Do you know when to get an attorney involved when dealing with a non-performing mortgage loan or notes? These things can get really tricky, especially if it involves a lot of money. With the guidance and expertise of a trustable attorney, your bank loans will stay safe and sound, which is why Chris Seveney and Jamie Bateman are here to talk about all things notes. Join them as they tackle some case studies all about loan problems. Learn when to use a demand letter, when to write a hello letter, or when to ask for a forbearance plan, and many more.

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When To Get An Attorney Involved In A Non Performing Note

Jamie, how are you doing?

I’m doing fine. I’m doing pretty well. How about yourself, Chris?

I feel like I got hit by a tornado almost. It has been a complete whirlwind of a lot of stuff going on. I feel like I got a lot accomplished, which we’ll roll into our trials and tribulations. I had an ejectment, which is a forfeiture eviction on a property that the borrower was using it as a triplex or was using as a rental. I won’t get into too much details on it because it’s still open. Living in the property are individuals who were former military, have health issues, a lot of stories on this one that we ended up pausing or pushing off the ejectment just because of everything involved. It was one of those things where I clearly did not have the heart to eject somebody at this point in time for different things. We wanted to buy a little more time to try and work things out. That will be interesting, to say the least.

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Is that slightly different than an eviction?

It’s really an eviction. They just call it ejectment because, in the differences, they have no obligation to you. They’re not my tenants. I’m not evicting them. It’s more they are a third party living in a property who may have an agreement with somebody else. That’s why it’s considered an ejectment. It’s more of a legal term, from my understanding. I’m not an attorney. Ask your attorney. We sold some assets. That’s good. We’ve got wrapping up in the next few months. We’ll be putting more assets out for sale for people from that perspective. A lot of cleanup of paperwork and getting some stuff recorded. I got 36 loans being boarded. I wanted to put those in my systems. There’s a lot going on. Yourself?

I feel like I’ve got a lot going on as well. With our rentals, I have been doing more. We’ve got seven rentals in Maryland and four of them are turning over here in the next couple of months. We don’t self-manage, but I still have to manage the manager and make decisions. There are always moving parts to that. Also, we’re doing this build-to-rent property in Ocala, Florida. The builder upped the price $20,000 on us. He’s good and lumber prices have skyrocketed since we went under contract for this in June of 2020. Honestly, we’re still getting it at a good price. It’s probably $30,000 below of what you could turn around and sell it for. We’re still moving forward with that, but I’m working out financing. I’m working on wrapping up an eBook that will come out hopefully soon. There are a lot of moving parts.

 

We’ve got one rental that’s a condo that’s having trouble renting because nobody wants to go into condos and visit it. We’ve got another one. Our tenant let us know he wants to move out. I was talking to my wife and in the news was a report that they may look to get rid of the long-term capital gains. I looked at my wife and I was like, “Maybe it is a good time to sell. We’re at peak market. We’ve had them for 6, 7 years. We make decent money off of them. Maybe turn around and sell them to get them off.”

I saw a couple of headlines. I didn’t have a chance to dive into it too deeply. Capital gains would all be one rate. Is that what it is?

Capital gains will be ordinary income. There are no more capital gains. Again, this is preliminary. Nothing has been proposed. They mentioned it was about the wealthy or whatnot, but the way I interpreted it was capital gains would go away because everything would just be taxed at your ordinary income.

I might have to revise my eBook if I don’t get it out soon.

We’ll spend more time on that because in the long run for note investors, it’s a benefit in the sense of competition because everyone wants to invest in physical real estate because of the tax depreciation and its long-term capital gains, where this is ordinary income. If it’s all the same, then we’re at the same playing field.

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It makes a lot of sense.

We’re going to talk about when to get an attorney involved on a nonperforming note. It’s an interesting topic. We had somebody in the group who asked this question. Also, I got another email from somebody I’m mentoring, who had bought a loan that was performing and it’s now going a little shaky. They were wondering at what point should they get an attorney involved. That’s what we’re going to talk about so people understand when is the right time to get an attorney involved. Jamie, I’ll let you start with it and I’ll throw in my banter as usual.

