(OP-ED) — The following is an opinion of the author only and the content offered herein is for your educational benefit. Enjoy!
One of the avenues investors like to travel upon is that of acquiring homeowners association liens. Such was the case in Texas with Kingman Holdings LLC. You can read the case here:
The one thing I didn’t notice is all of the “assignments” that were talked about in the suit. None of them were ever challenged. And this is a MERS-originated Deed of Trust, so you know it was securitized. As the case states, Lehman’s Asset Backed Securities Mortgage Loan Trust 2007-1 was involved and it is highly likely that there are multiple issues regarding the actual negotiation of the note and related paperwork to the custodian of the trust at the proper time stipulated by the 424(b)(5) Prospectus for that REMIC trust. What this case argued was lien superiority and Wells Fargo won, despite the lack of challenge to the assignments. I wonder what the outcome would be if the false and misrepresentative statements contained in the pleadings in the lawsuit, which ties the false statements made in the pleadings to the documents in the land records, thus opening the door to further scrutiny (albeit the other side might scream that we’re reaching; parol evidence).
No pain … no gain. But investors have to be careful when it comes to buying HOA-related properties. This is why I like tax deeds. The county in fact DOES have first lien priority, whereas HOA’s do not. In fact, reading into this case, nothing in the HOA paperwork showed its lien was superior, but money was spent litigating the case anyway. Learn from other’s futile mistakes.
You can look at this case and say, “The banks always win!” however, understand who the appellant is here … the bank. It got ruled against in the lower court!
Sadly, I’ve come to understand that most HOAs only notify the actual owner of the property and NOT the lenders that might have a mortgage on that property. This puts investors in a vary “gray area” when it comes to acquiring property that has an existing mortgage, thinking that nothing will come of it. So … caveat emptor, especially if you’re investor who didn’t plan on spending extra cash in litigation.
NEW REVISED COTA CHECKLIST
AS AN ADDED BENEFIT to this story … please download the PDF of our new COTA Checklist for 2019 here:
Having tools at the ready when you’re doing property searches isn’t a bad thing, especially when your own property might be in jeopardy.
GOVERNMENT SHUTDOWN UPDATE:
On another note … while not related to chain of title issues … the Air Traffic Controllers Union and a host of its membership have filed suit against the government, citing air security risk due to the government shutdown … read the lawsuit here:
This lawsuit may not move too fast given what we reported on this blog yesterday about the courts’ running out of funds tomorrow. If air traffic controllers have to suffer, what do you think airline passengers might face in the near future? Don’t you think shit rolls downhill? Make your travel plans accordingly as flying might not be the best option right now.