"These forms are not ALTA forms and are only optional forms for discretionary use at this time."
Below are alternative approaches: the first is simply a warranty and representation, which will not specifically address our questions, but which may serve as a substitute indemnity. The second is a certification, which includes an indemnity. These are not ALTA Forms and are suggested for use if you believe that you may secure them.
Lender Warranty and Representation:
[Lender] hereby represents that all affidavits, documentation, procedures and/or notices related to the foreclosure of the property described [reference to commitment or policy or exhibit] comply with state law and local practice and hereby warrants title to the property against challenges to the title created or arising by, through or under lender's own acts or omissions. [Lender] agrees to hold harmless [Title Insurer] against loss or liability, including costs, attorneys' fees and expenses, resulting from a challenge to the title based on alleged defects in the pre-foreclosure and foreclosure process, and further covenants that they were the holder of and in possession of the original note at the time of the foreclosure judgment or sale.
[Title Insurer: _____]
In light of recent disclosures that some foreclosure proceedings may have been affected by procedural flaws, Title Insurer requests the following certification or attestation from the lender that can be relied upon to assess risk more effectively when writing title insurance on a transaction involving REO property.
To induce Title Insurer to issue title insurance in connection with [identify transaction or property], Lender hereby confirms that it has reviewed its files and represents the following to Title Insurer [check all that apply]:
1. __ Yes __ No Lender agrees to indemnify and hold harmless Title Insurer against loss or liability, including costs, attorneys' fees and expenses, resulting from a challenge to the title based on alleged defects in the pre-foreclosure and foreclosure process.
2. __ Yes __ No Lender certifies that the property is unoccupied. (If Yes, explain circumstances of the occupancy.)
3. __ Yes __ No Lender certifies that the borrower was personally served in connection with the foreclosure.
4. __ Yes __ No Lender certifies that the borrower appeared in the foreclosure proceeding.
5. __ Yes __ No Lender confirms that all notices and loan documents required by applicable law to be provided to the borrower were given.
6. __ Yes __ No Lender certifies that no litigation has been commenced challenging the foreclosure.
7. __ Yes __ No Lender confirms all the facts stated in all affidavits required to be filed in the foreclosure action or in connection with the foreclosure.
8. __ Yes __ No Lender has verified legal correctness of accuracy of all steps leading up to the foreclosure judgment or sale and certifies that no defect in the process were found to exist or, the lender found the following defects and is taking these steps to the address them:
9. __ Yes __ No Lender certifies the following information on the foreclosed property status:
a. date of foreclosure judgment or trustee sale (whichever applicable): _____
b. most recent appraised value or other evidence of value:________ as of _____________.
c. the date and amount of last payment: ___________
d. the unpaid loan balance as of date of foreclosure judgment or nonjudicial foreclosure sale was $________, including:
i. principal balance: $
ii accrued unpaid interest: $
iii. attorney's fees and other foreclosure expenses: $
iv. property preservation expenses including taxes, insurance and other charges: $
10. __ Yes __ No Lender does not intend to pursue a deficiency.
11. __ Yes __ No Lender will provide the a warranty deed to the Purchaser in the form attached.
12. __ Yes __ No Lender confirms that the foreclosing party is the holder of the secured note and is possession of secured note.
[The State of _____
County of _________
Sworn to and Subscribed before me the undersigned by ______________, on this ___ day of ___ , 20__.
Notary Public, State of __________
Printed Name of Notary
My Commission Expires:_____________]
No guidelines are available for this form at this time.