How JustAnswer Works:

  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.

Ask Ely Your Own Question

Ely
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86557
Experience:  Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Type Your Legal Question Here...
Ely is online now
A new question is answered every 9 seconds

Hello, I currently live out of the country and have a residence

Customer Question

Hello,
I currently live out of the country and have a residence in NY that I have been unable to sell. I am behind in the mortgage and was approached by Kondaur capitol who said they bought the note from my lender and want me to sign documents and they will release me from all my debt related to the property. I realize I lose any equity however I want this behind me. Can I forward the 3 page document for you to review and tell me if in fact I sign the deed in lieu of foreclosure and other document that I will be clear of that debt?
Thank you,
Jim
Submitted: 1 year ago.
Category: Legal
Expert:  Ely replied 1 year ago.
Hello, my name is Ely. Welcome to JustAnswer. Please note: (1) this is general information only, not legal advice; and (2) my function is to give you honest information and not necessarily to tell you what you wish to hear. Note: there may be a slight delay between your follow ups and my replies.

I would be happy to take a look. Understand however, that this is general information only, and not legal advice.

Assuming this is acceptable, please attach the document by using the paperclip icon on the toolbar above the text window. Let me know if you do not see this or it does not work.

This is not an answer, but an Information Request. I need this information to answer your question. Please reply, so I can answer your question. Thank you in advance.
Customer: replied 1 year ago.

 

March 25, 2013

XXXXXXXXXXXXXX

Re: Deed in Lieu of Foreclosure

Subject Property Address: XXXXXX

Dear XXXXX P. Saufl:

Please note that Kondaur Capital Corporation (“Kondaur”) is the servicer, on behalf of the holder of the

promissory note (“Noteholder”), of that certain loan evidenced by a Five Hundred Forty Thousand Dollar

and No Cent ($540,000.00) Note (the “Note”) dated March 29, 2007 from you (XXXXX, the

“Borrower”) to Sanderson State Bank, secured by a Mortgage of even date and amount therewith,

recorded on April 03, 2007, as File Number XXXXXXXXXXX in Liber 12402 on Page 1905, in the public

records of Orange County, New York, and assigned to Noteholder, which encumbers the real property

commonly known as XXXXXX

This letter will confirm that, if you, (i.e. XXXXXX, the Borrower) execute the enclosed (1) Deed in

Lieu of Foreclosure, (2) Estoppel Affidavit, (3) Deed in Lieu of Foreclosure Agreement AND (4) Release,

by no later than April 5, 2013, Kondaur will accept such documents (provided they are properly

notarized, as applicable, and ALL conditions within each agreement or document have been satisfied,

including evidence that title is clear) as payment in full for all amounts due and owing under the Note and

will not seek any further payments whatsoever from you (i.e., James P. Saufl, the Borrower).

If you have any questions or comments, please feel free to contact me directly.

Sincerely,

XXXXXXX

Asset Manager

Encl.

Draft Copy

Legal_DIL Agreement _HAVANA 052711

RELEASE

I/We, XXXXXX, hereby release and discharge KONDAUR CAPITAL CORPORATION

(“Kondaur”), its predecessors, successors, designees, affiliates (including, but not limited to, any and all

Matawin Ventures L.L.C.’s, including, but not limited to, Matawin Ventures II, L.L.C, and any and all

Matawin Ventures Trusts, including, but not limited to, Matawin Ventures Trust Series 2012-3), officers,

employees, agents and assignees (collectively, “Releasees”) from any and all claims, damages or actions

which I/we ever had, now have or hereafter may acquire arising directly or indirectly out of or in any way

connected with that certain loan (the “Loan”) evidenced by a Five Hundred Forty Thousand Dollar and

No Cent ($540,000.00) Note (the “Note”) from James P. Saufl to Sanderson State Bank, dated March 29,

2007, secured by a Mortgage of even date and amount therewith, recorded on April 03, 2007, as File

