Real Estate Finance Law
Authors:
Nelson, Grant S. / Whitman, Dale A. / Burkhart, Ann M. / Freyermuth, R. Wilson
Edition:
6th
Copyright Date:
2015
21 chapters
have results for Real Estate Finance Law
Chapter 213 results (showing 5 best matches)
- In sum, as the preceding text in this section illustrates, the proper method of perfection of such a security interest has been controversial. Some cases hold that perfection can be accomplished by recording in the real estate records; others that perfection can be accomplished by filing a UCC–1 financing statement; and still others that both real estate and Article 9 financing are necessary to a complete perfection.
- The sale and leaseback is a commonly used method of financing commercial real estate transactions. Although the transactions are often complex, in its common form, an owner sells and conveys real estate to an investor-purchaser (often an institutional lender) who leases it back to the seller on a long-term lease. Often, the lease grants lessee-seller an option to repurchase the real estate upon the expiration of the lease.
- For the text of §§ 3.10, 3.12 to 3.16, and 3.20 to 3.25, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- Stated simply, in states where the above title complications to the vendor can occur, the installment land contract can be a “pro-vendee” financing device. Where, for example, such contracts are used in a wholesale fashion as substitute financing devices in low income, low down payment situations, mass recording of such contracts by vendees could increase the vendees’ practical economic interests in the involved real estate and possibly result in pervasive title clouds on substantial amounts of that real estate.
- See Nelson, Whitman, Burkhart & Freyermuth, Cases and Materials on Real Estate Transfer, Finance and Development 612–614 (8th ed.2009).
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Chapter Part 7 158 results (showing 5 best matches)
- For the intermediate class of fixtures, Article 9 defers to state real estate law the question of when a good becomes a fixture, a set of rules to resolve priority conflicts between real estate mortgagees and parties holding conflicting interests arising under Article 9. The default priority rule is that an Article 9 security interest in fixtures is subordinate to the conflicting interest of an “encumbrancer” such as a real estate mortgagee. The drafters recognized, however, that fixture priority for real estate mortgagees would in many cases provides such mortgagees with an undeserved windfall not contemplated in the original mortgage transaction. Thus, provides a series of exceptions to the general rule under which an Article 9 fixture secured party can obtain priority over the conflicting real estate mortgagee. In most instances, to qualify for this priority, the fixture secured party must make a proper “fixture filing.” ...state law governs whether a good has become a fixture, a...
- Nelson & Whitman, Real Estate Finance Law § 9.7 (2d ed. 1985)
- If a real estate mortgagee wishes to have senior lien status as to a mortgagor’s after-acquired personal property, how should the mortgagee proceed? Merely recording in the real estate records a mortgage containing an after-acquired property clause that purports to reach personalty as well as realty will not suffice. Unless a chattel security The mortgagee could presumably perfect its interest in after-acquired chattels by filing the real estate mortgage containing the clause in the appropriate office for chattel security filings. However, a conceptually cleaner and more reliable approach simply would be to treat the two types of security separately. Thus the mortgagee should record the mortgage in the real estate records and separately perfect its security interest in after-acquired personal property by filing an appropriate financing statement in the correct filing office.
- enables an Article 9 fixture secured party to obtain priority over certain conflicting real estate interests by perfecting under Article 9’s regular perfection rules rather than by making a fixture filing. For example, a security interest in fixtures has priority over a real estate mortgagee with respect to “readily removable factory or office machines,” “equipment that is not primarily used or leased for use in the operation of the real property,” or “replacements of domestic appliances that are consumer goods” as long as that security interest is perfected “by any method permitted” in the UCC. The drafters included this provision to alleviate the confusion in various jurisdictions as to whether these types of items are fixtures or pure personalty. In the drafters’ judgment, commercial actors view office machines, stoves, refrigerators, and similar domestic appliances as being in the nature of chattels, even if a jurisdiction’s real estate laws might characterize them as fixtures....
