Category: Foreclosure

Are the Nashville Construction Defaults a Leading Indicator that the Nashville Market has finally turned?

I saw something at a Nashville foreclosure yesterday that I hadn’t seen in years.

A luxury, high end house in a great neighborhood was auctioned, and nobody showed up to bid. The Lender bought it back at a credit bid. (In the spirit of disclosure, it was a $2MM+ credit bid. They weren’t quite giving it away, but this is Nashville).

It reminded me of foreclosures in the Great Recession, when you’d stand on the courthouse steps, reading a foreclosure sale notice to nobody and, invariably, your bank would become the new owner of the property.

Back in 2008, lenders were dealing with the after-effects of an easy-money market. Builders with good credit built too many houses, too fast, and the market had a glut of inventory, with no buyers in sight.

The lack of buyer-credit meant that new sales couldn’t keep up with the builder’s debt obligations. It was sort of a ponzi scheme, as sales of today’s houses were necessary to pay for yesterday’s construction costs. When the money level dipped, lots of partially built spec homes got foreclosed, after the builder’s new money ran out and they were defaulted or simply gave up.

I thought about 2008 yesterday.

As much free-flowing money as there’s been in the Nashville retail-buyer and foreclosure market over the last 4-5 years, it was a surprise to see that sale fall flat yesterday. In the last year, I’ve done foreclosures in Nashville with 20-30 bidders present. But, on a sunny Thursday, with a Belmont-Hillsboro Village house on the block, and there are no bidders, buyers, or bankers willing to refinance?

Could this be a leading indicator of a larger problem in Middle Tennessee?

The signs are there. This exuberant builder refurbished a modest 1920s bungalow, to construct a 8,712 square foot, 2 car garage, 5 bedroom, 8 bath outlier, originally offered for $3,675,000 (estimated monthly payment of $20,012). The house isn’t entirely finished–it looks like contractor work on the new backyard pool and outdoor area has stopped.

The builder has more than a dozen projects throughout Nashville, in similar stages of “in progress” construction. The builder also has a number of pending foreclosures and twice as many pending lawsuits. The construction on a number of the sites seems to have simply stopped.

Just a few years ago, just one high-end property selling for top-dollar would have bought an over-extended builder a few months, finished another project, and lead to another sale, but it seems like the buyer market has waned as well. When both buyers and banks get cautious, risky bets come due.

There are a number of peculiarities here that may make a broad-takeaway unreliable. But, with that caveat, I’m seeing lots of the same issues and patterns that we saw in 2008.

Plus, by mid-morning, I’d learned that the developer filed a Bankruptcy. Just like they did in 2008.

Tennessee Court of Appeals Makes Clear: Foreclosing Party Must Prove It “Sent” Foreclosure Sale Notice, Not that it was Actually “Received”

I’ve said that the Tennessee foreclosure process can be intimidating because it’s, largely, non-judicial. Because there’s no judge involved, it comes down to the foreclosure lawyer strictly following the intricate labyrinth of statutory requirements.

One of the fundamental steps, of course, is to “send” the homeowner a copy of the Notice of Foreclosure Sale. Under Tenn. Code. Ann. § 35-5-101(e), that sale notice “shall be sent on or before the first date of publication provided in subsection (b) by registered or certified mail, return receipt requested.”

When I’m conducting a foreclosure, it’s a great relief to get that signed, certified mail green card back, because I know that my borrower received the Sale Notice and knows about the sale.

But, what about the situations in which the green card doesn’t come back signed?

This has always been an issue, because a borrower in default on his loans likely sees a certified mail green card as bad news and doesn’t rush to the post office to sign for it, especially when a copy is also sent by first class mail.

It became an even bigger issue during the COVID pandemic, when mail delivery was disrupted and people weren’t leaving their house to go to the post office. One of my 2021 foreclosures was challenged because, instead of getting a signature (presumably to avoid human contact), the postman marked it delivered and wrote his badge number on the signature line.

Do I have to prove that the owner received the Notice of Sale?

A new opinion from the Tennessee Court of Appeals reminds us that proof of “delivery” is not necessary.

The case is Jennifer Scharsch v. Cornerstone Financial Credit Union, No. M2020-01621-COA-R3-CV (Tenn. Ct. App. Feb. 28, 2023). There, the borrower disputed “receipt” of the foreclosure sale notice. The Court made short work of this argument.