Number XXXXXXXXXXX in Liber 12402 on Page 1905, of the public records of Orange County, New York,

and encumbering the real property commonly known asXXXXX New Windsor, NY 12553 (the

“Subject Property”), including, without limitation, any and all claims, damages, litigation (including any

statutory or contractual right to claim attorneys’ fees therein) or other actions which I/we ever had, now

have or hereafter may acquire arising directly or indirectly out of or in any way connected with the Note,

Mortgage/Deed of Trust, Releasees’ acquisition and/or servicing of the Loan, including, without

limitation, the execution of (1) the Deed in Lieu of Foreclosure, (2) the Estoppel Affidavit and (3) the

Deed in Lieu of Foreclosure Agreement (collectively, the “DIL Documents”) with respect to the Subject

Property and/or the Loan.

This release (the “Release”) is given as consideration for Releasees’ agreement to accept less than the

outstanding balance due and payable under the Note and acceptance of the DIL Documents. I/we

understand and agree that this Release is in full accord, satisfaction and discharge of any claims I/we may

have in any way related to, or arising out of, the Loan and that this Release is not an admission of fault,

liability, culpability or wrongdoing of any kind on the part of Releasees, arising out of or related to the

Loan.

As further consideration and inducement for Releasees acceptance of less than the outstanding balance

due and payable under the Note, I/we (a) fully assign all contractual and tortious rights and claims that

I/we may have with respect to the origination and/or servicing of the Loan to Releasees, (b) will cooperate

with Releasees in its prosecution of any such rights and claims and (c) understand and agree that this

Release shall apply to all unknown and unanticipated claims or demands that I/we may have resulting

from, or based upon, or in any way connected with the Loan, as well as all known claims or demands that

I/we may have, and I/we hereby expressly waive the benefits of Section 1542 of the California Civil Code

which reads as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in

his or her favor at the time of executing the release, which if known by him or her must have

materially affected his settlement with the debtor.”

IN WITNESS WHEREOF, I/we have executed this Release this day of , 2013.

____________________________________ __________________________________

XXXXXXXX

____________________________________ __________________________________

City and State where executed City and State where executed

Forwarding Address: Forwarding Address:

_________________________________________________ _______________________________________________

_________________________________________________ _______________________________________________

Draft Copy

Legal_DIL Agreement _HAVANA 052711

DEED IN LIEU OF FORECLOSURE AGREEMENT

THIS DEED IN LIEU OF FORECLOSURE AGREEMENT (this “Agreement”) is

entered into and is effective as of March 25, 2013, by and between XXXXXXX owner-ofrecord

of XXXXXX (“Borrower”), and Kondaur Capital

Corporation (“Kondaur”), a Delaware corporation, as the servicer, on behalf of the holder of the

promissory note (the “Noteholder”) related to the loan described hereinbelow. Kondaur’s

principal place of business is XXXXXXXXX

WITNESSETH:

A. Borrower owns fee simple title to the real property located at XXXXXXX and legally described in

Schedule A attached hereto and made a part of this

Agreement (the “Subject Property”).

B. Kondaur is the servicer, on behalf of the Noteholder, of that certain loan

evidenced by a promissory note dated March 29, 2007, in the original principal amount of Five

Hundred Forty Thousand Dollars and No/100 ($540,000.00) made by Borrower to the original

lender, Sanderson State Bank (the “Promissory Note”). The Promissory Note is secured by that

certain Mortgage of even date and amount therewith, recorded on April 03, 2007, as File Number

20070035001 in Liber 12402 on Page 1905, of the public records of Orange County, New York,

and encumbering the Subject Property.

C. Borrower has failed to pay certain payments due and payable under the

Promissory Note, which has an outstanding unpaid principal balance of $509,547.17 (“UPB”).

The UPB and other amounts due and unpaid, are, in the aggregate, referred to as the borrower’s

default (“Borrower’s Default”).

