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Alternatives to Adversarial Foreclosure–Ways that you can participate in the new wave of mortgage investors of distressed situations

Short Sales & Foreclosures, , ,

Whether or not you are aware of it, there is a growing group on investors (mostly funds and committed individuals) who are purchasing mortgages, either in bulk or individually, and getting in front of these investors may mean new opportunities for you.  The investors see an opportunity to participate in a “win-win” situation. They purchase the mortgages for pennies on the dollar. Because they have purchased at the right price (usually less than the value of the underlying real estate) they can work out individual solutions with the distressed Borrowers, which sometimes permit the Borrower to stay in his or her home. If that result is not possible, a kinder, gentler exit strategy is developed with respect to permitting short sales to move through efficiently or to accept deeds in lieu of foreclosure, but still allow the Borrower to stay in the real estate until the end of the school year.

I am aware of at least two of these investors, and I would gladly furnish this information to you if you contact me. The beauty of this carrot, not stick, approach is that the real estate is often not destroyed by a vindictive Borrower before he or she leaves. There are ways to give incentives to Borrowers to  maintain the property before they leave, including cash payments and assistance in finding alternative shelter. The investors involved have developed a corps of people to contact the Borrowers and listen. Many Borrowers have fallen behind because they have lost their jobs, gotten sick or split up their marriage. They did not commit fraud when they purchased; they ran into some bad luck.

The new investors are people you should be speaking with. They have the efficiencies of a focused approach and a plan. There is no reason why each of you could not fit right in.

The Short Sale Samba–A Lender Does a Slow Dance, while Innocent People Involved are Victimized

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This is a true story. After going back and forth with respect to the consequences, legal and otherwise, I have decided not to name the Lender. What has happened, nevertheless, is true and it underscores a power within the financial institutions in our country which is unbridled, and, in my mind, abusive.

A client came to me with a problem with his mortgage. He is an unemployed father of three children, and saddled with two mortgages on his residence in suburban Boston, which he cannot pay. In fact, he had not made a payment on his mortgages, or his property taxes, in some time. He told me that he had the property on the market for the last nine months, with six different realtors, and he had not elicited one offer which was even worthy of consideration.

I suggested he work with one of my trusted realtor contacts, and that perhaps the reason he was not getting any offers was the fact that his asking price was far above the value of the residence. He met with my suggested realtor, she did her homework on value, and they agreed on a new listing at a reasonable price, which the realtor was reasonably certain she could get.

In fact, the realtor received multiple offers at the lower price, one of which was with a cash Buyer (with proven funds to close) and a forty-five day closing. We assembled all of the required information, including two (2) brokers opinions of value, a proposed HUD-1, and a purchase and sale agreement with a five(5%) deposit which my firm is(was) holding.

The Lender was initially unresponsive. They were “swamped” with requests for short-sales, and did not have an analyst available to determine if the short-sale would be approved. After several follow up inquiries, we found that an analyst had been assigned to the matter, and we would be hearing from the Lender “soon”. By the way, the time that the analyst was assigned was considerably beyond the 45 day closing window, but our Buyer was willing to extend, and various extensions had been executed.

The final correspondence with the Lender indicated that the analyst had reviewed our proposal and would be willing to submit out short sale for approval, but only upon the following conditions:

     1. The Lender would “charge-off”, probably means, “sell for pennies” the line of credit second mortgage. This is a short hand statement which means that at some point in time a “bottom fisher” who purchaed the debt would be coming after my client.

     2. My client would be required to sign a promissory note for any balance remaining on the first mortgage after the short sale. It was possible that the Lender would consider issuing a Form 1099 for the difference rather than require the promissory note.

     3. If my client does not agree, in writing, with these terms, the request for the short sale is automatically rejected.

My client will not go forward with these terms. This means that at some point in time, the two mortages will be foreclosed upon. The Lender will be required to absorb the expenses of foreclosure, no less than $30,000 in Massahusetts and then pay an REO realtor a commission to sell the property after foreclosure. In the meantime, my client continues to live in the residence, without the Lender receiving any payment from my client. The process, including an eviction after the foreclosure, can easily take nine months. Why does this make any economic sense for the Lender, given the fact that the suggested short sale price is the true current market value of the residence?

