August 21, 2014
It took longer than I had anticipated but it has now officially arrived – a real life nightmare for thousands of homeowners who simply walked away from their upside-down Florida home. They knew the bank would foreclose but they thought that would be the end of it. Now they realize this is just the beginning, as the mortgage behemoth Fannie Mae has hired creepy debt collector company Dyck O’Neal to pursue deficiency judgments through the Florida courts. The Palm Beach Post reports:
“People are getting served with these deficiency suits and are absolutely shocked,” said Paul Baltrun, director of corporate development for the Law Office of Paul A. Krasker in West Palm Beach. “The size of the judgments — we’re not seeing $30,000 — these are at a minimum of $100,000.”
But there is a silver lining for those of you who are presently upside-down and facing foreclosure. A short sale can provide a full release of liability meaning once it’s closed you no longer owe anything to Fannie Mae or her creepy red headed step-child Dyck O’Neal.
April 24, 2014
If you’re curious why your short sale lender is asking you to pay them either by way of cash contribution or promissory note executed at closing of your short sale then the below information may be useful. Here is an excerpt from the article:
April 10, 2012
A federal judge who has fiercely criticized how big banks service home loans is fed up with Wells Fargo.
In a scathing opinion issued last week, Elizabeth Magner, a federal bankruptcy judge in the Eastern District of Louisiana, characterized as “highly reprehensible” Wells Fargo’s behavior over more than five years of litigation with a single homeowner and ordered the bank to pay the New Orleans man a whopping $3.1 million in punitive damages, one of the biggest fines ever for mortgage servicing misconduct.
“Wells Fargo has taken advantage of borrowers who rely on it to accurately apply payments and calculate the amounts owed,” Magner writes. “But perhaps more disturbing is Wells Fargo’s refusal to voluntarily correct its errors. It prefers to rely on the ignorance of borrowers or their inability to fund a challenge to its demands, rather than voluntarily relinquish gains obtained through improper accounting methods.”
The opinion reflects Magner’s disgust with tactics that Wells Fargo used to fight the case — and perhaps frustration with an appeals court ruling in a separate, but similar case, that overturned her order that would have forced Wells Fargo to audit and provide a full accounting for more than 400 home loans in her jurisdiction.
As The Huffington Post previously reported in a story co-published with The Center for Public Integrity, sources familiar with the preliminary findings said that the bank made costly accounting errors in the administration of practically all of those loans. (more…)
February 19, 2012
I live, breathe, eat, drink and occasionally sleep in what is considered by experts to be the heart of our Nation’s foreclosure crisis. I am a Florida licensed real estate agent whose practice consists solely of representing sellers in Florida on short sale transactions. Frequently, I am asked the following question by Florida homeowners: “A foreclosure has been filed against me, should I hire an attorney?” My answer is always: “You can, that’s up to you.”
I deal with Florida foreclosure defense lawyers every day. They represent the Florida homeowner in defending the foreclosure action through the courts and then refer their clients to me to handle the short sale. I deal with the bank on behalf of the homeowner, get the approval of the shorting lender typically as a full release of liability with $3,000 paid to the seller by the bank for relocation costs and we close the file. As a result of the successful HAFA short sale of the property, the lis pendens is discharged, the foreclosure case is dismissed, and the seller/borrower is forever free of this monstrous mortgage debt. The Florida attorney in that scenario filed a notice of appearance and an answer to the foreclosure complaint and that’s it – case closed – full settlement.
I received a call after 8 PM on Friday night from a Florida foreclosure defense lawyer working late. I didn’t get the message until Saturday morning. It looked like he was playing catch up on his files and was asking about a specific file that we were working on together – he was handling the foreclosure defense for a client in Clearwater, Florida and I was handling the short sale for the same clients. He wanted to know the status of the short sale. Below is the email that I sent to his paralegal in reply:
Bear in mind that he was asking about the status of this file on 2-17-2012 and he was unaware that the file closed on 12-30-2011. Some law offices are able to handle real estate closings so I sent the title work back to the law office and also had the shorting lender pick up an extra $900 tab for attorney fees for him. I had sent him the HAFA short sale approval earlier that month and we had the closing in his office so it was a surprise that he was unaware that the closing took place.
But I’m getting a little sidetracked away from my point. My point is that there has to be an end game for Florida homeowners in all of this. Florida homes mortgaged prior to 2009 are in large part underwater and many that I deal with are severely underwater by $50,000 to $100,000 or more. What is the goal in all of this? To lengthen the amount of time that the foreclosure will take to complete? And then what? Be left with a Florida deficiency judgment and/or continued collection on the mortgage deficiency for up to 20 more years? Is the goal to modify the loan? When lenders modify mortgage loans they typically make them temporary and do not modify the principal. This means that the lender can recall the loan and send you a past due bill at any time whether months or years later. I have repeatedly encountered Florida homeowners who have been told –by no fault of their own – that the lender decided that they did not qualify for the loan mod over a year after having being given the mod and now the lender demanded all of the past due amounts at once.
