REI Wealth Magazine Featuring Paul Finck | Page 58
For this reason, it is important for the second to have
a strategy in place. The second wants to be the
foreclosing party in most instances, driving the bus, so
to speak. Borrowers usually go into default for two main
reasons. First, they stop making payments to the lender.
Second, the lender’s loan is due, and the borrower has
not refinanced or sold the property. In the case where
payments have not been paid, junior lien holders have
the right to “cure” the first. One can usually do that
simply by making the payments to the first. Since
foreclosure in California normally takes three months
and 21 days, one strategy is for the second to cure the
first and start its own foreclosure.
However, this may be cost prohibitive, especially if
the first is large and the arrearages on the first are a few
months. When the first files for foreclosure, junior lien
holders are to be notified. This gives them notice, so
they can have the opportunity to cure the first. The
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second then files its own foreclosure [either because the
borrower has probably also not made payments to the
second mortgage or because most loan documents state
that if a borrower is in default on any mortgage
associated with the property, its loan is also in default
whether or not the borrower has kept the second current
with payments].
One strategy for the second lien holder is to cure the
first as soon as possible to allow the second to be the
foreclosing party. That way, the second would be
allowed to credit bid its loan, but would not eliminate the
first; it would have to take the property subject to the first
and have to deal with them post foreclosure. However,
what happens in the case where the second pays just
enough to get the first to stop its foreclosure for the time
being, the second starts its own foreclosure, and then
does not any more payments to the first and allow the
first to start its own foreclosure?