For one thing, borrowers are used to seeing mail and communication, whether that’s a phone call, email or whatever it is from their servicer. Especially nonperforming borrowers, the last person they want to hear from is their servicer. Sometimes when they get a letter in the mail from an attorney saying, “We will initiate foreclosure on you or on your property,” it gets their attention faster. There have been times where I’ve delayed trying to reach out to the borrower, have communication and discuss things. Certainly, that’s a viable option, but at the same time, get that process and the demand letter going. There’s nothing wrong with having both processes or tactics moving parallel at the same time.

In other words, send your demand letter and then negotiate during that time period. Obviously, all of this is state-dependent. Talk to your attorney, but that only puts you in a position of strength even more as a lender, as an investor, because if the borrower knows there’s a threat of foreclosure that’s real, then they’re more willing potentially to talk to you. We can certainly go through case studies. As I’ve done this more and more, send that demand letter through an attorney. I don’t use any of my servicers to send demand letters. I always go through an attorney at this point.

I want to start with getting an attorney involved. I get mail all the time from the same companies. Most of the time, I throw it in the shredder. I’m assuming that maybe it’s a bank statement that gets emailed to me or it’s a recall notice on my vehicle or whatnot. I don’t open some stuff and sometimes, maybe I did do something up. Think about it that way. I’m sure we’ve all done that. Think about if there’s a bill you’re not paying, you’re thinking, “It’s another statement I’m not paying on. I’ll put it in.” If they’re getting a goodbye letter, like when you buy the loan from the prior servicer or the new servicer, they’re probably not even seeing that. You said sooner rather than later. Let’s walk through the process of when you should start. Let’s say you closed on a note, Jamie. You funded the money. Technically, you own that note. You could send them a letter. That whole boarding process takes about how long?

You should allow up to 4 to 6 weeks. Hopefully, it doesn’t take that long.

That’s the process where the loan and all the information get transferred from one servicer to the next. If you’re using the same servicer, it’s much faster than when it’s a different servicer. Let’s say it’s four weeks. Let’s say it is May 1, then it’s June 1 when that servicing transfer gets taken care of. Once it’s done, the servicer then sends a hello letter, which a hello letter is a letter to the borrower, which states, “There’s a new lender. We’re your new servicer.” There’s language in there though that says, “If you disagree or dispute this debt, please let us know within 30 days.” Have you had conversations with your attorney about sending a demand letter during a hello letter within that time period at all?

I’m assuming you have. Go ahead.

Most attorneys will wait until the hello letter expires because it’s not clear whether or not you can send a demand for payment when the person still has time, whether or not they dispute the debt or not. Is it considered predatory? Probably not. Is it potentially a Fair Debt Collection violation? Probably not. If they did dispute it, then your demand letter, you throw it out the window and you spent $100 on nothing because you have to respond to them and you can’t demand something that they’re disputing. That’s where they could maybe say, “You’re trying to force me to pay something I’m disputing.”

 

I definitely had my servicer telling me to wait too, which is good.

We buy it on April 1st. May 1st, it gets boarded and June 1st, it expires. It’s June 1st and you haven’t heard from your servicer. They haven’t heard from anybody. We’re going to do two scenarios here, one with a loan more current and one with a loan further behind. Let’s say the loan is three years past due and there hasn’t been a payment in eighteen months and no communication. Servicing notes, you called and there’s no answer. What do you do?

At this point, I’ll send a demand letter.

You have options. You could maybe send a door knocker if the property is occupied. You could send your own letter. There are other options you could do. Do you do one of those? Do you do the demand letter?

I much prefer to get my attorney involved and send a demand letter to keep my servicer in the loop. Obviously, they’re involved in everything. I don’t send my demand letters. I have used door knockers before. I haven’t used one in a long time. Another thing I will do is send out a property inspector to gather some information, whether that’s through the attorney or not, but that’s not a bad idea as well.

A few things I’ll mention about door knockers. One is, during COVID, we haven’t used them because they’re not going to do anything. In the past, pre-COVID, I’ve had door knockers who would get there, knock on the door, get somebody and literally take the phone and be like, “Here’s the servicer. They want to talk to you.” To that point, which is pretty cool. I think the door knockers run about $50 to $75. A demand letter is $100 to $150. You will save half, but on a loan that’s been delinquent for several years, I agree. I do send that demand letter right off the bat, “Get it out the door. Let’s start the process.”