D. In order to avoid foreclosure by Kondaur and further financial hardship, Borrower

has requested that the parties resolve Borrower’s Default by providing for the transfer and

conveyance of the Subject Property to Noteholder, in lieu of foreclosure, in consideration of a

full cancellation of all debts, obligations, costs and charges secured by the Promissory Note and

Mortgage (the “Deed in Lieu of Foreclosure”).

E. Kondaur wishes to accept the conveyance of the Subject Property under this

Agreement to avoid the necessity of litigation, foreclosure, and the delays associated with

Borrower’s statutory redemption rights, if any, with respect to the Subject Property.

NOW, THEREFORE, for and in consideration of the foregoing premises, and for good

and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,

Borrower and Kondaur agree as follows:

Draft Copy

Legal_DIL Agreement _HAVANA 052711

(1)

Conveyance of Property. Subject to the terms, provisions, conditions, covenants, and

agreements contained in this Agreement, Borrower agrees to sell, grant, transfer, assign, and

convey to Noteholder and Kondaur, on behalf of Noteholder, agrees to purchase from

Borrower absolutely and free of any right of redemption or other right or interest of Borrower

or anyone claiming by, through, or under Borrower, the following: good, valid, indefeasible,

and marketable fee simple title to the Subject Property, including all buildings, fixtures, and

other improvements situated on or within the Subject Property, and all of Borrower’s right,

title, and interest in and to all easements, rights, tenements, and appurtenances thereunto

belonging or appertaining to the Subject Property and all of Borrower’s right, title, and

interest in and to any and all streets, alleys, or public-ways adjacent thereto, before or after

vacation thereof by the Borrower.

(2)

Title Policy Commitment. As a condition to Kondaur’s obligation to accept the Deed in

Lieu of Foreclosure, a title order shall be opened by Kondaur with a title company of

Kondaur’s choice for the purpose of the issuance of a binder or commitment to issue a title

policy to Kondaur in connection with the Deed In Lieu of Foreclosure (the “Title Policy

Commitment”).

a. Kondaur’s obligation to close the transactions contemplated hereby and acceptance of

the Deed in Lieu of Foreclosure shall be conditioned on the issuance of the Title

Policy Commitment.

b. As an additional condition to Kondaur’s obligation to close the transactions

contemplated hereby, any preliminary report issued by the title company must show

title to the Subject Property to be vested in Borrower, in fee simple, and subject only

to:

i. Said Mortgage currently serviced by Kondaur; and

ii. Other items, if any, that Kondaur shall agree to in writing (the “Permitted

Exceptions” as set forth in Schedule B attached hereto).

c. Kondaur’s obligation to close this transaction and accept the Deed in Lieu of

Foreclosure shall be further conditioned on Kondaur’s acceptance, in its sole and

absolute discretion, of said Title Policy Commitment.

(3)

Title Policy. In the alternative to Section 2 above, at Kondaur’s choice, Kondaur must be

able to obtain an ALTA policy of title insurance or equivalent acceptable to Kondaur (the

“Title Policy”). The Title Policy shall show fee simple title to the Subject Property vested in

Noteholder as of the Closing Date (the Closing Date is the date upon which Kondaur records

the Deed in Lieu of Foreclosure). The Title Policy shall be in the amount of the indebtedness

evidenced by the Promissory Note that is outstanding on the Closing Date (or a lesser amount

that Kondaur shall accept), shall contain the full extended coverage insurance over all general

exceptions set forth in the Title Policy and shall delete any so-called creditors’ right

exclusions or exceptions. As an additional condition to Kondaur’s obligation to close,

Kondaur shall receive the following endorsements to the Title Policy (that shall be dated as

of the Closing Date):

Draft Copy

Legal_DIL Agreement _HAVANA 052711

a. A date-down endorsement showing fee simple title in Noteholder as applicable, and

insuring the Mortgage as a first priority encumbrance on the Subject Property, subject

only to the Permitted Exceptions; and

b. At Kondaur’s option, a non-merger endorsement acceptable to Kondaur (collectively,

the “Loan Policy Endorsements”).

