- June 17, 2019
- Posted by: august19
- Category: Podcast
When someone borrows money from you for business purposes, expecting it to be paid is normal. However, in some circumstances, the borrower may have some issues paying it back on time, and this is when legal measures come in. Chris and Gail talk about when to go to legal and getting the process rolling when a borrower fails to make payments. They share experiences of having to hunt down borrowers to get them to pay. The legal process requires an attorney and choosing the right one is always necessary. Chris speaks on what you as the lender can do in terms of proposing settlements and accepting payments even with an ongoing legal process.
Listen to the podcast here:
When To Take Legal Actions On Borrowers
We want to follow up on our last topic/discussion in regards to dealing with legal and getting that process rolling if in fact you ever have to go down that road. Typically, if you’re buying nonperforming assets, I’m guessing you would, but if you’re buying performing assets, you may never have to.
That’s a beautiful dream, isn’t it?
It is. I would set your expectations to assume that at some point, you probably would have to.
As Mel Brooks said, “Hope for the best. Expect the worst.”
Previously, to give you a little highlight. We talked about some of the processes for when legal would have to take it to action, whether it’s the initiation when you’re not getting a response or after you’ve worked something out with a borrower and they haven’t kept up with the agreement. Those were two scenarios we were looking at. We were also just talking about the documentation you need in order to start that process. We finished up wrapping up basically the point when you got the information to your attorney to send the demand letter.
I learned a lot from that because I actually did not know exactly what you do. We’re in this strange situation where we are in the same business, we have the same goals and we do the same work, but I don’t really know the details of exactly what you do and the genius reasoning behind any of it. That was very interesting for me.
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Chris, I think one of the things that people really appreciate about us, and I know this because they say it, is that we don’t sell them. There’s none of that. You can sell your wares downtown in Washington on the street. The last episode was our 50th. I feel like it was a missed opportunity. There were no guests, there were no performances, there was no music. What are we doing? We still look like such amateurs. We don’t know how to properly do these things.
I think it just comes down to the fact that we’re all not about glitz and glamour and we’re about trying to help people. When we say people, we mean help homeowners, but also assist investors in trying to make sure they work with homeowners in a manner that is probably beneficial for all parties involved.
Speak for yourself. I am trying to lead a life of glamor and I’m just failing because I had older brothers and I never learned how to be like a girly girl. It’s a good thing that I’m in the slugfest world of note investing. Is this our 51st or is this our 50th and a half? I feel like we’re doing an unusual two-part because we have found a topic that is so dense and rich in detail, like a tapestry that we can’t possibly cover the whole thing in one. Last episode, we talked about what drives us to call a lawyer and what did we try before we call a lawyer? What are the triggers that make it a legal situation? For me, I invest a certain amount of optimism and compassion upfront. Every borrower I take on as my own, they have a presumption of innocence at the beginning and that whatever’s happened in the past, I’m willing to give you a shot. I don’t look at them and think, “Forget this person. I’m going to call a lawyer right away.”
When people don’t respond, they don’t let you talk to them or they promise things and then don’t deliver, I feel a definite shift in my attitude and my emotions. It’s like, “That’s it. Time for legal.” Even legal is not necessarily the end because they could redeem themselves even at that point. The fact of the matter is once I start legal, they never come up with all the cash they have to. Before legal, I’m flexible. We can work out terms, we can work out anything, we can talk about anything. I’m listening. Once we’re at legal, you need to come up with the full reinstatement amount. Usually, if I’m doing legal, it’s because I already gave you a chance to make payments or catch up payments and you didn’t do it. Worse yet, you told me you would and you didn’t do it.
It’s interesting because when I get to legal, I don’t do that in the sense of I take on an opposite. Not opposite, but it depends. I don’t always ask for full reinstatement. It depends on where the situation is. If it’s somebody who has been given several opportunities and it failed, then yes. If it’s somebody starting out where they haven’t made contact and finally are after legal has started, at that point in time, usually I will work with them first.
You’re right, I am the same. I didn’t mean to make it sound like it’s off with your heads.
