Due-on-Sale Clauses

Most attorneys are shocked and appalled when they find out that their clients have been doing business, sometimes for several decades, as sole proprietors. The attorney typically pleads with the client to register a corporate entity to do business under, typically a limited liability company or LLC.

As many clients are real estate investors or entrepreneurs, merely opening an LLC is not enough. Whatever assets are owned must then be placed into the LLC by deeding the property from the individual or sole proprietorship to the LLC. The clients are generally surprised, however, to find that they cannot also transfer their homestead and any property with FHA or conventional loans into the LLC. Instead, those properties are generally going to be put into a family trust, though there are other options to look at depending on the circumstances.

The reason that the client cannot simply transfer all properties into an LLC or LLCs is what is called the “due-on-sale clause.” This is a clause typically found in most mortgage agreements. An example of a due-on-sale clause is the following:

“If all or any part of the Property or any Interest in the Property is sold or transferred (or if Borrower is not a natural person and a beneficial interest in Borrower is sold or transferred) without Lender’s prior written consent, Lender may require immediate payment in full of all sums secured by this Security Instrument. However, this option shall not be exercised by Lender if such exercise is prohibited by Applicable Law.”

Given that lenders freely assign their mortgages to and from each other, and also sever the ownership of the note from the servicing rights, making it difficult for borrowers to keep track of or even know who their noteholder is, the fact that borrowers do not enjoy a similar ability to freely assign their ownership rights in the house seems unfair, particularly given that the lien would follow any assignment AND the borrower would remain personally liable for repayment of the debt. Regardless, due-on-sale clauses are generally enforceable. Fidelity Fed. Sav. & Loan Ass’n v. De la Cuesta, 458 U.S. 141, 159, 167, 102 S. Ct. 3014, 73 L. Ed. 2d 664 (1982).

Even if you cannot transfer your properties to your LLC without violating or potentially violating the due-on-sale clause, there exists a federal law that preempts all state laws, which allows you to transfer your property to a “inter vivos trust in which the borrower is and remains a beneficiary and which does not relate to a transfer of rights of occupany in the property” without triggering the due-on-sale clause. 12 USCS § 1701j-3.

Consequently, the properties that you own outright or through non-FHA or conventional financing can go into your LLC while the rest should generally go into a family trust.

Please note that this article only contains rules of thumb. Every person’s situation is different and you should not take any action based on this blog post before consulting with a licensed attorney in your state with whom you have shared all relevant details of your assets, liabilities, and other factors.

Copyright 2017, Ian Ghrist, All Rights Reserved.

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney.

Texas Tools for Recovering Assets on Behalf of Defrauded Investors

Financial Record Requests/Subpoenas:

In my experience, the financial record request is one of the most powerful tools for finding assets on behalf of defrauded investors. Section 30.007 of the Texas Civil Practice and Remedies Code provides that these requests are governed by Section 59.006 of the Texas Finance Code. In Texas Finance Code Section 59.006, you can find many rules regarding how the process works, but the key feature of this statute, in my opinion, is the burden placement. The statute places the burden on the party resisting discovery to obtain relief from the Court. That typically means filing a motion, drafting an affidavit, setting it for hearing, filing notice of hearing, dealing with scheduling conflicts, waiting through a long docket call, arguing the motion, possibly offering testimony, and finally obtaining a ruling. That is a lot of work. Consequently, the party resisting the discovery rarely puts up as much of a fight as they will when they are simply resisting discovery responses.

Resisting traditional discovery, like a Request for Production under Tex. R. Civ. P. 196, is much easier. For the most part, your attorney will simply pick one of the innumerable form objections that exist, write it down, state what is being produced and what is not being produced, and send it to opposing counsel. Then, the burden is on opposing counsel to file a Motion to Compel Discovery Responses, set it for hearing, deal with scheduling conflicts, wait through a long docket call, argue the motion, and obtain an order. Then, once the order has been obtained, there is the inevitable subsequent battle over the scope of the order. Again, the burden is on the one wanting the discovery to prosecute this. The bank, however, does not have a dog in the fight, so to speak, so the bank will typically produce more or less exactly what the bank has been asked to produce without raising countless objections and necessitating potentially expensive and time-consuming pre-trial hearings over the matter.

I am planning on adding more sections to this post in the future. Reading an article on these tools can be helpful, but using them to achieve your goals takes some finesse.

Copyright 2017, Ian Ghrist, All Rights Reserved.

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney.

