Buying Homes in Foreclosure first tuesday CITE THIS READING MATERIAL AS: first tuesday Buying Homes in Foreclosure Seventh Edition Cutoff Dates: Legal editing of this book was completed November 2014. Monthly updates of this text, including errata and recent developments, are available on your Student Homepage at firsttuesday.us. Copyright © 2015 by first tuesday P.O. Box 5707, Riverside, CA 92517 All rights reserved. No part of this publication may be reproduced or transmit- ted in any form or by any means, electronic or mechanical, including photocopy, recording, or any information storage or retrieval system, without permission in writing from the publisher. Printed in California Editorial Staff Legal Editor/Publisher: Fred Crane Project Editor: Connor P. Wallmark Senior Editor: Giang Hoang-Burdette Contributing Editors: Sarah Kolvas Fernando Nuñez William L. Mansfield Carrie B. Reyes Matthew Taylor Graphic Designer: Mary LaRochelle Comments or suggestions to: first tuesday, P.O. Box 5707, Riverside, CA 92517 [email protected] Table of Contents i Table of Forms ................................................................................................................. iii Table of Introduction ....................................................................................................................iv Glossary ............................................................................................................................ 251 Contents Chapter 1 Equity purchase investments The equity purchase investor scheme ...................... 1 Guidelines for Chapter 2 The equity purchase agreement an Equity An EP investor’s proper documentation. .9 Purchase Chapter 3 The EP investor operates with or without an agent Investor The evolution of EP law. .31 Chapter 4 The unconscionable advatage some investors create Suppression of the seller’s continued marketing . .43 Equity Chapter 5 Reinstatement and redemption periods during foreclosure Nullifying the lender’s call during foreclosure. 55 Purchase Time Frame Chapter 6 Condition of the property: disclosure by the seller-in foreclosure Property Mandated on one-to-four residential units ................65 Analysis Chapter 7 The home inspection report HIR called for in the EP agreement ........................73 Chapter 8 Natural hazard disclosures by the seller’s agent A unified disclosure for all residential sales. .83 Chapter 9 Property operating data investigation Profiling a property using an APOD form. 99 Chapter 10 Preliminary title reports An offer to issue title insurance . .109 Title Chapter 11 Title insurance coverage Conditions Identifying an actual loss .................................113 Chapter 12 Clearing a lien-clouded title Negotiate a release to create equity . .129 Chapter 13 Automatic and declared homesteads Home-equity shield against judgments. .139 ii Buying Homes in Foreclosure, Seventh Edition Chapter 14 Due-on-sale regulation Assuming Events triggering the call provision .......................149 the Chapter 15 FHA and VA loan assumptions Loan Avoiding fees and investor prohibitions ..................165 Chapter 16 Assumptions: formal and subject-to Mortgage takeover by an EP investor ......................173 Chapter 17 Escrow, the way to perform The performance of a purchase agreement ...............183 Escrow Chapter 18 Contracting to assign or double escrow the resale transaction Two different methods to contract a flip. 193 Chapter 19 Syndicating the equity purchase Blind pool funding and property selection. .203 Chapter 20 Beneficiary statements and payoff demands Confirming loan conditions. .211 Chapter 21 Equity purchase: sale-leaseback, no option A mortgage or tenancy on breach?. 221 Chapter 22 Short payoffs on loans in foreclosure Short The new and presnt normal, sort of ........................229 Sales Chapter 23 Anti-deficiency: past, present and future The trade-off: real estate as security ........................239 Table of Forms iii Full-size, fillable copies of all 400+ first tuesday forms can be found Table of at firsttuesdayjournal.com. Forms No. Form Name Page Full 130 Authorization to Inspect and Prepare a Home Inspection Report (Calif. Bus & P C §8516) ..............................................75 Forms 269 Property Inspection – Buyer’s Request for Repairs ...........................80 306 Property Expense Profile .............................................................................. 102 314 Natural Hazard Disclosure Statement .................................................... 87 318 Comparative Market Analysis for Setting Values — Addendum ............................................................................................................ 