Potential sellers who do not have a financial hardship sometimes change their mind when they realize the types of paperwork the bank needs in order to have a successful short sale. Much of this documentation is required to justify to the lender(s)  why selling “short” is the only alternative.  People who have assets which could be used to pay the mortgage note, but just want to “walk”, may be denied a short sale or face a deficiency judgment if a short sale is successful.

    In addition to the hardship letter which details why the seller cannot pay the mortgage, the bank requires an authorization letter from the seller authorizing the lender to speak with the Realtor or attorney.  The Realtor then must assemble the “package” for the lender which includes; income tax returns, pay stubs, bank statements including savings and retirement accounts, copies of bills, a list of assets and liabilitieis, monthly expenditures, and documentation of other unusual expenses.  Other information may be requested by the lender to support the case for short sale. 

      Up to date information must be obtained about homeowner’s dues, other special assessments, any other liens on the property, and property tax status.  Sometimes the seller does not have current information about these items and the Realtor must track down this information.

   Working  with a reputable agent is paramount.   The sellers’ information requested is private and confidential, and contains all of the necessary ingredients fora successful identity theft; another reason that propels “foreclosure scammers”.

    All of this information is considered by the lender(s) when determining if an offer on a property will be accepted.  The lender(S) needs to know if the seller can contribute any amount of funds to the sale of the property.  The seller should determine if they are in a “deficiency judgment” state, or “non deficiency judgement” state.  A deficiency judgement permits the lender(s) to collect from the sellers the amount of a specified “deficiency” after closing on the house.  If the property is a second home, often a deficiency judgment will be granted.  Sometimes a judgment will be granted to the lender holding a HELOC (Home Equity Line of Credit) if the funds were not used for the home, such as improvement. 

    Working with a competent Realtor and/or attorney and exploring options is one of the best things an “underwater” seller can do to get answers and help himself/herself.  A Certified Public Accountant can also be included in the team to discuss income tax consequences of any action. 

    Going to a short sale is a far better option for the seller than foreclosure.  Unfortunately many people who have their homes sold in foreclosure never asked for professional help and as a result, will suffer the consequences of credit deterioration for a longer period of time. 

    If you or anyone you know is having problems, consult a Realtor, an attorney, or a CPA as soon as possible. The more time to solve the problem, the better for the seller.  If you need help, contact me at terry@terrybishop.com, and I can provide you with the name(s) of someone in your area who can help you.

   Short sale and foreclosure scammers come out of the woodwork when opportunity presents itself, and in today’s market, when as many as one in four homeowners are underwater in some areas, “foreclosure expert” scammers see the tree ripe for picking.

   Understandably homeowners will buy in when a person or “company” says they can make the problem disappear.  That is human nature.  The first red flag is when the “foreclosure consultant” asks for money up front.  If you, or someone you know,  has been victimized by such a “forclosure consultant”, gather as much information as possible and report that to the Better Business Bureau, a local and state Consumer Protection office,  and the Attorney General’s office.

   These “experts” prey on people who have little understanding of the law and are adept at presenting a believable case.  Always ask for credentials and write that information down in case you need it later.  Ask for as much information as possible and if that information is not forthcoming, cease dealing with that person. 

      Many of these people are high powered salespeople, and they may present information to you which you thought was confidential.  Remember, many documents relating to real estate are public information. Any liens, late taxes, the date the home was purchased,  quit claim deeds and other documents are in the public domain. 

    If the homeowner is going to pay up front money up, he/she is better off hiring a competent attorney for up to the minute legal advice.  Many attorneys will not charge an “upfront” fee, but will bill when the problem is resolved.  An attorney on board, can advise whether filing for bankruptcy is prudent, and can direct the homeowner and often postpone have any foreclosure action postponed.  

    Several states have laws on the books, or are passing laws, banning upfront fees.  Consumer fraud divisions are rift with complaints and are burdened by cumbersome consumer fraud laws when apprehending and bringing these people to justice.

    A CDPE (Certified Distressed Property Expert) or a Realtor with the National Association of Realtors Short Sale, Foreclosure Resource (SFR) designation will not ask for up front money.  They will present their credentials and lay out a plan.  These are people licensed by the state, and in many instances, fingerprinted, and they do not get paid unless the transaction is consumated.  It is easy to check with the State Department of Real Estate to make sure the person is licensed which can often be done on line.