The fact is that we are in the throes of a housing crisis and it is going to be a slow crawl out of all of this mess. The foreclosure programs such as HAFA (the Home Affordable Foreclosure Alternatives) which allow a home to be short sold and require the bank to provide a full release of liability and give $3,000 to the home seller at closing are set to expire at the end of this year. Also, there are some dire tax consequences written in the IRS code for those who wait until after 2012 to complete a short sale. This means the time to settle the debt and get out of it without having to repay the deficiency or taxes on the debt forgiveness to the IRS is now, this year. Those who wait it out may find that these programs no longer exist come 2013.
This article is not to say that hiring an attorney won’t help the homeowner. Other than the cost, it certainly won’t hurt. And I don’t know your situation – maybe you have equity? Maybe you made all of your payments on time and were never late? Or maybe you came home one night and there was a creepy process server sitting in your driveway who handed you a Florida foreclosure complaint and the first thing that came to mind was: I should hire an attorney. So, I get asked that question a lot – a foreclosure has been filed against you and you want to know if you should hire an attorney? My answer: You can, that’s up to you. I will help you with the short sale.
Do you like what you read, then contact me for help with your Florida Short Sale
February 18, 2012
The Collection Advisor February 2012 issue brings us some creepy news from debt collectors on Mortgage Deficiency Collections.
“It could be said that some consumers might be in a better position financially post-foreclosure, as they no longer need to worry about making large mortgage payments. Any analysis regarding these deficiencies should begin with a discussion of whether the loan is recourse or non-recourse. A recourse loan is, ‘a loan that allows the lender, if the borrower defaults, not only to attach the collateral but also to seek a judgment against the borrower’s (or guarantor’s) personal assets.’ Blacks Law Dictionary 955-956 (8th ed., West 2004). The majority of states are so-called ‘recourse states’ and permit lenders to pursue a mortgagor personally for a deficiency after sale.”
“An interesting situation potentially arises where a creditor obtains a deficiency judgment against a consumer and places a judicial lien on another piece of real property at which the consumer resides. If the consumer subsequently files for bankruptcy and asserts his or her homestead exemption as to the residence, there is some question as to whether the bankruptcy code allows the consumer to avoid the judicial lien resulting from the deficiency judgment. One bankruptcy court has rules that the language of the bankruptcy code is ambiguous as to whether the judicial lien can be avoided in such a situation, and posited that a public policy concern called the ‘Flow of Capital Purpose’ should prevent avoidance of liens resulting from a deficiency judgment. See In re Crisuolo, 386 B.R. 389 (Banr. D. Conn. 2008).”
The bottom line is that if you own property in a recourse state such as Florida which allows creditors to obtain and pursue deficiency judgments then don’t delay on obtaining a full release of liability through a short sale at this time. Mortgage lenders will allow the debt to be settled with a zero balance now, but if you wait then all you have to look forward to are mortgage deficiency collections.
August 23, 2011
From MGIC’s Internal Loss Mitigation Manual, June 2011 Edition we learn the following with regards to ‘hardship’.
MGIC requires that you determine borrower hardship for certain loan workout options. We define ‘hardship’ as the borrowers’ long-term inability to maintain mortgage payments due to circumstances beyond their control.
To determine hardship, conduct a thorough review of the borrowers’ financial information.
Here are some examples of how MGIC defines hardship:
702.06 Deficiency decree; common-law suit to recover deficiency.—In all suits for the foreclosure of mortgages heretofore or hereafter executed the entry of a deficiency decree for any portion of a deficiency, should one exist, shall be within the sound judicial discretion of the court, but the complainant shall also have the right to sue at common law to recover such deficiency, provided no suit at law to recover such deficiency shall be maintained against the original mortgagor in cases where the mortgage is for the purchase price of the property involved and where the original mortgagee becomes the purchaser thereof at foreclosure sale and also is granted a deficiency decree against the original mortgagor.
August 7, 2010
HUD.gov – In an effort to help responsible homeowners who owe more on their mortgage than the value of their property, the U.S. Department of Housing and Urban Development today provided details on the adjustment to its refinance program which was announced earlier this year that will enable lenders to provide additional refinancing options to homeowners who owe more than their home is worth. Starting September 7, 2010, the Federal Housing Administration (FHA) will offer certain ‘underwater’ non-FHA borrowers who are current on their existing mortgage and whose lenders agree to write off at least ten percent of the unpaid principal balance of the first mortgage, the opportunity to qualify for a new FHA-insured mortgage.
The FHA Short Refinance option is targeted to help people who owe more on their mortgage than their home is worth – or ‘underwater’ – because their local markets saw large declines in home values. Originally announced in March, these changes and other programs that have been put in place will help the Administration meet its goal of stabilizing housing markets by offering a second chance to up to 3 to 4 million struggling homeowners through the end of 2012.
“We’re throwing a life line out to those families who are current on their mortgage and are experiencing financial hardships because property values in their community have declined,” said FHA Commissioner David H. Stevens. “This is another tool to help overcome the negative equity problem facing many responsible homeowners who are looking to refinance into a safer, more secure mortgage product.”
