Confirmation Actions And Marketable, Insurable Title

Originally published in Real Property Law Section, Spring 2012

If the dramatic increase in foreclosures has resulted in the closing attorney being forced to get up to speed in short order on nonjudicial foreclosure and its effect on marketable and insurable title. A title report with a properly recorded Deed Under Power is only the first step toward a closing attorney certifying to marketable and insurable title of foreclosed real estate. As a result of the declining real estate values, property is often not worth the underlying debt owed to the lender. Therefore, lenders are filing confirmation actions in much higher numbers (particularly on commercial property) in an effort to preserve the lender's ability¹ to file a deficiency action against a borrower and/or guarantor. The effect of a pending confirmation action on marketable and insurable title is an issue real estate closing attorneys must address before the conveyance of a foreclosed property.