Posted by William Bronchick on September 04, 2007 at 07:06:57:
The De La Cuesta Decision and the Garn Act overruled the state court decisions, so yes, state chartered banks CAN enforce the due on sale. In the current market, however, it is highly unlikely a lender will call in a performing loan.
Can you evict Tenant buyers? Deed vs. Lease OPtion - Posted by Miles
Posted by Miles on August 29, 2007 at 21:10:05:
I’m looking for the legal answer on this one.
If your doing creative financing via getting the deed from the seller and you get a tenant buyer in the property, Can they legally be evicted if they were delinquent.
What if you just did a lease option?
I was told that because they had a equitable interest that they would not be able to be evicted and the home would have to go into foreclosure.
If it is written into the contract that they will be evicted, should they become delinqent and they sign that contact. Are they not bound to it?
Lawyer answer - it depends - Posted by William Bronchick
Posted by William Bronchick on September 01, 2007 at 12:14:01:
The general rule is that a lease/option well drafted is easier to evict than a buyer on a land contract (aka “contract for deed”). However, this depends on the equities of the situation. If the buyer has a lot of equity in the deal in terms of appreciation, repairs and/or down payment, a judge might rule in his favor and require you to foreclose. Then again, if there’s $50,000 in equity on the table and it costs you $5k in atty fees, is it worth it? I’d say so.
My experience has been when the equity is less than 10% for the buyer/tenant, it’s a slam dunk eviction.
Use logic here… - Posted by Rich-CA
Posted by Rich-CA on August 30, 2007 at 18:03:27:
If your lease and option documents are separate, then a violation of the lease should be handled under the normal tenant/landlord procedures. Further, they would not have an equitable interest in the property until the exercise their option, in which case you are out of the picture anyway.
If you did not structure your documents properly, then you could find yourself in trouble, but since that would be specific to your agreements, you need to have a lawyer look at it.
State vs Federally Chartered Institutions - Posted by Bill H
Posted by Bill H on September 04, 2007 at 24:59:04:
Hi Bill,
Long time no post here.
If memory serves me correctly back in about 1983 or 1984 there was a case (after Garn St Germain) wherein California Savings and loan sought to foreclose under the DOS and was prohibited because they were state chartered and not federally chartered.
Then almost overnight all the financial institutions went to Federally Chartered as Garn St Germain is federal law.
Recently ran into a state chartered institution and was just wondering if my memory is correct and they cannot exercise a DOS.
Thanks for a response.
Good Luck,
Bill H
Re: Lawyer answer - it depends - Posted by miles
Posted by miles on September 01, 2007 at 20:00:22:
Got it!
Re: Use logic here… - Posted by miles
Posted by miles on September 01, 2007 at 19:59:36:
makes sense