PROTECTING TENANTS AT FORECLOSURE ACT

PROTECTING TENANTS AT FORECLOSURE ACT

Article by Professional Law Firm

PROTECTING TENANTS AT FORECLOSURE ACT ? POORLY WORDED STATUTE OFFERS OPPORTUNITY FOR CREDIT IMPAIRED PROSPECTIVE TENANTS TO LEASE RESIDENTIAL PROPERTIES

Los Angeles Real Estate Specialist Law Offices of ALG Outlines New Foreclosure Defense Schemes

The U.S. Congress enacted Protecting Tenants at Foreclosure Act of 2009 (?PTFA?) to protect ?bona fide? tenants from immediate eviction following a foreclosure sale. Los Angeles real estate specialist explained that ?the statute generally provides that a purchaser at a foreclosure sale acquires title to the property subject to any bona fide lease entered into before the notice of foreclosure and the tenant under such a lease may continue to occupy the foreclosed property until the end of the remaining lease terms.? ?The only exception is that a purchaser at a foreclosure sale acquiring the property as their primary residence has the right to terminate the lease prior to the expiration of the lease term by giving written notice to the tenant 90 days prior to the lease termination date,? noted Los Angeles real estate specialist Law offices of ALG.

Los Angeles real estate specialist doesn?t hesitate to share his views on the law. They commented ?The PTFA is not particularly well written or even thought out. It doesn?t seem that the ramifications of such a law were well considered prior to its adoption.? They further explained that the law is ?unusual and probably unconstitutional? because it ?retroactively modifies the expectations of the lender when they made the loan ? that is, the lender would be able to foreclose, secure possession of the property and then market and sell the loan to recover all or part of the balance due on the loan.?

The PTFA has certainly created uncertainty in the market and opportunities for abuse. There has developed a cottage industry of attorneys, real estate professionals and foreclosure specialist who seek to use the PTFA for purposes other than the protection of tenants. They recently reviewed a website scheme promoting foreclosure relief. Here is how the scheme works:

Owner A and Owner B are both facing foreclosure.Owner A agrees to lease its property at a below market rental rate to Exchange; Owner B agrees to lease its property at a below market rental rate to Exchange.Exchange, without taking possession of either property, then leases Property A to Owner B and Property B to Owner A at a market rental rate.Owner A and Owner B secure long-term housing in desirable neighborhoods without undergoing a credit or other background check. By entering into the leases before foreclosure, Owner A and Owner B eliminate the risk of non-approval based on credit or other conditions.Exchange profits by charging an exchange fee, by collecting a non-refundable lease deposit and by collecting and retaining the difference in rent between what it collects on the subleases and what it pays out on master lease.

While Los Angeles ALG declined to comment on the legality or ethical implications of such schemes,ALG did indicated that it is ?pretty easy to see how an unscrupulous company or individual might take advantage of this law.? They offered a few examples of opportunistic behavior:

Owner A offers to Tenant a long-term lease ? 20 year lease. Owner A enters into the transaction with the intention of rendering title to the property unmarketable and to force the lender to agree to loan modification.?Foreclosure specialist charges a $ 5,000 transaction fee to Owner A and Owner B, who both have properties in foreclosure, for the exchange of their properties. Foreclosure specialist sets the rental rate at 50% below the owner?s current mortgage payments. Both lenders foreclose, challenge the validity of the leases and win, and obtain orders of possession. Owner A and/or Owner B, notwithstanding their payment of a transaction fee and security deposit to the

PROTECTING TENANTS AT FORECLOSURE ACT

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