Defaulted Real Estate Loan Remedies in Tennessee

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1 Defaulted Real Estate Loan Remedies in Tennessee Nelwyn Inman Jay Ebelhar Baker Donelson Offices 2

2 Tennessee Deed of Trust Consensual real estate liens are granted through a trust instrument in which an interest in property is transferred to a trustee for the benefit of the lender 3 Contents of Deed of Trust Parties to Deed of Trust: Grantor is borrower Grantee is trustee named therein Beneficiary is lender Description of property and related interests in which lien is granted Grant of interest to trustee with power of sale upon event of default 4

3 Contents of Deed of Trust (continued) Define what obligations are secured by deed of trust Waiver of equity of redemption, any statutory right of redemption, and other rights of redemption by the borrower May have requirements in additional to those in statute such as additional or longer publication of notice of sale 5 Contents of Deed of Trust (continued) May specify location of sale; sales typically occur at courthouse steps Must define events of default which trigger power of sale May provide remedies in addition to power of sale such as appointment of receiver 6

4 Pitfalls: Deeds of Trust Deed of Trust must be signed by all holders of an interest in the property (if individual, includes spouses with marital interest) Signatures of grantors must be properly acknowledged by a notary under seal Deed of Trust must be recorded with register of deeds in county where property is located 7 Recording Tax Tax of 11.5 per $100 of indebtedness Must state Maximum Amount of Indebtedness for Tennessee Recording Tax Purposes is $ The first $2,000 of indebtedness exempt from the recording tax 8

5 Recording Tax (continued) Due only once: if paid on deed of trust, not due for subsequently filed or recorded fixture filing, UCCs, assignment of rents and leases, or modifications which secure same debt Declaration required: MAXIMUM PRINCIPAL INDEBTEDNESS FOR TENNESSEE RECORDING TAX PURPOSES IS $-0. NO NEW INDEBTEDNESS. TAX PREVIOUSLY PAID ON DEED OF TRUST RECORDED AT BOOK, PAGE IN OFFICE OF REGISTER OF DEEDS OF COUNTY, TN. 9 Actions Upon Default Send notice of default/acceleration to obligors (right to cure only if required by loan documents) Appoint Substitute Trustee must be recorded with register of deeds; gives new trustee duties of original trustee Order updated title report Be sure loan documents and deed of trust properly assigned to the current holder. Conduct updated UCC search 10

6 Title Issues Confirm all interests held in real estate Holder of fee simple and leaseholds Easements, restrictions, covenants, etc. Senior liens title insurance claim if deed of trust is insured as first lien Junior liens judgment liens, materialman liens, liens les pendens must be noted in notice of sale 11 Title Issues (continued) Real estate taxes county or municipal taxes and assessments prime other liens IRS liens special notice of foreclosure required under federal law if junior Tennessee Department of Revenue tax liens for sales and employment related taxes special notice of foreclosure required under state law if junior 12

7 Pitfalls: Title Issues Meth lien not a real lien but notice filed by law enforcement that real property was site of meth production Tennessee Department of Environment and Conservation notice of hazardous substance County or municipal government assessment for clean-up (cost of mowing, trash removal, etc.) 13 Foreclosure Non-Judicial Total time to foreclose: approximately 30 days Advertisement notice of sale published three times in newspaper circulated in county where the property located First publication 20 days before sale Notice of Sale send directly to obligors on or before the first date of publication by registered or certified mail to property address or last known mailing address 14

8 Foreclosure Non-Judicial (continued) Place of sale in the county where property located Time between 10 AM and 4 PM Notice must list interested parties if interest is to be eliminated by foreclosure and of record ten days prior to first publication, must list lien in notice of sale Judgment liens valid for ten years 15 Foreclosure Tax Liens Additional statutory notice must be given to the Tennessee Commissioner of Revenue and District Director of the IRS not less than 25 days prior to date of the sale. After a foreclosure sale in which the notice of priority is given, taxing authority has 120 days right to redeem the foreclosed property. 16

9 Conduct of Sale Adjournment one or more times as long as sale held within one year of original sale date to a specific date and time announced at the date, time, and location of each scheduled sale Adjournment more than 30 days notice of the new date, time, and location must be mailed no less than 10 calendar days prior to the sale date via regular mail to the debtor and co-debtor No further publication required 17 Conduct of Sale (continued) Terms of sale stated in notice and/or announced at sale Credit bidding allowed Creditor may bid and assign bid to third party Bid amount considerations 18