Kondaur’s obligation to close this transaction and accept the Deed in Lieu of Foreclosure

shall be further conditioned on Kondaur’s acceptance, in its sole and absolute discretion, of

said Title Policy.

Further, Kondaur may delay, in its sole and absolute discretion, the recordation of the Deed

in Lieu of Foreclosure.

(4)

Release of Kondaur. Borrower shall deliver to Kondaur a fully executed release of Kondaur

and its respective affiliates, successors and assigns and other parties designated by Kondaur

(the “Release”).

(5)

Cash Incentive for Vacating Subject Property. Additionally, in consideration for vacating

the Subject Property as described below, and upon satisfaction of the terms and conditions

set forth herein, Kondaur will pay Borrower by check Ten Thousand Dollars and No Cents

($10,000.00) ("Cash Incentive"), payable upon Kondaur’s confirmation that the Borrower:

(a) vacates the Subject Property by April 15, 2013; (b) ensures that ALL occupants of the

Subject Property have vacated it; (c) empties the Subject Property of his/her and any other

occupant’s possessions; (d) delivers all keys to the Subject Property to Kondaur; (e) leaves

the Subject Property in empty, undamaged, broom-clean condition with all appliances and

fixtures intact; AND (f) the Deed in Lieu of Foreclosure is recorded and all terms and

conditions referenced herein have been satisfied.

(6)

Borrower Cooperation. Borrower shall cooperate with Kondaur as applicable, to permit

Kondaur to obtain the necessary Title Policy Commitment or Title Policy and the Loan

Policy Endorsements.

(7)

Closing. To complete the conveyance transactions contemplated herein, Borrower agrees to

execute and deposit with Kondaur, or if requested, with the title company of Kondaur’s

choice, the following documents, which have been delivered by Kondaur to Borrower:

a. the Deed in Lieu of Foreclosure;

b. the Estoppel Affidavit – Exhibit A to the Deed in Lieu of Foreclosure;

c. this Agreement; and

d. the Release Agreement.

Upon timely satisfaction of all terms, conditions and covenants contained herein, including,

but not limited to, recordation of the Deed in Lieu of Foreclosure and the sale by Kondaur of

the Subject Property to a third party, Kondaur shall cancel the Promissory Note and record an

appropriate release of said Mortgage.

Draft Copy

Legal_DIL Agreement _HAVANA 052711

(8)

Non-merger. A merger of title to the Subject Property is not intended by the parties hereto

and if, after the Closing Date, (a) Noteholder’s title to the Subject Property is challenged in

any manner, (b) the title to the Subject Property is subject to more than the liens agreed to by

Kondaur as specified herein, (c) the Title Policy Commitment or Title Policy referred to

hereinabove are found to contain errors or omissions, (d) a lawsuit affects or relates to the

Subject Property, or (e) any of Borrower’s representations in any of the documents executed

by Borrower related to this transaction (including, but not limited to this Agreement, the

Deed in Lieu of Foreclosure, and the Estoppel Affidavit) are found to be inaccurate, Kondaur

may, in its sole discretion, rather than accepting the Deed in Lieu of Foreclosure, reject it at

any time prior to recordation. Notwithstanding the foregoing, Kondaur also may, in its sole

discretion, and in the event that any of the foregoing (a) through (e), hereinabove, have

occurred, accept such title and either retain it, or deliver to Borrower a Quitclaim Deed

reconveying to Borrower all interest in the Subject Property which was conveyed by said

Deed In Lieu of Foreclosure, which Quitclaim Deed shall be immediately recorded by

Kondaur; with respect to the rejection of the Deed in Lieu of Foreclosure, or the acceptance

of the Deed in Lieu of Foreclosure followed by the delivery of a Quitclaim Deed, this

Agreement shall thereafter be treated as if this Agreement had never been entered into and

Kondaur, thereafter shall continue to have all rights it had under its Mortgage prior to the

execution of this Agreement. To effect this provision, it is agreed by the parties hereto that

Kondaur, shall have no obligation to reconvey the Subject Property or release the lien of the

Mortgage whichever is applicable, until such time as Kondaur is able to sell the Subject

Property to a third party, and the provisions of California Civil Code §2941 and related

provisions with respect to reconveyances, and any similar state law with the similar import,

are waived.