    The HUD.gov site has information about non profit organizations which are approved by HUD to give information about loan modificaitons, short sales, and foreclosures. 

    Know with whom you are dealing.  That is your best defense against fraud.

Resources:

Department of Housing and Urban Development – housing counselorshud.gov/portal/page/portal/HUD/i_want_to/talk_to_a_housing_counselor

Certified Distressed Property Expert:  http://www.cdpe.com/find-cdpe-results.html

National Association Realtors:   http://www.realtor.org/home_buyers_and_sellers/

Arizona Foreclosure Workbook from the Arizona Attorney General’s Office:

http://www.azag.gov/consumer/foreclosure/documents/StateTaskForceWorkbook.pdf

    Short sales?  Many people mistakenly believe they must be delinquent on the mortgage payment prior to doing a short sale.  However, a short sale can be initiated by the homeowner if a hardship exists. 

     If hours or salary is cut, a medical expense, an extraordinary expenditure, a death, an incarceration, a job loss,  any number of life’s problems—these situations should spur the homeowner to request that the lender agree to a short sale if the homeowner believes there will be a problem making the mortgage payment(s).

   The fact that the property is no longer worth what it was when originally bought is not grounds for a  short sale. 

    Being proactive is the key to a successful short sale.  The credit rating will suffer, but not as much as with a foreclosure.  Contacting the lender(s) immediately to inform the lender(s) of the situation is paramount. 

    Working with a Realtor who understands short sales and foreclosures such as a CDPE (Certified Distressed Property Expert) or an SFR, the new National Association of Realtors designation for Short Sale and Foreclosure Resource, can help the homeowner immensely.  The Realtor should first try and do a loan modification for which there is generally no compensation.  Only after knowing this is not possible should the Realtor embark upon a short sale.

    Under no circumstances should a homeowner pay someone for a loan modification or sign up for a “rescue program”.  Scams abound, and many are illegal.  Often a homeowner is worse off, having spent precious funds on a bogus solution.

    Realtors trained in short sales know how to document and talk with lender negotiators, and in many instances, cut through the red tape by preparation and understanding of lender systems.   

     The lender(s) does not want to take back the property;  Lenders are not in the business of owning property and a successful short sale is beneficial to all parties involved.  Pricing properties accurately for a short sale is paramount.  The lender is looking for a fair market value, not a deal and a half for a buyer. 

     Sellers must be prepared to document their hardship, provide pay stubs, income tax returns, copies of savings and retirement accounts, as well as details of assets and liabilities.

    Tomorrow:  Options other than Short Sale

    Terry Bishop, a Realtor with RE/MAX Excalibur in Tucson, Arizona has earned her CDPE and her SFRas well as other designations.  She can be contacted at terry@terrybishop.com for further information.

The path taken by people trying to get out from under negative equity or mounting bills is littered once again with potential legal problems for Realtors, buyers, and sellers.  The passage of the Arizona Senate Bill 1271 emphasizes the need for people to seek legal counsel when contemplating a foreclosure or short sale.

The Arizona Association of Realtors  (AAR) requested that Governor Jan Brewer amend the call for a Special Session of the Legislature to review the issues resulting from the passage of Senate Bill 1271, otherwise known as the Anti Deficiency legislation.

This bill states that within 90 days of the sale of property under a trust deed, “an action may be maintained to recover a deficiency judgment against any person directly, indirectly, or contingently liable on the contract for which the trust deed was given as security…”

This does not apply to any property 2 ½ acres or less used as a one family or single two family dwelling by the trustor  for at least six months and for which has a certificate of occupancy was issued

The legislation continues that the deficiency judgment will be for an amount equal to the amount owned to the beneficiary as of the date of the sale, as determined by a court.  This can be for the difference in the fair market value, less the amount of liens owed, and includes any interest which may be incurred. 

The party seeking remediation must act within the 90 day period, and if no action is pursued, the proceeds of the sale are considered full payment of debt.

