Real Estate Finance Law / Edition 5

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Overview

Real estate finance law is market-driven and therefore constantly changing. This treatise provides current, expert coverage on the law of mortgages; the necessity and nature of obligation; mortgage substitutes; foreclosure; statutory impacts; subrogation, contribution, and marshaling; government intervention; and financing real estate construction. Additional consideration is given to the potential liability for cleaning up hazardous waste and the impact of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).
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Product Details

  • ISBN-13: 9780314172488
  • Publisher: West Academic Publishing
  • Publication date: 10/28/2007
  • Series: Hornbook
  • Edition description: REV
  • Edition number: 5
  • Pages: 1377
  • Sales rank: 1,368,643
  • Product dimensions: 7.60 (w) x 10.10 (h) x 2.00 (d)

Table of Contents

Preface v
Westlaw Overview vii
Chapter 1. An Introduction to the Law of Mortgages
1.1 The Basic Mortgage Transaction 1
1.2 The Impact of English History 5
1.3 The Intervention of Equity 7
1.4 The American Development 8
1.5 The Title, Lien, and Intermediate Theories of Mortgage Law 10
1.6 The Deed of Trust as a Mortgage Variant 11
1.7 Mortgage Substitutes and Clogging the Equity of Redemption 12
Chapter 2. The Necessity and Nature of the Obligation
2.1 Necessity of Obligation 15
2.2 Nature of the Obligation 20
2.3 The Necessity of Consideration 23
2.4 Description of the Debt 27
Chapter 3. Mortgage Substitutes
A. Restricting the Right to Redeem
3.1 Clogging the Equity of Redemption 34
3.2 The Option to Purchase as a Clog on the Equity of Redemption 40
3.3 Subsequent Transactions 43
B. The Absolute Deed
3.4 The Absolute Deed With Separate Instrument of Defeasance 46
3.5 The Absolute Deed Coupled With an Oral Understanding--Reasons for Frequent Use 48
3.6 Parol Evidence--Admissibility 50
3.7 Burden of Proof 52
3.8 Factors Establishing an Absolute Deed as a Mortgage 54
3.9 Effect of Absolute Deed Between the Parties 58
3.11 Rights of Grantor on Sale by the Grantee 59
C. The Conditional Sale
3.17 Nature of the Transaction 60
3.18 Extrinsic Evidence 62
3.19 Factors Establishing Conditional Sale as a Mortgage 65
E. The Installment Land Contract
3.26 An Introduction to the Installment Land Contract 70
3.27 The Forfeiture Remedy--Some General Considerations 71
3.28 Statutory Limitations on Forfeiture 73
3.29 Judicial Limitations on Forfeiture 77
3.30 Constitutionality of Forfeiture 93
3.31 The Deed in Escrow as an Aid to Vendor Forfeiture Remedy 96
3.32 Other Remedies for Vendors 97
3.33 Title Problems for Vendees 103
3.34 Title Problems for Vendors 108
3.35 Mortgaging the Vendee's Interest--Problems for Mortgagees 110
3.36 Judgments Against Parties to Installment Land Contracts 112
3.37 Mortgaging the Vendor's Interest--Problems for Mortgagees 115
3.38 The Installment Land Contract--A Call for Its Demise 121
F. The Negative Covenant as a Mortgage Substitute
3.39 The Negative Covenant and the "Coast Bank" Mortgage 124
Chapter 4. Rights and Duties of the Parties Prior to Foreclosure
A. Theories of Title and the Right to Possession
4.1 The Title Theory 130
4.2 The Lien Theory 134
4.3 The Intermediate Theory 137
B. Tortious Injury to Land by Mortgagor or Third Persons
4.4 Tortious Injury by the Mortgagor 139
4.5 Injury by Third Parties 147
4.10 Equitable Relief Against the Mortgagor for Threatened Injury 150
4.11 Enforcing Specific Covenants Against Waste 152
C. Rights in the Product of the Res
4.12 Eminent Domain 155
4.13 Insurance--Some General Considerations 159
4.14 Insurance--Types of Policies 163
4.15 Insurance--Restoration of Premises 167
4.16 Insurance--Effect of Foreclosure Purchase by Mortgagee 171
D. Escrows or Reserves for Taxes and Insurance
4.17 Escrow Accounts--Some General Considerations 175
