When Should you use a Deed in Lieu of Foreclosure?

April 5, 2013 - A deed in lieu of foreclosure transfers real estate from the owner/debtor to the mortgage-holder. This may be an attractive route to take in some situations after the borrower defaults. For instance, in cases involving commercial property or low-value property, it may be more efficient from both borrower and mortgage-holder to avert the mortgage foreclosure process. An important factor to consider is whether there are junior lienholders who would be affected by the deed in lieu of foreclosure process. A junior lienholder’s interest would generally be cut off upon the completion of a foreclosure. Because the deed in lieu process avoids foreclosure, the junior lienholder’s interest would still remain to blacken the title.

If the deed in lieu of foreclosure process is appropriate, the following is a rundown of the process in Iowa.

1. Borrower defaults
2. Borrower offers in writing to avoid foreclosure by executing a deed in lieu of foreclosure.
3. Obtain an appraisal from an independent, certified appraiser.
4. Obtain an updated abstract and title opinion.
5. Complete due diligence investigation on the property. This investigation should include but not be limited to:
   1. Determine what leases affect the property
   2. Determine other liens or judgments against the property
   3. Determine status of taxes and other obligations of the property.
   4. Determine senior liens and obtain consent/estoppel letters as necessary.
6. Sign Settlement Agreement.
7. Mortgage-holder execute a separate covenant not to sue.
8. Borrower execute an affidavit of consideration.
9. Obtain title guaranty with endorsements as available.
10. Execute deed.
11. Record documents.
12. Update abstract for final title opinion.

A deed in lieu of foreclosure is a taxable event. Your CPA should be consulted to determine the tax consequences prior to engaging the process.