(9)

Attorney’s Fees. In the event that any party hereto shall commence a legal proceeding

against any other party hereto to enforce the terms hereof, or to declare rights hereunder, the

prevailing party in any such proceeding shall be entitled to recover said party’s costs of suit,

including reasonable attorney’s fees, as may be fixed by the applicable court.

(10)

Entire Agreement. This Agreement and the schedules attached hereto constitute the

entire agreement between the parties hereto pertaining to the subject matter hereof and, upon

execution by all parties, supersedes all prior or contemporaneous agreements,

understandings, negotiations and discussions, whether oral or written, of the parties in

connection with the subject matter hereof, except as specifically set forth herein. No

supplements, modifications, waivers, or terminations of this Agreement shall be binding

unless executed in writing by the parties to be bound thereby.

(11)

No Waiver. A waiver of any provision of this Agreement shall not constitute or be

deemed to constitute a waiver of any other provision herein (whether or not similar), nor

shall such waiver constitute a continuing waiver, unless otherwise expressly provided.

Draft Copy

Expert:  Ely replied 1 year ago.
Thank you. I am looking over this now - please accept my apologies for a moment of wait while I do so...
Expert:  Ely replied 1 year ago.
Hello,

After reviewing the document, I can say that this indeed is a standard deed in lieu of foreclosure.

However, if possible, one may wish to instill a MEDIATION AGREEMENT in there.

While not obligatory, a mediation clause is recommended. This is because mediation is a lot cheaper and less costlier than litigation, and, often ends up with the parties agreeing on a settled matter. Also, mediation is much less adverse, in that the parties MEDIATE, and do not battle each other in Court:

The parties herewith agree that each shall forego litigation of any dispute arising out of this agreement and the general relationship between the parties as to this contract and shall first submit the dispute to mediation, first.

The New York State Dispute Resolution Association, Inc. shall supply a mediator for whom the parties shall each pay half of the rate for the mediator’s service. In the event that an agreement is reached at the mediation as to any or all of the issues between the parties, the same may be entered as a judgment in any court having jurisdiction between the parties.


This can perhaps go above/below the attorney fees clause. Again, this is simply an informal suggestion.

Best of luck.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Customer: replied 1 year ago.
Thank you,
However for clarification:
Does this agreement release me from all funds I owe on the property if I sign the deed in lieu of foreclosure?
Expert:  Ely replied 1 year ago.
J,

Yes, indeed, from what it states. However, note that is is just a draft copy, so it may be altered between now and the time that you sign it. Caution is indicated.

IMPORTANT: Please use REPLY button to keep chatting, or RATE my answer when we are finished. Kindly rate my answer as one of the top three faces before submitting the rating, because this is how I get credit for my time with you. Rating my answer the bottom two faces does not give me credit and reflects negatively on me as an expert, even if my answer is correct. I work very hard to formulate an informative and honest answer for you; please reciprocate my good faith. Do not worry, you may always ask follow ups free after rating. My ultimate goal is your complete satisfaction.
Ely, Counselor at Law
Category: Legal
Satisfied Customers: 86557
Experience: Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
Ely and 17 other Legal Specialists are ready to help you
Expert:  Ely replied 1 year ago.
Thank you for your generosity.