The Court wrote that Tenn. Code Ann. § 35-5-101(e) “only provides that the trustee shall ‘send’ the notice.” Id. (citing Smith v. Hughes, 639 S.W.3d 627, 640 (Tenn. Ct. App. 2021). Further, “[t]here is no statutory requirement that the notice be received by the debtor.” Davis v. Wells Fargo Home Mortg., No. W2016-02278-COA-R3-CV, 2018 WL 1560077, at *11 (Tenn. Ct. App. Mar. 29, 2018).

Because the foreclosing lender had submitted affidavit proof that it sent the notice, the lender satisfied its obligation under § 35-5-101(e).

“Even if [the borrower] never received the letter, [the foreclosing parties] satisfied the requirements of the deed of trust and Tennessee Code Annotated § 35-5-101. So whether [the borrower] received the notice of the foreclosure sale was not material for purposes of summary judgment.” Id.

On my sales, to be clear, I always want there to be a “receipt.” I want the call that has a payment proposal, or threatens a bankruptcy, or anything that shows that they received what I sent. But, due to the total unpredictability of the green-card signature system (and a borrower’s ability to dodge a signature), I don’t want the responsibility of proving that in order to have a valid sale.

One Weird Trick to Avoid a Paperwork Challenge to your Tennessee Foreclosure

In 95% of Tennessee foreclosures, the foreclosing lender has appointed a substitute trustee to conduct the sale but, of those, about 10% mess the process up and conduct a defective sale.

First, some background. When a borrower grants a lien pursuant to a deed of trust, the real property is conveyed to a specific trustee named in the instrument “to hold title to the property in trust” pending the repayment. If there is a default, the trustee can later sell and convey title to the property.

These trustees are generally a closing lawyer or trust officer at the bank, but they are rarely the same lawyer who does the foreclosures for the bank. (Note: There’s no reason that they can’t be same.)

Later, if the bank decides to foreclose, one of the first steps is to appoint a “foreclosure” lawyer to be the successor trustee under the deed of trust. This is done by simply preparing an Appointment of Substitute Trustee, having the lender sign and notarize it, and recording it with the register of deeds in the relevant county.

Sounds easy, right?

Here’s where the mistake happens. When the decision to foreclose is made, the bank (or the lawyers) sometimes rush it out the door and start the foreclosure either before the Appointment of Substitute Trustee is signed or before it is recorded. (Spoiler: One of those is fatal to the foreclosure.)

Under Tenn. Code Ann. § 35-5-114(b)(3), if the Appointment is not recorded by the first publication date, there is specific “savings” language that must be included in the foreclosure sale notice. This text says, basically, that, even though the appointment hasn’t been recorded, the lender “has appointed the substitute trustee prior to the first notice of publication as required by Tenn. Code Ann. § 35-5-101…”

As a result, it’s still a valid sale, as long as that text is included. But, as this text also suggests, it may not be a valid sale if the actual Appointment of Substitute Trustee was not signed until after the foreclosure sale notice was published. If that’s the case, a court may find that the successor trustee was a stranger to the property at the time he or she issued the sale notice. (And strangers have no power to start a sale.)

Tennessee foreclosure statutes are non-judicial, which means it’s all just paperwork, but there’s an exact sequence of steps that must be followed.

This particular error is an easy one to avoid, but also an easy one to make. Many creditors want to foreclose quickly, which requires the lender and its counsel to satisfy strict publication deadlines to get the sale notice published and to obtain a sale date.

In doing so, they can often overlook the necessity of getting the initial paperwork executed in advance (whether it’s the rush of getting the sale notice to the local newspaper or the simple hassle of finding a notary for the appointment of substitute trustee).

As we have seen in recent cases, the failure to follow the technical requirements of Tennessee law and deeds of trust can result in a challenge to a foreclosure. It’s all paperwork, but make sure you get it right.

Lender Groups ask Tennessee Supreme Court to weigh in on conflicting authority on wrongful foreclosures

In July, I wrote about a July 2022 Court of Appeals opinion holding that even a defective foreclosure sale conveys valid title to real property. That’s because Tenn. Code Ann. §§ 35-5-106 and 35-5-107 expressly say that title is not impacted by a defective sale and, instead, the foreclosing trustee is liable for monetary damages.