In the letter to Governor Brewer, Tom Farley, CEO and Cheif Lobbyist for the AAR,  points out this bill applies people with second homes, rental property, and family owned property.  Developers, Farley said, are not protected . The statute points to the “subtle difference” in the property “being utilized as a one or two family dwelling”  which is how the existing statute reads, rather than the amended version which specifies “the focus is on the trustor themselves utililizing the property instead of the property being utilized”.

Farley’s letter came as a result of researching case law and the consequences of this bill.  He substantiates the letter with case law from various jurisdictions.  Lenders receiving Troubled Asset Relief Funds (TARP) are authorized to seek deficiency judgments against property owners after foreclosure.  Deficiency judgments allow for the judgment creditor to garnish the wages of the judgment debtor, employ collection agencies, garnish non earnings such as bank deposits, take non-exempt property and sell it at a public auction to satisfy the debt, and place a judgment lien on real property owned or later acquired by the judgment debtor.

The legislation came as a result of lobbying from the Arizona Bankers Association.  Arizona is one of the highest foreclosure/short sale states and Arizona bankers would like to recover some portion of the millions of dollars lost.  The bill, as of this writing, is scheduled to go into effect September 30, 2009.  Unless rewritten in the special session, the courts may be filled with lenders seeking deficiency judgments against former homeowners, which will create another series of problems including a rush to file for Bankruptcy on the part of judgment debtor.

Resources:

Text of SB 1271:

http://www.azleg.gov/legtext/49leg/1r/bills/sb1271s.pdf

Arizona Association Realtors:

http://aarnews.com/

http://aarnews.com/?s=SB+1271&x=26&y=9 

Other Blogs about SB 1271:

http://en.wordpress.com/tag/sb-1271/

   Any number of life events can cause a homeowner to become delinquent on his or her mortgage payment:  loss of job, divorce,  death, incarceration, medical bills, caring for children’s children, caring for parents, adjustments in mortgage terms, accident.  These are life’s events.  Mortgage delinquency is not planned.

   The State of Arizona, through Attorney General, Terry Goddard, and the Arizona Foreclosure Task Force, has issued a booklet about foreclosure which can be download from your computer.  The workbook, which provides timely and accurate information, is at:

                http://www.arizonaforeclosuretaskforce.com

Although this information was written for the citizens of the Grand Canyon State, the worksheets and general information pertain to anyone.  The specifics of foreclosure in Arizona may differ in your state; check with your local HUD office or your own Attorney General’s office, or seek the counsel of a qualified attorney and Realtor who understand the foreclosure process. 

The booklet warns against “scams” where people promise to keep you in your home or suggest you can get a better interest rate.  The old adage applies:  “If it’s too good to be true, it probably is”.

Although it is often frustrating, people who believe they may be in financial trouble, should contact their lender immediately and determine if any “work-out” can be done.  Keeping a journal of information detailing the time and date, plus the general conversation and to whom you spoke is important.  Chances are you will not speak to the same person when you make calls and having this ready reference will be be invaluable. 

You should be prepared to detail the “hardship” you face and a “hardship letter” will be required if you eventually go to a “short sale”. The worksheets in the booklet help the consumer detail how and when the hardship took place. 

For the state of Arizona, a list of housing counselors is provided.  If you are located outside of Arizona, call your local HUD office (Department of Housing and Urban Development listed under the Federal Government).  Housing counselors are trained to work with the lenders and may have more success than you as an individual homeowner may have.  They will need your information from the worksheets.

Budget forms are provided since the lender will want to know about your personal assets and liabilities.  Easy to use forms help determine what type of loan (s) you may have on your property.  Once you complete this information, you should have a good understanding of your financial situation and whether a short sale or foreclosure is the only option, or whether you can keep your home. 

Options are detailed if you elect not to keep your home which also includes bankruptcy and the types of bankruptcy.   Finally  there is a segment on scams and how to recognize a scam.

Remember, this is public information and as soon as Notice of Sale if filed with the Recorder’s Office, people will come out of the woodwork offering to “help” you.   If you know of someone who may be facing financial difficulties, share this information with him or her. 

Be proactive and knowledgeable, for in knowledge there is power.

