"Brain Pick a Pro" Interview with Attorney Beth Blake



Larry: Welcome to the Program, Beth. How are you?

Beth: Just fine, how are you doing, Larry?

Larry: I am doing great. Thanks so much for taking time to come on the Call tonight. I really appreciate it, I know you are very busy, you do a lot of Real Estate closings and things are really hectic especially right here at the Holidays. People trying to get things done and get them closed out and I really appreciate you taking the time to come on and teach us tonight all about Real Estate closings and that sort of thing. Why don’t you start out and tell us a little bit about yourself.

Beth: No problem, thank you Larry for inviting me. Obviously, I am an Attorney. The areas that are the majority of my practice is Real Estate. Specifically, Residential Real Estate. I don’t know how many investors that call in regarding Commercial, but most of my comments tonight will be related to Residential; although when you are talking Title in a broad sense it can carry over into the commercial area. I have been practicing for eleven years and have been in the Charlotte area for about eight years.

Larry: That is great, you have been in the Charlotte area for eight years? Excellent, where did you move from?

Beth: Actually I was in the Raleigh/Durham area when I got out of school and practiced with a firm up there for a while. Wanted to come back to the Charlotte area; and came back and opened my own office.

Larry: That is great, and I am sure you stay very busy.

Beth: It is amazing how much Real Estate goes on in this area.

Larry: It absolutely is; and I think it is important before we get started I want to let everyone on the call know. We will be doing this in the future. We are not giving any Legal advice tonight. Want to throw out that Disclaimer. You need to seek your own counsel, whether it be your own Attorney or CPA or whatever. What we are going to be talking about tonight is “real world” things that happened in the Marketplace; but it is in no way any type of legal advice or anything like that. Just thought I would share that.

Beth: That is a really good point. I am just here to give out information and I strongly encourage everyone in their transactions to employ the services of an Attorney. Hopefully, after tonight’s conversation all of you will understand how important it is to have an Attorney in your corner when you are going through these transactions.

Larry: Absolutely. Let’s start out with the very basics. Do you have to have an Attorney to close a Real Estate deal?

Beth: I guess the other comment I need to make is that most of my comments will be related to North and South Carolina law and I think I heard someone call in that they are in Gainesville, FL. Things are handled very differently in Florida than they are in North and South Carolina. The broad answer is: No, you do not have to have an Attorney to close a Real Estate transaction. The laws are such that non-Attorneys can present closing documents and things like that; however, certain things still have to be done by an Attorney leading up to the actual setting down at the table doing the closing.

Larry: That is good. Is that in North and South Carolina?

Beth: North and South Carolina, yes.

Larry: Now let me ask you this question. Is it any different, Beth; if there is a Mortgage loan involved?

Beth: The only difference if a Mortgage loan is involved, is there is more paperwork that goes on. Certainly when you have a Mortgage Loan involved they are going to want Title Insurance and in order to have Title Insurance, you have to have a Title Search done and that Title has to be certified by an Attorney in order to obtain a Title opinion to be able to obtain Title Insurance.

Larry: We are going to talk about Title Insurance a little more in depth a little bit later. What exactly is the role of an Attorney in a closing? I have heard some people say, well the Attorney works for the Lender, they work for the Buyer, they work for the Seller, I want to get my own Attorney. Can you shed a little bit of light on that?

Beth: Sure. And that is a really good question. That’s something that I think sometimes Buyers and Sellers don’t quite understand. Generally in a closing the Attorney represents the Buyer. Although there are some closings that a Seller contacts me first and sets up a closing that Seller becomes my client and I don’t represent the Buyer. The crossover to that is when there is a Lender involved and I have a loan to close simultaneously I also represent the Lender. I represent the Lender to the point of closing that transaction within the law to make sure all the Legal requirements are met and to make sure all the Lender requirements are met.

Larry: Right. Because doesn’t with the Loan package that the Borrower signs, the Lender also sends a set of what they call “Closing Instructions” for you.