Within a few minutes, a local banker commented on the post and asked: Yeah, but did you see this one from last month?

He was talking about Terry Case v. Wilmington Tr., N.A. as Tr. for Tr. MFRA 2014-2, No. E202100378COAR3CV, 2022 WL 2313548 (Tenn. Ct. App. June 28, 2022)– issued less than a month earlier–which held (sort of) exactly the opposite: “[A] trustee’s mere failure to comply with the terms of a deed of trust will render the foreclosure sale invalid.” Id. at *8.

How does the law reconcile these drastically different outcomes, based on the same wrongful foreclosure allegations?

Tennessee is a non-judicial foreclosure state, but don’t be lulled into a sense that foreclosures are simple (i.e. just “paperwork”). Instead, a foreclosing lender must simultaneously adhere to two separate processes, one of which is found in Tennessee statutes and the other in the underlying deed of trust.

Sometimes, they match; sometimes, they don’t.

If the lender doesn’t comply with any of the requirements of both tracks in full, though, this developing caselaw imposes drastically different remedies for non-compliance. Fail to satisfy the statutes? No big deal. Fail to satisfy the deed of trust? Here’s a nuclear bomb to your title.

Needless to say, this is confusing to creditors, borrowers, and buyers at foreclosure sales.

The plaintiff in the June 2022 case has filed an Application for Permission to Appeal to the Supreme Court (a full copy is attached below), seeking clarification on the splintered issues of law surrounding wrongful foreclosure claims. The Application opens with a direct message: “Tennessee wrongful foreclosure law is in a state of disarray.”

On behalf of the Tennessee Bankers Association and the Tennessee Mortgage Bankers Association, my office filed an Amicus Brief in support of the request to have the Supreme Court step in (also below).

This is a big deal. If this caselaw stands, title to foreclosed real properties will remain clouded until the wrongful foreclosure claims expire (6 years from the sale date). And, sure, a title company can vet the sale process, but title companies don’t like any risk, no matter how small.

This will render post-foreclosure title completely uninsurable. This isn’t good for anybody. Borrowers, lenders, buyers–everybody loses here.

application-for-permission-to-appeal-4878-4945-6182-v.1Download
filed-amicus-brief-in-wilmington-v-case-4884-8705-5926-v.1Download

Per the Numbers: Tennessee foreclosures are historically low, but storm clouds are forming

My banker clients are a pessimistic bunch.

That’s partially because the bankers that I deal with are in “special assets” or are the bank’s general counsel.

Long story short, they aren’t the ones at the ribbon-cutting ceremony for the expensive new restaurant; nope, my clients are the ones who get called in at the end, when the loan has gone bad and we’re figuring out what to do with used restaurant equipment. My clients always notice the storm clouds on the horizon.

With that in mind, for more than a year, they’ve been predicting a tidal wave of commercial and consumer loan defaults, followed by a spike in foreclosures.

And, generally, they’ve been wrong.

In Tennessee, one recent study showed that–to date–there have only been 3,316 foreclosure sale notices published (state-wide) in 2022. That sounds like a lot, but it’s less than a third of what we had in 2017 (10,810) and 2018 (11,711).

In 2022, the most sale notices have been published in Shelby County (496), followed by Hamilton County (304), Davidson County (271), and Knox County (223). Honorable mention to Williamson County (153) and Montgomery County (132).

The 3,316 figure for 2022 is an increase from 2021 (2,169). These drop aren’t entirely COVID driven, as Tennessee had just 5,982 sale notices published in the pre-pandemic glory days of 2019.

That low volume in 2019-2020 was the result of a number of factors, including COVID-related forbearances, sky-rocketing property values, and low interest rates. And, as you know, all of those factors are disappearing.

(Side-note: We can’t be sure about COVID, of course, but I’m pretty sure we won’t see mortgage rates in the 2’s and 3’s for a very long time.)

In the end, here’s where the bankers are probably right: There’s a backlog of foreclosures, and the crush is coming soon. The bankers are correct that the sky is falling; their timing was just off by a year.

Commercial Foreclosure Opportunity in Dickson!