Resources:

http://www.arizonaforeclosuretaskforce.com/wp-content/uploads/2009/05/2009-arizona-consumer-foreclosure-info-wrkbk.pdf

www.hud.gov

      We all are familiar with the person who needs to buy “whatever” at a discounted price, but doesn’t act. When when the price goes up, he/she begins the “I coulda….I woulda…I shoulda…” refrain.   Things are miserable because he/she missed the “golden opportunity” to buy at rock bottom prices.

   But how many of us are intelligent enough or savy enough to get what we want at rock bottom prices? Too many factors impact pricing and especially the price of real estate.  You may follow interest rates, but do you follow the bond market, and the stock market?  And what impact does the bond market and the stock market have on the price of real estate?

     In my experience, I have had potential investors tell me they wanted to buy “a good property”…and I ask, “what is a good property?”…The standard answer is …”I need a property with a positive cash flow”…and then I ask, “is that on paper or is it actual?”  

      There is a big difference here.   The potential buyer wants the money in hand, month after month.  The greater gain may be on paper through capital appreciation by inflation, plus the tax advantages.

    I ask the buyer if he/she has an investment philosophy….and I have rarely received a satisfactory answer. I begin to explain philosophies of investmen;  A properties, B properties, C properties; university properties, active adult communties, snowbird rental properties; Section 8 properties…areas of town, concentrating properties all in one area, or throughout town …and the big question, who will manage the properties…?

     What is the point of all of this?  For the investor willing to dig a little deeper, willing to do some elbow grease, willing to have a bit of patience on short sales, or purchase bank owned properties, this is the Tucson time now which will be “woulda, coulda, shoulda” in another few years.

    With a well thought out investment philosophy utilizing 1031 Tax Deferred Exchanges,  doing the homework necessary, and understanding the potential of leveraging, combined with today’s lower interest rates and low prices,  the time is now.  The key to the puzzle is an excellent Realtor and a desire to suceed.

    Couldas, Wouldas, Shouldas, are a dime a dozen and in three years a lot of people will be crooning that tune.

Resources:

http://en.wikipedia.org/wiki/Internal_Revenue_Code_section_1031

http://www.realtor.org/library/library/fg408

     Although lenders say they want to sell properties and don’t want to become property owners, it seems they could streamline the entire short sale process.

    It is well known that the entire short sale process can be extremely frustrating and time consuming.  I speak from experience.   I have had four buyers who made full price offers on properties which were classified as short sales.  In every instance, the buyers pulled the contract and walked away because the time element involved in trying to purchase a short sale property was 30-60-or 90 days before the lender could give the potential buyer an answer and close the transaction.

     In each instance, the buyer found a resale property to purchase.  In a resale transaction, the seller can provide an answer to an offer to purchase within usually a 24 hour time frame.  That can be acceptance, a counter offer, or simply a refusal to answer if the offer is not satisfactory to the seller.  But any good Realtor knows and tries to instruct their seller to always counter offer. 

     Part of the problem with lenders is that they work a normal workweek, unlike Realtors who work on commission and therefore are more sensitive to time elements.   It is true that often there is a first and a second mortgage on a property and  in order to have a successful short sale, both lien holders have to agree to the terms and conditions of the contract, as well as the investors.

    But it seems to me that lenders could streamline the process and sell more properties if they do some preparation when a homeowner wants to do a short sale.   If there were a method by which appraisals could be done prior to listing the property for sale, and the lender indicated to the Realtor or homeowner that any price x amount or more will be accepted, then the long delays would cease.

    A buyer would make an offer, hypothetically within the guidelines.    The paperwork would be completed for the appraisal and that offer would be immmediately accepted by the lender, second lien holder, and investors. Certainly this requires more up front work prior to listing the home, but once the offer is made, the transaction can proceed smoothly.   Buyers would not walk away in frurstration.

    Lenders would be able to sell more homes and get the losses off the books.   For every month the lender is not receiving a mortgage payment, costs accrue including taxes and insurance.  Often people who know they are going to loose their home stop taking care of the home and defer maintenance.     Once the lender owns the property, addiitonal costs accrue including this deferred maintenance.

    There is no question there are many entitites involved in a short sale.  With foresight, it appears the transaction could progress far more smoothly to the benefit of all parties, if the homework were done upfront.