- The Restatement deals with recording act and “chain of title” problems by treating a recorded mortgage containing an after-acquired property provision as unrecorded against those who later take interests in the after-acquired real estate. Thus, for example, under “notice” type recording acts, “the mortgagee’s lien on after-acquired property will be subordinate to the interest of any person who pays value for the real estate and lacks notice of the after-acquired property provision.” However, once the mortgagor acquires additional real estate, the Restatement gives the after-acquired property mortgagee the means to protect itself. The mortgagee acquires this protection by “recording a notice which specifically describes the parcel of after-acquired real estate, refers to the mortgage, and is in a form that provides record notice under local law. When such notice is recorded, the after-acquired property provision becomes part ...of the after-acquired parcel, and interests in that real...
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Chapter Part 6 404 results (showing 5 best matches)
- When a mortgagor files a bankruptcy petition, the mortgagee’s ability to enforce the mortgage loan under state law becomes subject to the substantive and procedural limitations imposed by federal bankruptcy law. Understanding the law of real estate finance thus requires a basic understanding of bankruptcy law.
- For the text of §§ 8.9 to 8.11, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- Recall that the bankruptcy estate includes all interests that the debtor had in any property at the time of the bankruptcy petition, including redemption rights. See § 8.12 supra, note 338. Suppose that Bank had foreclosed on Debtor’s real estate and completed its foreclosure sale prior to the Debtor’s Chapter 7 petition. If the real estate sold for less than its value, it may be advantageous for the trustee to exercise the debtor’s state statutory redemption right (if the state’s law permits statutory redemption), because these statutes typically permit the mortgagor to redeem by paying an amount equal to the foreclosure sale price plus certain statutory amounts. See § 8.4 supra. If the trustee can redeem the real estate for a price less than its value, the trustee can then liquidate the real estate and hopefully produce additional proceeds for distribution to creditors.
- Nevertheless, a valid mortgage lien generally survives the bankruptcy filing, i.e., the bankruptcy estate takes the mortgaged real estate subject to the continued mortgage lien. the trustee has a practical interest in mortgaged real estate only if the debtor has “equity” in it—i.e., only if the value of the real estate exceeds the total amount of mortgage indebtedness against it. If the debtor has no equity in the real estate, the trustee should (and typically will) abandon it; it makes no sense for the trustee to incur the costs of insuring, preserving, and selling the real estate if those activities will produce no value for unsecured creditors. If the trustee abandons the real estate, title is vested back into the debtor, If instead the trustee concludes that there is equity in the real estate, the trustee can sell the real estate with the approval of the bankruptcy court, either subject to the existing mortgages or (more commonly) free and clear of them. ...state law. If,...
- A more fundamental reform of the foreclosure sale system is necessary. Not only should the goal be fewer deficiency judgments, but more frequent and larger surpluses which benefit junior lienholders as well as mortgagors. Under such a legislative approach should incorporate the concept of the negotiated sale—in other words one conducted by customary commercial methods used in the sale of real estate in a nonforeclosure setting, including the use of real estate brokers and normal commercial descriptive and pictorial advertising. The Uniform Nonjudicial Foreclosure Act, (“UNFA”) promulgated in 2002 by the National Conference of Commissioners on Uniform State Laws, not only incorporates the negotiated sale concept, it contains numerous provisions that are aimed at making foreclosure both fair and efficient. It is the product of years of drafting and reflects the thinking of many of the nation’s prominent land finance scholars and practitioners. The major elements of UNFA are described...
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Chapter Part 2 243 results (showing 5 best matches)
- See generally Alvin L. Arnold, 1 Real Estate Transactions: Structure and Analysis with Forms, Appendix 5.3, Checklist of Permanent Mortgage Commitment (2013); Andrea M. Mattei, A Due Diligence Checklist Based on Expansive Representations and Warranties, in Commercial Real Estate Financing: Strategies for Changing Markets and Uncertain Times, in ALI-ABA CLE (2012); K.C. McDaniel, Standard Form of Hotel Loan Agreement, Annotated with Introduction, in Modern Real Estate Transactions: Practical Strategies for Real Estate Acquisition, Disposition, and Ownership 1403–1404, in ALI-ABA CLE (2011); ; Alan Wayte, Selected Issues in the Negotiation of Real Estate Financing Documents, in Commercial Real Estate Financing: Strategies for Changing Markets and Uncertain
- For the text of §§ 4.6 to 4.9, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- For the text of §§ 4.30 to 4.32, 4.38 to 4.39, and 4.44 to 4.46, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- For an example of a commercial mortgage document containing an assignment of rents, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law § 14.09 (6th Pract. ed.).