I’ve had situations where I’m on legal for the second time and maybe it’s a shame on me for doing things. If a guy or a woman owed $3,000 and they show up with $2,000, am I going to kick them out of their house at that point in time over $1,000 where they’re putting $2,000 into? They’re trying to make this effort. It’s a grey area. There’s no fine line where it’s like, “Do not take $1,500 but take $2,000.” It’s completely up to you on what the situation is and how long it’s been going on. I don’t have it as black and white. I don’t think you do either that once you get into legal, that it’s the end all, be all.
I go to legal, generally speaking after I’ve already tried. Sometimes they make a sizable payment upfront and then they make a couple of payments and stop, or I let them try to start making regular payments. For some people who haven’t been paying regularly, to make a regular payment every month is a big step for them. I don’t necessarily even require to catch up extra payments, depending on how far behind they are. I just want to see if they can even keep faith with a normal pay schedule. For me, when I call the attorney, it’s after we’ve tried a bunch of things and it’s clear that it’s not going to work. For a forfeiture, on a CFD, it is an all or nothing. It’s either you’re reinstating or you can’t afford the house probably. Whatever payment plan we’ve had has not worked.
I don’t think it’s financially able, but some people aren’t emotionally able to commit to a regular thing. They almost need the discipline of having a landlord because landlords are way stricter than we are and that helps them. I do have people who can’t afford it, they can’t afford their payment. These payments are generally very low. They’re usually not even more than some $300. Sometimes you just have to recognize that that person may not have enough income, and this is always part of our workout processes. It’s exploring how they could expand their income.
If they’re not willing to take on a boarder, take on a part-time extra job or whatever, it’s not that hard to earn $100 or $200 a month extra to be able to pay your mortgage, but when people aren’t willing, then I feel like it’s not even me. It’s just reality coming to them. Reality has come to roost. You might not be able in your current situation, without a willingness to get some extra income, somehow you can’t afford this house. Sorry to say about that. It’s really hard. I am one of those people. I foster animals. I even carry bugs out of my house sometimes. I am trying to help everyone I possibly can. It’s very disappointing and upsetting that you can’t always and it’s a surprise to me because I thought anyone, given a chance, would grab on to a life rope, but they don’t. I don’t think we’ll ever understand why that is. Anyway, so we’re at the point where you have sent a demand letter. Demand letters, are they always 30 days or does that vary by state?
I believe they’re off 30 days. The ones that I’ve dealt with, they’re all pretty much 30 days.
When they expire without a response, then it is time to make the next move.
Depending on whether it’s a mortgage and note or a contract for deed, in most instances, a complaint gets filed. It’s kicking off the legal procedure to file the complaint that this person, individual owed money based on a contract that they are not paying. You want to enforce the rights of that contract.
It’s like Festivus, it’s the reciting of the grievances, all the ways you have been wounded by this experience.
The moment you file a complaint is when you start spending serious money. Demand letters, $100 per person getting sent the demand usually, plus or minus. If they’re husband and wife or partners, it’s $200 typically. Once you go to file a complaint and everything, depending on the state and so forth, that can range from $1,000 up to $2,000. It depends on how the state though, because if you’re doing a foreclosure, usually you’re paying in increments based on Fannie Mae. Usually I pay a third of it upfront.
You pay it in milestones. For a forfeiture, you may be talking hundreds rather than a thousand on the low end. The other thing about foreclosures is there is the lawyer’s fee, then there are the costs of the foreclosure itself, which are the county or municipal costs, which include sheriff’s fees that they use to advertise the sale.
That’s the one that always gets you. The advertising fees are insane. You’ll pay $300 to $1,000, put the ad in a newspaper.
Not the advertising fees, but the total share of costs in Pennsylvania. $3,500 in my particular county where I have a foreclosure that’s been going on so long, we spend holidays together. It’s really crazy. You pay at milestones, this whole advertising fee. You can have advertising fees with a forfeiture too even though there’s not a sale scheduled, because if you can’t find the borrower or you can find the borrower, but you can’t serve them for some reason. Some states require the server to actually hand the thing to the person. The person’s being very dodgy about letting anyone approach that. I’ve had servers tape them to the front door and the judge is not satisfied with that.
I was very surprised I was doing a forfeiture in Indiana and when we sent the first notice, the demand letter, and then the first service of the complaint. The borrower moved out of the house and effectively disappeared. When you have to serve the actual notice of the hearing where they’re going to lose the house, we could not satisfy the court. We asked for a default judgment, which you try to get when you’ve done everything correctly and they’re not responding or whatever. It’s like, “Judge, would you just declare me the winner in this situation?” Some will and some won’t.
