Modern Real Estate Finance and Land Transfer: A Transactional Approach (Aspen Select Series) by Steven W. Bender & Celeste M. Hammond & Robert M. Zinman

Author:Steven W. Bender & Celeste M. Hammond & Robert M. Zinman [Bender, Steven W.]
Language: eng
Format: azw3
Publisher: Wolters Kluwer
Published: 2018-11-06T00:00:00+00:00

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1. McDermott, Workout Specialist Looming Large in ’90s, Crain’s New York Business, Oct. 22, 1990 (quoting a real estate brokerage executive).

2. See Prather, A Realistic Approach to Foreclosure, 14 Bus. Law. 132 (1958).

3. Buy-sell agreements are discussed at Chapter 4D6.

4. Nonrecourse loans are discussed at Chapters 3B3 and 5A3.

12. 26 U.S.C.A. §3505 (1982); Fidelity Bank, N.A. v. United States, 616 F.2d 1181 (10th Cir. 1980).

5. 2 G. Glenn, Glenn on Mortgages §173 (1943).

6. E.g., Aetna Life Ins. Co. v. Broecker, 166 Ind. 576, 77 N.E. 1092 (1906); 2 G. Glenn, Glenn on Mortgages §175.1 (1943); G. Nelson et al., Real Estate Finance Law §4.35(6th ed. 2015).

7. E.g., N.Y. Real Prop. Law §254(10); see also Restatement (Third) of Property (Mortgages) §4.3(b) (1997) (court shall appoint receiver on default if mortgage authorizes such appointment).

8. See G. Nelson et al., Real Estate Finance Law §4.42 (6th ed. 2015). The impact of foreclosure sales on leases is examined infra at Chapter 8C2.

9. See, e.g., Conn. Gen. Stat. Ann. §§49-14 to 49-31; Vt. Stat. Ann. tit. 12, §4941. On the constitutionality of strict foreclosure, see Dieffenbach v. Attorney Gen. of Vt., 604 F.2d 187 (2d Cir. 1979). With respect to the limited application of strict foreclosure in Illinois, see Prather, Foreclosure of the Security Interest, 1957 U. Ill. L.F. 420, and Brodkey, Current Changes in Illinois Real Property Law, 10 DePaul L. Rev. 567 (1961). Some courts in states not providing for strict foreclosure have been known to grant it on petition of the mortgagee in special circumstances, such as to correct a good faith failure to join certain necessary parties in a judicial foreclosure. See G. Nelson et al., Real Estate Finance Law §7.11 (6th ed. 2015); Note, 88 U. Pa. L. Rev. 994 (1940); Note, 25 Va. L. Rev. 947 (1939).

10. See B. Dunaway, The Law of Distressed Real Estate Appendix 9A (1992) (specifying the customary security agreement and method of foreclosure in each state).

11. New York joined the list, except for certain residential collateral, in 1998, but repealed its nonjudicial foreclosure procedure in 2009.

12. In addition to the notice specified in §2924f(c)(3), California law requires that the beneficiary or trustee record a notice of default and mail it by registered or certified mail to the trustor and certain other persons. See Cal. Civ. Code §§2924, 2924b, 2924c.—EDS.

3. Thus, this appeal does not raise the issue of whether a beneficiary under a deed of trust has a duty to investigate for defects.

7. In Sumitomo Bank v. Taurus Developers, Inc. (1986) 185 Cal. App. 3d 211, 221, 229 Cal. Rptr. 719, the court refused to impose on the trustor [borrower] a duty to disclose known defects in the property being sold at a trustee’s sale. It relied, not on the comprehensive nature of the nonjudicial foreclosure statutes … but on the unique role of the defaulting trustor, who “was not setting the price at the sale, and in general was not representing the value of the property at the sale.” Accordingly, the

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