Posted by timothy jordan on July 27, 2004 at 01:43:45:
Well, my second was created before he was refied, but we waited until after he recorded the refi to record my second, the attorney called it a “silent second”
2nd note defaulting, am I screwed? - Posted by tim jordan
Posted by tim jordan on July 26, 2004 at 14:27:15:
I took a second for 5k on this small house. Here is the letter I sent to my attorney and his advice. I need a second opinion.
I thought I would ask about a matter concerning (withheld) and the property you helped me with at (withheld).
(withheld) wrote me an odd letter. He hasn?t paid me in about 5 months on the second with no explanation. I really haven?t bothered with it since it?s a small amount of money and I have been busy on the road but now that I am home I am finally going through all my mail.
Here is his letter dated 06-05-2004
I must inform you that the foundation slab in my home is severely cracked and the house is sloping thereby, causing further damage. One pier has Slipped by one inch within a year?s time. I was not made aware of the true extent of the condition of the foundation slab until I got a Professional evaluation from a reputable foundation company. I was told about the condition of the soil and that it will continue to create further damage to the home. The cost of sinking twenty six piers will cost $9850. I can never sell the house through a reputable real estate Company or a buyer to get financing if no repair is made. I urge you to consider waving the lien you have on the house; (note after the fact) I Feel by silence on your part concerning the foundation that I am protected under the Texas deceptive trade practices act. I will appreciate you Will seriously act in good faith. Ten days response requested. Sincerely (withheld).
He also sent me a e-mail I sent him asking him to let in the foundation inspector on 05/01/2003. Why he sent this I do not know. My guess is that I received some information from the report that I kept from him. The report showed none of the problems he mentions in his letter.
This letter struck me as odd. I paid 200$ to buy a Foundation inspection on May 01 2003. I bought it from:
(withheld)
He also sent me an e-mail I sent him asking him to let in the foundation inspector on 05/01/2003. Why he sent this I do not know. My guess is that I received some information from the report that I kept from him. The report showed none of the problems he mentions in his letter.
I believe I also gave a copy of the report to (withheld). I am not sure though. We did discuss the cracks in the garage and I told him what the engineer had told me that the concrete in the garage was a separate item from the foundation piers as laid out in his report. I am no foundation expert and had to rely on what the engineer told me.
Here’s is the engineer?s conclusions word for word. I can get you a copy of the report if you would like.
Findings:
The following structural items I observed during my inspection. It is my opinion that these items may contribute to, and or lead to future foundation related problems.
- Minor sheetrock cracks were observed within interior portion of the residence
- The floor is not level in areas of the residence.
- No soft spots in the sub flooring were observed
- Some door frames were observed to be slightly out of square.
- No doors were observed to stick when closing
- The supporting piers and floor framing was observed to be in good condition.
- The concrete floor in the garage was observed to have cracks and be out of level.
In his conclusions the engineer says that the concrete floor in the garage is independent of the foundation. He goes on to say that in his opinion
That ?leveling and shimming of the floors is not required.?
Since you wrote the documents we closed with I guess you would know if the second note has any “teeth”. I am perplexed and would like your advice. The way I read the documents he bought the house “as is” and he had responsibility for "due diligence? on his part. I recommended he get inspections on his own.
Do I have the right to foreclose on this note for non-payment on his second? Would it cost me more than its worth for you to help me? He has since refinanced the first with a mortgage company. I believe he pays P.I.T.I. to the mortgage company. I am a little unfamiliar with my rights in this matter. I would like to foreclose on the second and take over the first. The payments are not that much and I could easily rent it out for a profit. I think either Mike is trying to pull a fast one or has a foundation repair contractor trying to make him pay for some costly repairs. In any event I have not been paid on the second for several months with no explanation.
Please let me know your thoughts on this.
When you generate a bill my new address and phone are:
(withheld)
Attorneys answer
The copy of the sales contract I have provides that he purchased the property in its AS IS condition and that he had it inspected. It is unlikely that you could be held responsible for any damages relating to this problem.
It probably would cost you more than you?re owed to foreclose on the property, and the senior lienholder would have to be paid off first. If the property is in poor condition as (withheld) states, you may run into a problem where the property is sold for less than what?s owed on the senior note and you receive nothing as a result of the foreclosure.
Your only other option is to sue (withheld) based on his personal liability under the note, but again the costs of litigation will outweigh the benefits and even if you get a judgment against (withheld) he may have no assets you can seize to satisfy the judgment.
Since I am a paralegal I can do some of the legal work myself…Any advice? or am I just screwed?
Re: 2nd note defaulting, am I screwed? - Posted by John Merchant
Posted by John Merchant on August 02, 2004 at 12:44:11:
Sounds like you’re holding the 2d, so you have every right to foreclose upon it, taking over the 1st.
Re: 2nd note defaulting, am I screwed? - Posted by tyler
Posted by tyler on July 26, 2004 at 15:00:17:
just from a quick scan of your post…
you mentioned he refinanced his original 1st mortgage?..did the new lender for the new (supposed) 1st get your agreement to subordinating your 2nd position note to them? if not…, you may now be in first position as secured.