Whenever a borrower defaults, lenders should be tactical to determine what default option they pursue. A one size fits all solution does not work for all borrowers and all situations. Lenders will want to know several things. First, what are a lender’s options when a borrower defaults? Second, what foreclosure restrictions are currently in place? Finally, what are the processes, timelines, and potential challenges that a lender faces when foreclosing?
Options Available to Lenders in the Event of a Borrower Default
Lenders have several options available when a borrower defaults. Foreclosure is one of them, but it is not necessarily always the most attractive option. Lenders can also offer borrowers a forbearance, modification, or deed in lieu. If a lender decides to move forward with a foreclosure, there are two primary types of foreclosure: judicial and trustee sale.
When choosing between non-foreclosure options, it is helpful to understand what the options are. In effect, a forbearance allows the borrower to temporarily postpone payments or waive payments altogether. It otherwise gives the borrower some grace during a time of hardship. A modification of the loan can be just that – modifying the loan – including increasing the amount loaned to the borrower or a change to the interest rate. This may be a viable option if a larger restructure of the loan is necessary. A deed in lieu is where the borrower essentially walks away from the loan, handing over to the lender their keys to the property used as collateral for the loan.
Note that best practices during this time for borrowers in need are to grant forbearances of payments or temporarily waive the maturity default for the loan. The recommended payment deferral time is around 60 to 90 days without charging default interest or other late charges.
Foreclosure Restrictions Currently in Place
In order to foreclose on a borrower, generally the borrower must monetarily default on the loan. Other loss mitigation options cannot or have not worked. For lenders, the bottom line is that in California, there is no prohibition on starting a foreclosure on a business purpose loan so long as it is secured by commercial or multi-family property. California recently passed AB 3088 which imposes certain pre-foreclosure requirements on lenders which typically only applied to consumer purpose loans. The requirements only apply to loans secured by 1-4 family property, and there are various ways around compliance (such as having an entity borrower). That said, you should double check with counsel prior to commencing a foreclosure action in California to be certain you do not need to comply with the new rules.
The Foreclosure Process
If a lender chooses to proceed with a non-judicial foreclosure, then they have chosen the most common foreclosure process used for business purpose loans in California. There are four main steps in a trustee sale: (1) Issuing a Demand Letter; (2) Recording a Notice of Default; (3) Posting a Notice of Sale; and (4) Auctioning the Collateral Property.
However, lenders foreclosing on residential property should be aware of another recently enacted law in California, SB 1079. This allows certain eligible bidders to bid on a property post-auction, essentially eliminating the possibility of a breach of guaranty deficiency bidding strategy. The general recommendation is to either open at your credit bid or an amount you would be okay losing the property at in case someone bids post-auction under SB 1079. Check with your legal counsel first. For more information, please see our article explaining SB 1079 and its effects in depth.
Issuing a Demand Letter
Although some loan documents do not require a demand letter, best practice is always to issue a demand letter to the borrower. Doing so sets the record for any potential litigation and allows the borrower a final opportunity before moving forward with formal proceedings. Typically, it is recommended that the lender does not record the Notice of Default until 10 days after the Demand Letter has been delivered to the borrower.
Recording a Notice of Default
In California, no additional contact with the borrower is required before Recording a Notice of Default, where the loan is a business purpose loan. Consumer loans do require additional contacts, adding between 30 to 60 days to the process as well as a 120-day RESPA payment requirement time period. For a business purpose loan, the lender can then record a Notice of Default after the Demand Letter is delivered to the borrower.
Posting a Notice of Sale
After ninety days from recording the Notice of Default, the lender may record a Notice of Sale. The Notice of Sale must be published in a public place, typically a newspaper within the city or possibly county where the collateral property is located. The auction must be at least 21 days out from the date of the posting.
Auctioning the Collateral Property
Once the auction is set, the lender should set a starting bid, maximum bid, and bid increments. Note that the starting bid should be lower than the loan amount in order to create leverage for a Breach of Guaranty suit. If someone bids an amount larger than the loan amount, the surplus is paid to junior lienholders and then to the borrower. After the sale, if a deficiency remains, the lender may seek a breach of guaranty against the guarantor.
Regarding the judicial foreclosure process, the lender should be aware of anti-deficiency rules and consider the implications of combining it with another action such a quiet title action. Judicial foreclosures are often pursued in conjunction with receivership and can run at the same time as a trustee sale. Typically, courts are reticent to provide receivership to lenders. Therefore, lenders should rule out all other options before pursuing receivership.
There are several key takeaways from this foreclosure discussion. First is for lenders to understand all of their options, because there is no one size fits all solution. If you as the lender choose to foreclose, act now rather than later before more executive orders with further restrictions are issued. And finally, as with any Trustee Sale, know your bidding strategy.
Although the uncertainty of the post-pandemic world will likely continue to put pressure on not only borrowers but also lenders, staying abreast of temporary foreclosure restrictions as well as following the best practices suggested above put lenders in a stronger position to navigate these trying times.