QUESTION

A client wants to give us one of his properties as a gaurantee till he clears all outstanding payments. Is that possible and what are the steps?

Asked on Sep 06th, 2012 on Business Litigation - Texas
More details to this question:
We are an export company based in India. One of our clients is based in Texas and has outstanding payments. He wants to give us a property as guarantee till he pays us. We have the following questions. 1) How do we make sure the property is in his name? 2) How do we determine the value of the property? 3) How can we keep the property as guarantee without any property tax liability? 4) What paper work is involved? 5) In case we have to sell the property to recover the money, then what are the steps involved. We are also looking to hire an attorney to help us through the process. We would like to get an idea of the cost involved.
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1 ANSWER

Litigation Attorney serving Greenwich, CT
Partner at Hilary B. Miller
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Generally speaking, when somebody from India uses the word property, they mean "real estate" (we use the term "property" in the U.S. to include a variety of different kinds of property, including both moveable property and intangible property). So, assuming you are interested in taking real estate as security for the debts of a Texas business, you have the following steps to complete: 1. You will need to have an appraisal performed of the property by an independent appraiser. An attorney can assist you in doing so. 2. You will need to perform a so-called "title search" to determine whether the debtor owns the property and the status of any prior claims on it. Your attorney can arrange for this, too. 3. You will retain your interest in the property by taking a mortgage or similar "security instrument" on it. Under the terms of the mortgage, the debtor will remain liable for property taxes and will be required either to deposit the property taxes with you or your agent (so that you can be assured of their payment), or you can require him to provide proof of payment. Your attorney will draft the security instrument and a promissory note evidencing the debt. The note will provide for an award to you of all of your expenses, including collection costs, if the debtor does not pay. 4. In the event that the debtor defaults and you need to sell the property, you will, in general, be required to commence a lawsuit to "foreclose" the mortgage and sell the property. Those are steps undertaken by an attorney as well. The process can take several months and cost many thousands of dollars. Those costs are recoverable from the debtor or from the sale proceeds of the property. My office represents lenders worldwide and would be happy to assist you with this matter. You should plan on legal costs of a few thousand dollars to document the loan and security interest. In addition, there may be another few thousand dollars associated with appraising the market value of the property and determining the status of title. You will wish to purchase and pay for, at the debtor's expense, title insurance that guarantees your title. It is strongly recommended that you obtain a cash payment in advance from the debtor in order to defray your transaction costs and that the debtor remain responsible not only for the amounts he already owes you but also for all of your costs in obtaining, perfecting, policing and collecting your debt. My office number is +1 203 399 1320.
Answered on Sep 06th, 2012 at 11:56 AM

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