Bronsky,
I think I know what you are trying to do, and have done a few deals over the years where sellers just wanted to walk away and did not care what happened.
In these cases, there were two mortgages on the properties, and getting the seconds to go away, or discount severaly made them deals.
So, we’d just take title into a trust, keeping the seller as beneficiary, with a contract to buy that from them, upon sucessful negotiation to our satisfaction of new terms, discounts, workouts, etc with the underlying financing.
Many times, we’d just buy the seconds for pennies on the dollar, not a whole lot of that happening now…but, you can get a second released pretty easy for less than face value in todays market.
I’ve also taken title, right after a seller has negotiated new terms on their loans (modifications), that then allowed me to take over and make them cashflow.
Changing interest rates, and getting them to remain fixed, either for full term, or a set number of years, (no less than 2-3 years), and sometimes getting lenders to take interest only payments as well, to help keep accounts in good standing, and avoid the lender from having another house to foreclose on.
I have a good idea that you’ll be able to get lenders to bend a little more as the year progesses…they will want to clear as many things as they can before years end, cause the government bail out money won’t handle everything they have in default now…nor will it come right away.
I think your idea is a good one, but the approach is wrong. Tweak it some, because your attorney is right, if you simply take title, and leave a mortgage in default, you’ve really done nothing for the seller…and when lenders approve short sales, they don’t allow title holders at the time of sale make ANY profit…why should they?
Think about it, if you sold a house, carried paper, and then your buyer said, 'here, I sold the house, you get 80% of what I owe you, and I’m making $30k on the sale"…you wouldn’t take or allow that discount would you?
Good luck with it…there are ways to get this done, just be ethical and buy the paper, extinguish it,or make your sale contingent on successful negotiation for a discount on the second, first, new terms, whatever you need to make happen… then take title subject to what’s left, if it makes sense numbers wise.
HTH,
Jim FL