4.18 Judicial Scrutiny of Escrow Accounts 177
4.19 Statutory and Related Regulation 180
E. Right to Rents
4.20 General Considerations 186
4.23 Lien States 187
F. Mortgagee in Possession
4.24 "Mortgagee-in-Possession" Rule 188
4.25 What Constitutes Possession 193
4.26 Liability of Mortgagee to Third Parties 195
4.27 The Mortgagee's Duty to Account--Nature and Scope 196
4.28 The Duty to Account for Rents 199
4.29 Maintenance and Improvements 201
G. Receiverships
4.33 General Considerations 206
4.34 Basis for Appointment--Title and Lien Jurisdictions 208
4.35 Agreements for Rents, Profits, and Receiverships 214
4.36 Ex Parte Receivership--Constitutional Problems 226
4.40 Receivership--Mortgagor in Possession 228
4.41 Receivership--Mortgagor Conducting Business 230
4.42 Receivership--"Milking" by the Mortgagor 232
4.43 Priorities Between Mortgagees as to Rents 238
I. Mortgagee Liability for Environmental Problems
4.47 Introduction 240
4.48 Mortgagee Liability Under CERCLA 242
4.49 The 1992 E.P.A. Lender Liability Regulation 245
4.50 The CERCLA Lien 250
4.51 Environmental Problems--Suggestions for Mortgagees 251
Chapter 5. Transfer by the Mortgagor and the Mortgagee
A. Transfer by the Mortgagor
5.1 Transferability of Mortgagor's Interest 254
5.2 Methods of Sale of Mortgaged Land 255
5.3 Transfer "Subject To" the Mortgage 257
5.4 Assumption of the Mortgage--In General 259
5.5 Assumption of the Mortgage--Deed Provisions 262
5.6 Assumption of the Mortgage--Statute of Frauds 263
5.7 Assumption of the Mortgage--Parol Evidence Rule 265
5.8 Implied Personal Obligations 268
5.9 Rights of Transferor--Non-assuming Grantee 270
5.10 Rights of Transferor--Assuming Grantee 274
5.11 Mortgagee vs. Assuming Grantee--In General 278
5.12 Mortgagee vs. Assuming Grantee--Third Party Beneficiary 280
5.14 Mortgagee vs. Assuming Grantee--Miscellaneous Theories 281
5.15 Successive Purchasers 283
5.16 Assumption by Second Mortgagee 287
5.17 Grantee's Defenses Against Mortgagee 289
5.18 Subsequent Discharge or Modification of Rights Between Grantor and Grantee 292
5.19 Extension, Release and Other Modification--Suretyship and the Mortgagor 295
5.20 Effect of the Uniform Commercial Code, pre-1990 Official Text, on Suretyship Defenses 315
B. Restrictions on Transfer by the Mortgagor
5.21 The Due-on Clauses--Introduction 318
5.22 Due-on Clauses--Pre-Garn-St. Germain Act State Judicial and Legislative Response 324
5.23 Due-on Clauses--Pre-Garn-St. Germain Act Federal Regulation 333
5.24 Due-on Clauses--The Garn-St. Germain Act 335
5.25 The Due-on Clauses--Concealment of Transfers 356
5.26 Due-on Clauses--Conclusion 361
C. Transfer by the Mortgagee
5.27 Introduction--Nature of the Mortgagee's Interest 364
5.28 Methods of Transfer 368
5.29 Negotiability and Negotiation 387
5.30 Statutory and Regulatory Limitations on the Holder In Due Course Doctrine 398
5.31 Rights of Holders in Due Course 405
5.32 Rights of Assignees Who Are Not Holders in Due Course 408
5.33 Payment to Assignor as a Defense 414
5.34 Impact of Recording Acts 423
5.35 Partial Assignments and Participations 439
Chapter 6. Discharge of the Mortgage
A. Payment
6.1 Prepayment--General Considerations 455
6.2 Prepayment Clauses--Judicial Treatment 460
6.3 Prepayment Clauses--Involuntary Prepayment 468
6.4 Prepayment Clauses--Legislative and Other Nonjudicial Regulation 473
6.5 Prepayment Penalties--Collection Incident to Due-on-Sale Enforcement 482
6.6 Payment and Redemption 484
6.7 Tender on or After Maturity 494
6.8 Late Payment Charges and Default Interest--Introduction 500
6.9 Late Payment Charges and Default Interest--Judicial Interpretation 502
6.10 Late Payment Charges and Default Interest--Legislative and Other Regulatory Impact 510
C. Merger
6.15 Merger--General Considerations 513
6.16 Merger--Between the Parties to the Mortgage 514
6.17 Merger--Intervening Interests 520
D. The Deed in Lieu of Foreclosure