Beth: Exactly.

Larry: Tell us a little bit about that.

Beth: The most important thing that comes in the “Closing Instructions” is they give me the numbers to put on the Settlement Statement. The Lender’s Fee, Origination Fee, Commitment Fee, Flood Certification, Increment Escrows if there are numbers like that to complete the Settlement Statement. Usually when I am delayed in getting the Settlement Statement out it is usually because I am waiting on the Lender to send me their closing instructions so I can finish putting the numbers on the Settlement Statement to get it out to all parties involved.

Larry: Is there a particular time that that Closing Statement or HUD-1, as we call it, is there a particular time that that needs to get out?

Beth: Generally, the requirement is that we have it out twenty-four hours in advance of closing, that is the rule.

Larry: That they basically have the availability if they want to.

Beth: Exactly.

Larry: That is not “real world” is it?

Beth: I was going to say unfortunately in this and age, to be able to get a Settlement Statement or a HUD-1 out twenty-four hours prior to closing can be difficult.

Larry: It is good to know that it is available; and that is something that is possible and even not required, but you are able to do in the event that the Borrower wants that.

Beth: Right. What I also tell Borrowers, they can help me get the HUD-1 out early. What I mean by that is, I cannot get the HUD-1 out until I get the Closing Instructions and the Closing Instructions don’t come to me until the package is complete. Your Lender is telling you: I need this document or they need that document – don’t drag your feet, get it to your lender as soon as possible. That just keeps the process moving faster, just gets the package to me faster.

Larry: Absolutely that makes good sense. I know, from “real world” experience being an owner of a Mortgage Company myself. That closings get postponed, they get changed, all the sudden the package will come in and it is like “can we close tomorrow?” or I took the day off or I have a moving truck backed up, furniture is in the truck, so they do tend to get changed around and rushed up lot.

Beth: They do and we try our best to stay on schedule and again when they say they need something, get it to them as soon as possible to help us stay on schedule.

Larry: Exactly. It makes your life much easier, doesn’t it?

Beth: It does.

Larry: Tell us a little bit about what kind of fees we can expect on a Closing Statement, from not only from you but from the Lender as well.

Beth: Okay. Again these requirements are basically related again in North and South Carolina. When you are talking about Lender’s Fees generally, you are going to see an Origination Fee, it could be anywhere from a ½ % to 1% and in some case 2 or 3% of the Loan amount. It just depends on the Lender. You will always see a Flood Certification Fee, every Lender will pull a Flood Certification to determine whether or not the property is in a flood zone. That is a smaller fee, that is probably one of the smallest fees on the Settlement Statement. Other than that you will see, probably a Commitment Fee or a Processing Fee and that is just a Lender’s Fee for doing the paperwork and things like that. Sometimes you will see a Tax Service Fee or a Tax Research Fee, those are fees where the Lender gave us another Service to go in and to make sure all property taxes gets paid and just to periodically check to make sure no IRS Liens pop up. Sometimes an IRS Liens pop up, those IRS Liens can go in front of the Mortgage or the Deed of Trust.

Larry: Now is that a Service where they will periodically check after the fact, after the closing?

Beth: Yes. They will randomly pull loans and check those things.

Larry: Okay, Wow that is interesting. I didn’t know that. Learn something on every call, that is great. What are some of the other fees?

Beth: The other fees would be sometimes a Courier Fee, and sometimes you see a Document prep fee. Sometimes the Lender uses a third party Service to prepare documents. You will see things like that. Sometimes you see what is called a MERC Fee (Mortgage Electronic Registration). Sometimes these mortgages get registered electronically in a National Database.

Larry: What is the purpose of that?

Beth: Just keeping track of them. We all get stuff in our mail, you know, I can re-finance your loan for at such and such deal because your already have this amount, that is where they are pulling that from.

Larry: I didn’t know that. That is good to know too. What are some of the other fees? Like on the Attorney’s side?

