A Transfer Without Payment of Liens Does Not Eliminate A Lender’s Valid Lien

Yesterday’s post about Quitclaim Deeds of Real Property has spurred a few variations of the same question: what happens to liens on my property when I transfer it to somebody else?

With only a few exceptions, a sale of property is subject to any properly perfected lien that is attached to the property. So, if I quitclaim land to you, then any liens on that land remain attached to that property, and I take it subject to those unpaid liens. Long story short, conveying your house to your mother doesn’t make the mortgage go away…it just means your mother owns a house with your mortgage on it.

So, as a buyer, it’s my duty to investigate the status of liens on any property that I’m buying and make sure that those liens are paid off or otherwise released (or that I’m content taking the property with the liens). A smart buyer will not only investigate the status of his seller’s title to confirm it’s lien free, but will also look a few “sellers” back, to make sure there are no liens.

From a creditor’s perspective, there is comfort knowing that a valid and recorded lien serves as protection of its rights, and the creditor doesn’t need to watch the property transactions on a daily basis.

For a buyer, only a complete review of the title records can provide comfort.

Be Careful When You Quitclaim Deed Property

The Tennessean reported yesterday that Kelley Cannon, convicted earlier this year of murdering her estranged husband, is trying to sell the family’s former $720,000 home to pay her legal expenses.

After the initial surprise, the question remains: Can she do this? According to the property records, she’s the only person who can sell the property. That’s because her husband quitclaimed the property exclusively into her name in 2005. The article says that the 2005 Quitclaim Deed was for “estate planning purposes” and because Jim Cannon had bad credit.

This is a fairly common practice. An individual entering into a high risk business venture or who sees potential collection lawsuits on the horizon may be inclined to transfer property out of their name and into a “safe” person’s name. The goal is to keep the valuable property out of the reach of creditors, and the “safe” person is generally a trusted relative or friend who has no financial issues.

From a creditor’s perspective, these types of transfers may later be avoided as a fraudulent transfer, as long as suit is filed within four years of the transfer.

But, there is also risk to the transferor, because he or she is transferring valuable property to a third party but isn’t retaining any ownership interest. Although the Cannon situation is an extreme example, in any such transfer, there’s always some risk that the “safe” person may not stay safe, whether it be a soured relationship or financial hardship.

Murders may be rare, but divorce or business disputes happen every day.  Think before you quit-claim property.

New Tennessee Foreclosure Deficiency Judgment Statute Becomes Effective Soon

In addition to imposing new notice requirements on foreclosing creditors, the 2010 Tennessee Legislature has also passed House Bill 3057, which provides post-foreclosure protections to debtors regarding deficiency balances. This new law becomes effective September 1, 2010.

A “deficiency balance” is the amount of debt remaining after the foreclosure sale proceeds are applied to the creditor’s debt. Because most foreclosures don’t net sufficient proceeds to fully pay the debt, lenders often sue their borrowers to recover this difference.

This new statute allows a debtor to question whether the foreclosure sale price was truly representative of the “fair market value” of the property. Under this law, the debtor can attempt to prove “by a preponderance of the evidence that the property sold for an amount materially less than the fair market value…” If successful, the debtor may be able to increase the amount of credit he or she is entitled to.

Additionally, the statute potentially shortens the time to file a lawsuit to recover a deficiency balance, requiring that such actions be brought by the earlier of: two years after the foreclosure; or within the original statute of limitations for suit on the debt.

For most lenders, this new law should not have any practical impact. While you might imagine there would be various horror stories of lenders bidding $10,000 to buy a half-million property, in reality, most lenders were already calculating their foreclosure bids by starting at what the fair market value of the property is, and then subtracting sale expenses and carrying costs. The most prudent lenders have a standard procedure in place for all foreclosures, and many go the expense to order pre-foreclosure appraisals.

The key to avoiding issues under this law is to have some reasonable basis for determining “fair market value” when preparing foreclosure bids, whether it’s the tax records, recent sales, or new appraisals.

Tennessee Lien Laws: Are Flood Related Claims on the Horizon?

Tennessee lien laws are fairly complicated, but a general rule of thumb is that contractors dealing directly with owners (i.e. “prime contractors”) have a year to assert lien rights and sub-contractors (i.e. “remote contractors”) need to take action in about 90 days.

Now that it’s been about ninety days after the historic floods in Nashville and Middle Tennessee, there may be an increase in flood related lien claims. Under the lien laws, Tenn. Code Ann. 66-11-101, et. seq., “excavation, cleanup, or removal or hazardous and nonhazardous material or waste from real property” is a lien-able “Improvement.”

Obviously, these economic times will impact the homeowners’ ability to pay, especially where they’ve lost everything. But, another factor may be insurance companies’ slow processing and payment of repair claims.

Faced with a potentially expiring lien deadline and an insurance payment that is always “pending,” the flood relief contractors may be forced to rely on the Tennessee lien statutes to protect their work.

Best of Twitter: Creditor’s Rights News Recap

Here are a handful of links I’ve posted to my twitter feed, @creditorlaw:

After a heated 11 USC 363 sale bidding war involving a Mark Cuban led group, Nolan Ryan’s group ultimately won the Bankruptcy auction with a bid of more than $608 million.

Will an employer hold a bankruptcy filing against an applicant in a hiring decision? This MSNBC report suggests they might.

The Wall Street Journal reports that personal bankruptcy filings are down overall in the South, including Tennessee, but Tennessee’s Shelby County (Memphis) still has one of highest filing rates.