- See, e.g., Mattei, supra note 818; Schroeder, supra note 819; Michael J. Virgadamo, Financing of Commercial Real Estate, in Florida Real Property Complex Transactions (6th ed.2011).
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Chapter Part 3 431 results (showing 5 best matches)
- For the text of § 5.13, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- Nelson and Whitman, Real Estate Finance Law § 5.24, at 505–11 (5th ed.)
- See generally Nelson, Whitman, Burkhart & Freyermuth, Real Estate Transfer, Finance and Development 1209–25 (8th ed. 2009);
- Both consumer loans and consumer credit sales (to adopt the UCCC’s terminology) are covered by the FTC rule. If third-party lender financing is the mode employed (as the FTC rule terms it, a “purchase money loan”), the loan must have been made in connection with a sale of goods or services, and a type of “close-connectedness” criterion must be satisfied, but it is much simpler and looser than the UCCC’s. The lender is Another interesting difference between the UCCC and the FTC rule is that the latter does not apply to the financing of sales of interests in real estate, irrespective of the amount or interest rate. It does, however, apply to sales of goods or services even if a mortgage on real estate is taken to secure payment of the purchase price.
- See Nelson, Whitman, Burkhart & Freyermuth, Real Estate Transfer, Finance and Development 216–217 (8th ed.2009).
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TitlePage 5 results
Cover 1 result
Chapter Part 4 182 results (showing 5 best matches)
- For the text of §§ 6.11 to 6.14, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 1.
- . As the preceding section outlines, mortgage clauses dealing with prepayment typically do one or both of two things: they “lock in” the loan by prohibiting prepayment, and they permit prepayment only with an accompanying fee. Since the common law regarded mortgages as non-prepayable if they were silent on the matter, it is not surprising that the courts have also routinely enforced lock-ins. They have been attacked most often on the ground that they unreasonably restrain alienation of the real estate, but the courts have nearly always quite correctly rejected this argument. The necessity of selling the real estate with the mortgage on it may reduce the price to the seller, particularly if current financing is available at lower rates, but it certainly does not restrain alienation in a legal sense.
- Bonanno, Due on Sale and Prepayment Clauses in Real Estate Financing in California in Times of Fluctuating Interest Rates—Legal Issues and Alternatives, 6 San. Fran. L. Rev. 267, 295 (1972).
- See Willis V. Carpenter & Blair E. Daniels, Short Sale Addendum, Colo. Real Est.Prac. Form 8–19 (2012); Dunaway, Babbitt, Gerth, and McGrane, Law of Distressed Real Estate § 3B:8; Miller, Short Sales Overview with an Emphasis on Broker Issues, 26 No. 3 Prac. Real Est. Law. 9 (2010); Gerald J. Robinson, Provisions for Short Sale in Contract for Sale of Residence, Real Est. Forms; Vacco, supra note 398.
- Dunaway, Babbitt, Gerth, and McGrane, Law of Distressed Real Estate § 3B:8.
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Chapter Part 8 19 results (showing 5 best matches)
- For the text of §§ 10.2 to 10.8 and 10.10 to 10.15, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Sixth Edition, Practitioner Treatise, Vol. 2.
- In this last illustration, there is a wide divergence of opinion as to the extent to which ME3’s knowledge or notice of ME2’s lien will deprive ME3 of the benefits of subrogation. The Restatement takes the broad view that ME3 should be entitled to subrogation even if ME3 had actual knowledge of ME2, provided that ME3 “reasonably expected to receive a security interest in the real estate with the priority of the mortgage being discharged, and if subrogation will not materially prejudice the holders of intervening interests in the real estate.”
