My business partner and I are trying to start a local real estate investment company. We sent in our paperwork to the State to form the LLC. We have been talking to banks and determined that banks will not give out a mortgage in the LLC's name; instead, the mortgage will need to be in my own name.
We've researched ways to transfer the mortgage to the LLC, and it seems as if the only transfer that we can make to the LLC is a Quit Claim Deed or Warranty Deed. However, based on what I am reading now, most mortgage documents have a 'due on transfer' clause that the mortgagor agreed to at the time of the signing of the mortgage and the bank must be notified of any transfer in interest or the mortgagor will be in breach.
How can we transfer title to the LLC without the mortgage being due?
Before transferring any titles, you definitely need to sit down with your lender. From my experience, if it is clear to the lender that the transfer is for asset protection purposes and you are ultimately responsible for paying the mortgage, there should not be an issue.
Also note that an LLC is an excellent tool for owning and managing investment real estate and for isolating the risk it generates. It does not protect your personal assets neither other investment form potential lawsuits: a plaintiff may always try to pierce the corporate veil by holding you personally responsible by theories as negligence or gross negligence.
Depending on the value of you properties, the revenue they generate and your total personal net worth you may want to consider additional asset protection tools such as a Family Limited Partnership filed in AZ, a state with very strong charging order rules.
An extensive umbrella policy should also be one of the pillars of your asset protection plan.
I recommend you to schedule a consultation with an attorney that has specific expertise in the area of asset protection planning.
Douglass Lodmell is the nations #1 Asset Protection attorney and has clients in all 50 states, protecting over $4 Billion in client assets. Answers given by him in this forum do not establish an attorney-client relation. He advises to seek a specialized attorney in the area of your interest for legal representation.
This is an issue I handle in my practice and I can tell you that the best way is to purchase your business assets in your business name and see if the bank will accept a personal guaranty of the debt with the debt being primarily in the business name. It accomplishes the result that you want and gives the bank the security it wants. Obviously, you would like to avoid the guarantee if possible, but it's probably the only way you will get the lending you need to start your business. Once you get more established, it's possible you could avoid personal guarantees later. Besides, you can only quitclaim the title, you cannot quitclaim the obligation on the promissory note and security instrument (mortgage). Please let me know if you need any additional information or if this was not clear.
Oil / Gas Attorney
The bank extended credit to you individually because your LLC wasn't determined credit-worthy. You can't transfer your mortgage to your LLC; that can only be done with the bank's agreement. You can only transfer title to the mortgaged property with the bank's approval; otherwise, you would be violating the due-on-sale clause of your mortgage. Most likely, even if bank agreed to put LLC on the mortgage, it will still require your individual guarantee.