Applying the Rule of Capture to Residential Subdivions in the DFW Area

Applying current Texas Oil and Gas Law to micro-tract owners in urban areas ripe for horizontal drilling is often like attempting to put a square peg into a round hole. The Law was written with vertical drills and large and small, but not micro-sized, rural tracts in mind. Inside large metropolitan areas where tracts often consist of a mere tenth of an acre, application of current law may result in a taking of private property even if only in small amounts.

With modern horizontal drilling and hydraulic fracturing techniques for natural gas extraction, a single pad site located in an urban area can be used to drill ten or more lateral wells miles beneath the surface each extending for thousands of feet in different directions. In the Barnett Shale, in an area like Fort Worth, Texas, hundreds of houses often lie on top of the surface of the drilling area.

The Texas Supreme Court held in Coastal Oil and Gas Corp. v. Garza[1] that ­subsurface fracking of unleased property does not constitute trespass and further than no compensation for taken minerals must be given when four conditions exist. Each of these conditions serves to ensure that the property rights of the unleased landowner are adequately protected.

In urban areas, often only one of the four conditions exists, and even then, the last remaining condition likely only offers partial protection. This partial protection may result in a taking of property.

The four conditions are as follows: (1) if the unleased landowner can drill his own well, then his only remedy for drainage is to do so (this is the basic Rule of Capture), (2) if the landowner leased and his lessee negligently fails to drill an offset well, then the landowner can sue the lessee for damages, (3) the Railroad Commission can regulate production to prevent drainage, and (4) if none of the other remedies are available, then the aggrieved landowner can use the Mineral Interest Pooling Act (“MIPA”) to force pool her interest. For the urban landowner on less than an acre with a house taking up much of the surface area, drilling an offset well is both legally and practically impossible, which cancels out the first two conditions. The third condition offers no relief because regardless of how production is regulated, the unleased landowner will be subjected to uncompensated drainage. The fourth condition does potentially offer relief, but even if the micro-tract urban landowner can clear all of MIPA’s hurdles, relief is almost certainly not available as of the date that drainage began.

The Supreme Court of the United States has held that even slight physical occupation of property is a taking “to the extent of the occupation.”[2] Consequently, MIPA cases involving unleased urban micro-tract owners subject to Rule 37 spacing exceptions could result in a confiscation claim for (a) drainage occurring between the time that drainage began and entry of the Railroad Commission’s interim escrow order, or (b) for drainage that goes uncompensated due to inadequate protection under Texas’s anachronistic forced-pooling act.

In the current environment where the rights of unleased, urban, micro-tract owners are unclear, offers are generally made to lease and sometimes to participate as a working interest owner. Often, however, no significant competitive market exists once an operator has filed a courthouse unit, and been designated as operator of the urban unit. Offers are sometimes made with take-or-leave-it, adhesion-basis terms possibly because the urban, micro-tract landowners are thought to lack the sophistication and leverage to bargain for their rights, unlike their rural, small-tract counterparts who have grown savvy over many decades of rural development.

[1] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (2008).

[2] Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 434–35 (1982).

Read a Full-Length Article About This Topic Here

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney.

HB 2066 and 2067: New Changes to Texas Foreclosure Laws

Two fairly major changes to Texas foreclosure law occurred recently. House Bill 2066 modifies Chapter 51 of the Texas Property Code to make it easier to rescind nonjudicial foreclosure sales and House Bill 2067 amends Chapter 16 of the Texas Civil Practice and Remedies Code to make it easier to rescind acceleration of promissory notes.

HB 2067 supposedly prevents debtors from obtaining windfalls in the form of having their mortgage debt extinguished because the bank took too long to foreclose. The bill allows banks to unilaterally reset the statute of limitations on foreclosure whenever they want to do so, without consulting the debtor. According to legislative records, banks complained that the Dodd-Frank Act causes them to delay foreclosure, often more than the four-year limitations period, and that it is not fair to lose their note due to Dodd-Frank compliance. While it is hard to comprehend why these debtors deserve such a windfall, this Act is likely to have unintended consequences. For example, many debtors attempt to make payments while the note is accelerated, only to have those payments returned. By the time the banks rescind acceleration, the banks typically add on tens of thousands of dollars in attorney’s fees, late fees, and other charges. Some banks likely even compound the interest while refusing to accept payments. The foregoing practices cause any equity that the debtor had to rapidly evaporate. In some cases, debtors may qualify for relief under loan modification programs, but in many cases, it is likely that this law will cause forfeiture of substantial equity built up over years of timely payments. Personally, I think that this bill gives too much power to the banks. Without reasonable limitations on the bank’s ability to tack on additional fees and interest, this bill likely removes windfalls from debtors while awarding windfalls to the banks.

