Fred Griffin, on leave of absence from ActiveRain, Licensed Florida Real Estate Broker (Fred Griffin Real Estate)

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Rainer
244,284
Caroline Gerardo
CMG Financial - Newport Beach, CA
C. G. Barbeau the Loan Lady nmls 324982

Who or how are they planning to transfer title? A Living Trust does not trigger but a LLC or Corp Entity does. Loans for the past 10 years funded by mine government (Fannie, Freddie, FHA USDA...) are not assumable, not even to a family member. 

Family transfer deed may trigger the lender and here is how: They look at the fire insurance bill annually and if there is a late payment they will pull the title.  Call me and I can address your exact situation

Oct 22, 2018 02:42 PM
Rainmaker
3,431,581
Michael Jacobs
Pasadena, CA
Los Angeles Pasadena 818.516.4393

Hmm---parked, reading and learning.

Oct 22, 2018 02:50 PM
Rainmaker
3,218,466
Nina Hollander
Coldwell Banker Residential Brokerage - Charlotte, NC
Your Charlotte/Ballantyne/Waxhaw/Fort Mill Realtor

I'd still be talking to an attorney. Do you need one here in NC?

Oct 22, 2018 02:44 PM
Rainmaker
633,482
Brian L. Sirota, Esq.
Bristar Realty (Realtor/Attorney) - Orange, CA
For Solutions: (714) 501-7660

Fred:

I've litigated three cases in the last 5 years involving the due-on-sale clause.   I pulled the research (below) from a case file, current as of 2015.   As of 2015 at least, the relevant exemption (highlighted on your list) has not changed.   I'd be surprised if this has since changed.   I believe you're on the right track.

~~~~~~~~~~~~~~~

Under the Garn–St Germain Act and its implementing regulations, a mortgage lender, among other restrictions, “shall not exercise its option pursuant to a due-on-sale clause upon ... [a] transfer to a relative resulting from the death of the borrower.” 12 C.F.R. § 591.5(b)(1)(v)(A) (implementing 12 U.S.C. § 1701j–3(d)(5)) [emphasis added]

~~~~~~~~~

Disclaimer:  This information is designed for instructional purposes only.  It should not be relied upon as a response to a specific question.  Local paid counsel should be consulted for a legal opinion tailored to your individual circumstances.

Oct 22, 2018 05:51 PM
Ambassador
4,376,558
Bob Crane
Woodland Management Service / Woodland Real Estate, Keller Williams Fox Cities - Stevens Point, WI
Forestland Experts! 715-204-9671

Caroline know much more about this than I do.

Oct 22, 2018 04:36 PM
Rainmaker
3,370,941
Wayne Martin
Wayne M Martin - Chicago, IL
Real Estate Broker - Retired

Read the due on sale clause of the mortgage. Most are standard for the past several years so transfers in the secondary market can be done more easily. That said it is probably very narrow in scope and enforceable. One way may be to seek permission from the lender to add her name to the loan and title. Before doing so, seek counsel!

Oct 22, 2018 03:22 PM
Rainmaker
5,125,871
Barbara Todaro
RE/MAX Executive Realty - Franklin, MA
Marketing Agent for The Todaro Team

maybe there's an attorney who will respond.... risky business relying on answers from anyone who is not an attorney.... 

Oct 22, 2018 03:02 PM
Rainmaker
1,703,908
Evelina Tsigelnitskaya
SIB Realty - Sunny Isles Beach, FL
www.SIBRealty.org 305-931-6931

Great question and I don't know the answer. 

Will read below. 

Thank you, Fred. 

Oct 22, 2018 09:57 PM
Ambassador
3,983,773
Debbie Reynolds
Platinum Properties - Clarksville, TN
Your Dedicated Clarksville TN Real Estate Agent

I do know that exemption (#5) is still being used and have encountered it in my area over the last few years.

Oct 22, 2018 07:40 PM
Rainmaker
1,558,909
Lyn Sims
RE/MAX Suburban - Schaumburg, IL
Schaumburg IL Real Estate

There are no exemptions as far as I know. Or, they're are but totally remote.

I read some of those exceptions & that doesn't seem valid any longer. Actually, never heard of a few of them like a Federal Savings & Loan can't prohibit assumption but they all do.

Oct 22, 2018 04:47 PM
Rainmaker
1,660,743
Bob "RealMan" Timm
Ward County Notary Services - Minot, ND
Owner of Ward Co. Notary Services, retired Realtor

No idea but I'd also like to know the answer Fred Griffin .

Oct 22, 2018 04:45 PM
Rainmaker
4,580,075
Ron and Alexandra Seigel
Napa Consultants - Carpinteria, CA
Luxury Real Estate Branding, Marketing & Strategy

Learning...

