Assignment Of Lien
Although the Supreme Court has held that cognovit notes are not necessarily illegal, most states have outlawed or restricted their use in consumer transactions and many states will not enforce them in commercial transactions.A mortgage is a document that encumbers real property as security for the payment of a debt or other obligation.The debtor or borrower, also called the mortgagor (in a mortgage) or obligor (in a deed of trust), is the person or entity who owes the debt or other obligation secured by the mortgage and owns the real property which is the subject of the loan.
Section 1031 provides that “No gain or loss shall be recognized if property held for use in a trade or business or for investment is exchanged solely for property of like kind." The first provision of a federal tax code permitting non-recognition of gain in an exchange was Code Sec. Section 1031 has existed in the Internal Revenue Code since the first Code in 1939. taxpayers were permitted to structure deferred exchanges in which the taxpayer sold the Relinquished Property to a buyer and acquired Replacement Property from a seller using the Realized Proceeds.In some jurisdictions, the deed of trust enables the trustee to obtain possession of the real property without a foreclosure and sale, while others treat a deed of trust just like a mortgage.In the latter jurisdictions, the deed of trust is governed by the law applicable to mortgages.For commercial lending purposes, an assignment of leases assigns the debtor’s rights, as landlord under a lease or leases, to the creditor for the collection of rent as additional security for a debt or other obligation.The assignment grants to the creditor a security interest in the rent stream from any leases affecting a property, an important source of cash to pay the note in case of the borrower’s default.Article 9 of the UCC governs the creation, perfection, and priority of security interests of a creditor, also called a secured party, in the personal property of a debtor, including fixtures.Like a mortgage lien, a security interest is a right in a debtor’s property that secures payment or performance of an obligation, created in a separate security agreement, or by additional terms right in the mortgage or deed of trust document.Assignments of leases are usually stated to be present and absolute transfers of the assignor’s rights under the leases, and the creditor then grants the debtor a license to collect rents and continue to operate as if its were the landlord under a lease until such time as an event of default has occurred.In the event of default, the creditor can terminate the license and step into the shoes of the debtor, as the landlord under the leases.[continue reading...] A cognovit note is a promissory note in which a debtor authorizes the creditor, in the event of a default or breach, to confess the debtor’s default in court and allows the court to immediately issue a judgment against the debtor.If the debtor defaults or breaches any of its loan obligations, the cognovit note also typically provides that the debtor agrees to jurisdiction in certain courts, waives any notice requirements, and authorizes the entry of an adverse judgment.