The saddest part of this scenario, however, does not concern the Lender or my client. What about my realtor friend who worked so hard to find a Buyer and then finally sold the home? Why should she get nothing for her efforts? What about the Buyer who offered a fair price and expected, at some point, to purchase this home of his dreams? Why should these people be punished because the Lender has some view of making the person who is down on his luck “pay the price”

These are difficult times for many people. Very rarely does the Lender sue the Owner for mortgage deficiencies. Why shouldn’t this, and other, properties be put back on the market so we can move forward to establish a rational residential real eatate market? I find this all perplexing as much as anything else because we, as a professional, are powerless to make Lenders, who we have bailed out with public funds, act responsibly and with a view to the general well-being of our citizens.

Short Sale Shenanigans–Do not get involved; Do not let your clients get involved!!!

Short Sales & Foreclosures,

It was bound to happen. Short sales, the new salvation for an inconsistent real estate market, have too many characteristics which facilitate fraud. One party, the Lender, is being asked to take a “hit” for immediate payment on a delinquent mortgage. Another party, the Buyer, is getting a great deal on a home or condominium . The third player, the Seller, is getting out from under an onerous debt, and given the chance to “move on” with his or her life.

I have written in the past about the dreadful performance of many Lenders in addressing requests for short sales. I have a request in front of an unnamed Lender right now that is for fair value with a cash Buyer. The last word I have from the Lender is that the “analyst” who will make the short sale decision has not as yet been determined. In a word, this transaction has little or no chance of succeeding, even though it represents a good opportunity for all people involved.

That is one side of short sales. The more tawdry other side is the apparent current practice of providing post short sale credits to Buyers (and Sellers) by realtors once the transaction is completed. In effect, the parties are “re-arranging” the real substance of the short sale, generally to the detriment of the Lender who gave approval to same.

I heard today about a transaction where the closing agent for a short sale, had two HUD-1 Settlement Statements  prepared to reflect the transaction, one which described the sale the way it had been presented to the Lender who approved the short sale, the other which described the credit given by one or both realtors, probably designed to backstop the realtor’s tax ramifications.

My advice to each and every one of you. Do not participate in ANY of these types of post closing credit schemes. They are fraudulent, and people involved with the fraud can, and will, be punished. There is no positive spin you can put on HUD-1 (Version 1) and HUD-1 (Version 2). There is only one legitimate Settlement Statement, and it is the one that was presented to the short sale Lender who approved the sale.

I urge you to disseminate this gospel far and wide. It has been difficult enough to obtain Lender approval of short sales; if the Lender starts to suspect wrong-doing after the short sale, there will be an impasse in short sales that will certainly not accelerate the recovery which all of us all hoping for, and desperately need..

Short Sale Rules for Lenders–Our Real Estate Community Needs to Unite and Speak Out

Short Sales & Foreclosures, ,

Recently, in connection my my representation of an individual who was far behind in his mortgage, I encountered the following scenario. The borrower (my client) has not made a mortgage payment for more than two (2) years. The house has been on the market for 18 months. Because of my experience as a Massachusetts title attorney with more than 40 years of real estate experience, I located a suitable listing agent, and we received a cash offer for the property to close in no longer than 45 days.

This is where the problems began. We made a submission to the Lender (I would like to share the name but the sad truth is it could be any of a number of Lenders) which included the following:

     1. A signed Purchase and Sale Agreement

     2. A verified statement from both Buyer and Seller that they had no affiliation with each other and were not related by blood or marriage.

     3. Two(2) separate Broker’s Opinion of Value for the property, which included no fewer than 3 recent sales of comparable property.

     4. A proposed HUD-1 Settlement Statement, which set forth the real estate broker fees, the legal fees, the stamp taxes and recording fees for the transaction. There were back taxes due and owing and they were included on the HUD-1, as well.

This statement was submitted more than a month ago, and we cannot even get a “denial” from the Lender. An extremely low-level employee, who has refused to inform me as to the name of her supervisor, has informed me that this is her project, and since she is so “overwhelmed” with requests for short sale consents, she doesn’t know when she can get to ours. The fact that we have a 45 day “window” and a Buyer who will probably walk shortly thereafter has not moved her to act in any way.

In today’s (July 7, 2009) edition of the Boston GLOBE, there is an article indicating that with respect to modifications or mortgages, the Lenders are dragging their heels because they do not want to take the financial “hit” associated with modifying the mortgage. I am suggesting that the same type of “hidden agenda” exists for short sales. Congressman Barney Frank was adverted to in the story, and his comment that the government would have been better served giving TARP money to beleaguered borrowers to catch up on their mortgages than to Lenders, who are really not using the money to get things moving in the real estate industry.

