Tuesday, February 3, 2009

buying a house, emails with the lawyer

Here is a recent conversation i had with our closing attorney.

To sum it up, there are still some issues that caused concern in the title. We took an initial look at the title before all of this, and didn't really see any problems, but we're not title experts. maybe it is better to hire a title lawyer early on to make sure that these problems are addressed before the closing date looms. on the other hand, as a foreclosure, this property is bound to have a messy title history.

the take away lesson is that we are still looking at many potential fees. if the closing doesn't happen this friday, we will have to pay a redraw fee of $150 or so. we are already paying $200 for a mortgage rate extension from 2/4 to 2/6, which is a fine price and doesn't really matter, but if it takes another 2 weeks or so for the selling bank to clear the title, we might have to just get a new mortgage or pay >$1000 for our last extension. we just don't have a clear idea of when it will happen.

and dealing with a bank on a foreclosure is full of potholes. we signed the P&S agreement without really understanding all the fees that we'll have to pay. these things come as a learning experience, but there's no way we would have understood the implications in the beginning anyways, or anticipated the fees that would follow. either way, we'll probably end up paying more fees until this process finally ends - but i think it is still a good deal considering the low price of the foreclosure, and the price of never having to deal with mass realty advisors again.

Lynda Mooney
to me, John, Rene

You are correct. There is nothing fair about dealings with the foreclosing bank. It actually can get much worse because the terms of the P&S have the buyer waiving all their normal rights - even if the property burns down - or is damaged during the time between the P&S and closing. Two weeks ago I had a client who entered into such a contract (against my advice) and was required to pay full purchase price even though the property had been broken into after the P&S and all the copper wiring and plumbing was removed from the house with all the corresponding damage to the walls and ceiling.

Unfortunately when you sign a P&S with a foreclosing bank, you are dealing with the devil. It's only a good deal - if there is a happy ending. If all that happens here is that you incur a couple of extra closing costs, you will be doing well - even though it doesn't feel that way!

Please don't shoot the messenger.

Lynda Mooney

From: Bobby Ren []
Sent: Tuesday, February 03, 2009 12:16 PM
To: Lynda Mooney
Cc: John McSherry; Rene Chen
- Show quoted text -

Subject: Re: FW: Another foreclosure

- Hide quoted text -
Hi Lynda,

Would the withdrawal fee be something we are responsible for, if it is the seller's decision to extend the closing date because of a deficiency on their document? I suppose there's nothing to do but pay for a longer extension for the mortgage but it seems unfair that we would have to pay the redraw fee in that case.

Please keep me updated on any feedback from the seller's attorneys.



On Tue, Feb 3, 2009 at 12:08 PM, Lynda Mooney <> wrote:

Sure - it boils down to this. If it doesn't get cleared by Friday, we can not close because the bank that signed the P&S and the proposed Deed to you (which foreclosed on the property) does not have the proper authority according to the documents of the Registry of Deeds. Without the proper technical authority, I am unable to certify to you or the lender that title is good and marketable. If I can't certify to the lender - they won't allow me to spend their $$ on your purchase even if you agreed to proceed. These defects are technical only and can be corrected by new documents that we can record at the closing - but I don't know how long it will take the seller to obtain them. One is an internal Wells Fargo document but one is from the original lender of record and I'm not sure of their corporate status.

According to your P&S the seller has the unqualified right to extend the closing date for thirty days while it tries to clear title - or to terminate the transaction at its sole option.

I hope this helps. We do usually have a happy ending in these situations - it's just frequently delayed.

Lynda Mooney

From: Bobby Ren []
Sent: Tuesday, February 03, 2009 11:59 AM
To: Lynda Mooney
Cc: Rene Chen

Subject: Re: FW: Another foreclosure

Could you just briefly clarify the actual issue that is the snag? Like, if this doesn't get cleared by friday, is it something that they will be able to clear in the future? or is it something that must be cleared for the sake of the mortgage bank, or to prevent future title issues for me?


On Tue, Feb 3, 2009 at 11:54 AM, Lynda Mooney <> wrote:

Hi Bobby - foreclosures are different animals every time so I can't predict. It is definitely a seller responsibility and there is nothing we can do to facilitate the process.