Oct 22, 2018 03:37 PM
Rainmaker
1,264,333
Valeria Mola
SIB Realty - Miami, Sunny Isles Beach - Sunny Isles Beach, FL
305-607-0709 SIB Realty Condos for Sale and Rent

Agree, interesting question and will learn from the answers.

Oct 22, 2018 10:17 PM
Ambassador
3,448,721
Debe Maxwell, CRS
www.iCharlotteHomes.com | The Maxwell House Group | RE/MAX Executive | (704) 491-3310 - Charlotte, NC
Charlotte Homes for Sale - Charlotte Neighborhoods

Sweet Caroline Gerardo to offer an explanation and an offer to help as well as Brian L. Sirota, Esq. Good luck, Fred.  

Oct 22, 2018 10:11 PM
Rainmaker
480,328
Diana Dahlberg
1 Month Realty - Pleasant Prairie, WI
Real Estate in Kenosha, WI since 1994 262-308-3563

Over my pay range ... parked, reading and learning.

Oct 22, 2018 05:30 PM
Ambassador
2,364,510
Fred Griffin, on leave of absence from ActiveRain
Fred Griffin Real Estate - Tallahassee, FL
Licensed Florida Real Estate Broker

 These exemptions are listed in the Garn-St. Germain Depository Institutions Act of 1982:

Oct 22, 2018 04:15 PM
Rainmaker
2,827,766
Kathleen Daniels
KD Realty - 408.972.1822 - San Jose, CA
San Jose Homes for Sale-Probate & Trust Specialist

Family members are not exceptions to the need to seek legal and/or tax advice Fred Griffin -

Having read your comment to Caroline Gerardo ... I'd consider estate planning documents which are likely different in California than in another state. I am happy to discuss how this works in California ... with no guarantee that is how it will work in Florida or another state.  I know Texas and Alabama are vastly different than CA. I know because I have facilitated helping others get estate plan documents in place for one of their family members. 

Oct 23, 2018 07:29 AM
Rainmaker
942,583
Thomas J. Nelson, Realtor e-Pro, CRS, RCS-D, Vets
Big Block Realty 858.232.8722 - La Jolla, CA
& Host of Postcards From Success Podcast

Let's ask Jason E. Gordon 

Oct 22, 2018 07:50 PM
Rainmaker
1,036,474
Sam Shueh
(408) 425-1601 - San Jose, CA
mba, cdpe, reopro, pe

No clue...

Oct 22, 2018 07:24 PM
Rainmaker
5,511,467
Roy Kelley
Realty Group Referrals - Gaithersburg, MD

???

Oct 22, 2018 03:05 PM
Rainmaker
1,117,273
Anthony Acosta - ALLATLANTACONDOS.COM
Harry Norman, REALTORS® - Atlanta, GA
Associate Broker

Parked and reading...

Oct 23, 2018 09:33 PM
Rainer
305,918
David M. Dwares
Title Professionals Corp. - Fort Lauderdale, FL
Title guy with a broker license

Fred, yes you can rely on that list, as long as the family member is getting the property through the estate of the deceased owner, (probate/rights of survivorship/etc.)

Oct 23, 2018 08:26 AM
Rainmaker
1,020,736
Kevin J. May
Florida Supreme Realty - Hobe Sound, FL
Serving the Treasure & Paradise Coasts of Florida

The clause should be spelled out in the mortgage. That's where I would begin and I doubt that Garn-St, Germain will hold water today.

Oct 23, 2018 05:18 AM
Rainmaker
4,432,467
Gita Bantwal
RE/MAX Centre Realtors - Warwick, PA
REALTOR,ABR,CRS,SRES,GRI - Bucks County & Philadel

No idea.

Oct 23, 2018 04:59 AM
Rainmaker
3,054,334
Scott Godzyk
Godzyk Real Estate Services - Manchester, NH
One of the Manchester NH's area Leading Agents

Most often is it is owner occupied and they rent it out. OR if they do not mantain the home as it goes in severe direpair. IF they say store 10,000 tires in their yard or sell it but take a mortgage while still having a mortgage. 

Oct 23, 2018 04:46 AM
Rainmaker
3,130,175
Richard Weeks
Dallas, TX
REALTOR®, Broker

Looks like Caroline Gerardo has your answer.

Oct 23, 2018 04:41 AM
Ambassador
4,073,837
Jeff Dowler, CRS
Solutions Real Estate - Carlsbad, CA
The Southern California Relocation Dude

Sorry but I still think it's a legal question, or perhaps our lenders here can respond.