JustAnswer in the News:

 
 
 
Ask-a-doc Web sites: If you've got a quick question, you can try to get an answer from sites that say they have various specialists on hand to give quick answers... Justanswer.com.
JustAnswer.com...has seen a spike since October in legal questions from readers about layoffs, unemployment and severance.
Web sites like justanswer.com/legal
...leave nothing to chance.
Traffic on JustAnswer rose 14 percent...and had nearly 400,000 page views in 30 days...inquiries related to stress, high blood pressure, drinking and heart pain jumped 33 percent.
Tory Johnson, GMA Workplace Contributor, discusses work-from-home jobs, such as JustAnswer in which verified Experts answer people’s questions.
I will tell you that...the things you have to go through to be an Expert are quite rigorous.
 
 
 

What Customers are Saying:

 
 
 
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
< Last | Next >
  • Mr. Kaplun clearly had an exceptional understanding of the issue and was able to explain it concisely. I would recommend JustAnswer to anyone. Great service that lives up to its promises! Gary B. Edmond, OK
  • My Expert was fast and seemed to have the answer to my taser question at the tips of her fingers. Communication was excellent. I left feeling confident in her answer. Eric Redwood City, CA
  • I am very pleased with JustAnswer as a place to go for divorce or criminal law knowledge and insight. Michael Wichita, KS
  • PaulMJD helped me with questions I had regarding an urgent legal matter. His answers were excellent. Three H. Houston, TX
  • Anne was extremely helpful. Her information put me in the right direction for action that kept me legal, possible saving me a ton of money in the future. Thank you again, Anne!! Elaine Atlanta, GA
  • It worked great. I had the facts and I presented them to my ex-landlord and she folded and returned my deposit. The 50 bucks I spent with you solved my problem. Tony Apopka, FL
  • Not only did he answer my Michigan divorce question but was also able to help me out with it, too. I have since won my legal case on this matter and thank you so much for it. Lee Michigan
 
 
 

Meet The Experts:

 
 
 
  • Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
< Last | Next >
  • http://ww2.justanswer.com/uploads/MU/multistatelaw/2011-11-27_173951_Tinaglamourshotworkglow102011.64x64.jpg Tina's Avatar

    Tina

    Lawyer

    Satisfied Customers:

    8436
    JD, BBA Over 25 years legal and business experience.
  • http://ww2.justanswer.com/uploads/RA/ratioscripta/2012-6-13_2955_foto3.64x64.jpg Ely's Avatar

    Ely

    Counselor at Law

    Satisfied Customers:

    19941
    Private practice with focus on family, criminal, PI, consumer protection, and business consultation.
  • http://ww2.justanswer.com/uploads/FL/FLAandNYLawyer/2012-1-27_14349_3Fotolia25855429M.64x64.jpg FiveStarLaw's Avatar

    FiveStarLaw

    Attorney

    Satisfied Customers:

    8189
    25 years of experience helping people like you.
  • http://ww2.justanswer.com/uploads/jespoag/2008-12-17_222355_jessepic.jpg JPEsq's Avatar

    JPEsq

    Attorney

    Satisfied Customers:

    2132
    Experience as general attorney, in house counsel, SSDI, Family Law attorney, and law professor
  • http://ww2.justanswer.com/uploads/gsenmartin/2008-04-22_214950_me1.jpg Guillermo J. Senmartin, Esq.'s Avatar

    Guillermo J. Senmartin, Esq.

    Attorney

    Satisfied Customers:

    110
    7+ years of experience handling various legal matters.
  • http://ww2.justanswer.com/uploads/PA/PaulmoJD/2013-10-10_195858_JAImage.64x64.jpg Law Educator, Esq.'s Avatar

    Law Educator, Esq.

    Attorney

    Satisfied Customers:

    31621
    JA Mentor -Attorney Labor/employment, corporate, sports law, admiralty/maritime and civil rights law
  • http://ww2.justanswer.com/uploads/dkaplun/2009-05-17_173121_headshot_1_2.jpg Dimitry K., Esq.'s Avatar

    Dimitry K., Esq.

    Attorney

    Satisfied Customers:

    15975
    Multiple jurisdictions, specialize in business/contract disputes, estate creation and administration.