But I have just learned from Members that they have already scheduled the loan with their investor so if we cancel it you will have to pay the redraw fee that we talked about yesterday. Might as well go forward and keep our fingers crossed that they get what we're looking for in time for Friday.

Lynda Mooney

From: Bobby Ren []
Sent: Tuesday, February 03, 2009 11:50 AM
To: Lynda Mooney
Subject: Re: FW: Another foreclosure

Hi Lynda,

Thanks for the heads up. I'm not familiar with titles and POAs so I'm not sure I understand the implications of the current document problems. Do you anticipate that we will need more time to clear up these issues? Is it something that should be transparent to me and just taken care of by the selling party?


On Tue, Feb 3, 2009 at 11:42 AM, Lynda Mooney <> wrote:

Hello - As you can see from the title insurance underwriter's comments below, we're not out of the woods yet with this bank owned property. There are several problems with documents already of record. Bobby as you instructed, I have sent Members the scheduling sheet but at this point you would have grounds to postpone scheduling until the seller advises us that they can clear up the title deficiencies. Your call.

I'll let you know what I get in the way of a response from the seller's attorney.

Lynda Mooney

From: Lynda Mooney
Sent: Tuesday, February 03, 2009 11:38 AM
To: 'Kathleen M.. Morelli'
Subject: FW: Another foreclosure

Hello Kathleen - Below is the explanation from the underwriter as to the problems with : 1) Argent's POA (related to the Assignment from Argent to Wells Fargo, NA, Trustee); and 2) Wells Fargo's POA as it relates to the Foreclosure Deed. Please forward this to the attorney handling the matter and advise whether you can obtain two corrective POAs - or if they are already of record.

Thank you.

Lynda Mooney

From: Desantis, Anthony []
Sent: Tuesday, February 03, 2009 11:17 AM
To: Lynda Mooney
Subject: RE: Another foreclosure

Good Morning Lynda,

Confirming our discussion.....

The problem with the assignment is that it is executed pursuant to a POA (49089/199) and, unfortunately, said POA relates to certain pooling and servicing agreements, which have no relevance to the current transaction. If there is a good POA of record, then you have a good assignment -- where the assignment indicates a "Date of Transfer: September 15, 2007" and we will rely upon the same.

We are not concerned with the lack of Trustee Certificate.

Unfortunately, we cannot rely upon either POA (51835/77 or 48844/155) in support of the Foreclosure Deed and Affidavit -- as both of these POAs relate to certain pooling and servicing agreements which are not at issue.

Additionally, we cannot rely upon the Assistant Secretary's Certificate from Barclays (49567/237), as it fails to identify what officers can execute deeds, affidavits, etc., stating only the "proper officers" and it seems to relate to Wachovia not Wells Fargo -- That said, I did find a good Assistant Sec. Certificate, attached.

Please make sure you have copies of all certified mail pieces, evidencing that notice was properly sent pursuant to Ch. 244, s. 14.

Provided the above issues are rectified by the recording of proper POAs, then the deed to the next buyer would be supported by the POA recorded at Book 48844, Page 155 -- that said, please make sure the signatory of said deed has the proper authority to execute the same.

As always, if you should have any questions or concerns, please do not hesitate to contact me.

Take Care,

Anthony E. DeSantis, Title Counsel

From: Lynda Mooney []
Sent: Monday, February 02, 2009 5:37 PM
To: Desantis, Anthony
Subject: Another foreclosure

Hello Anthony - I have a purchase of a bank owned property at 74 Prospect, Somerville.
The loan was originally from a Maria Gomes to Argent Mortgage Company, LLC dated 3/24/05 and recorded the following day (Bk. 44874, pg. 32)

There is a Service members Civil Relief Act Notice on record from Wells Fargo, NA as Trustee dated Jan 17, 2008 which was recorded in March (Bk 50693/588). There is not an assignment on record to Wells Fargo, NA Trustee until August! (Book 51321/428). There is no information about the trust that they are trustee of?

The later Vote (49567/237) and POA 51835/77 seem to be in order if you are satisfied with the Wells Fargo, NA as Trustee.

My questions to you all boil down to "Do you care?"
1) that the assignment is later than the notice;
2) that there is no trustee certificate or information?

There is also an unrecorded Affidavit from Wells Fargo assistant secretary saying that she complied with the publication and mailed notice requirements. Should I record that at closing?

Thanks for looking at this.

Lynda Mooney

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