Beth: On the Attorney’s side typically, what you will see, some Attorney’s put it up under a Settlement Charge or some call it down on line 1107 an Attorney Fee. Either way, that is basically what the Attorney gets paid for doing the Closing. My practice is, and most of the other Attorneys here in town, their practice is to charge a flat Attorney Fee; that fee can vary anywhere from $400.00 to $500.00, that is the ballpark here in Charlotte.

Larry: That is an all inclusive fee, right?

Beth: That can be an all inclusive fee, there are some Attorneys that take a Title Search Fee and break it out separately. That is just a fee if they employ an independent Paralegal to pull the Title work from the Court House, so the Attorney doesn’t spend time down at the Courthouse. The other important fee that you will see is the Title Insurance Premium. That is one time premium that is paid at closing, again all lenders require a Title Policy. In my office nobody purchases property without getting an Owner’s Title Policy. For me it is that important that I require everyone to have when they close with me.

Larry: Now is it any more expensive or there an additional fee to get an Owner’s Policy over and above the Lender’s Policy?

Beth: Generally, what I have my client’s do is to get an Owner’s Policy for the purchase price. It is not that much more above the Loan amount.

Larry: Because you already have the Title Policy anyway, right?

Beth: Exactly. To me it is a nominal fee that you pay for peace of mind and for protection.

Larry: For some people who may not understand or may just be getting started, explain a little about the title insurance policy, what that covers, why the Lender needs that and then why you would also want your Owner Policy’s as well.

Beth: The easiest way that I explain to my clients Title Insurance is it protects them from any defect in Title. Then I get the question, why would there be a defect in Title, you go do the Title Search. There are many different things that we look at when we do the Title Search. Unfortunately, some times things are missed and there are things that sometimes get mis-indexed after all this. The Computer the indexing is only as good as the human entering the information. Things can be mis-indexed and missed through the Title Search. When I talk about things being missed, I talk about unpaid mortgages being missed on a Title Search. That is a big thing – that is a big deal. That doesn’t happen often, but that is a big deal. In addition to that, Title Insurance will protect you if you did not know that there was an easement going through your backyard, where the County has the right to come in and put a road through your backyard. Certainly that is what Title Insurance will pay you for the loss of the use of that property if the County comes in and puts a road through you backyard, you cannot use that portion of your backyard. Title Insurance compensates you for losing the use of that yard, that part of the property, when it was something that was missed and was not disclosed to you that you were not made aware of.

Larry: It also even covers things like a long lost of Uncle of the Seller who sold the property to you that comes back and says I have an ownership interest in this property.

Beth: Exactly. That is exactly right. It protects you from someone who comes knocking on your door one day saying “Hey, I have an interest in the property that fronts your interest in the property.” Instead of you being out on the street with nothing, the Title Insurance just insures that if something like that happens you will be compensated.

Larry: But if you did not get your Owner’s Policy you would be out of luck, in the sense that the Lender would be the only one that it would protect.

Beth: Exactly; and for the nominal amount of money that you pay in addition to the Lender’s Policy to have an Owner’s Policy it is just so important to have that.

Larry: Absolutely; and it is based on – and I know you can only speak for North and South Carolina- but it is based the amount of coverage per thousand isn’t it?

Beth: Generally, in North Carolina it is $2.00 per Thousand. South Carolina is a little bit higher; and to the gentlemen who is from Florida, if he has done any transactions in Florida, he knows Florida Title Insurance is “sky high”. Florida is a little difference, they have a little closing procedure and that is why their Title Insurance Premium is higher than the Carolinas. Generally, $2.00 per Thousand, also depends on how far we have to go back. The common procedure in North and South Carolina is to find a prior Title Policy. In other words, try to find an Owner’s Policy for the current Owner or prior Owner that we can do what is called Tacking Fee. In other words, if the Seller has owned the property for four years and he has got an Owner’s Policy that means that I only have to go back to when the current Seller bought the property and bring the Title forward; rather than going back what the typical full Title Search would be forty to sixty years, etc.

