FAQ

WHAT IS SUBJECT TO?

"Subject-to" is a real estate transaction method where the buyer takes ownership of a property, and the existing loan remains in the seller's name. This means the sale is completed "subject-to" the current financing, with the buyer taking responsibility for the mortgage payments.

WHY WOULD A SELLER CONSIDER THIS?

This method benefits sellers in low-equity situations, allowing them to transfer ownership without additional funds or closing costs. Sellers can move on from the property while avoiding expenses like repairs, taxes, and utilities, potentially improving their credit score through timely mortgage payments.

HOW DOES THIS IMPACT A SELLER’S CREDIT?

Since the loan remains in the seller’s name, timely payments by the buyer positively impact the seller’s credit score, offering long-term financial benefits.

HOW CAN SELLERS VERIFY PAYMENTS?

A third-party loan servicing company facilitates monthly payments and provides sellers with regular updates to ensure payments are made on time.

WHAT HAPPENS IF A PAYMENT IS MISSED?

In case of default, a pre-signed Deed in Lieu transfers the property back to the seller. Sellers benefit from payments already made, improvements to the property, and potential appreciation, giving them an opportunity to sell the property at a higher value.

HOW ARE UTILITIES AND INSURANCE HANDLED?

We transfer utilities to our name and replace the seller’s current insurance policy with one that includes the seller as an additional insured party, ensuring comprehensive coverage.

IS SUBJECT-TO LEGAL?

Yes, acquiring property "subject-to" existing financing is legal. Legal precedents and federal regulations, including the Garn-St. Germain Act, support its validity. It’s a recognized method of property transfer, offering flexibility for both buyers and sellers.

Is "SubTo" Legal? Here's What You Need to Know

Yes, acquiring property “subject to” the existing financing (commonly known as “SubTo”) is legal. However, understanding the legal nuances is crucial. Here’s an overview based on key rulings and regulations:

Important Points to Consider

U.S. Supreme Court Ruling:

The Supreme Court clarified that transferring property ownership without notifying the lender is not fraudulent. (Field v. Mans, 1995. S.Ct.207).

Field v. Mans (516 U.S. 59, 1995):

This case highlighted that lenders can easily verify property transfers through public records. If the lender wasn’t informed about a due-on-sale clause violation, it doesn’t constitute fraud.

Medovoi v. American Savings & Loan (1979):

This case established that buyers are not legally required to notify lenders about a property transfer, and lenders cannot sue buyers for failing to do so.

Misunderstanding the "Due-On-Sale" Clause:

Transferring property title with a “due-on-sale” mortgage is not illegal. There’s a common misconception that violating this clause is a criminal offense—it’s not. Violating a “due-on-sale” clause does not result in legal penalties like jail time.

Garn-St. Germain Act:

This federal law allows lenders to enforce the “due-on-sale” clause but also provides exceptions. These exceptions include property transfers related to marriage, divorce, or lien creation, among others.

Federal Home Loan Bank Board:

Now replaced by the Office of Thrift Supervision (1989), this board clarified that the Garn-St. Germain Act primarily applies to owner-occupied homes.

Conclusion

The legality of “SubTo” is well-established, supported by Supreme Court rulings and federal laws. While the “due-on-sale” clause gives lenders certain rights, its violation is a civil matter, not a criminal one. For a seamless property transaction, it’s always advisable to consult legal professionals who specialize in real estate law. This explanation ensures clarity and confidence for anyone exploring “SubTo” as a real estate strategy.

Mirror Wrap / Wrap Around Financing FAQ Guide

For Sellers:

What is Mirror Wrap / Wrap Around Financing?

Mirror Wrap or Wrap Around financing is a creative real estate strategy where the seller acts as the lender, allowing the buyer to make payments directly to the traditional mortgage lender. The seller maintains the existing mortgage while creating a new financing arrangement with the buyer.

Existing Mortgage Terms: Existing terms on the mortgage such as loan balance, interest rate, maturity are copied/mirrored onto this new "Wrap Note."

Who makes the mortgage payments?

According to the new promissory note that gets signed at closing, the buyer would be responsible for making the mortgage payments moving forward directly to the underlying lender. If the monthly payments change in the future due to an increase or decrease in the taxes or insurance, the buyer would still be responsible for it. If the buyer fails to make payments for 30 days, the seller will have an option to foreclose on the property and take it back from the buyer, thereby keeping all the proceeds, added equity, and appreciation of the property.

What is the process?

1] Faster Sale: It can expedite the sale process as it bypasses the need for bank approval, extensive paperwork, and appraisal contingencies.

2] Increased Protection:At closing, a promissory note, deed of trust, and special warranty deed are drafted, protecting the seller's interest in the property. Mirror Wrap provides protection to the sellers with the help of these documents that are drafted by experienced title attorneys.

3] Foreclosure Option: Should a buyer default on any payment (not pay it within the lender's grace period of 10-15 days), the seller would need to send a cure notice to the buyer, demanding them to cure the mortgage payment. The standard cure period drafted in the promissory notes is typically 10 days. If the payment is not cured within this period, the seller would have the option to foreclose on the property, taking it back from the buyer and thereby keeping all the proceeds, equity, and appreciation anytime during the rest of the loan term. This gives the seller an option to foreclose on the property within 30 days of non-payments. This can be a huge benefit for the seller, as they would retain added equity and appreciation if the buyer defaults anytime during the rest of the loan term.

How does Mirror Wrap / Wrap Around Financing Benefit Me as a Seller?

1] Savings on Expenses: Mirror Wrap or Wrap Around financing can save a lot of expenses in the seller's pocket compared to a traditional offer. In these creative offers, we save some/all of the buyer's agent commission, typically around 3% in a traditional sale, plus we pay all the closing costs which can save up to 1% in the seller's pocket. Overall, netting them more cash in their pocket compared to any traditional offer.

2] Second Lien Protection: Seller would be in 2nd lien on the property, thereby they would be protected as a lender.

3] Retained Equity and Appreciation: By having the option to foreclose on the property, the seller retains added equity and appreciation if the buyer defaults anytime during the rest of the loan term.

4] DTI Concerns: If the seller is worried about their Debt-to-Income (DTI) ratio or needing to qualify for another mortgage, a mirror wrap would allow underwriters to qualify the seller for another property without the long seasoning period (12 months of loan servicing payments through a third-party servicing company) that are common in subject-to transactions. This off-sets the DTI by 100%. Some lenders may require showing 12 months of loan servicing payments through a third-party to wash the DTI off. If the seller needs to purchase a home IMMEDIATELY, we can also implement a lease purchase that the new lender would be able to qualify those payments towards the DTI. We can refer sellers to lenders experienced in handling these transactions.

5] Avoiding Due on Sale Clause: Implementing a mirror wrap or wrap around financing may trigger the "Due on Sale" clause in the original mortgage agreement. To avoid this, we close all our transactions under a land trust with the documents that are drafted by very experienced land trust attorneys who has years of experience handling these transactions in multiple states. We work with title attorneys who have experience closing thousands of these types of transactions over 10-20 years in multiple states nationwide, and they make sure all bases are covered before closing. We have not had a single due on sale being called till date, and our title attorneys that we work with have had a due on sale being called 5 times in over 8000 plus deals, and these 5 times were because the parties did not follow instructions by the title attorneys.

Risks for Sellers:

Disclaimer: This FAQ guide is for informational purposes only and does not constitute legal or financial advice. It is recommended to consult with qualified professionals before entering into any real estate transaction.