Despite all the doom and gloom predictions, foreclosures haven’t skyrocketed in 2022.

Having said that, in the Middle Tennessee area, there remains a surprising amount of interest (and money) in the foreclosures that do happen. In June, I wrote about four foreclosure sales that were pending and, for every single one, at least 10 people showed up and, in the end, I had excess proceeds (meaning my lender client got paid and had money left over).

Long story short, the days of reading a foreclosure sale notice to nobody on the courthouse steps are, at least temporarily, over.

I’ve got a sale set tomorrow, September 8, 2022, for a commercial property at 110 Livestock Road, Dickson, Tennessee 37055.

Based on the photos pulled from an old Loopnet listing, it’s right in the “off-interstate” commercial district, behind Bojangles Chicken (please note: my legal description, not these photos, controls what the buyer is buying).

At one point, the owner planned to build and operate a Taco John’s restaurant on the site. A complicated Chapter 11 later, however, and this commercial property is back on selling block.

Let me know if you would like additional information on this. I am the attorney for a creditor involved, and, as a result, I will be limited in what information and guidance that I can provide.

As with all distressed real estate sales, buyer beware, and hire a lawyer.

New TN Court of Appeals Opinion: Even a defective foreclosure conveys good title

Tennessee is a non-judicial foreclosure state. In order to foreclose on somebody’s house or commercial property, all a lender must do is mail the proper paperwork to the proper parties. A lawsuit or other court involvement is not necessary.

That’s a drastic over-simplification, but, basically, it’s true.

In fact, when I did my first-ever foreclosure 20 years ago, I was so nervous about not having a court involved in such a complex and significant process that I filed a judicial foreclosure action. That way, at the end, I’d have a Judge’s blessing that “This was done correctly.”

What happens to a sale if the foreclosure attorney doesn’t do the paperwork correctly? Is it a valid sale? Can it be challenged?

Yesterday, the Tennessee Court of Appeals reminded us all that even a defective sale can convey good title, at Brady L. Daniels Et Al. v. Vince Trotter, E2020-01452-COA-R3-CV (Tenn. Ct. App. July 20, 2022).

In the case, it was alleged that the creditor did not provide proper notice of the sale, per Tenn. Code Ann. § 35-5-101(e). In the opinion, the Court discussed what, if any, impact of a failure to get the paperwork correct would have on the sale and cited two statutes.

The first, Tenn. Code Ann. § 35-5-106, provides that “[s]hould the officer, or other person making the sale, proceed to sell without pursuing the provisions of this chapter, the sale shall not, on that account, be either void or voidable.”

The second, Tenn. Code Ann. § 35-5-107, provides that the officer or other individual making the sale who fails to comply with the requirements in this chapter of conducting a private foreclosure sale is guilty of a class C misdemeanor and is liable for all damages incurred by the party injured due to his or her noncompliance.

These two statutes, the Court noted, are “intended to eliminate the uncertainty with land titles resulting from foreclosure sales.” Citing the Tennessee Supreme Court, the Court later wrote that a defect in a foreclosure process would not result in the sale being set aside but, instead, the damaged party would simply be entitled to compensatory damages.

Are Foreclosures Coming Back? Here are some notable Middle Tennessee Foreclosures set this Week

I’m involved in a number of Nashville foreclosures right now, and here are some details for some pending sales for anyone looking to buy. (As always, the typical disclaimer: Nothing in this post, of course, is designed to give you legal or factual advice about these sales.)

(1) 1018 Riverwood Boulevard, Hermitage TN: June 21, 2022 at 10 am (this Tuesday). Sale to be conducted by Republic Bank, from an alleged second lien position, subject to a first from 2011 in the original amount of $178,837. Zillow Value: $490,600.

(2) 810 Bellevue Road, Unit 214, Nashville, TN 37221: June 22, 2022 at 10 am (this Wednesday). Sale to be conducted by HOA, from an alleged second lien position, subject to a first from 2003 in the original amount of $76,500. Zillow Value: $222,400.

(3) 1011 Murfreesboro Road, #A-4, Franklin, Tennessee 37064: June 22, 2022 at 1 pm (this Wednesday). Sale to be conducted by HOA, from an alleged second lien position, subject to a first from 2012 in the original amount of $56,500. Zillow Value:$359,500.

