Forced Deed in Lieu
Typically, a Deed in Lieu of foreclosure is a consensual transaction. In other words, it is a process and result that is agreed to by the lender. As discussed under the Deed in Lieu section of our website, the process can be challenging and unfortunately is unsuccessful more times than not. Therefore, while it should be considered, homeowners should familiarize themselves with all of the options at their disposal, including a “forced” deed in lieu of foreclosure.
Defined. The term “forced” deed in lieu of foreclosure, or FDIL, is a bit of a misnomer. Essentially, the forced deed in lieu is a product of creative advocacy born out of tough fact patterns brought by numerous homeowners considering bankruptcy. The deed in lieu is considered “forced” not because we have any new-found law that requires the lender to take the deed instead of filing a foreclosure lawsuit. No, in fact, the lender can reject the deed and choose to file suit. We cannot guarantee that the deed in lieu will be accepted. So why then do we call it “forced?” For the following reasons:
- Forgiveness….not permission. Instead, it is called a “forced” deed in lieu of foreclosure for several reasons. First, we do not ask for permission. It is not a negotiated process where we jump through the hoops typically required, i.e., hardship letter, listed for 90 days, exhausted financial resources, etc. Instead, we draft a Special Warranty Deed in Lieu of foreclosure, sign in the presence of two witnesses, notarize and record in the clerk of Court in the County where the real estate is located. We then send the original, recorded deed to the first lien holder under a cover letter explaining why accepting this deed is in everyone’s best interest, lender included.
- Transfer of Ownership. Recorded. Tender. Delivery. Benefit Received.
- Exempt Asset Analysis.
- Pre-Bankruptcy / Means Test Analysis.
- Cost Savings & Time Savings.
- Results Oriented: Cost-Benefit Analysis.
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