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Missouri Supreme Court asked to re-evaluate law on calculating deficiencies after foreclosures


After a real estate foreclosure in Missouri, lenders often sue the borrower and any guarantors, seeking a “deficiency judgment,” which is the difference between the price paid at the foreclosure sale and the amount owed, which includes the costs of the foreclosure sale. Often there is no bidder at the buyer at the foreclosure sale, so whatever amount the lender bids is accepted without challenge.

Next, the lender sues the borrower (and any guarantors) for the difference between the lender’s bid and the amount owed. The borrower always wishes that the lender’s bid had been high enough to equal the amount owed, so that the amount of the deficiency would be eliminated. But the lender has no incentive to bid higher than the minimum amount needed to recover the property. A Missouri court, under existing judicial decisions,  cannot use its equitable power to adjust the amount of the deficiency unless the borrower proves the existence of fraud, unfair dealing or mistake in the conduct of foreclosure sale. There is no clear standard for determining the existence of “unfair dealing”; sales have been upheld when as little as 10% of fair market value has been offered.

In a recent case from the Eastern District of the Missouri Court of Appeals, First Bank v Fischer & Frichtel, Inc., the borrower acknowledged that the court had no power to adjust the amount of the deficiency, but asked the Court of Appeals to transfer this case to the Missouri Supreme Court, for consideration of adopting a different rule of law, such as the rule that allows court would be able to determine the foreclosed property’s fair market value, without the necessity of proof of fraud, unfair dealing or mistake in the sale proceedings. This alternate rule is applied in several other states.

Following Missouri Supreme Court Rule 83.02, the Court of Appeals ordered that this case be transferred to the Missouri Supreme Court “because of the general interest or importance of a question involved in the case or for the purposes of reexamining existing law.”

This question is important for several reasons, in my opinion:

  • There is no clear guidance in the law to assist foreclosing lenders in setting the amount that they will bid; this situation is an invitation for bids to be low, unless there are other bidders.
  • Because of the unprecedented number of properties being foreclosed, and the inability to quickly resell foreclosed property, there are relatively few bidders, whose bids would ordinarily establish the fair market value.
  • Lenders, facing the prospect of incurring expenses indefinitely for holding the foreclosed property (taxes, mowing, security, insurance, prevention of freezing pipes, etc.), bid low, and hope to collect on a deficiency judgment, maybe not now but at some future time when the borrower recovers financially. If courts have no power to determine whether a bid (from a lender or a third party) is in some sense fair, lenders have a clear incentive to bid less than the property is worth.

But does the absence of bidders mean that many foreclosed properties have no value? Perhaps not individually, but marginally. Most investors have all the property they need; nobody needs another vacant rent house or strip center. Investors and other potential buyers are content to let the foreclosing lenders hold the foreclosed properties until the market is ready to absorb them.

Why should the Missouri Supreme Court, rather than the legislature, address this issue? Rules of law in a representative democracy should be made by those elected to be lawmakers. The Missouri General Assembly has not addressed this issue, though the inequities of the present foreclosure statutes have been long apparent. Perhaps the General Assembly will take a look at a solution. The court or the legislature needs to hear from representatives of lenders, appraisers, consumer advocates, title insurers, and lawyers to create procedures that provide more fairness.

Missouri Supreme Court disses certified mail notice


A unanimous opinion of the Missouri Supreme Court, dated March 31, 2009, holds that section 140.405 of the Missouri Revised Statutes is unconstitutional.

This statute provides for notice by certified mail to delinquent property taxpayers that someone has paid the taxes on their real estate and that they must redeem their property by paying the taxes, or lose it. If the certified mail notice is unclaimed, the person giving the notice (who is the purchaser of a tax certificate at a sale of delinquent property), that person must take additional steps to notify the delinquent taxpayer that a collector’s deed will be issued to the person who purchased the tax certificate. Read the rest of this entry

Good luck with that foreclosure, MERS members


A Missouri appellate court, without trying, may have drawn a map to a defense to foreclosures–if borrowers can figure it out before the Missouri Supreme Court overturns the decision in Bellistri v Ocwen. The opinion shows how an assignment of a loan to a servicing company for collection can actually make the loan uncollectible from the mortgaged property. Read the rest of this entry

Maybe being married is okay, even with debts


Capital Bank asked the Taney County Sheriff to sell Rocky’s, a popular Italian restaurant in Branson, to satisfy a judgment awarded by an Arkansas court against the owner of the restaurant. Judge Orr stopped the sheriff’s sale, because the restaurant land and building were owned by Mr. and Mrs. Charles Barnes, while the Arkansas court’s judgment was against only Mr. Barnes. The Missouri Court of Appeals affirmed Judge Orr’s ruling in an opinion dated February 2, 2009.

I had a great lunch at Rocky’s on February 3, so I’m glad that a bank didn’t take over the restaurant.

In Missouri and several other states, a married couple can own property as though they were one person, in a form of ownership called “tenancy by the entirety.” In Missouri, a tenancy by the entirety is presumed to have been created when a deed to a married couple uses the words “husband and wife” after their names, if they are in fact married.  A deed is a written document, signed by the grantor(s), which is evidence of the intent of the grantor to convey property to the grantee(s).

The holding of the Barnes case does not break new ground, but it explains why careful lenders usually insist that a personal guaranty and deed of trust (mortgage) be signed by each spouse, otherwise the collateral may not be reachable. Generally, the tenancy by the entirety form of ownership will stop even the IRS from seizing the property of a married couple for taxes owed only by one spouse.

From the borrower’s point of view, holding real estate as tenants by the entirety can be a good idea. A limited liability company (LLC) or corporation is created as an operating entity for a small business,which leases real estate from the husband and wife. The husband and wife are protected from personal liability for business debts that they have not personally guaranteed. The lease income is not subject to self-employment tax.

An additional question is whether the LLC membership interests or corporate shares should be held by both husband and wife, as tenants by the entireties or whether each should own half or whether some other form of ownership is desirable. Answering this question requires careful analysis by a lawyer, estate planner and tax advisor working together.

How to lose your home or maybe keep it


by Harry Styron, Styron & Shilling

The entire process can take place in as little as four weeks, but 12 weeks is probably average, at least in Missouri.

If you cannot make your mortgage payments, your first priority should be finding another place to live that you can afford. The security of shelter is tremendously important to your health and ability to provide for your family and to the preservation of family relationships.

Most lenders have programs for attempting to prevent foreclosures,  because foreclosures are not financially advantageous for lenders, but are the lenders’ only way out of bad situations. Struggling borrowers should check lenders’ websites and carefully read any correspondence from the lenders to look for alternatives offered by lenders.

How can a lawyer help? Read the rest of this entry

Working with troubled real estate developments


Over the next several months, many investors and lenders will be looking at busted projects and trying to make the best of them. I’ve added a Law Article to this site, which I’ll keep updating as I learn new strategies,  called “Working with troubled real estate developments.”

As with all my other writings, this article is primarily based on my experiences in Missouri, though some of this one comes from my time spent in the 1980s, working with troubled real estate in Oklahoma, after the successive crashes of the oil and gas, banking and real estate sectors.

I’d appreciate your comments.

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