Mortgages Flashcards
What is a mortgage?
A security device used to secure payment of a debt.
What is a purchase money mortgage?
Person takes out a loan for the purpose of purchasing property.
What is a future advance mortgage?
A line of credit use for home equity, construction, business, and commercial loan. Often referred to as a second mortgage.
What is the lien theory?
The majority view: treats a mortgage as a lien that does not sever a joint tenancy.
What is the title theory?
A mortgage does sever a joint tenancy and convert it into a tenancy in common.
What is a deed of trust?
Operates like a mortgage but uses a trustee to hold title for the benefit of the lender.
What is an installment land contract?
Seller finance is the purchase; seller retains title until the buyer makes final payment on an installment plan.
- traditional role: if the buyer breaches by missing a payment, the seller keeps the installment payments made in the property.
- Morden approach: states are trying to assist defaulting buyers.
What is an absolute deed?
Mortgagor transfer the deed for the property instead of conveying a security interest in exchange for the loan.
• if this is a mortgage disguised as a Sale, the borrower must prove a mortgage like agreement by clear and convincing evidence.
You -that there was an obligation created prior to or at the same time with the transfer.
- parole evidence is invisible to make the showing.
- . Statute of fraud’s does not bar or a evidence about the agreement.
What is the obligation of the mortgagor when the property is transferred?
Mortgagor remains personally liable after the transfer unless:
- lender releases by mortgagor or
- Lender modifies the transferee (new owner) obligation.
What options does a mortgagee have under due on sale clause?
Mortgagee he has the option to demand immediate full payment upon transfer.
What option does the mortgagee have on a due-on-encumbrance clause?
Acceleration when the mortgagor obtains a second mortgage or otherwise encumbrance the property.
What is the liability of the subsequent transferee when they assume the mortgage?
Upon default, if the transferee (buyer) assumes the mortgage, the transferee is personally liable for the mortgage.
- both the original mortgagor in the transferee are liable upon default.
- The assumption agreement does not have to be in writing.
What is the liability of the subsequent transferee if they take “subject to” The mortgage?
Transferee is not personally liable upon default.
If the deed is silent as to liability what is the default rule?
Title has been taken “subject to” the mortgage.
Who is the mortgagee?
The lender/seller