- See Patrick E. Mears, Who’s on First? Negotiating Debt and Lien Subordination Agreements in Real Estate Transactions, Prob. & Prop., Jan. 1999, at 19.
- Bryson v. Newtown Real Estate & Development Corp., 153 Conn. 267, 216 A.2d 176 (1965)
- . For applications of the principles of marshaling in subdivision financing, see Melli, Subdivision Control in Wisconsin, Wis. L. Rev. 389 (1953). See also . For a discussion of subdivision financing problems, see Storke and Sears, Subdivision Financing, 28 Rocky Mt. L. Rev. 1 (1956). See Note: The Rights of a Junior Lienholder in Wisconsin, 43 Marq. L. Rev. 89, 94 (1959).
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Chapter Part 9 188 results (showing 5 best matches)
- Witner, REITs: The Revolution in Real Estate Financing, 22 Real Est. L.J. 248 (1994)
- Unlike savings associations and banks, life insurance companies and pension funds are not depository institutions. Instead, their assets come from premium payments on life policies and contributions to various retirement and annuity programs. These comprise a relatively stable and predictable source of funds as compared with savings deposits. Hence, these companies have a preference for long-term large-dollar investments, such as mortgage loans on commercial real estate. They are regulated only at the state level by insurance commissions or departments, and the legal constraints on their lending are not very restrictive. Moreover, in most jurisdictions they are permitted to invest in real estate financings other than standard mortgage loans. These include sale-leasebacks, sale-salebacks, leasehold mortgages, and other innovative financing methods. These investments are often called “basket” loans since the applicable law or regulation usually provides for a maximum percentage of...
- Gunning and Roegge, Contemporary Real Estate Financing Techniques: A Dialogue on Vanishing Simplicity, 3 Real Prop. Prob. & Tr. J. 322, 325 (1968)
- Bradner, The Secondary Mortgage Market and State Regulation of Real Estate Financing, 36 Emory L.J. 971 nn. 49–68 (1987)
- Alexander, Federal Intervention in Real Estate Finance: Preemption and Federal Common Law, 71 N.C. L. Rev. 293, 360–370 (1993)
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Chapter Part 10 261 results (showing 5 best matches)
- Subordination agreements are frequently used for mortgages relating to new real estate developments because they enable developers to finance subdivisions and other construction projects without investing large amounts of their own capital. The developer first persuades the land seller to accept a purchase money mortgage or trust deed for all or a large part of the purchase price. Using the land as security, the developer then arranges a loan from an institutional lender to finance the construction. A subordination agreement with the seller makes this financing scheme possible by reordering the lien priorities between the purchase money mortgage and the construction loan. Institutional lenders often require a first lien to secure their real estate loans. Without an express subordination, the law presumes that the purchase money mortgage is intended to have priority.
- ABA Sec. of Real Prop., Prob. & Trust Law, The Lawyer’s Role in Financing the Real Estate Development 36 (Prob. & Prop. Cassette Series, Vol. 1, No. 3, 1975). See also
- Construction Funding: The Process of Real Estate Development, Appraisal, and Finance 172 (Nathan S. Collier et al. eds. 4th ed.2008).
- Nathan S.Collier, Courtland A. Collier & Don A. Halperin, Construction Funding: The Process of Real Estate Development, Appraisal, and Finance 194 (4th ed.2008).
- See Prac. L. Inst., Real Estate Financing: Contemporary Techniques 177–78 (No.14 1973).
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Chapter Part 11 27 results (showing 5 best matches)
- A purchase money mortgage arises where the mortgagor’s acquisition of the mortgaged real estate is financed by the mortgagee-lender. Often a seller of real estate will take back a purchase money mortgage for part of the purchase price. More commonly, however, a third party lending institution will take a mortgage covering real estate acquired by the mortgagor with funds provided by the lending institution. In many states this is also treated as a purchase-money mortgage. Such transactions may be as simple as the purchase of a single family residence by a borrower-mortgagor or as complex and sophisticated as the construction and long term financing obtained by a developer to build a shopping center or an apartment building. In the non-purchase money situation the mortgagee-lender does not provide an acquisition loan but rather lends money on real estate already owned by the borrower-mortgagor. A corporation, for example, may often mortgage previously owned real estate to obtain...