In Indiana, I was surprised, because that’s a pretty lender-friendly state. They were not satisfied that we had mailed the service notification about the final hearing to the right address. They wanted us to advertise. When the attorney told me that, I thought like, “No big deal. How much does that cost?” It was like $800. At that point, it became worthwhile for me to hunt the guy down myself, so I did. The service, when they say advertise, sometimes they publish the entire complaint or the entire legal document in the newspaper and they have to do it three times at certain intervals and it does get quite expensive. Hopefully, that doesn’t happen. In a typical forfeiture, and I know you’ve done some, Chris, how does it unfold?
Typically, after the demand goes out, then the complaint gets filed. There’s a ten-day servicing where they get basically serve the complaint and have ten days to respond to the complaint. If they don’t respond, typically there’s still a hearing that is held to go through it. If they don’t respond, typically it’s a matter of technicalities of the hearing and stuff to get the property back. They’ll have a hearing and eventually rolls into the judgment, which then allows you the right where that land contract is cancelled. Essentially, that’s it. There’s little more to it, but I’m not going to dive too deep into it because it gets lengthy.
It feels like when you get that final judgment, that shouldn’t be the end of it right there. The contract is cancelled. Their right to buy that house, which was already in your name, if it’s a contract for deeds, now they no longer have that right to keep on the path of home ownership with that house. That, in fact, is not always the end of it because several states have redemption periods. Most states, if that person doesn’t willingly move out, you’ll have to do another procedure. It’s an eviction procedure where now they get notified all over again that they need to leave and they may or may not respond.
I just had someone who ignored everything. The initial reach out before I did any legal, every legal notification, and then the eviction notification. The eviction team went to meet the sheriff over there. I haven’t even heard back what happened, but I thought, what a crazy situation? Who wants to be in their house when a whole bunch of people comes to the door to change the locks and escort you outside? Alternatively, you’re at work, you come home and your locks are changed. This is not fun. Why don’t they respond and be part of it?
To give people a little bit of a timeline, I had a forfeiture in Indiana where the borrower used it as a rental and no longer have use for the property. To give an idea, the demand letter went out towards the latter part of November. The complaint was filed in the first week of January 2019. After that, it took a month to have this service come back, returned to that they actually serve the individual. It took a little longer than expected for them to serve the individual. From there, there was no response. There was a motion for default judgment in March. Once the complaint was filed, it was about a two-month process after that. That’s pretty quick.
I want to tell you that I received back from that county in Ohio the recorded land contract. It’s giving us the ability to move forward on one of our legal situations. I’ll save this as my Note and Bolt. I have a little hint there about how I do things, but hopefully, it’s them telling us it’s recorded and not sending it back to say we did something wrong, which happens all the time.
In this instance, this is one of Gail’s. We won’t get too much into details on it because, of course, we’re going to be involved in legal and don’t want to broadcast it. It was a borrower who was significantly behind. We worked out a trial payment plan for the borrower. The borrower started making those payments again on that trial payment plan and then ceased payments. We attempted some reach out and have been unsuccessful, so now we need to back our interests and hopefully, we can come to a resolution with the borrower like we always do. We can always keep people informed of how it goes.
Given the circumstances that you described with this borrower, what would you be asking him for? His total arrears are in the $3,000 range. He was struggling to make a bi-weekly payment of some $100. What is it that you’re going to want from this guy?
I don’t know. I think it needs to understand his situation and see if the borrower can afford the property. The sense, based on some previous information, is I’m not confident the borrower can actually maintain and keep the property. If that’s the case, I don’t want to take any money from him. That’s one thing where people may call me stupid or whatnot. If I’ve got somebody, even if they have some money, when I know they’re just going to fail in another two or three months, I don’t want their money. I want to have them use that money to get themselves settled somewhere else. In this one, we need to get some more information from the borrower to see what it would entail.Sometimes you just have to recognize that that person may not have enough income to repay on time. Click To Tweet
That sounds like a problem because it’s a duplex and I believe his adult daughter is living in one unit. This situation, this monthly payment, I don’t believe exceeds $350. We’ve got two adults, at least. I think there could be spouses involved also. I don’t want to be someone who is privileged and acting like I don’t get that people struggle. I totally do. I too have struggled, but you scratch your head like, “There are two plus adults in the situation and you guys can’t come up with $350 a month.”