It’s not like you would be saving that money necessarily. If the door knocker isn’t successful, you would still have to send a demand letter. I’ll cut the door knocker out.

If you open your note training manual, it’s the gray area because there are factors you got to take into account, “How long has the loan been delinquent?” Because we’re going to have another case study where loans maybe not as delinquent, but it’s something that’s been a while where you haven’t heard from them and you can’t get in touch with them. Especially if the servicing notes said they’ve sent door knockers, you’re wasting your time and money. What’s an important kind of Note and Bolt, get those servicing notes and read what’s going. One of the things that I’ll mention too is, there are some services out there that don’t have servicing notes. It makes it a little more challenging from that perspective. The typical FCI, Madison and SN usually keep very detailed servicing notes that are against them.

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That is quite frustrating when there are no servicing notes not only from an investor-lender standpoint for asset management, but then when you go to sell an asset or buy one where there are no servicing notes, that is disappointing.

We did a case study where a borrower hasn’t been paying for a while. It was funny. Somebody I know sent me an email saying, “The servicer asked if we should send a door knocker because it’s been after the hello letter expires.” He said, “Do I send it or do I go to legal?” This was the case study I was talking about is this person’s note. If it was me, I would send a demand letter. Hopefully, you can get them to interact and get them on some type of MOD or forbearance plan or something along those lines. In this instance, I recommend you start with that legal reach out early on.

Regardless of whether you’re switching services or not, I think that’s smart because one quick follow-up sometimes the borrower realizes, even if it’s just the TILA letter where it’s changing ownership, but it’s staying with the same servicer, they may be testing you as the new lender. You want to set that tone that you’re not messing around.

One thing I’ll mention is I had a borrower tell my attorney this. They thought I was bluffing on one instance because the prior lenders would start a foreclosure or whatnot but drag it out and never do anything. I came in and I’ve got pedal to the metal, “I’m going.” This person thought I was calling their bluff and all of a sudden, they realize I’m not. It caused them to scramble because they were like, “This person is not going to do anything because nobody else has done anything in the last five years.” People get in that mindset and thinking, “It keeps getting sold. Nobody is going to do anything.” The moment you do, they’re like, “He’s not going to do anything.” When you get to that point, a lot of times, they realize, “Unfortunately, it’s too late.”

It’s like in the military or any kind of leadership training, even parenting, they always say it’s easier to come in strong and then back off, it’s much harder to be the nice guy for six months and then ratchet up the penalties and the consequences. It’s not only easier, but it’s more effective to set the tone that you’re serious and then you can maybe back off if it makes sense.

Let’s do another case study. In this instance, you bought a loan. Let’s say it’s performing a month behind, but they’re making consistent payments and they miss once out of a year. You the buy the loan on April 1st. It gets boarded on May 1st. Now, it is May 21st and their next payment due is still April. They’re one month behind. It got boarded, plus another hello letter went out. That 30 days expire plus another three weeks after that. What do you do?

I had one very similar to this. I do think these case studies are helpful because the answer is always, “It depends,” but in this case, I’m waiting. I had one where I bought it. It was self-serviced and the borrower had been paying on time every month for 8 or 9 months when I bought it. Now, it’s with a servicer. He did fall 1 or 2 months behind during that transfer, but the word was that he did not know where to send his payments. You might say a likely story, but I guess he doesn’t get a mail at the house. The point being, it’s with a servicer now. I didn’t do anything. I just waited. He’s caught up or almost caught up at this point because he didn’t know where to send his payment. I don’t think he got the letter, frankly. I’m not going to jump the gun there and spend $100 on a demand letter. It depends. I’m going to delay 1 or 2 months, at least in that scenario. How about you?

I’m the same. A few things that I recommend to people are maybe then you could send a door knocker. It would be one option. Another is, sometimes what I’ll do is I’ll print the statement and print also my own little hello letter noting, “I want to make sure you got this that you won’t get transferred. Here is where the payments need to go for future reference.” I handwrite the envelope, so it looks like it’s not just a form letter from somebody who’s like, “What is this?” You’ll get probably get a higher open rate. That’s another tactic that I’ve used from that perspective. That’s a lot cheaper than a door knocker. You’ll spend less than $1 to send that versus $50.

