deed in lieu of deficiency liability. Also, by surrendering title to the property without the bank having to foreclose, the client gave up all the defenses available in a foreclosure action which he could use as leverage to negotiate a complete release.
If your mortgage lenders offers you a deed in lieu make sure it's the real deal. You give them the property back and they release you from any further liability. Anything less may be a trap.
posted by Jonathan Alper, asset protection and bankruptcy lawyer, Orlando, Florida
I am in a wrap around mortgage and had to sign an undated Deed in Lieu of at closing before they would consider the deal done. I have fallen behind and am now being told that they are going to record the deed and we have to move out immediately. To top it off, I didn't receive a copy of that form which I'm assuming is so that I couldn't fight it. Is this legal and is that deed in lieu of invalid due to being signed in advance? Any guidance would be greatly appreciated.