If you can’t, pick up the phone and contact. That’s one thing. The thing I would always tell them is if you talk to people, pick up the phone and actually communicate with them, then nine out of ten times, you’re probably going to be able to work something out. When somebody doesn’t communicate, there’s nothing that you can negotiate. No matter what you’re trying to accomplish, it’s not going to be done because there’s no communication on trying to work toward a resolve. I’ll say it forces your hand sometimes to have to protect your interests.
This whole legal process has another piece to it that we should just touch on also. It is during the legal process that you’re going to find out what the flaws are in your paperwork, and in your collateral. We have had all kinds of things from this situation in Ohio, where land contracts have to be recorded. This one never was, even though it’s four years old. You also find problems in deeds. You will find out that things haven’t been recorded when they should have. It’s always a big bunch of fun getting ready to do a legal process. You have to get your ducks in order.
That is one thing you will find because even when you have an O&E report pulled and stuff, an attorney will pull a full title report. That’s when you really will find information. One question I wanted to ask you, Gail, I wanted to talk about on this topic is when you’re in legal, you basically filed a demand this stuff, are you allowed to reach out to the borrower to try and negotiate a new deal and/or accept payments during that time?
I’m famous and get laughed at for reaching out to borrowers at any time. My feeling is once legal begins, it’s in the hands of the attorney. It’s like a bankruptcy. Once a borrower’s in bankruptcy, you have to talk to their attorney. I don’t want the attorney to feel like I’m working on some parallel track with the whole thing, but I don’t know that there is any rule about it. Is there an actual rule or just a preference the attorney would have?
In regards to trying to renegotiate, the attorney has mentioned to me that if they call and ask what can be done, you can propose some type of settlement, but you should not be proposing a settlement to them out of the blue while you’re also in legal because it can create a conflict. It’s how it’s been explained to me. It’s confusing because it’s like, “You want to work with me about your foreclosure?”
Once you have an actual documented split personality in one of your people, the good Chris is offering you a deal and the bad Chris is going to still foreclose on you.
If they call up and say, “I know the payoff is $5,000. If I give you $2,000, will that work?” You say, “Give me $2,500 and then we’ll do this, that and something else.” That it’s my understanding of you can do. That’s part of the demand or not move forward with the case, but you shouldn’t be throwing Cash for Keys offers to a borrower while you’re in the process of foreclosing on them. In other states, it’s somewhat predatory to reach out to borrowers in foreclosure by trying to get them to liquidate their property. If they could call you up and say, “Is there anything I can do?” You can say, “Not really, but instead of me going through foreclosure, I’ll toss you a few thousand dollars.” Run all that by your attorney, by all means, but don’t be trying to work several deals at the same time as part of the foreclosure process.
I have a question for you. I have had servicers tell me all different things about accepting payments once legal is underway. I had a situation where I was doing a legal process where I had to give 45 days notice and give the borrower that much time to bring her account current. Once those 45 days were over, there was not any court process required to cancel her land contract. It just automatically canceled as a matter of law. On the day that that happened, I called my servicer and said, “Do not accept any payments from this person. The land contract is canceled, there is no longer a loan there.”
The servicer said to me, “We can’t do that. The borrower has rights.” I was like, “No. That is exactly what I’m telling you. She is no longer my borrower and therefore does not have rights.” They were like, “We can’t do that. We’re not allowed to.” I was like, “What in the world you folks need from me to understand that I’m right about this one? I may not be right about them all, but this time, yes.” It’s turned into quite a knockdown. They did ultimately review the paperwork and agreed that I was correct. At other servicers, I know that if you tell them, “Don’t accept payments,” they won’t. Except that sometimes for whatever reason, the notation is not in their account information and somebody will just accept one.
I’ve had to happen and here is what you should do. Here’s my recommendation as a non-attorney. If you’re not accepting any payments, which in your legal, I think your attorneys will recommend that, reach out to the servicer, but reach out to their accounting department. Let them know. Also whoever your case manager is, reach out to both of them and say, “I’d like to put this loan into full reinstatement required. Don’t accept partial payments.” That’s one. The second component to it is sometimes borrowers can pay by phone.