You may end up having to send a door knocker, but it’s a lot. If $1 is going to screw your pro forma, then you’ve got bigger problems. Typically, it’s just to wait. This is where servicing comes in. It’s very important with a servicer to have them try and reach out and get in touch with that borrower. Technically, the loan is not nonperforming. It’s still performing, so they’re not charging that higher rate for the workouts, but they’ll still make some of those phone calls to check in to see what is going on. There are some other ways. Like you mentioned, if it’s a different address or whatnot, make sure to check the tax records to see the mailing address of the borrower to see where that is. I recommend getting some type of skip tracing software, where you can run a quick skip trace to see potential other addresses on there.

I don’t recommend you emailing the borrower without their permission because that’s still a gray area if it’s owner-occupied. If it’s non-owner occupied, you’re away from some of the CFPB and those Fair Debt Collection type acts, emailing somebody is not an issue, but consult with your attorney. If it’s owner-occupied, you definitely want to make sure you consult, but leave it up to your servicer for the reach-out component. There’s nothing that says you can’t send a letter with a copy of their statement or hello letter in it to give them a refresher.

What’s the third scenario going to be, though?

In the third scenario, let’s say you had a nonperforming loan and there’s a forbearance plan on it. I was going to use a bankruptcy case, but we don’t want to use that. We can still deal with bankruptcy in a different way, but you have a forbearance plan with the borrower. That borrower misses a payment on the forbearance plan. Let’s say it’s a six-month forbearance. They make the first two payments. They missed the third.

You’ve boarded with the servicer. They’ve made the first two payments.

In the scenario, you boarded with the servicer. The servicer hears from them. They’re eighteen months behind. They say, “I want to keep this house.” They’re like, “I’m not going to give you a MOD right now.” Let me step back. You boarded the loan. There’s no reach out and no hearing from them. The month goes by. You send the demand letter. They react and they’re like, “I need to do something. I’m eighteen months behind. Please don’t take my house. You can’t foreclose. I’ve been here for nine years. I grew my kids here. I have a treehouse. This is where my grandkids now come to play.” Trust me. You’re going to hear every one of these stories.

They call the attorney. She’s in tears crying. What can I do to keep my house? You decide, “I will give you a six-month forbearance plan. If you make this amount of payment for the next six months, then we’ll modify the loan where we’ll roll the payments into the back end.” This is something that’s pretty common that happens. $1,000 down for the forbearance plan and then you’re going to pay $500 a month. We’re going to keep numbers simple here. They’re like, “Great.” They sign the forbearance plan, cut you a check for $1,000 and then they make the first $500. They make the next $500. In the third month, $500 doesn’t show up.

 

This is a tough one. With the information you gave, I don’t think I’m sending a demand letter immediately. Maybe that’s a mistake.

The demand letter had already been sent with forbearance. You can continue with a foreclosure complaint.

I don’t think I’m pursuing legal after the first missed payment. Hopefully, borrowers don’t read this. I would probably give it a couple of months. Whether I should or not, who knows? I’m not sitting there refreshing my browser to see if they hit that 31-day mark and then moving forward with foreclosure. It’s probably going to be 60 days in my case before I initiate the rest of the legal process.

You answered the first question I was going to ask, which is, “How long would you wait?” The next question is, “Why are you waiting 60 days?” I have my answer already, but I want to know yours first.

It’s tough. I did a short YouTube video on the borrowers that reinstates several times a year. We’ve talked about that before. They’re not profitable, especially in the low-dollar range. I definitely want to avoid that, but I’ve had many cases where borrowers fall a couple of months behind and then they catch up and then they stay caught up. It’s a business decision in my view, “Do I want to drop $100, $150 or whatever it is for the next round of communication?”

The next round is a complaint, which will probably cost you between $800 and $1,500, which in some states is recoverable. That would probably be the next step is, you do the complaint.

A lot of it is state-dependent. In North Carolina, it could be recoverable or maybe not. In Florida, it’s almost always recoverable. It depends. That’s why. I’m not spending $800 and when they might get caught up the next month and get those late fees. It’s not the worst thing in the world. How about you?