Larry: Right, so if you can find a previous Policy you are in good shape.

Beth: You are in very good shape.

Larry: That is great. That is a good idea. Now does also save you’re the Borrower and the Lender some money on the Title Insurance premiums?

Beth: It saves a little bit on the premium, yes. It certainly saves on, especially in this instance when the Attorney breaks the Title Search Fee itself out as a separate fee. If I have to go back just a few years, the Title Search Fee is not going to be that expensive. If I have to do a forty-year search, you are talking two, three, four hundred dollars. Depending on how far back I have to go, how complicated it is and how many people it has passed through.

Larry: Absolutely. Now you mentioned in doing the Title Search, tell us a little bit about what is a Title Search and how you go about doing that. I know it is different in different states, because they are indexed different ways; but just share a little bit about that if you will.

Beth: They are indexed differently; but generally, it is all the same. Think of it as a chain. You want to complete the chain. So a Title Search you go back and you follow the chain back from the current owner to however far back you have to go either doing a full search or until you find a Title Policy. Owner A transfers it to Owner B: Owner B transfers it to Owner C, etc. that is the chain of Title. I follow that chain to see all the ownership interest and once I have that, then I have to bring it forward and look at what we call the outs. The outs are when the Owners have granted different interests in the property. In other words, granted a Mortgage or a Deed of Trust here in North Carolina that is an interest/that is an out. They have granted something out. Granting an easement, if you have given your neighbor the right to drive on the dirt road across your property to his property, that is a grant out/an interest in the property. These are all the things that I have to check to make sure that, again, we know exactly what is being conveyed to the Buyer and we have to understand what all the outs are. What all the interests have been conveyed out from the Seller to make sure that – A: The new buyer is aware of it and B: That we clean up any liens that need to be cleaned up.

Larry: Not only conveyances, but things that may be attached automatically. Like judgements or liens or something like that, right?

Beth: Exactly. What I just described is going back and pulling the chain of Title and the out conveyances that is done at the Register of Deeds Office. We also have to check Judgements. In North and South Carolina, if a judgement is against you then it automatically attaches to any Real Estate that you own in the state. I get strange looks all the time – what does the judgement on my Credit Card have to do with my house that I own? Well if you Credit Card Company has a judgement against you that judgement has automatically attached to your house. Before you can sell that property, that judgement has got to be cleaned up, because that judgement will trump any further conveyances or further lien that is put on the property.

Larry: It is like a previously recorded Lien.

Beth: Exactly.

Larry: Wow, that is interesting.

Beth: Just a couple of instances we do look at; we look at prior taxes, taxes have to be paid and current. Once the tax bill comes up, taxes becomes a lien on the property – the property tax. So those have go to be cleaned up and paid in full. Another thing that pops up every once in a while that I find that confuses people is what we call a UCC Fixture Filing (A Uniform Commercial Code Fixture Filing). Where you are going to see this most of the time, a good example is Piedmont Natural Gas coming into a home and putting in a new water heater in the home. Rather than paying in full the Owner will finance it and just make monthly payments along with their monthly utility bill. Piedmont Natural Gas will go down to the Register of Deeds Office and file a UCC Fixture Filing. Even though the Fixture Filing is on the water heater, because that is attached and has become a fixture of the house; that becomes a lien on the property that has to be cleared up, it is another lien that is attached to the property.

Larry: I guess that is a cheap way of doing a Mortgage?

Beth: In a way it is and it protects Piedmont because you cannot do anything with a house that does have a water heater and you cannot take the water heater. I guess you could take it somewhere else but it still attaches.

Larry: If you re-finance or sell the property that UCC Filing has to be paid off.

Beth: Exactly.

Larry: I guess that is their security interest in that note.