6.18 Reasons for Use 524
6.19 Potential Pitfalls for the Mortgagee 525
Chapter 7. Foreclosure
A. Redemption from the Mortgage
7.1 Redemption From the Mortgage and Statutory Redemption--Definitions 533
7.2 Who May Redeem 534
7.3 Amount to Be Paid 537
B. Accrual of the Right to Foreclosure
7.6 Acceleration Clauses--In General 539
7.7 Limitations on Acceleration 543
7.8 The Absence of an Acceleration Clause--Effect on Foreclosure 552
C. Strict Foreclosure
7.9 The Nature of Strict Foreclosure 554
7.10 Use of Strict Foreclosure 555
D. Judicial Foreclosure
7.11 Judicial Foreclosure--General Characteristics 558
7.12 Parties Defendant and the "Necessary-Proper" Party Distinction 560
7.13 Joinder--Effect of Recording Acts and Lis Pendens 565
7.14 Senior Lienors and Adverse Interests 568
7.15 Omitted Parties 572
7.18 Judicial Foreclosure--Defects and Title Stability 580
E. Power of Sale Foreclosure
7.19 General Considerations 581
7.20 Defective Power of Sale Foreclosure--The "Void-Voidable" Distinction 585
7.21 Defective Power of Sale Foreclosure--Specific Problems 588
7.22 Defective Power of Sale Foreclosure--Remedies 605
7.23 Constitutionality of Power of Sale Foreclosure--Introduction 615
7.24 Constitutional Problems--Notice 615
7.25 Constitutional Problems--Hearing 621
7.26 Constitutional Problems--Waiver 625
7.27 Constitutional Problems--State Action 628
7.28 Constitutional Problems--Federal Action 634
7.29 Constitutional Problems--Title Difficulties 639
7.30 Constitutional Problems--Conclusion 641
F. Disposition of Surplus
7.31 Surplus--General Rules 643
7.32 Surplus--Some Special Problems 647
Chapter 8. Statutory Impacts on Foreclosure
A. Regulation of Deficiency Judgments
8.1 Deficiency Judgments--In General 651
8.2 The "One Action" Rule 656
8.3 Anti-deficiency Legislation 658
B. Statutory Redemption
8.4 General Characteristics 689
8.5 Who May Redeem--Nature of Interest 692
8.6 Effect of Redemption--By Mortgagor or Successor 694
8.7 Effect of Redemption--By Lienors 699
8.8 Reforming the Foreclosure Process 702
D. Bankruptcy
8.12 General Considerations 706
8.13 Straight Bankruptcy 708
8.14 The Chapter 11 Reorganization 713
8.15 The Chapter 13 "Wage Earner" Plan 733
8.16 Chapter 12 (Family Farmer Bankruptcy Act of 1986) 751
8.17 Setting Aside Pre-bankruptcy Foreclosures 757
8.18 Rents in Bankruptcy 767
8.19 Installment Land Contracts in Bankruptcy 778
Chapter 9. Some Priority Problems
9.1 Purchase Money Mortgage Priority Concepts 781
9.2 Purchase Money Mortgages--Recording Act Problems 788
9.3 After-Acquired Property Clauses 792
9.4 Replacement and Modification of Senior Mortgages--Effect on Intervening Lienors 797
9.5 Fixtures--Introduction 804
9.6 Fixtures--Pre-UCC Law 805
9.7 Fixtures Under the UCC 807
9.8 Wraparound Mortgages 815
Chapter 10. Subrogation, Contribution and Marshaling
A. Subrogation and Contribution
10.1 General Principles 827
B. Marshaling
10.9 General Principles 833
Chapter 11. Government Intervention in the Mortgage Market
11.1 The Mortgage Market, Institutional Lenders, and Their Regulators 840
11.2 Mortgage Insurers and Guarantors 848
11.3 Government-Sponsored Mortgage Market Support Agencies and Private Securitization 864
11.4 Alternative Mortgage Instruments 881
11.5 Discrimination in Mortgage Lending 908
11.6 Federal Preemption of State Mortgage Law 921
Chapter 12. Financing Real Estate Construction
12.1 Construction Lending--An Overview 938
12.2 Construction Contracts and Bonds 946
12.3 Mortgage Loan Commitments 957
12.4 Mechanics' Liens 975
12.5 Mechanics' Liens--Constitutionality 985
12.6 The Stop Notice and the Equitable Lien 995
12.7 Future Advances 1005
12.8 Dragnet Clauses 1025
12.9 Subordination 1033
12.10 Improper Disbursement of Loan Proceeds 1051
12.11 Lender Liability for Construction Defects or Other Wrongful Acts of Contractors 1065
Table of Cases 1089
Index 1235
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