A borrower can pick up the phone and call in and pay over the phone in most servicers. When that comes in, what they usually do is they send that money back. Somebody can call in on a Saturday, get the automated line, plug in a number or something, pay by check by phone and put it in. You’ve got to check and so forth. If that’s the case, then usually what they’ll do is they’ll send it back or what the servicers a lot of times will say is, “We just received a check for $1,000 from this borrower. It’s full reinstate only, what do you want us to do with it?”
Do you find they will call you?
They’ll also email. Often they email me.
I have been petrified about what would happen if the servicer accepted a payment when they weren’t supposed to. In my early times when I didn’t really know how this works, I was terrified that that basically have to start the whole process all over again, but it’s not a big deal. Some servicers will hold money in what they call suspense. It’s like in the reserve. It’s not being applied to any payments that are due or whatever. It’s not like officially there. Others will go ahead and apply it, realize the mistake and refund it to you. It’s a hassle. It’s hard for the borrower because they see their check gets cashed and they think they’re okay again and then they find out no.
One thing I’ll mention, I’ve had an instance previously where somebody has made a payment and I had to send it back or in times I’ve actually accepted it. What I will tell people is do some math. If you’re spending $1,000 on a forfeiture, that’s probably the lowest cost you would be spending and the borrower is making a payment of $500 or $600, granted the forfeiture costs could be recoverable and stuff, but it’s money that you’re putting out of pocket at that time. You’ve got to realize I’m putting $1,000 out to get a $500 payment knowing that if they don’t make the next payment, I’m putting another $1,000 back out there to redo this whole process again. You’ve got to think of it in terms like that as well. You can add that to the advances on the balance because in most states, they add to that loan, but at the end of the day, if you take that property back, it’s money you’re putting into the property that eventually will come out of your pocket one way or the other.
It’s like gambling. It’s like poker playing, trying to figure out.
This is part of the business that where there’s the risk and understanding the risk can play that poker because a lot of people look at assets, and they just run numbers through a calculator and be like, “Here’s the return,” without understanding that this is a much more sophisticated game of cards or game of poker.
They’re placing a bet thinking you’ll win and you might lose it.
Sometimes you win, sometimes you lose.
You’ve got to know when to hold them.
Feel free to reach out to us and shoot us a message, ask us questions. If you want something we want to cover as a topic, let us know. We’ll review it and probably most likely feel free to discuss it in the future. Join us for our weekly Open Mic Nights where you can come on and ask questions or discuss what you’ve got going on deals or how to manage something. We’d be more than happy to give you our non-legal, non-CPA, non-anything advice.
Actually, we have a couple of favorite lawyers that we will have on the open mic so people can ask the questions that they always wonder about. That will be exciting. I know we have one very special lawyer that we love. He’s one of our corporate attorneys. He can’t do everything in every state for our deals, but he’s been good at a lot of the set up things that people need to do and know when they are growing note investing businesses.
When you set up in this business and start getting going, there are a lot of fine lines that are out there that you’ve got to make sure you’re on the right side of that line. I see people on Facebook and other social media sites clearly on the other side of that line.
Are they breaking the law?
Let’s just say some of what they do is questionable in the eyes of probably the state and local security advisors.
Facebook is out there for everyone to see.
Basically, I enjoy working with this attorney because he understands. He’s a real estate investor but understands a lot of these laws and knows how to keep me compliant. I run 100 ideas by him and probably 95 of them get shot down because he’s like, “No, you can’t do that.” I think that I have some like unbelievable brainchild idea come through my mind. He’s like, “No, you can’t do that.” I’m like, “Ah.”In business, there are a lot of fine lines out there. You've got to make sure you're on the right side of the line. Click To Tweet
I keep thinking of songs. Do you know The Gambler? The song that comes to mind is Johnny Cash. “I walk the line.” You, Seveney, you walk the line.
I honestly don’t think I walk the line. The line is the median in the road. I liked to stay in between the lines, in the middle type. I always lean towards the side of safety versus going towards the middle. You’ve got a Note and Bolt.
I do indeed.
Let’s see what your Note and Bolt is.