Beth: Exactly. When you are looking at all of these little nuances and items that we have to check to do a Title Search that just kind of reinforces again my first statement that was “always have an Attorney closing these transactions.” You always want an Attorney making sure that these items are cleared up and properly taken of.

Larry: Absolutely, that is very important. You mentioned something a minute ago about Judgements and that they attach	to any property you own in the state. I get this question every once in a while and maybe you can clarify this. If you have a Borrower that say used to live in one county – Gaston County – they got a Judgement maybe from a Credit Card or something there but they have a property now in Mecklenburg County. A different County, is that going to show up as attached to that property or how would a Title Abstracter or a Paralegal find out about that in a different County?

Beth: If the judgement is recorded in a different County/Gaston County; and I am doing the Title Search in Mecklenburg County, I am not going to find that Judgement in Gaston County. It is not going to attach to the property in Mecklenburg County unless the Creditor has the Judgement recorded in Mecklenburg County.

Larry: Which is probably unlikely. They probably don’t even know they have moved or whatever.

Beth: Exactly. The other flip side to that is sometimes those judgements comes up on Credit Reports so we know about them anyway.

Larry: Once you know about them, do they still have to be paid off?

Beth: If they are not attached to the Real Estate, if it does not affect title to the Real Estate then it is up to the Lender whether or not they want that issue cleared up. My job is to make sure clear title is transferred and if I am okay and clear title is going to be transferred than I do not care about a Judgement in Gaston County; but the Lender may require me to have the Borrower pay that off.

Larry: That is a good point. What about also couples, spouses and can you explain the difference in North and South Carolina if one person owns a property and then they get married do both of them have to sign to sell it? I know it is different in each of our states here.

Beth: Right. That is a really good question. In North Carolina, a good example. In North Carolina, husband buys a property in Mecklenburg County prior to being married. Joe Smith owns the property. Joe then marries Jane; then Joe and Jane decide they are going to sell this property. Because Joe and Jane are now married, upon the marriage Jane acquires what is called a martial interest in the property. In order to transfer what we call Deed Simple Title which basically means 100% Title, Jane will also have to sign even though her name is not on the Deed. That really goes back to basically very old laws were you cannot disinherit your spouse.

Larry: Now South Carolina is a little different, isn’t it?

Beth: South Carolina is a little different, in that South Carolina has eliminated that requirement by statue. So in that situation, if you had a piece of property in South Carolina, Jane Smith would not be required to sign off on the Deed.

Larry: Which can be a little scary for Jane.

Beth: It could be a little scary for Jane, it is one of those situations where because South Carolina has done away with the law, it just allows one spouse to be able to transfer the Title if the Title is only in their name.

Larry: I guess every state is different, isn’t it?

Beth: Every state is different, absolutely.

Larry: What about this. I get asked this question a lot. What contract should I use when I am buying a property? Should I get my Attorney to look at it? Should I get my Attorney to draw up the contract? Shed a little bit of light on that for us.

Beth: Especially when people are first getting involved in investing and buying Real Estate it is not a bad idea to have your Attorney review the Contract. Generally, what is used is a pre-printed Bar Form Contract/Offer to Purchase Contract and those have been reviewed by the State Bar Associations and have been approved by the Real Estate Commission and the Bar organizations. They have gotten together and come up with what they feel is a very good contract; that can be used by Buyers and Sellers that required very little freehand drafting.

Larry: That is true in about every state, isn’t it?

Beth: It is. Basically these contracts are fill in the blanks. You can fill in the blanks as to your purchase price, earnest money, things like that. When you are first getting involved in buying Real Estate; and you do not have a Real Estate Agent that you are working with, it is not a bad idea to set down with an Attorney and go through the Contract. Let the Attorney go through the Contract with you paragraph by paragraph so you understand what you are getting into and you understand what you are signing. Even though they are preprinted and even though they are very well written you just need to understand what you are entering into, especially if anything happens down the line before closing; so you know what your rights are and what the Sellers rights are.

