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Yeah, the way the law was written, it appears a homeonwer could get a second mortgage, default on the first mortgage, exercise the right of first refusal on the sale, and get the property free and clear of the second mortgage. They'd still owe the second mortgage but they could default on it or even declare bankruptcy (if they dumped all their assets into paying the upset price).
Wouldn't the pursuit of a judgment from the second mortgage (or bankruptcy proceedings, if they're taking that route) just lead to the house being sold?
edit: ok, no, I guess if you default on the mortgage they can't force a sale of the house. I'm pretty sure bankruptcy can lead to it being sold though.
Primary residences have some protection against bankruptcy, though this trick probably works better if you have a relative exercise the right of first refusal.
From what I can tell, in chapter 7 they protect a certain amount of equity on the home: if your equity in the property is less than the legally specified amount, which in New Jersey is 63,150 for a spouse-jointly-owned home, they won't trigger a sale. The original intent seems to be "it's not going to make a significant difference in your debts anyway, so we're not going to bother", although I don't know if subsequent legislation raised it to a point where banks would want to trigger a sale if they could.
That wouldn't be super applicable here, since under this system you'd own the home outright and have the full value of the home in equity. It would work only for very low-value homes where the full value of the house is under the exemption(which might also be hard to get any significant second mortgage on). I'm not actually sure you could use the right of first refusal to have multiple people purchase a house, as well, which might mean you end up with half that amount of equity.
In Chapter 13 it seems like you can keep your house as long as you maintain your payment plan, but they can take it if you fall behind. So you might be able to negotiate some sort of discount, but that requires convincing creditors and/or a judge, and with a newly paid-off house sitting there it might raise some eyebrows.
So I do think you need a cutout here: one person defaults on the first mortgage, the relative uses right of first refusal to snap up the house, and the original homeowner just declares bankruptcy with no remaining assets.
Looping in @The_Nybbler since he's party to this discussion.
I did bankruptcy law fora couple years so I can outline how the process typically works. It's worth pointing out at the beginning the difference between unsecured and secured debts. Unsecured debts, like credit card debt or personal loans, are secured only by the borrower's promise to pay. If the borrower defaults, the lender can attempt to collect the debt, sue and obtain a judgment, and attempt to enforce that judgment through various mechanisms provided by the law. A secured debt includes an additional element where the borrower pledges specific property that the creditor can seize in the event of nonpayment. When a creditor initiates a court action to seize property for payment of debts, state law establishes who gets priority when it comes to payment. Generally speaking the earlier recorded interests get priority, but various policy considerations make this a bit more complicated (for example, taxes and HOA fees almost always get top priority regardless of when they were accrued). Chapter 7 bankruptcy extinguishes the personal obligation to pay, but it does not extinguish security interests. To that extent, the liquidation of the bankruptcy estate is only concerned with assets that can be liquidated to pay unsecured creditors. Additionally, one of the policy goals of bankruptcy is to give the debtor a fresh start, not to leave him destitute, so certain small amounts of assets can be exempted from liquidation as set forth by law.
With that out of the way, let's look at a typical Chapter 7 scenario: Debtor owns a home worth $300,000, subject to a first mortgage with a balance of $200,000 and a HOLC with a balance of $50,000, leaving the debtor $50,000 in equity. The mortgages are current and the property is not in foreclosure. Debtor also has $50,000 in unsecured credit card debt, and no other assets worth mentioning. If the available exemption is $63,150, then it covers the debtor's $50,000 in equity. The trustee classifies the case as "no asset" and the credit card companies get nothing, and the debtor is not required to pay them. As for the mortgages, the debtor is no longer personally obligated to pay them, but they still secure the property, meaning that if the debtor doesn't continue to pay them after the discharge then the bank can foreclose. The practical effect of the discharge, however, means that foreclosure is the only remedy available to them; if the foreclosure sale does not cover the loan, they can't pursue the debtor individually.
When you talk about "triggering a sale", keep in mind that sales are never "triggered" in a Chapter 7 bankruptcy; sale of an asset is wholly within the discretion of the trustee. The more important thing to keep in mind—and I'm not sure if you were insinuating this but I want to make it clear just in case—is that secured creditors play little to no role in the bankruptcy process. The most obvious interaction I can think of is that mortgage payments will be rolled in with Chapter 13 payments, but they won't be reduced like other debts might be. The other one is that if there are any pending or potential foreclosure actions they will automatically be stayed upon filing. This is of little consequence in a Chapter 7 because the stay will be lifted upon discharge, which only takes a few months, and if the bank is impatient they will almost always get the stay lifted if they ask the court. The only consequential involvement of secured creditors in the bankruptcy process is when a debtor in mortgage arrears files Chapter 13, which allows him to repay the arrears under the payment plan.
But in the situation we're talking about with the New Jersey law, we'd end up in a situation in which of the two mortgages on the property, only the first one is paid off (because the first bank is only incentivized to set an upset price that makes them whole, and the second bank isn't capable of outbidding the family because of the right of first refusal). I'm pretty sure the unpaid second mortgage can't follow the property, but it still wasn't paid.
In this situation, does the second mortgage just disintegrate, or does the bank holding the second mortgage have a way to pursue a judgment against the homeowner for the unpaid debt? If so, how does that interact with a subsequent bankruptcy by the homeowner, keeping in mind that the homeowner would have a house with no mortgages attached to it and thus probably be past the equity number for an exemption?
In theory, the bank could sue on the note just like a credit card company can sue you if you don't pay your credit card bills. In practice, those kinds of lawsuits usually don't accomplish much because most people don't have assets which can be seized. Which is why credit card companies usually end up settling for pennies on the dollar.
Let's suppose that the bank holding the second mortgage gets a judgment which then becomes a lien on the original property. I'm pretty sure that this is nowhere near as good as having a mortgage. For one thing, there may be a homestead exemption. For another, it's difficult or impossible to convince a sheriff to actually seize the property in that situation. Usually you will be told to just wait for the person to sell or otherwise transfer the property.
Does seem like you have to thread a pretty narrow needle to be able to afford the upset price of the house, but not to have an income stream that a judgment could seize.
Of course, the family part of this law makes it all more workable, because the person with no assets and the person buying the house can be two different people.
Well how about this scenario:
The first mortgage is has a balance of $300k; the second mortgage has a balance of $150k; the house would bring $400k at auction; the first mortgage is foreclosed and the upset price is set at $300k; the owner of the house goes out and gets financing from the Bank of Predatory Loans which gives him the $300k to buy the house plus $15k in "cash out." The owner buys the house, thus wiping out the second mortgage so that now he owns the house subject only to a $315k mortgage from the Bank of Predatory Loans, which mortgage quickly balloons to $400k and is then foreclosed, selling at auction for the same $400k.
The net effect of this is that $100,000 which should have gone to holder of the second mortgage instead goes $85,000 to the Bank of Predatory Loans and $15k to the original homeowner. Who gets kicked out anyway but at least he got to stay there another year and he got $15k for his trouble.
Or to put it another way, if a destitute person has the right to buy a piece of real estate at significantly below market value but lacks the money to do so, it seems almost certain that predatory lenders will show up to facilitate the transaction and appropriate to themselves the lion's share of the profits.
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