- The material in this treatise focuses upon, in a variety of simple and sophisticated factual settings, the use of real estate as security for obligations. In this connection, there is a substantial emphasis on the real estate mortgage and its functional equivalents. As the term is used in its modern context, a real estate mortgage involves a transfer by a debtor-mortgagor to a creditor-mortgagee of a real estate interest, to be held as security for the performance of an obligation, normally the payment of a debt evidenced by the mortgagor’s promissory note.
- Because the level-monthly-payment fully-amortized loan is so common in modern real estate financing, it is important to understand its characteristics. The monthly payment is set so that only a portion (though a large portion in the early years) is needed to cover the interest which has accrued since the last preceding payment; the remainder of each payment is applied to reduce the outstanding principal. Thus, the interest which accrues in each month will be less than the interest for the preceding month, since interest is being computed on a continually declining principal amount.
- Today most mortgages are amortized or repaid over a substantial number of years. Until the 1930’s most mortgages, however, were of the “balloon-note” type. Typically these were short-term mortgages for three or five years, and borrowers made only interest payments until the loan came due. Then if the borrower had not saved enough to pay the entire principal, he would expect the note to be renewed or would attempt to refinance it with another lender. However, during the depression period of the 1930’s, many of these lenders were forced to demand full payment and to foreclose on properties when mortgagors could not pay. With the encouragement of the Federal Housing Administration and federal housing legislation, lenders during this period developed the amortized mortgage loan system under which mortgagors were permitted to repay loans over many years by making monthly principal and interest payments. Such loans are common today in both the housing and commercial real estate markets....
- An understanding of the modern real estate mortgage requires, at least, a limited consideration of its historical antecedents. Although the mortgage has its roots in both Roman law and in early Anglo-Saxon England, the most significant developments for our purposes are the English common law mortgage and the effects on that mortgage of the subsequent intervention of English equity courts. These developments not only substantially influenced the substance of American mortgage law, but they are responsible for much of its terminology as well.
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Preface 7 results (showing 5 best matches)
- Further, while the law governing foreclosure of personal property security enjoys nationwide consistency under UCC Article 9, the law of real estate finance remains frustratingly nonuniform. While state courts and legislatures have begun experimenting with the implementation of mediation and loss mitigation programs designed to facilitate mortgage modification for distressed borrowers, these efforts remain haphazard. The crisis has prompted the Uniform Law Commission to renew its efforts to promote a uniform law governing foreclosure, but the outlook for its success remains quite unclear.
- We are highly pleased to welcome two new co-authors in this Sixth Edition: Professors Ann Burkhart of the University of Minnesota and Wilson Freyermuth of the University of Missouri. Both are long-time colleagues and friends of Nelson and Whitman, the authors on the past four editions. Ann and Wilson are both outstanding scholars who have published widely in the areas of property and real estate finance. They are among the nation’s top academics in their fields. Moreover, they are also the co-editors with Nelson and Whitman on the Eighth Edition of
- Indeed, the past seven years produced an upheaval in the world of real estate finance not experienced since the Depression era. Residential and commercial real estate values plummeted. Default and foreclosure rates skyrocketed, particularly in the residential sector. Fannie Mae and Freddie Mac became insolvent, received an enormous public bailout, and were placed in federal conservatorship—yet are now once again earning enormous profits and have largely repaid the public bailout. Enormous sums have been spent to implement mortgage modification programs designed to keep distressed borrowers in their homes, yet substantial doubt remains about the overall effectiveness of these efforts.