Larry: I think that is very important. You need to know exactly what everything is; because everything in the Contract is there for a reason. You need to understand exactly what it is, what purpose it serves and how to use it to your best advantage. I think it is also worth stating here. I get question from time to time from Investors getting started saying, “I am going to buy so and so course and they have their own contract and it is real pro-buyer or it is real pro-seller if I am selling and has all these clauses in it to protect me and get me out of this deal and do this”. I don’t necessarily agree with that. I always, even if I am dealing with a “for sale by owner” and we buy about five to ten houses every month. If I am dealing even with a “for sale by owner” I am going to use, if it is North Carolina, I am going to use the North Carolina State Bar approved form that is adopted by the North Carolina Association of Realtors. The reason I do that is, now help me and tell me if this is true. It gives me a certain amount of “safe harbor” in the event there was ever a conflict or dispute with that agreement.

Beth: That is exactly right and that was the purpose for coming up with a uniform preprinted contract was to kind of eliminate some of these issues that come to light just in the basic contractual transaction. In other words, people not putting one phrase that changes the whole meaning of the Contract.

Larry: Right they have thought of everything, in whatever State you are in, for that bar form. Tell me if I am wrong, but if there was every a contact dispute and it went to Court I would think that very first thing the Judge is going to ask is: “who drafted this agreement?”

Beth: Right and where the Contract came from.

Larry: Where it came from and who drafted it.

Beth: The Bar Form Contract has those outs, as you will, built in. In other words if you cannot get your loan, there is your out. That allows you to be able to undo the transaction or undo the Contract. If the clause regarding getting a loan for a certain amount for a certain interest rate is not in a Contract and you cannot get a loan, well so, so to bad, you may lose your earnest money. The other big issue that is covered in the Contract which comes up in my office probably on a daily basis, are repairs. If repair issues come in, who is going to do them, how much, things like that; the preprinted Contract address these issues.

Larry: It sure does and it gives you a certain amount of time for inspection and even a certain amount of money that the Seller will agree to make necessary repairs or not make necessary repairs. That is very important. A lot of Investors ask me, how many different estimates are you going to get? If I am talking to the Realtor or the Seller and they say it is going to need $7,000.00 to $10,000.00 in work, I am basing my numbers on $10,000.00. If I go back and I get two estimates and it is $12,000.00 or $15,000.00, all I have to do (and they are going to want it in writing) is fax my copy of my estimates of repairs to show it is $2,000.00 more than what I anticipated. We can either lower the price and do the deal or send me my check back. It is pretty simple and you do not really need four or five different contingency clauses. You only really need one.

Beth: The repair issues is the big one, absolutely.

Larry: Exactly. That is very important, it really is. I would like to say here, most of our deal are bank on properties and the banks, it doesn’t make any difference how much the repairs are, they are not going to do any of the repairs. If the deal does not go through, they could care less most of the time.

Beth: They could and they are just looking to get the houses off their books.

Larry: Exactly, because they are in the money business, not the house business.

Beth: That is exactly right!

Larry: Tell us a little bit about a Survey, if you will. Do you recommend a Survey on every closing or any closings?

Beth: I get this question a lot. Many Attorneys in my area will say absolutely, without a doubt get a survey. As an Attorney that has to be my response also. As a realist, you have to look at the property and say, okay if this a piece where a survey is going to be necessary. Do I know where the property lines are? Are they fairly visible? Do I look like I have any fences or fence encroachments or building encroachments, or things like that? One area, when I get this question, I ask the people if the house is in a pre-divided subdivision. If it is in a pre-divided subdivision, the chances of something appearing on a survey that you may not know about by sight is unusual. Of course, a fence, your neighbor puts a fence up and encroaches over on your property a foot, that is an issue. In a situation where you have a subdivision where you have the lots already divided up and you can pretty much see or easily locate the four pens for the lot and it does not look like we have any fence encroachments and things like that, it may not be necessary to have a survey. If you are buying a bigger piece of property, farm land, land that is not in a subdivision, land that is described by what we call a “meets and bounds” description, then I do recommend a survey in that situation. The main reason for that, of course, is to look for the encroachments and things like that; but also to make sure that legal description the “meets and bounds” description is accurate.
That “meets and bounds” description describes the land. It describes what you are receiving, it the description is accurate and what you have received is accurate.