Please let me know if you would like additional information on any of these. I am the attorney for a creditor involved, and, as a result, I will be limited in what information and guidance that I can provide.

As with all distressed real estate sales, buyer beware, and hire a lawyer.

Zillow’s Failure Hasn’t Slowed the Torrid Pace of All-Cash / No-Fuss Property Sales in Nashville

In the depths of the COVID-19 pandemic in June 2020, I bought a truck. And not just any truck, but a brand new 4×4 that was way bigger than the late model Nissan Leaf that I traded in.

When we returned to a semblance of normal life in the spring of 2021 (i.e. when Courts began to require in-person appearances), I realized how much I hated driving a truck on downtown streets.

Well, the actual realization occurred at the top level of the Williamson County Judicial Center parking lot, when there were no parking spots and I had to turn my giant truck around in a tight space and find street parking. I’ll yada yada the parts about me backing into a tree while parallel parking a few minutes later and, by the end of the day, getting a Carvana purchase offer.

But, long story short, Carvana gave me a no-questions/no-fuss offer on my (fixed) truck, in a process that was weirdly easy. I was used to having to run a newspaper ad and have strangers come to my house for test drives (or, worse, dealing with a used car salesman).

That’s their business model–disrupt the traditional market by making an onerous process so easy.

Which is exactly what Zillow was doing in real estate, and which ended in failure.

But don’t think that Zillow’s failure is an indictment of the business model. It’s alive and well in the Nashville market.

When I look at the recent property transactions in the Nashville Ledger, all I see are weird LLCs, buying lots and lots of properties. Look at the picture below. Sfr Xii Nashville Owner 1 LP. Opendoor Property Trust I. Mile High Borrower 1 Value LLC.

My personal favorite is the buyer named “Rich af LLC,” the new owner of some prime real estate on 1st Avenue.

The business model is straight-forward. These buyers approach owners with a quick, no-fuss, cash offer, and, then, they hope to flip the properties (after renovations or maybe not), safe in the assumption that the Nashville real estate market is going to justify their confidence.

Zillow’s failure drew a lot of national attention, but, if the past 60 days of transactions are any indication, the business model is alive and well in Middle Tennessee. In fact, Zillow’s crash and burn appears to be good for Nashville property investors–not only is there one less competitor, but there’s an assumption (among property owners) that “buying low/selling high” isn’t a viable business, and they’re lucky to get quick-cash offers on their properties.

When Carvana offered me nearly 95% of retail value for my 10 month old truck, I was surprised (and couldn’t get it there fast enough). I kept waiting to find out what the catch was–would there be some secondary negotiation or some other trick? (There wasn’t.)

I suspect Carvana was confident that they’d easily find a buyer in a great selling market, and I’m betting that’s what these Nashville property investors are doing too.

Pending Judicial Foreclosure: Williamson County residential property

This isn’t going to turn into a real estate listing blog, but a number of you have asked me to keep you posted when I set interesting properties for sale.

Well, I’ve got an interesting one coming up for a Williamson County residential property in Concord Hunt (a very nice neighborhood) that will be sold on November 4, 2021.

The property is 9185 Monarch Court, Brentwood, Tennessee 37027, which Zillow says is worth $1,323,100. Who knows if that is accurate, but I can’t wait for an actual property owner to use the “Sell your home to Zillow” feature and we see if Zillow puts their money where their site is.

Per the Zillow information, the house was built in 2005, is in a phenomenal school district, and, based on my site visit, is vacant.

My bank client is the second priority lien holder. This is a “judicial foreclosure” because the third-priority lien holder is the United States government. As a result, any sale will be subject to the approval and confirmation of the Williamson County Chancery Court. Per my Sale Order, I’ll handle getting the sale approved.

The sale will occur on Thursday, November 4, 2021 at 11:00 o’clock a.m., at the property address.

Please let me know if you would like additional information on this property. I am the attorney for the creditor, and, as a result, I will be limited in what information and guidance that I can provide, but I am available to answer questions about the judicial foreclosure sale and the court approval process. Nothing in this post, of course, is designed to give you legal or factual advice about these sales.

As with all distressed real estate sales, buyer beware, and hire a lawyer.