10 Trustee s Deed Deed from trustee under deed of trust to winning bidder (or its assignee) transfers property Recording Tax for Trustee s Deed $3,700 per $1 million value Affidavit must be made in deed stating value of property 19 How a debtor can stop the foreclosure sale Bankruptcy stops a sale of debtor s property Injunctions to stop foreclosure: Tenn. Code Ann The party applying for relief in such case shall distinctly state how, when and to whom the debt or any part of the debt secured aforementioned has been paid, or any circumstances of fraud which vitiate the contract. Five days notice of hearing to trustee required; no ex parte relief can be granted. 20

11 Typical defenses to foreclosure Defect in foreclosure process Servicing error misapplication of payments rejection of payments unauthorized establishment of escrow account failure to honor loan modification failure to offer loan modification dual tracking misrepresentation regarding date of sale Lack of standing to enforce deed of trust 21 Receiverships Receivership is an action in equity for safekeeping, management, collection, and disposition of property Statutory authority and case law give court wide discretion to fashion the relief granted Prior consent to appointment of receiver by borrower in loan documents given great weight, but not absolute 22

12 Receiverships (continued) Injunctive relief usually sought in conjunction with receivership to compel cooperation of borrower and agents with receiver Temporary restraining order to freeze assets can be obtained under compelling circumstances where assets are being dissipated 15 day maximum duration Receivers can sell property but need court approval Preserve right for lender to proceed with remedy of foreclosure 23 Deficiency Statute of limitations two years after sale Absent fraud, collusion, misconduct or irregularity in the sale process deficiency shall be total debt plus costs of sale, less fair market value of the property at the time of the sale Rebuttable presumption that the bid price is equal to the fair market value at the time of the sale To overcome presumption, debtor must show that property sold for amount materially less than the fair market value of the property at thetimeofsale 24

13 Deficiency What is materially less? Case by case rough analysis of the percentage difference and condition of the property and any other factors Evidence of a difference of 11%, 14%, 16% and 20% between appraised values and sale prices has been deemed insufficient to establish a material difference and therefore overcome the presumption Hazard insurance proceeds 25 Deficiency (continued) Decide whether you are going to pursue prior to conducting the sale. Hire an appraiser who has testified and been accepted as an expert before by other courts. Have the appraisal dated to the date of the foreclosure sale. Get a detailed appraisal. Do not rely on a drive by appraisal. 26

14 Collection of Money Judgment Garnishment Tenn. Code Ann , et seq.; Tenn. R. Civ. P Writ of Execution Tenn. Code Ann , et seq. & , et seq.; Tenn. R. Civ. P (1) Execution or Judgment Lien (Personal vs. Real Property) Tenn. Code Ann , et seq. & , et seq.; Tenn. R. Civ. P & Collection of Money Judgment (continued) Garnishment All property, debts and effects of a judgment debtor in the possession or under the control of a third party shall be liable to satisfy the plaintiff s judgment. Tenn. Code Ann Effective way to execute on money due to debtor (i.e., wages and money owed to debtor presently and in the future) and money that the debtor has in a bank or investment account. 28

15 Collection of Money Judgment (continued) Writ of Execution: An order directing the sheriff to levy upon and sell the judgment debtor s personal property Property sold by auction, subject to 20-day waiting period for debtor to claim exceptions Subject to superior lienholders 29 Collection of Money Judgment (continued) Execution and Judgment Liens Execution lien attaches to personal property upon filing memorandum or abstract of judgment in register s offices within 60-days of judgment Judgment lien attaches to real property upon filing certified copy of judgment in register s office of county where land is located 30

16 Collection of Money Judgment (continued) Exemptions Personal property to the aggregate value of $4,000 Necessary and proper wearing apparel and receptacles Family portraits and pictures Family bible and school books 31 Collection of Money Judgment (continued) Exemptions Proceeds of accident, health, life or disability insurance Social Security benefits, unemployment compensation Alimony Child support 32

17 Collection of Money Judgment (continued) Homestead exemption $5,000 for real property owned by the debtor and used by debtor or spouse or dependent as a principal residence; $7,500 aggregate for individuals who jointly own principal residence $25,000 for debtor who has 1 or more minor children in debtor s custody on real property owned by debtor and used by debtor as principal residence Individuals 62 years of age or older: $12,500 on debtors residence; $20,000 aggregate for married couple of one is younger than 62 $25,000 aggregate for married couple both age 62 or older. 33 Guarantor Liability Tennessee does not favor guarantors and will construe a guaranty against the guarantor. Guarantees on a commercial contract are special contracts in Tennessee law. In order to facilitate the extension of credit, Tennessee does not favor guarantors and will construe a guaranty against the guarantor as strongly as the language will permit. 34

18 Nelwyn Inman Jay Ebelhar

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