Larry: I would also personally recommend that anybody that is buying a property that has a vacant lot next door or it is close to a corner, to go ahead and get a survey as well. A lot of people know the story of the “half a house” I bought one time. It was next door to a vacant lot and it was near a corner and I thought I owned all the way to the corner. Not only did I not own all the way to the corner, I really only owned a carport and a living room. I had to track down seven heirs to finally get them all to sign off on the piece that I did not own that had been transferred back and forth to a couple of people that were not included in my legal description until I finally got clear title to the whole house, instead of half the house.

Beth: That goes back to again where you are dealing with the “meets and bounds” description so you know exactly what you are buying. I will tell you, sometimes we can use what we call a Survey Affidavit. If the current owner had a survey completed when they bought the property and that current survey is still accurate. In other words, nothing has changed – no one has put a fence up, no one has put a shed in the backyard, no one has added a deck or anything like that. If the property still looks exactly like that survey did, then the owner can sign an Affidavit saying we have no done anything. This is an accurate survey and you can gain survey coverage under your Title Policy.

Larry: That is great! That is a good idea, that is good to know.

Beth: Kind a shortcut, doesn’t always work in all situations.

Larry: It is always good to ask the current owner if they have a survey and if you can bring that to your attorney, they could possibly get that included in the Title Policy. That is great information, Beth, it really is. What are some ways that we can save a little bit of money when doing a Closing.

Beth: The biggest thing I can say is, don’t try to short change a Real Estate Closing. Don’t try to get to get “cheap” with it. It is an expensive asset and you want things done properly. Finding a prior Survey can save you an expense on that, surveys can begin anywhere from $275.00 to $300.00 and go on up from there. The other ways to help your expenses, and we talked about this earlier was finding a prior Title Policy. In North Carolina the Title Companies usually will work with us and we will can call a Title Company and say, “Hey do you have this prior policy?” There are about a handful of them here in the state that we know who to call to look for a prior policy and usually they will give it to us. South Carolina, there are so many little Title Companies, we just don’t have a handful of places to go to find that prior policy; so it makes it much, much more difficult to find a prior policy in South Carolina.

Larry: You have to write a new one?

Beth: Generally, what I try to do in South Carolina is to ask the Seller to go back and find it; and hopefully they can find it or at least tell me the Company that it went through. That will certainly save a lot of time. Unfortunately, in South Carolina, since there are so many little Title companies; it is not even worth our while to even attempt to try and find it you just have to have that prior policy from the Seller or we have to go back and do a full search.

Larry: Can you tell us a little bit about the difference between a Mortgage State and a Deed of Trust State? I know it is going to be different in other states, like Florida; Florida is a Mortgage State but a little about the Foreclosure process in both of those types of states.

Beth: What I can tell you is the difference between a Deed of Trust and a Mortgage. A Mortgage is just a straight lien on the property that encumbers the property. A Deed of Trust works a little differently in that you have what is called a Trustee. When you sign that Deed of Trust, you convey to that Trustee legal title; in other words, that Trustee hold legal title to the property while you are paying the loan back. They can name Joe Smo as the Legal Trustee.

Larry: Usually the Lender names the Trustee, right?