Oct 23, 2018 01:16 AM
Rainmaker
781,828
Annette Lawrence , Palm Harbor, FL 727-420-4041
ReMax Realtec Group - Palm Harbor, FL
Making FLORIDA Real Estate EZ

Laws are in place that protect active members of the armed forces and reserves from eviction. They are evicted.

The action of the banks and sheriff will long outlive the latency of the judicial system to correct egregious behavior of lenders.

The one who prevails will be the one who owns the best legal representation.

During the 'smoke detector chirping' season, keeping the lenders in the dark was the best way to move distressed real estate.

Being 'right' doesn't always work to the benefit of the ordinary citizen. But your options can only be to advise them to hire the best legal advise they can. The vulnerable and poor need to know what groups will advocate on their behalf. Often that is spelled MEDIA.

Nov 23, 2018 07:04 AM
Rainmaker
4,162,576
Joan Cox
House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

Parked and reading too.

Oct 28, 2018 08:24 AM
Rainmaker
544,676
The Villages Realty
The Villages Realty - San Jose, CA
"Our Performance Will Move You!"

In Caligornia, it used to be one could assume the loan.  That changed with the Wallenkamp v. BofA lawsuit in the mid-70s.  Now, a loan can be transferable, with approval of the lender.  Kind of only fair is the interest rate is extremely low.  Haven't seen one in years, at least one that was a fixed rate.

Oct 27, 2018 07:47 PM
Rainmaker
1,847,404
Michael J. Perry
KW Elite - Lancaster, PA
Lancaster, PA Relo Specialist

Let me know the answer - I teach a 30 hr. RE Finance Class

Oct 26, 2018 07:09 AM
Rainmaker
3,983,763
William Feela
WHISPERING PINES REALTY - North Branch, MN
Realtor, Whispering Pines Realty 651-674-5999 No.

This is above my pay grade

Oct 24, 2018 08:51 PM
Rainmaker
3,246,938
Will Hamm
Hamm Homes - Aurora, CO
"Where There's a Will, There's a Way!"

Sorry, I can not help you.

 

Oct 24, 2018 12:06 PM
Rainmaker
641,216
Debra Leisek
Bay Realty,Inc Homer Alaska - Homer, AK

I dont know the answers to this  but I sure wish them both the very best.

Oct 24, 2018 12:55 AM
Rainmaker
714,354
John Juarez
The Medford Real Estate Team - Fremont, CA
ePRO, SRES, GRI, PMN

You mention that the family is meeting with an attorney which is what I recommend, Fred Griffin. Proper estate planning can put there mind at ease. 

Oct 23, 2018 08:46 PM
Rainmaker
1,144,865
Joyce Marsh
Regal | Christie's International Real Estate - Ormond Beach, FL
Regal Christie's International Real Estate

My advice would always be to seek the services of an Attorney. 

Oct 23, 2018 09:51 AM
Rainmaker
1,265,262
Ryan Huggins - Thousand Oaks, CA
https://HugginsHomes.com - Thousand Oaks, CA
Residential Real Estate and Investment Properties

That I don't know.  Maybe John Meussner can help?

Oct 23, 2018 09:12 AM
Rainmaker
487,026
Jason E. Gordon
AmeriFirst Financial Inc, San Diego, CA - San Diego, CA
Sr. Loan Officer, CMPS, CDLP, CDRE, RCS-D, CDPE

First & foremost, I recommend consulting an Estate Planning Attorney for official legal advice on this matter.  From an industry level, I have found that Lenders do not enforce the DOS Clause that you have highlighted as long as you continue to make on-time monthly mortgage payments. More often than not, the company "servicing" the loan is simply focused on receiving/processing timely payments. Perhaps you can contact the Legal Department of the Mortgage Servicer and proactively initiate a "what if this person dies" conversation with them (to ascertain their protocols). Generally speaking, Lenders are not interested in disrupting a performing asset (i.e. a timely paid loan on their books) if they don't need to.

 

Thank you for looping me into this conversation Thomas J. Nelson, Realtor, ePRO, CRS, RCS-D 

Oct 23, 2018 09:02 AM
Rainmaker
1,560,516
Sandy Padula and Norm Padula, JD, GRI
HomeSmart Realty West & Geneva Financial, Llc. - Carlsbad, CA
Presence, Persistence & Perseverance

Lenders still try to work around this act with acceleration clauses and alienation clauses in loan docs.  And Caroline Gerardo gave perfect examples where government entities exempt themselves from the laws they should be controlled by.

Oct 23, 2018 06:42 AM
Rainmaker
4,797,884
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

I don't know.

Oct 23, 2018 06:41 AM