There are many implications of loans that are either “Assumptive,” or “Subject To.” Here is a general overview of some of the definitional differences between the two and how the differences affect the escrow process.
Assumption Loans:
The term “assumption” is used when a buyer incurs personal liability for an existing deed of trust. If the buyer were to default on their future mortgage payments, the seller would no longer have any responsibility as the buyer has “assumed” the loan.
When a buyer “assumes” a loan it is with the lender’s knowledge and approval. An assumption agreement is prepared by the existing lender of record and signed by the buyer as part of the escrow process. The seller may also be required to sign the assumption agreement and the terms may release the seller from responsibility. The lender usually requires a credit history from the buyer before approving the assumption and the payment of assumption fee(s). The loan will be brought current (if it is delinquent) and interest will be pro-rated through escrow and charged to the seller.
Subject To Loans:
In contrast to an Assumption Loan, the term “taking subject to” is when the buyer incurs no liability to repay the loan. The loan stays in the seller’s name, but the buyer gets the deed and therefore controls the property. Although the buyer makes the mortgage payments, the seller remains responsible for the loan.
When a buyer takes title to property “Subject To” the loan of record, the lender is not notified of the transaction or asked for their approval. The Lender has not approved the transfer of title; therefore the seller is not released from responsibility. In this case, the buyer is simply making the payments instead of the seller. The seller will be asked to provide escrow with their last payment record which will be used to calculate the exact principal balance at close of escrow. The lender may have the right to accelerate their due date or call the loan all due and payable when (and if) they receive notification of a transfer of ownership.
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