The bill, furthermore, will contribute to urban blight by allowing foreclosure processes to drag on infinitely. Where I live, houses tend to have foundation problems that are expensive to treat. If those problems are not nipped in the bud early, then they can cause permanent, unfixable structural damage. If a foreclosure drags on for eight years and foundation problems are not addressed during those eight years because the owners believe that they will eventually lose their house to foreclosure, then the damage will be irreparable. Furthermore, we have all seen the houses on our streets that have been left vacant for years. Many of these houses are falling into disrepair. The owners have long gone, but the banks still have not foreclosed and taken possession of the property. In some cases the banks mow the lawns and perform the bare minimum maintenance to avoid municipal liens, but do little else, and the house deteriorates. Dodd-Frank or no Dodd-Frank, these foreclosures need to occur in a timely manner. We already have tolling laws to account for bankruptcies and the like. Allowing the foreclosure process to go on for an infinite period of time seems, to me, like it will contribute to more problems than it solves.

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney.

Before You Lease Your Minerals, Check the Facts

Before you lease your mineral rights, make sure that you know what you have so that you understand what you are giving up. Contrary to popular opinion, not all mineral rights are the same. The value of your rights depends on the location of your land, the location of nearby wells, the production of nearby wells, the presence or absence of immediate drilling plans, the status of the title history to your neighbor’s lots, the stage of regulatory approvals that your drilling unit is in, the type of regulatory approvals that have been requested, the way that the drilling unit lines have been drawn in your area, the ability of the operator who intends to develop the unit, and most importantly the unique history of title to your particular piece of land.

There are two serious consequences of failing to check the facts. First, you could sign a bad lease. You may be able to easily negotiate better terms if you know how much leverage you have. Second, your minerals could be drained without any compensation to you. Yes, you heard that right. Under the Rule of Capture, which is followed in Texas, your minerals can be taken without paying you anything. When Daniel Day-Lewis talks about drinking someone else’s milkshake in the movie There Will Be Blood, he is talking about the Rule of Capture. It is a real law and it can affect you.

You can obtain most, if not all, of the information that you need from three sources: (1) the Texas Railroad Commission, (2) the Texas Comptroller’s Office, and (3) the county deed records for the county that you are in. You may also need to look at records kept by the city of municipal regulations and regulatory proceedings, as well as information from the county appraisal district. A comprehensive guide to all of these sources of information would be too long to fit in a blog post. In brief, what you want to do is start with the websites for the Railroad Commission and the county. You will find a great deal of the information that you need there. You will also want to get yourself a mapping program. There are many professional programs available for purchase, but for the most part, you should be able to accomplish your goals with a free Google Earth download.

If you need help or have questions, feel free to call our office.

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney.

House Bill 2590 (Continuation of Oil and Gas Leases After Foreclosure) Would Reward Wrongful Conduct

Virtually all mortgage loans are drafted to encumber the mineral estate with a lien. Lender consent is generally expressly required to lease the minerals. Despite this requirement, many operators, particularly in urban areas have become lax about obtaining subordination agreements.

To solve the problem, Bill HB 2590 was promoted, which passed the Texas House and Senate in the Eighty-Third (83rd) regular legislative session. Fortunately, the Governor vetoed it. The bill would have forced the foreclosure-sale purchaser into a lease that neither he nor his precedessor-in-interest negotiated. Instead the buyer would be stuck with whatever lease the debtor negotiated in blatant violation of the lender-consent provisions of the mortgage.

This bill’s constitutionality is doubtful. The foreclosure-sale buyer acquires the interest encumbered by the lien, not whatever interest is held by the debtor. The lender never agreed to the lease terms, then when the buyer buys the lender’s interest, this bill would force the buyer into an agreement that he never made, that the owner of the interest purchased never agreed to, and that violated the mortgage contract, probably tortiously.

This bill should not be resubmitted to the Governor because it would interfere with private property rights by forcing landowners to accept terms that no one agreed to except the debtor, who violated the mortgage terms by leasing without obtaining lender consent and who only owned part of the interest sold, and the operator who failed to obtain a subordination agreement with full knowledge of its necessity.

When the mineral lessee executed the lease, the lessee knew that the lease violated the terms of the recorded instruments. The lessee also knew about the risk of foreclosure yet made the voluntary business decision to assume that risk. Now that the risk has materialized, the lessee should not be able to shirk its obligations by pushing that risk off onto the victims. This bill would reward lessees for ignoring mortgage terms, tortiously interfering with the mortgage, willfully disregard the obligation to obtain a subordination agreement, and then be rewarded for the foregoing conduct.




Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney. Also, this information may be out-of-date.

When the Statute of Limitations Begins to Run on Installment Loans

The short answer is that with installment loans, the statute of limitations begins to accrue on each installment as it comes due. Once the payments are accelerated, then the statute begins to run on the balance of the debt.

If the loan is on real estate, however, then the limitations period does not begin to run until the “maturity date of the last note, obligation, or installment.” Tex. Civ. Prac. & Rem. Code § 16.035(e). Section 16.035(e), however, does not apply when the note has been accelerated. See Hammann v. H.J. McMullen & Co., 122 Tex. 476, 62 S.W.2d 59, 61 (1933); Burney v. Citigroup Global Markets Realty Corp., 244 S.W.3d 900, 903–904 (Tex. App.—Dallas 2007, no pet.).

In Texas, “‘A cause of action accrues when an installment is due and unpaid.’ See Gabriel v. Alhabbal, 618 S.W.2d 894, 897 (Tex. Civ. App. — Houston [1st Dist.] 1981, writ ref’d n.r.e.); Goldfield v. Kassoff, 470 S.W.2d 216, 217 (Tex. Civ. App. — Houston [14th Dist.] 1971, no writ).” Stille v. Colborn, 740 S.W.2d 42, 44 (Tex. App. San Antonio 1987). The balance of a loan becomes due and unpaid upon acceleration. Id.

If the loan is for real estate, then the statute of limitations is four years and special provisions apply. Tex. Civ. Prac. & Rem. Code § 16.035. For example, “A sale of real property under a power of sale in a mortgage or deed of trust that creates a real property lien must be made not later than four years after the day the cause of action accrues.” Id. § 16.035(b).

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney. Also, this information may be out-of-date.

Contracts for Deed: Do the Volume-Dealer Penalties of Section 5.077(d) Have an “Anchoring” Requirement?

One bankruptcy court says yes. Here is an argument for the answer being no.

Under Section 5.077(d), the volume-dealer penalties apply to “A seller who conducts two or more transactions in a 12-month period under this section . . . .” One bankruptcy court has interpreted this provision as meaning that the volume-dealer penalties apply only when a second Contract for Deed has been executed within twelve-months of the Contract for Deed that is the subject of the case currently before the court. Dodson v. Perkins (In re Dodson), 2008 Bankr. LEXIS 4647, 20; 2008 WL 4621293 (Bankr. W.D. Tex. Oct. 16, 2008).

While the Dodson court concluded that Section 5.077(d) must be “anchored” to the signing of the contract being enforced, the court admitted that that court was unable to locate “any case law or other authority, nor any legislative history that would clarify the meaning of the 2005 Statute in this respect.” Id. The statute clearly states that any seller who conducts two transactions in any twelve-month period falls under Section 5.077(d). Texas Courts should not add an additional “anchoring” requirement to an otherwise straightforward statute. Furthermore, the “anchoring” requirement does not make the statute “easier to comply with and to enforce.” Id. at 22. Instead, an “anchoring” requirement would make relief under Section 5.077(d) nearly impossible to prove for many plaintiffs without expending exorbitant time and effort on investigations outside of the discovery process in order to corroborate defendants’ production or lack thereof. If the legislature wanted to add an “anchoring” requirement, then such a requirement would have been easy enough to draft. The legislature did not, however, add an “anchoring” requirement and such a requirement should not be imposed judicially.

Before the statute was amended in 2005, the $250 penalty applied to all Contract for Deed sellers. Id. at 6. The new statute carves out a very narrow niche of sellers—sellers who never conduct more than one qualifying transaction within one year—to be exempted from the harsh penalties and assessed only a nominal penalty of $100 per year. Consequently, an unsophisticated individual who owner-carries financing on his own home to a buyer, generally, will not accidentally lose that home to the harsher penalties. Meanwhile, volume dealers who own multiple properties and sell all or many of the properties by Contracts for Deed will incur the full, normal penalties that were applicable to all Contract for Deed sellers before the 2005 amendments carved out a narrow niche of sellers to exempt under Section 5.077(c). See Tex. Prop. Code § 5.077; Acts 2005, 79th Leg., ch. 978 (H.B. 1823), § 5, effective September 1, 2005.

For most plaintiffs, proving the statutory requirement of two contracts within twelve months creates enough of a hurdle without adding an even more difficult “anchoring” element.

Disclaimer: This blog is for informational purposes only. Do not rely on any part of this blog as legal advice. Instead, seek out the advice of a licensed attorney. Also, this information may be out-of-date.