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You hit the nail on the head when you said, “I’m not spending $800,” because I typically wait. For the same reason as you, if you’re spending that $800, then I’ll send like, “They make the payment,” and then you’re like, “It’s $800.” Again, it’s recoverable, but all you’re doing is spending money to get it back. You’re not benefiting or gaining from that. One thing that plays into this is also the communication factor. If they call and say, “I can’t make a payment because of X,” I am going to be much easier to grasp and deal with that than somebody who doesn’t respond and then when they’re getting reached out, they’re not responding.

Some of the things I’ve done in the past is, if they missed the payment, I would tell the attorney, “Can you send a letter?” or even have the attorney maybe try and call them because it’s a different number from the servicer and say, “If we don’t have the payment by the 21st of the month, unfortunately, we’re going to cancel the forbearance plan. Once that happens, you’re going to have to reinstate the loan fully. We need to hear back from you as soon as possible on how you want to proceed.” That’s another option. That’s a little less cost-prohibitive than that demand. That’s the thing that people got to weigh in is, “It’s great. Okay. Yes, good. I’m going to go,” but how many times do all of a sudden, you tell the attorney, “Go.” They file that complaint, which takes a week or two. All of a sudden, you hear from the borrower and they made that $500 payment. It’s like, “Now, what do I do?”

This is where we come in. We can have some discretion and some use of our judgment versus a Chase Bank or whoever is not dealing with the borrower in this case. Unfortunately, this is where it gets murky. You do have to put on your detective hat or therapist hat and determine, “Do I trust this borrower? How communicative are they?”

It’s a gut feeling, not an analytical decision in some sense. This comes from experience as well. This isn’t a black and white area of note investing. Again, you can open up your note training manual and say, “On page twelve, this is what I should do in this situation.”

I had one in Michigan, where it was a CFD borrower new to homeownership. Shall we say a very inexperienced borrower, but she had been performing for two and a half years or so, on time every month and no issues. She lost her job through COVID, the pandemic and the shutdown. It’s a gut feeling. Did I verify that she actually lost her job? No, I didn’t, but I’m not going to press her if she’s 45 days behind when she has been a good-paying borrower. It just doesn’t make any sense from both a human standpoint and a business standpoint. She’s back on track now. I’m assuming she got another job. I’m not sure, but maybe it’s from the stimulus money or something. I’m glad I didn’t initiate legal in that scenario.

This is the situation and I’ve mentioned this in the past of why, personally, I believe note investors truly make their money on the management and not on the buy. There’s a buy box of where that asset is going to sell for. If you overpay, there’s nothing I can do. You and I, Jamie, and people who have experienced looking at an asset, for the most part, we’re going to probably pay within 10% of each other on that note, plus or minus. I’m not going to buy something for 20% that Jamie says, “I can buy it. I’m going to buy it for 25%.” It’s probably going to be anywhere from 20%. He’s probably going to sell anywhere from 18% to 22%, which is still a wide range, but it’s not in that grand scheme of things, $1,000. When we talk about sending a complaint, that’s going to cost more than that $1,000 delta. That’s where I continue to talk about people delaying things too long, as well as spending money they shouldn’t. That’s where I think how you manage it is truly how you break down and make money in this business, not on the buy.

That’s where a lot of the training programs, frankly, it’s not a criticism, but they fall short because it’s impossible to put together a weekend training program that gets into all these weeds that we’re in here. Now, with these case studies, you can’t do a blanket, one-size-fits-all training program where you’re going to go through these scenarios.

I question anybody. I’m throwing it out there. I love feedback from people, “Who has ever even gone to a training session, where they’ve gone through some of these case studies like this?” I would be curious. I bet the webinars, seminars. I haven’t taken the Weekend Warrior Training courses, but I can’t fathom they would even have time to go through this because of how high-level they are from that standpoint.

They probably go through case studies of success stories from their portfolio. I’ve said this a bunch of times. Running a note business is three things, access to deals, access to capital and asset management. Asset management, it’s tough to give it a training program. That’s where you do make your money.

In some of these deals, you see people post. I like to use sports analogies. It’s like getting a hanging curveball from a pitcher or you’re up by two goals and they pull the goalie, it’s an empty net or it’s like, “Yes, pretty much.” You get those once in a while, but those aren’t the ones you should be using for the case studies. The case studies are some of the ones we’re talking about now, where you got the forbearance plan. You’re excited. They missed. Are they communicating? Are they not? There are a lot of roundabout ways you can work through this. I’ll do a little shameless plug. I’ve got some cool stuff that my creative brain has come up with to try and provide people some of these case studies later on down the road for people to get some education on. It’s tough.

