The law of the state where the property is located controls the foreclosure or trustee sale process. The links to this page deal solely with Arizona law as governing Arizona real property.
Real estate issues related to property located in Arizona.
What is a Deed in Lieu of Foreclosure (Deed in Lieu or DIL)?
From Wikipedia, the free encyclopedia: A deed in lieu of foreclosure is a deed instrument in which a mortgagor (i.e. the borrower) conveys all interest in a real property to the mortgagee (i.e. the lender) to satisfy a loan that is in default and avoid foreclosure proceedings.
The deed in lieu of foreclosure offers several advantages to both the borrower and the lender. The principal advantage to the borrower is that it immediately releases him/her from most or all of the personal indebtedness associated with the defaulted loan. The borrower also avoids the public notoriety of a foreclosure proceeding and may receive more generous terms than he/she would in a formal foreclosure. Advantages to a lender include a reduction in the time and cost of a repossession, lower risk of borrower revenge (metal theft and vandalism of the property before sheriff eviction), and additional advantages if the borrower subsequently files for bankruptcy.
If there are any junior liens a deed in lieu is a less attractive option for the lender. The lender will likely not want to assume the liability of the junior liens from the property owner, and accordingly, the lender will prefer to foreclose in order to clean the title.
In order to be considered a deed in lieu of foreclosure, the indebtedness must be secured by the real estate being transferred. Both sides must enter into the transaction voluntarily and in good faith. The settlement agreement must have total consideration that is at least equal to the fair market value of the property being conveyed. Sometimes, the lender will not proceed with a deed in lieu of foreclosure if the outstanding indebtedness of the borrower exceeds the current fair value of the property. Other times, lenders will agree since they will end up with the property anyway and the foreclosure process is costly to the lender.
Because of the requirement that the instrument be voluntary, lenders will often not act upon a deed in lieu of foreclosure unless they receive a written offer of such a conveyance from the borrower that specifically states that the offer to enter into negotiations is being made voluntarily. This will enact the parol evidence rule and protect the lender from a possible subsequent claim that the lender acted in bad faith or pressured the borrower into the settlement. Both sides may then proceed with settlement negotiations.
Neither the borrower nor the lender is obliged to proceed with the deed in lieu of foreclosure until a final agreement is reached.
Edits from Deeds in lieu: merger doctrine does not apply where grantee is senior lienholder, By Benzion J Westreich & Scott C Cutrow, Katten Muchin Rosenman LLP (The full article was first published by the International Law Office.)
Lenders and borrowers faced with the default of a secured debt on real property have the option to work together to resolve the default. If the lender and borrower are cooperating, the simplest option is to let the property go through foreclosure, allowing the borrower to avoid wasting time and the purchaser in the foreclosure (perhaps the lender) to take over the property free of all junior liens. There may be pitfalls with this approach: for example, the lender may have some deficiency claims for a loan that is recourse. Or the property depreciates during the foreclosure process (eg, a non-judicial foreclosure in Arizona takes a minimum of 91 days and a judicial foreclosure will run a minimum of nine to twelve months. Both dates will be extended if bankruptcy is filed).
Under certain circumstances, the lender and the borrower will attempt to negotiate a deed in lieu of foreclosure transaction. A deed in lieu of foreclosure is the consensual transfer of title to the property from the borrower to the lender in order to avoid formal foreclosure proceedings. From the borrower’s perspective (even thought it may be incorrect), a deed in lieu may help the borrower avoid the stigma, public fallout and reduction in credit rating that might come as a result of foreclosure proceedings. A deed in lieu of foreclosure is a “foreclosure” as far as most creditors are concerned. Typically potential lenders will ask the borrower whether he, she or it has ever been involved in a foreclosure, trustee’s sale or a deed in lieu. Therefore, the deed in lieu, foreclosure or trustee’s sale will always be part of a borrower’s record.
For lenders the acceptance of a deed in lieu can help them to avoid foreclosure costs and potentially lengthy foreclosure proceedings. Lenders have also typically sought to retain the option to foreclose on a property after completing of the deed in lieu transaction if there are subordinate liens. Typically the savvy lenders do this by having a separate subsidiary take title to the property, subject to the existing loan, and providing in the documents that the loan survives (a ‘non-merger provision’). The credit consequences to the borrower on the subordinate lien is that there will be both a deed in lieu and a separate foreclosure on their credit report.
Deeds in lieu are beneficial in certain situations. It is extremely important that both the borrower and the lender obtain competent legal counsel before entering into the agreement.
Articles: Deed in Lieu and the Doctrine of Merger
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The following is for the exclusive use of attorneys. This firm does not make any representations as to the accuracy or current status of any case cited herein.
Typically unsecured liens do not exist after bankruptcy because the liens did not attach to anything before bankruptcy. The judgments are void per 11 USC 524(a)(1). A void judgment cannot create a post-petition lien. Therefore the judgments do not attach as liens to property acquired post-petition.
It is true that pre-petition liens on nonexempt property survive bankruptcy, but that requires that the liens have attached pre-petition to property owned pre-petition.
524 (a) A discharge in a case under this title—
(1) voids any judgment at any time obtained, to the extent that such judgment is a determination of the personal liability of the debtor with respect to any debt discharged under section 727, 944, 1141, 1228, or 1328 of this title, whether or not discharge of such debt is waived;
In re Charnock, 318 B.R. 720 (BAP 9th Cir, 2004) has the legislative history of 522(f)(2) and says that the debtor may avoid a judgment lien recorded before a consensual lien regardless of state law, because Congress wanted to favor consensual liens regardless of the priority of recording.
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