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from: All That You Want To Know About A Deed in lieu of foreclosure
It is important for commercial lending institutions in Indiana that hold mortgages which may become non-performing to be familiar with deed in lieu of foreclosure. It means knowing who the parties to deed in lieu of foreclosure are, which includes the mortgagor who in most cases is the borrower, and the mortgagee that in most instances is the lender. There must also be consent between these two parties, and if there are more than one lien holders, most lawyers would advise against having such a deed in lieu of foreclosure.
Purpose And Meaning
The next thing one will need to understand is the purpose and meaning of a deed in lieu of foreclosure, which is basically a document that gives the owner a title to the real estate. Such a deed is special because the mortgagor gives up his or her rights and interests in the real estate to the mortgagee for the consideration that includes complete release from liabilities as spelt out in the loan document. Often, such a release is the subject of a wholly separate settlement agreement.
There is also the question of timing of the deed in lieu of foreclosure that must also be considered, or in other words when does such a document become valid. It is most common for a lender to pursue such a deed in lieu of foreclosure when the chance of collecting a deficiency judgment is non-existent. And, it also needs to be considered what happens when the value of the property without a doubt exceeds that of the amount of debt. Thus, there would be no point in pursuing a money judgment if the lender is sure that liquidating the property would fetch more than the amount owed.
Both parties may also like to explore the deed in lieu of foreclosure very early in the event of a dispute rising, which could be as soon as the lender determines it is time to foreclose. This would therefore is the ideal time to execute the deed in lieu of foreclosure. In any case such documents are the product of out-of-court settlements and the process whereby it is secured is also non-judicial.
The reason why two parties would entertain the idea of making a deed in lieu of foreclosure is that the lender is able to get immediate possession of the real estate which can save him or her many months, and even years. And, it also saves a lot of money that would otherwise be spent on attorneys fees. It is therefore the reasons of expediency as well as expense that motivate lenders into accepting a deed in lieu of foreclosure.
The lender must also take a few steps before entering a deed in lieu of foreclosure such as ascertaining whether the title to the property is clear and that the language contained is going to protect from the merger of the mortgagors fee simple title with that of the mortgagees lien interest.
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