Today, FHA published a mortgagee letter to provide guidance to lenders on how to implement this new enhancement. Participation in FHA’s refinance program is voluntary and requires the consent of all lien holders. To be eligible for a new loan, the homeowner must owe more on their mortgage than their home is worth and be current on their existing mortgage. The homeowner must qualify for the new loan under standard FHA underwriting requirements and have a credit score equal to or greater than 500. The property must be the homeowner’s primary residence. And the borrower’s existing first lien holder must agree to write off at least 10% of their unpaid principal balance, bringing that borrower’s combined loan-to-value ratio to no greater than 115%.
In addition, the existing loan to be refinanced must not be an FHA-insured loan, and the refinanced FHA-insured first mortgage must have a loan-to-value ratio of no more than 97.75 percent. Interested homeowners should contact their lenders to determine if they are eligible and whether the lender agrees the write down a portion of the unpaid principal.
To facilitate the refinancing of new FHA-insured loans under this program, the U.S. Department of Treasury will provide incentives to existing second lien holders who agree to full or partial extinguishment of the liens. To be eligible, servicers must execute a Servicer Participation Agreement (SPA) with Fannie Mae, in its capacity as financial agent for the United States, on or before October 3, 2010.
June 24, 2010
Fannie Mae (FNM/NYSE) announced policy changes designed to encourage borrowers to work with their servicers and pursue alternatives to foreclosure. Defaulting borrowers who walk-away and had the capacity to pay or did not complete a workout alternative in good faith will be ineligible for a new Fannie Mae-backed mortgage loan for a period of seven years from the date of foreclosure. Borrowers who have extenuating circumstances may be eligible for new loan in a shorter timeframe.
“We’re taking these steps to highlight the importance of working with your servicer,” said Terence Edwards, executive vice president for credit portfolio management. “Walking away from a mortgage is bad for borrowers and bad for communities and our approach is meant to deter the disturbing trend toward strategic defaulting. On the flip side, borrowers facing hardship who make a good faith effort to resolve their situation with their servicer will preserve the option to be considered for a future Fannie Mae loan in a shorter period of time.”
Fannie Mae will also take legal action to recoup the outstanding mortgage debt from borrowers who strategically default on their loans in jurisdictions that allow for deficiency judgments. In an announcement next month, the company will be instructing its servicers to monitor delinquent loans facing foreclosure and put forth recommendations for cases that warrant the pursuit of deficiency judgments.
March 24, 2010
Reuters – Bank of America will on Wednesday announce plans to start forgiving mortgage loan principal for troubled homeowners who owe more than 120 percent of their home’s value or are battling ever-expanding “negative amortization” loans.
According to a summary of the program obtained by Reuters, Bank of America pledged to offer an “earned principal forgiveness” of up to 30 percent in two stages. The lender will first offer an interest-free forbearance of principal that the homeowner can turn into forgiven principal annually over five years, provided they stay current on their payments.
The forgiveness can allow a homeowner to bring the loan value back down to 100 percent of the home’s value over five years, according to the plan, confirmed by sources close to the matter.
The plan, to begin in May, is among the first by a U.S. mortgage lender that takes a systematic approach to reducing mortgage principal to tackle the thorny issue of preventing foreclosures when home values drop well below the amount owed.
A Bank of America spokesman declined comment.
Announcement of the program in Washington comes as U.S. lawmakers and housing advocates are becoming increasingly vocal about the need for principal writedowns in order to save homes on a large scale. Amid stubbornly high unemployment, homeowners are seen as more likely to simply abandon an unaffordable mortgage when they have no equity or are deep “underwater” on the loan.
The U.S. Treasury’s mortgage modification program has largely relied on reducing interest rates, and has been criticized for failing to address a steep and painful reduction in home values.
The announcement also will come two days after two Washington state residents sued Bank of America for allegedly reneging on a promise it made to modify troubled mortgages when it took $25 billion in taxpayer bailout money.
The lawsuit alleged that the lender has “seriously strung out, delayed and otherwised hindered” modifications because it had financial incentives to do so.
NEGATIVE AMORTIZATION LOANS TARGETED
Under the plan, Bank of America also will slash the principal balance on the worst of the high-risk mortgages written during the height of the housing boom, the so-called “payment option” adjustable rate mortgages that had a negative amortization feature that allowed the principal balance to grow.
On such loans that are delinquent and in danger of imminent default, the lender will announce that it will cut principal to as low as a 95 percent of the property’s value.
Bank of America lender also will expand its modification program to consider payment reductions on prime hybrid adjustable rate mortgages that have floating interest rates after two years and will extend its National Homeowner Retention Plan by six months until the end of 2012.
The bank expects to be operationally ready to start the earned principal reduction plan in May. It plans to identify mortgages that may be eligible for these programs and proactively contact homeowners to request documents to verify eligibility. (Additional reporting by Joe Rauch in Charlotte; Editing by Lincoln Feast)