FAQ

  • 1. WHAT IS SUBJECT TO?

    "Subject-to" is a way of purchasing/transferring real estate where the buyer takes title to the property, and the existing loan stays in the name of the seller. In other words, the sale is completed "subject-to'' the existing financing. The buyer now controls the property and makes the mortgage payments on the seller's existing mortgage.

  • 2. WHY WOULD ANY SELLER DO THIS?

    Sellers may consider utilizing the subject-to method in low equity situations as it allows them to relinquish ownership of the property without the need for additional funds or having to write a check at closing. Depending on the seller's mortgage balance, this method may result in greater financial gain for the seller compared to a traditional sale. Additionally, it enables the seller to move on from the property as they are no longer responsible for expenses such as repairs, maintenance, utilities, taxes, insurance, and hoa fees. The seller's credit score may improve as a result of timely payments made towards the mortgage.

  • 3. HOW DOES THIS AFFECT SELLER’S CREDIT?

    As the loan remains in the name of the seller, timely payments made to the lender will be reported to the credit bureau, positively impacting the seller's credit score. This can be advantageous for the seller.

  • 4. HOW CAN THE SELLER VERIFY THAT PAYMENTS ARE BEING MADE?

    The buyer engages the services of a third-party loan servicing company, which is responsible for facilitating the monthly mortgage payments. Additionally, the sellers have the option to elect to receive notifications on a monthly basis, indicating that the mortgage payments have been fulfilled.

  • 5. WHAT HAPPENS IF YOU MISS A PAYMENT?

    In the event of a default by the buyer, a pre-signed Deed in Lieu held by the servicing company would be utilized, thereby transferring the property back to the seller's possession. The seller would then benefit from any payments made towards the loan, improvements made to the property, and appreciation in the property's value. They may then choose to sell the property again for a higher value if desired. This strategy has been reported as advantageous by previous sellers, and they have expressed a desire for a default to occur.

  • 6. HOW ARE UTILITIES AND INSURANCE HANDLED?

    Our insurance agent will be responsible for replacing your current policy with our policy, which includes the addition of the sellers as additional insured parties. This will not only ensure our coverage under the policy but also provide coverage for the sellers. We will take the necessary steps to transfer utility services into our name.

  • 8. IS SUBJECT TO LEGAL

    Yes. Fill-able hud-1 this is a standard form that title/escrow companies and attorneys use to build settling statements. Please note lines 203 and 503. Note this is a code of federal regulation (CFR) document. Page 396, second paragraph states: "line 203 is used for cases in which the borrower is assuming or taking title subject to an existing loan or lien on the property."

Is "SubTo" Legal? A Comprehensive Overview

Yes, acquiring property "subject to" the existing financing (often abbreviated as

"SubTo") is legal. However, it's essential to understand the specifics, which we'll outline,

with references to pertinent legal documents and regulations.

Key Points:

U.S. Supreme Court Ruling: The court declared that if a borrower merely

transfers the title without notifying the lender, it's not fraud. Reference: Field V.

Mans, 1995.S.Ct.207 (1995).

Field v Mans, 516 U.S. 59 (1995): A case where the court determined that a

creditor could have easily verified the transfer of a property through public

records. The lender cannot claim fraud if they were not informed about the

violation of a due-on-sale clause.

Medovoi v American Savings & Loan (1979): A lender cannot sue a buyer for

fraudulently hiding a transfer, as there's no legal obligation to inform the lender

about the transfer.

Misconceptions about "Due-On-Sale": Transferring the title of a property with

a "due on sale" mortgage isn't illegal. This confusion arises when people mix up

civil and criminal liabilities. No law, code, or statute criminalizes violating a "due

on sale" clause. Simply put, there's no "Due-On-Sale" jail.

Garn St. Germain Act: This act allows banks to enforce the "Due on Sale" clause

but also lists several exceptions preventing its enforcement. These exceptions

range from the creation of liens to transfers resulting from marriage

dissolution.

Federal Home Loan Bank Board's Replacement: Established in 1989, the Office

of Thrift Supervision now handles functions previously under the board. They

interpret the Garn St. Germain Act to apply to homes that are owner-occupied.

Conclusion: The legality of "SubTo" is clear, with both the U.S. Supreme Court and other

legal precedents supporting its validity. It's essential to understand the nuances,

particularly around the "due on sale" clause. As always, consult with legal

professionals when making property transactions.