This is my fabulous Note and Bolt inspired by an envelope that was placed in my hand. Before e-filing and now even with e-filing, you often have to send documents to people. Documents have to be recorded. Sometimes famously, documents have to be sent to be notarized with borrowers who are in remote areas and stuff. I used to FedEx stuff because when you have an original deed or something else, you only have one of them. You have to have the original. I like the level of the chain of custody that you get with FedEx. I’ve literally sent paper works to Genesee County in Michigan, which is where Flint is. I sent a check along. The check was $10 short. They sent the whole thing back to me in the FedEx return envelope rather than just asking me to send an additional $10 to them. I had to re-FedEx it to them all over again. It literally cost me $70 to send them an extra $10. You could lose your mind over stuff like this.
What I now do, which is just as good at as FedEx and way cheaper, is that I go to the post office and I get up two priority mail envelopes. I address one to the person I’m writing to with my return address and then I address the other one back to me with their return address. I buy the priority mail postage, which they can put on as a stamp and they can put the tracking and everything on the return envelope. I fold it up and I stick it inside. I ask people to send it back to me in that. I think it’s now $7 or $7.20. It’s awesome. It costs you a total of $14 something, you will have tracking and it’s been really good.
I would love to do on some evening where you do a simple file.
It’s definitely preferable to any mailing.
The other thing that’s out there that somebody showed about is Notary.com where you can actually do digital notaries now and stuff like that and get documents signed. It’s almost like a DocuSign. You pay $25 and get something notarized and you can also have contracts execute and stuff electronically through it.
Are you saying that like a notary is not physically with the person who’s signing?
No, I think what they do is they get you on the phone or like a video chat. Basically, you have to show them your license or so forth. I don’t know how it works.
Is it a screenshot of you holding up your license?
It might be like a FaceTime call or something where you stand there and you hold the license and then you go online and sign it. Somehow it’s verified. I don’t know how, but it’s something that’s out there for notaries where you’re trying to get somebody to notarize something and they’re in a remote area. It’s something that you may want to consider. I need to do more research on it. I have a notary very close, so when I have to notarize something, it’s not a big deal or most, you just go to the bank. If you get a borrower to notarize something, sometimes it can be a little challenging. The other component to that too is you’ve got to be careful because it says notary, but also if you need witnesses, how do you get the witnesses?
I had a friend who tried to use that virtual notary like when someone will sign a quick claim deed for him and it was not accepted. The recorder did not accept it.
That’s the other thing I’m wondering. Do jurisdictions accept these or not?
When in doubt, go the old fashioned way, old school.
My Note and Bolt, I saw this on a Facebook post was the borrower thought they were getting payments but they actually weren’t because they saw some monetary transactions in their servicing comments. The thing that I would recommend for people to Note and Bolt is whichever servicer you use when you look at the last pay date, usually they have a loan detail tab where you can look at the last pay date. From there, it will show how much was principal, how much was interest and break it down and also may modify or edit that next pay date as well. Sometimes an escrow payment might be made from them to the taxes or a payment, something may come in, especially during the transfer of a loan.
The prior servicer may be transferring the escrow money back from one to the other, and it will show up and he’s like, “I’ve got $1,000.” What that was is the escrow from the old servicer to the new servicer coming in and not the borrower making a payment. It’s something to check on when you’re checking in on a loan because sometimes that last payment date, it may show up in some systems as the escrow coming over and not actually a principal and interest payment by the borrower.
The other piece of that is that sometimes there’s extra money. Someone makes an overpayment, but it’s not enough to be another complete payment. They’ll put it in reserve and it piles up for a while and then when there’s enough for another payment, suddenly it gets credited and you’d think like, “They made a payment,” but they didn’t. They just racked up enough points to take another one off.
Gail, any closing thoughts?
No, it’s been great. We’ve had 51 episodes. Let’s keep going, Chris.
We will keep plugging along and as always, thank you. Please make sure to leave us a review on iTunes and Stitcher, as well as register at GoodDeedsNoteInvesting.com for our podcasts and webinars. If you’re on Facebook, join the Notes and Bolts Good Deeds Note Investing Podcast Facebook group because of a lot of great information on there and great discussions. We also get feedback there as well. With that said, thank you all. Enjoy the rest of your day.
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