My suggestion to all of you is to contact Congressman Frank to demand that he institute the following procedures with regard to short sales from all Lenders, but at least to Lenders who have received TARP Funds:

     1. There should be a formal protocol as to what documents are required for a Lender to consider a short sale request.

     2. All short sake requests which include the requisite documents set forth in the protocol shall receive responses from the Lender within fifteen (15) business days of the date received.

     3. if the request for short sale is denied, the Lender shall be required to furnish specific reasons for the denial, and a value for the property which would make the short sale acceptable. There must be supporting documentation which would substantiate the higher value.

All of us are working hard to effect real estate transactions to get the market moving again. Shirt sales, although painful for the Lender initially, represent a way to set reasonable valuation benchmarks for moving forward toward recovery. Many Lenders have been compensated for the losses they may sustain with short sales (or modifications) through receipt of TARP money.

Short Sales and You

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Short sales are a natural outgrowth of the recession we have been living through. People have lost jobs or become ill at the same time as the equity in their homes has been eroding. They have fallen behind in their payment or payments, yet even when they make the intelligent decision to cut their losses and sell, their net proceeds will not permit them to pay the mortgages in full.

Initially, banks and other lenders did not show muc sympathy to people in this kind of quagmire. In the last few years, however, even the most rigid of lenders have realized that “short sales” ,so-called, represent a cheaper alternative than foreclosure in almost all circumstances. Therefore, short sales have achieved a level of acceptance which make them an option every time a homeowner is behind ih his or her mortgage(s).

I have had considerable experience in dealing with short sales, and I would offer the following advice to those of you, who become involved either as selling agents or buyer’s brokers in short sales:

1. Do your Homework. Obtain as much information from, and about, your Seller. You need to know not only about first mortgages, but second and sometimes third mortgages as well. Make the listing agent furnish current statements from the mortgage lenders, if you can. Ask a friendly real estate attorney to do a “current owner” search of the property. I do them all the time from my computer. Normally, they will provide excellent information on what mortgages are outstanding.

2.  Work out the possibilities of Resolution Before You get in too deep. When there are second and third mortgages, the problems escalate rapidly. If these junior positions are not getting something out of the short sale, they may balk.  Make sure the Seller has addressed this issue with the first mortgage holder. A lot of time will be wasted if the junior lienors will not move.

3. Taxes and Other Municipal Liens. In many instances, when the mortgage has not been paid, neither have the taxes and water and sewer. You will be dealing with a Seller who has no money. In certain circumsatnces, you may resolve the mortage liability but the unpaid munipal charges will make the deal not feasible for your Buyer.

4.  Common Area Fees. The same criteria which make munipcipal charges a problem can also be a problem with common area fees for a Condominium Unit purchase as a short sale. The Trustees of a Massachusetts Condominium have the power to foreclose on outstanding common area fees and sell the Unit at auction. Many Condominium Trustees are unaware of this power or unwilling to spend the time and effort to make these sales happen. Despite their sloth, the lien for common area fees still exists. Know the amount of the arrearages, and see what might be done to compromise same, so that future payments can be applied to the future, not past due arrearages.

5. Short Sale Documentation. Nothing short of an executed letter from the lender or lender is acceptable to confirm a short sale agreement. Accept no substitutes!!! Have the closing agent confirm the validity and accuracy of the executed letter before a closing is scheduled.

6. Offer and Purchase and Sale Provisions. A realtor I respect has told me she insists on the following approach, and language, when she is working with a short sale Buyer:

              a. She will put down no more than $100.00, with the Offer to Purchase or Purchase and Sale Agreement.

              b. The balance of the Buyer’s deposit will be due only upon receipt of lender written approval(s), which has/have been verified as duly authorized by the closing agent.

              c.  The period of inspection will commence only after receipt of the approval(s) described above.

              d. The Buyer’s financing contingency date shall be twenty (20) days after receipt of approvals(s). The Buyer’s financing application date shall be three (3) business days after receipt of such approval(s).

If the steps outlined above are taken, realtors can save themselves, and their Buyers, a lot of wasted effort and expense. There is nothing worse than having the belief that a short sale transaction is going through, only to find out that the proper authorizations have not been obtained from all people who have liens on the property, and a sale transaction which many people have worked hard to make happen, will fail. See my blog: www.realtorsresourceblog.com for other areas of interest

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