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I think of the sports analogy, another one I heard somebody say, like Drew Brees. I’m sure he’s not the only one, but a Saints quarterback who retired. He said, “Don’t worry about the end result. Worry about the decision-making process. Did you make the right read? Did you go through your progressions as a quarterback? This guy is not open. The next guy is not.” That’s how you become a hall of fame quarterback. It’s not just the results unless you’re Tom Brady, but even Tom Brady I think, would say the same thing. The results are going to follow, but it’s the process.

Unfortunately, in some of these case studies, you may have followed the right process and done everything correctly, but it didn’t go your way, so that’s why you still lose, but you still do the right thing. That’s the converse of what you were talking about, where somebody got lucky and made $50,000 on a deal that they didn’t know what they were doing. It is more about the process and making the right decision with the information you have at the time.

I look back at one of our last episodes when we had Ian on and he had an asset local to him. He went through a process and he went through those progressions that you mentioned of steps A to B to C to D. He knocked it out of the park. He did awesome on it. For me, I wasn’t able to go through those progressions on it. I passed on the deal. I wish I had gone through those progressions and good for him.

Even if he had made $20,000 instead of $50,000, he still did the exact same process. He did the right thing as far as managing the asset.

A Note and Bolt is what you got.

It actually ties into this topic pretty well. Don’t forget that delinquency is not the only reason you can initiate legal. I have another case study. It’s one of my New York assets, where a property is vacant and they had fallen behind, but now they’re caught up. In New York, we do these property inspections monthly to determine whether the property is vacant. Three months go by, the property is vacant. Now, it’s abandoned. There are lots of issues with the property itself as far as work that needs to be done.

In New York, as the lender, since it’s a vacant property, I’m responsible for all that. My initial thought was, “Great. I’m stuck here. Although these costs are going to be recoverable, the loan is 100% caught up, so I can’t foreclose.” I bounced it off my attorney, looked at the documents and I absolutely can start legal. They’re zero days late, but I can start the foreclosure process. We’ll see where it goes. Remember that delinquency is not the only reason that you can initiate the legal process.

My thought on that is, “I can’t believe I got somebody to buy my New York loans.” Think of all the education and experience I gave for you.

The readers, too, it’s the gift keeps on giving.

My Note and Bolt is a question to you. Do you put any extra weight into performing loans where the borrower is on ACH?

Yes. It’s not part of my calculator, but it’s a subjective thing. When you say ACH, you mean a scheduled ACH because you can pay.

It’s a scheduled ACH where they fill out the form and say, “On the 30th of the month, take the money out from my payment.”

I think that has weight to it. Yes. How about you?

I do. It’s interesting though because I’ve had some who were on ACH. It was getting screwed up or something wasn’t happening and the money wasn’t getting pulled. There were some pointing fingers back and forth on who’s at fault. What ended up coming down to was, the payments were coming in. We were trying to get in touch with the borrower. I did send a demand letter and they were like, “We talked about I’m on ACH.”

Let’s be honest, I have my mortgage ACH. I honestly don’t check if it’s getting deposited or withdrawn and a lot of these others where these payments are about the same as a car payment. Mine is a little more than a car payment. I would probably notice mine from that perspective that, “Why do I still have this much money in my account?” For those where your payment is $500 and you’re paying $400 on a car, they may not even notice and that’s what happened with this person. They didn’t notice and then it was like, “We got it squared away.” There’s good and bad with it. I would say to answer the question as well, “I do put a little more weight into it.”

It’s human nature. They say that with saving or investing. You want to make it as automatic as possible, so you don’t have to think about it. You want to remove any barriers to completing that action. It could get screwed up, but it got fixed. I definitely think there’s a much better chance that the loan is going to continue to perform if they’re on a scheduled ACH plan.

Anything else that you would like to add, Jamie?

No, this has been good. Go out and do some good deeds.

Thanks, everyone for reading. If you could leave us a review, that would be awesome because it allows us to get more subscribers and get a little higher ranked from that perspective. As always, go out and do some good deeds.

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