Foreclosure of California Commercial & Investment Properties
Determine if the anti-deficiency laws apply in your case.To qualify, you must have a "purchase money" loan, meaning the money was used for the initial purchase of the property. There are 2 standard transaction types:
A. Most common - a note and deed of trust given by a buyer to a third-party lender (not the seller of the property) for all or part of the purchase price.
If it a residential property containing 4 or fewer units and the buyer occupies it, there can be protection. If the buyer does not occupy it, or if it is 5 or more units, or it is NOT residential property, the buyer risks personal liability.
B. Less common, better for commercial property- a note payable directly to the seller (seller financing) for part of the purchase price and secured by the real property. If it is payable to the seller, it is non-recourse and you do not risk personal liability -it does not need to be residential or owner-occupied residential property; it can be any kind of real property.
If you have refinanced, determine if the anti-deficiency laws still apply.If you refinanced with the seller (or in the case of a third party loan, with the same lender), and did not take out any additional cash, and secured the refinance loan with the same property, the debt is still purchase money and the protection is in effect. You may have a problem if, in addition to paying off the original loan, you used out some cash for some other purpose.
If you refinance with a different lender, OR secure the new loan with different property, you lose the anti-deficiency protection.
Determine the effect of modification of the loan or waiver of the anti-deficiency protection.Generally, modification of the terms of the loan, such as term, interest rate, or extension, does not automatically impact the anti-deficiency protection. You cannot waive the anti-deficiency protection at the time you buy the property. When there are substantial changes in the terms of the note with material differences in the amount of payments, and/or interest rates, and/or due dates, in effect, the new note becomes a new obligation. However, California courts have held that permitting a waiver of the protection in consideration for favorable concessions in the terms of the purchase-money note would defeat the public policy objectives of the statute.
You can, however, waive the protection by your conduct, such as subordinating the note to a construction loan.
Determine the effect of transfer of the property.You may have protection if you bought the property from the seller subject to an existing loan. If the loan was originally a purchase-money loan (prior to your buying the property), it remains a purchase-money loan after the property is conveyed when the grantee either assumes the obligation or merely takes subject to it.
5. Determine the effect of federal funding or insurance.Anti-deficiency laws are state laws, and do not automatically bind the federal government. If the property is being foreclosed by the federal agency itself, (for example the V.A. or Fannie Mae), federal courts have found that the applicability of anti-deficiency law varies by which agency is involved. You cannot assume that you are protected.