Beth: Generally, yes. Exactly. Generally, it is a local Attorney or an Attorney somewhere in the state that will be named as the Trustee. That Trustee does not have the right to come knocking on your door saying, “I have legal title, I’m coming in.” It just means that you cannot convey title to that property until that lien is released. The Buyer will still hold what they call Equitable Title and that is the Title that allows you to live in your house and use the property as you want to. The process when it comes to Foreclosure in a Deed of Trust state it is the Trustees that actually start the action for Foreclosure. In a Mortgage State, it is the Lender who does it.

Larry: The Lender, I guess contacts an Attorney. Is it not true that normally the Trustee who is going to handle the Foreclosure is hardly ever the same Trustee that was the Trustee in the beginning?

Beth: Yes that is very true. There are some Lenders, sometimes I find documents that come to my office that doesn’t have a Trustee named and I will put my name in. There are many properties here in Mecklenburg County and the surrounding that on record I am the Trustee of Record. In other words, I own legal titles. Again, that does not mean I can go to any of these properties and say, “I own legal title, I’m coming in”, it just means that on behalf of the Lender I am holding Legal Title for them.

Larry: Right, it is just a formality.

Beth: Right, it is just a formality. When it comes to starting a Foreclosure, the Lender will file what is called a “Substitution of Trustee” Form. Whoever they name as the new Trustee, that will be the person or entity that starts the Foreclosure proceedings, that actually files the Petition for Foreclosure.

Larry: Which is normally the Attorney that they hired to do all their Foreclosures, is that correct?

Beth: Exactly. Normally each Lender has an Attorney that they just send all of their stuff to.

Larry: What about the procedure in South Carolina? Being a Mortgage State, the Foreclosure process.

Beth: Unfortunately, I cannot really speak too much about that other than the Lender starts the Petition themselves, since there is not a Trustee that is involved.

Larry: It is more of a, I don’t know if “share of sale” is the right word. But it is, just the Lender goes and files the Foreclosure and then there is a sale on the Courthouse steps with the Lender having representation there, right?

Beth: To my understanding, yes. Here in North Carolina, you cannot just sell it right off. You have to go through a Clerk hearing, where the Clerk will either answer or deny the order for sale.

Larry: Now in North Carolina, there is a – say a Foreclosure comes down and it is today, the 15th of the Month. Today is the sale date and the Lender bids on the property, they bid their loan balance on the property. Then what happens?

Beth: They have what they call a “Ten Day up that bid period”. Which mean in other words that bid will set there for days and during that ten day period another person, another entity whatever can come in and bid on that property. It certainly has to be a certain percentage higher. It cannot be just one dollar, it has be a certain percentage higher than what the original bid is; but once a new bid is entered than another ten day period starts.

Larry: I think it has to be at least 5% higher, is that correct? They also have to put up a deposit right then and there when they upset that bid.

Beth: Right, they have to present the written bid with a check to Clerk of Court.

Larry: Than The Clerk holds that money until the next ten days or until it keeps going until nobody bids any more.

Beth: Exactly, it can go back and forth. I mean theoretically you could keep bidding back and forth but until a consistent ten days passes where on one has made any other bids at that point the sale becomes final.

Larry: Then the highest bidder gets the property; and they have how many days to pay up?

Beth: To be honest with you, I cannot tell you right off the top of my head what the Statutory requirements are. I believe it is just a handful of days.

Larry: It is not many, but I think most Lenders are pretty flexible.

Beth: Most Lenders are pretty flexible because they realize that a lot of people who buy Foreclosed property are having to get loans in order to obtain proceeds to pay for these foreclosed properties. It just takes some time to arrange the financing to get it set. Generally, when I have been involved in Foreclosure situations like this; if we are getting to the point where we are getting delayed because we have a Lender that is not quite done with their process. I will call the other side and say, “We are working on this, we have it in the works. It looks like it is going to be another week before we are ready to close” and 99% of the time the other party is okay with it.

Larry: That is especially good thing coming from you as an Attorney to the other side’s Attorney.

Beth: I have reassured them that the money will be forth coming, it is just a matter of getting the paperwork done and getting the Lender to be ready to send me the package to close.