- More significantly, the foreclosure crisis produced by this upheaval has revealed a real estate finance system that is significantly broken, both for borrowers and lenders. On the one hand, the crisis has exposed that rampant securitization produced appallingly inadequate recordkeeping and servicing practices. Original promissory notes that ostensibly were to end up in securitization pools were frequently lost, destroyed, or improperly negotiated, raising unnecessary legal doubt regarding the ability to enforce the underlying obligation of the borrowers. The MERS system—which conceptually might have functioned to streamline the securitization process by avoiding the need for a recorded chain of mortgage assignments—became a lightning rod (quite justifiably so, in some respects) to the extent that it permitted MERS members to institute foreclosures in the name of MERS rather than in the name of the actual beneficial owner of the mortgage note, contributing to a perceived lack of...
- We remain pleased that the Restatement (Third) of Property: Mortgages, promulgated by the American Law Institute in 1997, has continued to enjoy considerable and increasing success in the courts. Readers will continue to find enhanced consideration of the Restatement and its commentary throughout the Sixth Edition.
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Index 30 results (showing 5 best matches)
- EDITORIAL NOTE: A number of entries in this shared table relate to material appearing only in the two-volume edition of this work. In these instances, see Nelson, Whitman, Burkhart & Freyermuth, Real Estate Finance Law, Practitioner Treatise Series, Sixth Edition.
- Single asset real estate reorganizations, 8.12, 8.19.
- Prior real estate mortgages, 9.7.
- Subsequent real estate mortgages, 9.7.
- After transfer of mortgaged real estate, 5.18–5.19.
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TableofContents 5 results
TableofCases 136 results (showing 5 best matches)
- ING Real Estate Finance (USA) LLC v. Park Ave. Hotel Acquisition LLC
- American Institute of Real Estate Appraisers of Nat. Ass’n of Realtors, United States v.
- B.F. Saul Real Estate Inv. Trust v. McGovern
- Baltimore Markets v. Real Estate-Land Title & Trust Co.
- Barbour v. Handlos Real Estate and Bldg. Corp.
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SummaryofContents 2 results
Chapter Part 12 42 results (showing 5 best matches)
- Indeed, with such an obligation the whole system of mortgage enforcement would break down. There are several reasons for this. First, in the event of a foreclosure sale, the purchaser would presumably bid what the real estate is worth. However, unless the mortgage debt is reducible to a money amount, it would be impossible to determine a deficiency or to allocate surplus among junior lienors, if any, or to the mortgagor. Second, creditors of the mortgagor would face the same uncertainty in attempting to enforce a judgment against the mortgaged real estate. Third, mortgagees would have difficulty in assigning the mortgagee’s interest, since prospective investors would be unable to determine its value with any accuracy. Finally, mortgagors would find it extremely difficult to obtain second mortgage financing. Because of the inability to ascertain the amount of the prior lien, lenders would have substantial difficulty in determining the value of the mortgagor’s equity for loan...
- Since most real estate development entities are “single-asset” borrowers that own nothing except the particular real estate project, the personal liability of the borrower entity has little meaning; it will be unable to respond with money if its sole asset, the real estate project, is in financial difficulty or has already been foreclosed. Hence, to be useful to the lender, the nonrecourse carve-outs must be guaranteed by some or all of the individual principals of the entity.
- Such a clause may be considered essential for federal income tax purposes to a real estate venture in which outside investors buy shares. it is much more natural to construe it as negating the existence of any independent obligation except insofar as the land itself can be looked upon as owing a “real” obligation.
- Because of the law’s leniency in not requiring specific information about the secured obligation to appear in the mortgage, and because the information that does appear there will not usually be current or completely accurate, those who have a legitimate interest in discovering the obligation’s status and amount can do so only by inquiring of the mortgagee. Hence it is obvious that mortgagees have a duty to respond reasonably and promptly to such inquiries. Those who have such an interest include the mortgagor or owner of the equity of redemption who may wish to prepay the debt or to cure arrearages; those who hold subordinate interests in the real estate, and who propose to redeem the mortgage in order to protect their own rights; and prospective bidders at foreclosure sales of liens junior to the mortgage who are potentially in the role of purchasers “subject to’’ the mortgage.
