Foreclose Online
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 principle advantage to the borrower is that it immediately
releases him 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 would in a formal
foreclosure. Advantages to a lender include a reduction in the time and cost of
a repossession, and additional advantages if the borrower subsequently files for
bankruptcy.
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 voluntary 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. Generally, the lender will not proceed with a deed in
lieu of foreclosure if the current fair market value of the property exceeds the
outstanding indebtedness of the borrower.
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.
Whenever there are multiple liens against a property, they are applied in the
order of lien priority.
1. IRS
2. Other Tax Authority
3. First Mortgage/Lien Holder
4. Second Mortgage/Lien Holder
5. Other Junior Liens (in order of priority)
6. Mechanic's Liens
7. Association Fees