46 352 Annual Property Operating Data Sheet (APOD) .............................. 104 365 Estimated Profit on Resale — Property Acquired for Immediate Disposition ................................. 207 401-2 Assignment of Purchase Rights — Supplemental Escrow Instructions ........................................................ 195 409 Release of Recorded Instrument .............................................................. 135 415 Beneficiary Statement ................................................................................... 216 431 Assumption Agreement – Unsecured and Subrogated ................ 179 465 Declaration of Homestead .......................................................................... 145 527 Conflict of Interest Disclosure — Kinship, Position or Undue Influence .....................................................38 156 Equity Purchase Agreement ............................................................... 16, 119 Partial 304 Condition of Property Disclosure — Transfer Disclosure Statement (TDS) .........................................................66 Forms 372-2 LLC Operating Agreement — Equity Purchase Transaction ..................................................................... 206 iv Buying Homes in Foreclosure, Seventh Edition Buying Homes in Foreclosure is written for real estate licensees, Introduction equity purchase (EP) investors and attorneys. The course material is designed to be an educational tool for use in the classroom and in correspondence studies as well as a technical research and reference tool. The objective of this study is to fully provide experienced licensees with complete knowledge of the statutory scheme governing home sales transactions between sellers-in-foreclosure and EP investors. Importantly, EP investors and their agents need to know and apply all the unique EP rules when negotiating and preparing purchase agreements and escrow instructions to acquire an owner-occupied residence in foreclosure. The material in this book is based on California law and controlling federal law existing on the date of this printing. On completion of this study, agents and EP investors, whether they are licensed or unlicensed individuals acting as principals, will be prepared to handle all aspects of the sale and acquisition of owner- occupied, one-to-four unit residential property in foreclosure. Included in each chapter is a summary of issues reviewed in the chapter with definitions of the key terms essential to the reader’s comprehension of the topic. Unless a form cited in the book says, “See Form XXX accompanying this chapter” [emphasis added], it is not in the book. However, the reader has access to a fillable and savable version of all 400+ first tuesday forms online at firsttuesdayjournal.com. All materials are also accessible online from the reader’s Student Homepage at www.firsttuesday.us during their one-year enrollment period. Future errata, supplemental material and recent developments specific to Buying Homes in Foreclosure are available for further research within the Online Reading section of the reader’s Student Homepage at firsttuesday.us. Chapter 1: Equity purchase investments 1 Chapter 1 Equity purchase investments After reading this chapter, you will be able to: Learning • document an equity purchase (EP) transaction between an owner-occupant seller of a one-to-four unit residential property Objectives in foreclosure and an EP investor who acquires the property for dealer, investment or security purposes; • apply the specific rules controlling an EP investor acquisition; • advise on a seller-in-foreclosure’s five-business-day right to cancel an EP transaction; and • explain to EP investors a seller-in-foreclosure’s two-year right to rescind a closed purchase transaction. equity purchase investor five-business-day right to Key Terms equity purchase transaction cancel An equity purchase (EP) transaction takes place when the seller- The equity occupant of a one-to-four unit residential property in foreclosure enters into an agreement and conveys title to the property, for any purpose, to any purchase investor person who acquires title for: scheme • dealer purposes; or equity purchase transaction • investment or security purposes. A property transaction in which a one-to- The non-occupying person acquiring title to the residence of a seller-in- four unit residential foreclosure is called an EP investor. Specific rules for rights and remedies property in foreclosure, apply to all EP transactions. occupied by the owner as their principal residence, is acquired for dealer, investment or security purposes by an investor. [See ft Form 156] 2 Buying Homes in Foreclosure, Seventh Edition Conversely, an EP transaction does not occur and the EP rules do not apply if: • the buyer who