Finally, in the age of social media, it’s a smart creditor’s rights attorney who uses Facebook, Myspace, and LinkedIn to search for debtors and information about them. But, is “friending” your debtor impermissible contact under the Fair Debt Collections Act? This NPR report says that such contact is a “gray area.”

Creditor Essentials: The Difference between a Bankruptcy Discharge and a Bankruptcy Dismissal

Just as all rivers run to the sea, all bankruptcy cases run to a bankruptcy discharge. Unless they don’t…which probably means that the case has been dismissed.

If you are a creditor, there is a big difference between a bankruptcy discharge and a bankruptcy dismissal.

A discharge means there is no (or modified) liability for the borrower’s debts, usually under 11 U.S.C. 727, 1141, or 1328.  Simply put, a “discharge” means that the debtor wins and doesn’t owe the debt any more.

A dismissal generally means that something has gone wrong in the case (such as a payment default under a Chapter 13 Plan or some failure by the Debtor to comply with the Bankruptcy Code) and, as a result, the bankruptcy case is going to prematurely end…without a discharge.  Here, the creditor wins because the debtor doesn’t get a discharge, and the debt remains due and owing.

This may be an obvious distinction, but it wasn’t to me on the first day I practiced bankruptcy law. Considering the absolutely polar-opposite results the two outcomes have for creditors, however, I learned this important lesson quickly.

Foreclosure Auction Sales: Buyer Beware

In my post from last week about ways to avoid disaster when buying real property at a foreclosure sale, one of the “nightmare” scenarios I noted is when “the house is still subject to prior liens or taxes.”

Well, that exact nightmare came true for these California foreclosure auction bidders, who bought their dream house for half of what it was worth…only to learn that they bought it subject to an existing $500,000 mortgage.

They paid nearly $100,000 for a house they thought was worth $200,000 (great deal so far)…but, under the foreclosure laws, they purchased the house still subject to a pre-existing $500,000 lien (not a great deal anymore).

This is the perfect example of my earlier advice: don’t bid at a foreclosure sale unless you do your homework in advance or consult with someone who will do your homework for you.

As a general rule, foreclosure sales wipe out liens behind the foreclosing instrument, but they are subject to any senior liens (liens recorded before the lien being foreclosed). The foreclosing lender didn’t do anything wrong here, and this isn’t that out-of-the-ordinary. Sometimes, the buyer mistakenly bids so much money above a junior mortgage that the lender is forced to pay that money to the defaulted borrowers–not upstream to those senior liens.

Over the next few years, we’re going to hear a lot about people who made a lot of money in foreclosure sales…just like we’re going to see stories like this one.

Hat-Tip: Calculated Risk Blog.

Creditor Lawyers Beware: House Passes “Protecting Gunowners in Bankruptcy” Bill

As a creditor’s lawyer, I’m not sure I like the recent passage of H.R. 5827, which allows a bankrupt debtor to exempt up to $3,000 in value of his “rifle, shotgun, or pistol” collection. The Bankruptcy Law Network explains the possible reasoning behind the law:

Americans should retain the right to defend themselves with firearms even though they face financial difficulties.”

And, yes, collection attorneys are the intended target of this law. (Pun intended…it’s Friday, people, and I’m blogging about exemptions.)

All kidding aside, bankruptcy and state law “exemptions” are actually the best defense against judgment collections. These laws allow a judgment debtor to protect a limited amount of assets from garnishment or levy by creditors. Assuming he properly claims this exemption (and most state court debtors never do), a debtor can fully protect his $3,000 rifle collection from a Chapter 7 Trustee or a creditor.

Foreclosure Sales: Only the Well-Informed Buyers Avoid Disaster

Foreclosure is bad. It’s bad for the homeowner (who loses their property). It’s bad for the lender (who gets a house it doesn’t want back). It’s bad for the neighbors (who may have to deal with a vacant house and decreasing property values).

But, for those with available cash or credit, this economy can offer the deal of a lifetime on the house of their dreams.

For every story like the one above, though, there are dozens more involving people who only buy trouble at foreclosure sales. Maybe the house still has people living there. Maybe the house is still subject to prior liens or taxes. Maybe the sale is on “as is, where is” terms for a reason.

Successful foreclosure purchases require advance homework, involving an inspection of the property records, the tax records, and maybe even an inspection of the property (or at the very least a drive-by). A buyer who does none of the above is running a very good risk that she’ll be buying a nightmare, not a dream home.

Think Before You Sue: When the Titans sue Lane Kiffin, Only the Lawyers are Guaranteed a Win

The big legal news in Nashville this morning is that the Tennessee Titans have filed a lawsuit against USC’s Lane Kiffin for poaching the Titans’ running backs coach, Kennedy Pola.

While it’s going to be a fun soap opera to watch, from a legal standpoint, I wonder if anyone talked to the Titans about divorcing their emotions from their legal rights.

This comes up all the time in collections matters, where the creditor client is emotionally charged up about a monetary loss and may want to file a lawsuit against a broke borrower as a matter of principle, but without regard to the likelihood of an efficient, successful outcome. Before any lawsuit is filed, the lawyer and client should have a frank discussion about the costs of getting to a judgment and, after that, the potential for successful recovery.

This isn’t to say that the Titans will not win in this lawsuit, but I predict that it’s going to be costly and time consuming to deal with. This is generally where I remind the collections client of the saying “Don’t throw good money after bad.” There’s no need to get into a fight if the fight itself isn’t worth the reward at the end.

Of course, I’m rooting for the Titans on this one.