- There is also a good argument that federal law requires the holder of a federally-related residential mortgage to disclose payoff information. The Cranston-Gonzales amendments to the Real Estate Settlement Procedures Act (RESPA) provide that if a servicer of such a mortgage receives “a qualified written request from the borrower (or an agent of the borrower) for information relating to the servicing of such loan, the servicer shall provide a written response acknowledging receipt of the correspondence within 20 [business] days.”
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Chapter Part 5 235 results (showing 5 best matches)
- Under the Restatement, the “surplus stands in the place of the foreclosed real estate, and the liens and interests that previously attached to the real estate now attach to the surplus.”
- Bureau of Consumer Financial Protection, Mortgage Servicing Rules Under the Real Estate Settlement Procedures Act (Regulation X), Final Rule; Official Interpretations, 78 Fed. Reg. 10696, 10790 (Feb. 14, 2013)
- Bureau of Consumer Financial Protection, Mortgage Servicing Rules Under Real Estate Settlement Procedures Act (Regulation X), Final Rule; Official Interpretations, 78 Fed.Reg. 10696, 10790 (Feb. 14, 2013)
- Under the Restatement, either of two classes of people may pay off a mortgage debt: those who are “primarily responsible” for paying it and those who are not. Who is “primarily responsible”? The concept does not depend on personal liability for the debt. The mortgagor is primarily responsible if she still owns the real estate, whether the debt is recourse or nonrecourse. Likewise, a grantee of the fee title becomes primarily responsible, regardless of whether he assumed liability for the debt. Even a tenant, life tenant, or other limited interest holder is primarily responsible, except to the extent someone else has a duty to reimburse her for part of any payment she makes. Thus, under the Restatement, the mortgage is extinguished and the real estate redeemed if someone who is primarily responsible pays off the debt, including any valid accrued interest, prepayment fees, and other miscellaneous charges.
- Moreover, the tender must be in currency. Tender of a deed to the mortgaged real estate is insufficient even if the real estate is worth more than the outstanding debt.
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AdvisoryBoard 10 results (showing 5 best matches)
- Professor of Law, Michael E. Moritz College of Law,
- Professor of Law Emeritus, University of San Diego Professor of Law Emeritus, University of Michigan
- Professor of Law, Chancellor and Dean Emeritus, Hastings College of the Law
- Professor of Law, Yale Law School
- Professor of Law, Pepperdine University Professor of Law Emeritus, University of California, Los Angeles
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- Publication Date: October 24th, 2014
- ISBN: 9780314278326
- Subject: Real Estate Transactions
- Series: Hornbooks
- Type: Hornbook Treatises
-
Description:
This treatise provides current, expert coverage on the law of mortgages, including the mortgagor-mortgagee relationship prior to foreclosure; mortgage substitutes; transfers by the mortgagor; transfers by the mortgagee; payment and prepayment; the foreclosure process; deficiency judgments and anti-deficiency regulation; priority issues; governmental intervention in the mortgage market; and financing real estate construction.
The Sixth Edition provides a comprehensive update of relevant case law, legislation, and regulation since publication of the Fifth Edition in 2007. This update includes:- A thorough and up-to-date revision of the material on judicial and nonjudicial foreclosure
- New material on “short sales” and “loss mitigation”
- A comprehensive revision of the material on securitization and the ownership, transfer, and enforcement of securitized mortgage loans
- A comprehensive revision of materials on governmental intervention in the mortgage market, including new material on the impacts of the Dodd-Frank Act
- Discussion of recent cases and theories on the application of the “disparate impact” test in racially discriminatory mortgage lending
- A thorough and functional restructuring of the material on bankruptcy law and its impact on mortgagees in Chapters 7, 11, 12 and 13 proceedings
- Comprehensive discussion of recent judicial authority on priority issues
Like the Fifth Edition, the Sixth Edition also comprehensively tracks judicial discussion and application of the principles in the Restatement (Third) of Property: Mortgages.
