Realty411 Magazine Featuring Scott Meyers | Page 45
Best Practices
for Credit
Bidding
at Foreclosure
By Edward Brown and Randy Newman
Y
ou currently hold
the first mortgage
on a rental property
in California. The
borrower is behind in payments
to you and has disregarded all
communications from you. You
decide to file a notice of default
to start the foreclosure process.
Three months lapse, the sale has
been set, the date of sale
approaches, and you want to be
strategic in deciding how best to
proceed. You start asking
yourself the following question:
how much do I bid at the
foreclosure sale?
As the foreclosing party, you
are allowed to "credit bid",
meaning that you are able to bid
as high as your note [including
accrued interest, late fees, costs
of foreclosure, etc.] without
having to come up with actual
cash at the sale. In California,
other bidders, including non
foreclosing junior liens, must pay
100% of their bid in cashier's
checks or the equivalent. (As a
side note, this is the reason most
bidders will ask their banks for
many cashier's checks in varying
increments, as the trustee
handling the sale does not give
back change at the sale. For
example, if a bidder asks his
bank for two $100,000 checks
because he believes the bid will
exceed the lender's credit bid of
$100,000, and he bids $140,000
at sale, the trustee will not
immediately give back the
overpaid amount [in this case,
$60,000]; the trustee will return
the overpayment in about seven
to ten days after the sale. For this
reason, the bidder should obtain
multiple cashier’s checks in
various denominations so as not
to overpay in the bidding
process).
At first glance, the foreclosing
45
party may think to fully credit bid
what he is owed, especially if the
property is worth considerably
more than the amount owed to
the lender; however, there are
other factors to consider. What if
the lender is way off in what he
believes the property is worth?
Sometimes, a property that is a
bit esoteric is much harder to
value than one thinks. Does the
lender want to keep the property
if she is the high bidder? Does
she want to sell it right away
upon owning it [should she be the
high bidder]? Was there a
personal guarantee on the note
that is being foreclosed on? What
is the current condition of the
property? Is there a recent
appraisal on the property? Are
there any IRS liens attached to
the property? These and many
other questions must be
considered when you are the
foreclosing party.