Los Angeles Real Estate Specialist Suren Ambarchyan Outlines New Foreclosure Defense Schemes
The U.S. Congress enacted Protecting Tenants at Foreclosure Act of 2009 (PTFA) to protect bona fide tenants from immediate eviction following a foreclosure sale. Los Angeles real estate specialist Suren Ambarchyan explained that the statute generally provides that a purchaser at a foreclosure sale acquires title to the property subject to any bona fide lease entered into before the notice of foreclosure and the tenant under such a lease may continue to occupy the foreclosed property until the end of the remaining lease terms. The only exception is that a purchaser at a foreclosure sale acquiring the property as their primary residence has the right to terminate the lease prior to the expiration of the lease term by giving written notice to the tenant 90 days prior to the lease termination date, noted Los Angeles real estate specialist Suren Ambarchyan.
Los Angeles real estate specialist Suren Ambarchyan doesnt hesitate to share his views on the law. Suren Ambarchyan commented The PTFA is not particularly well written or even thought out. It doesnt seem that the ramifications of such a law were well considered prior to its adoption. Suren Ambarchyan further explained that the law is unusual and probably unconstitutional because it retroactively modifies the expectations of the lender when they made the loan that is, the lender would be able to foreclose, secure possession of the property and then market and sell the loan to recover all or part of the balance due on the loan.
The PTFA has certainly created uncertainty in the market and opportunities for abuse. There has developed a cottage industry of attorneys, real estate professionals and foreclosure specialist who seek to use the PTFA for purposes other than the protection of tenants. Suren Ambarchyan recently reviewed a website scheme promoting foreclosure relief. Here is how the scheme works:
Owner A and Owner B are both facing foreclosure.
Owner A agrees to lease its property at a below market rental rate to Exchange; Owner B agrees to lease its property at a below market rental rate to Exchange.
Exchange, without taking possession of either property, then leases Property A to Owner B and Property B to Owner A at a market rental rate.
Owner A and Owner B secure long-term housing in desirable neighborhoods without undergoing a credit or other background check. By entering into the leases before foreclosure, Owner A and Owner B eliminate the risk of non-approval based on credit or other conditions.
Exchange profits by charging an exchange fee, by collecting a non-refundable lease deposit and by collecting and retaining the difference in rent between what it collects on the subleases and what it pays out on master lease.
While Los Angeles Suren Ambarchyan declined to comment on the legality or ethical implications of such schemes, Suren Ambarchyan did indicated that it is pretty easy to see how an unscrupulous company or individual might take advantage of this law. Suren Ambarchyan offered a few examples of opportunistic behavior:
Owner A offers to Tenant a long-term lease 20 year lease. Owner A enters into the transaction with the intention of rendering title to the property unmarketable and to force the lender to agree to loan modification.
Foreclosure specialist charges a $5,000 transaction fee to Owner A and Owner B, who both have properties in foreclosure, for the exchange of their properties. Foreclosure specialist sets the rental rate at 50% below the owners current mortgage payments. Both lenders foreclose, challenge the validity of the leases and win, and obtain orders of possession. Owner A and/or Owner B, notwithstanding their payment of a transaction fee and security deposit to the foreclosure specialist, are evicted.
Owner A leases property to entity owned by family friend. Family friend then rents to high-risk tenant at above-market rental rate. Scenario is repeated with high-risk tenants ranging from recently released prisoners to individuals running criminal enterprises from the property.
Los Angeles real estate specialist Suren Ambarchyan further explained that under PTFA the lender is faced with an unappealing choice - The lender can foreclose. However, if the lender does foreclose and there is a lease in place, the lender must wait until the end of the lease term before it can terminate the lease, take possession and sell the property. Lenders are ill-equipped to be long-term property owners. Their business is lending, not managing rentals. Suren Ambarchyan commented While it is hard to feel sorry for lenders who to a large extent created the housing mess with their easy credit low underwriting standards, the PTFA has greatly changed the rule of the game and legal landscape for lenders. Suren Ambarchyan pointed out that the biggest threat to lenders as well as to local community is that the lender becomes the landlord and is then responsible for maintenance, repairs, insurance, taxes and even possibly pre-paid rent and security deposits.
Los Angeles real estate specialist Suren Ambarchyan cautioned that property owners considering such schemes should seek independent legal counsel to review the transactions. Suren Ambarchyan commented legal review can be expensive, but it is certainly less costly than money wasted on fraudulent schemes that offer owners facing foreclosure little else but false hope. The law, although poorly written, does provide limited safeguards to lenders. Suren Ambarchyan explained that any leasing or exchange scheme must at a minimum meet the following requirements:
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The lease transaction cannot be between the owner as the landlord and a class of tenants including the owner, owners spouse, owners parents or owners children.
The lease must be an arms-length transaction.
The rental rate for the lease must not be substantially less than the fair market rent for the property.
If you are an owner facing foreclosure and considering the leasing or exchange of your property, contact Los Angeles real estate specialist Suren Ambarchyan to assess the legality and likelihood of success of any proposed transaction.
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