Latest Mortgage & Real Estate News - 1-8-2018

Homeowners are Sitting on Trillions in Cash 
Following the housing crash, millions of borrowers fell underwater on their mortgages, owing more than their homes were worth. Fast-rising home prices over the last two years have brought borrowers above water and beyond. Approximately 80 percent of homeowners now have equity they can use, cash which could fuel the economy. Just 2.7 percent of borrowers, or about 1.36 million, still owe more on their mortgages than their homes are worth. Read More at CNBC.

The Banks with the Most CFPB Complaints in 2017
LendEDU, an online marketplace for student loan refinancing, put together a list of banks that received the most consumer complaints in 2017, as measured by the number of complaints per billions of dollars in deposits. Read More at Housing Wire. 

Mortgage Loan Modifications Basics

If you’re struggling to make your monthly mortgage payments or have fallen behind, you may be at risk of losing your home. But depending on the circumstances, you may be eligible for a loan modification, which can make it easier to stay on top of mortgage payments and avoid foreclosure. If you’re in this position, here’s what to know about getting a mortgage loan modification. Read More at NerdWallet.

Latest Mortgage & New York Foreclosure News - 12-23-2017

The Federal Housing and Finance Agency Changing Credit Models To Expand Homeownership Opportunities
FHFA’s request for input is a step forward towards creating a marketplace where credit scoring models can be judged on their predictiveness, innovation and inclusivity instead of the status quo where the government has created a de-facto monopoly for FICO,” said Barrett Burns, VantageScore Solutions president and CEO. “Monopolies never benefit markets or consumers and they create the opportunity for pricing power unchecked by competition. Read More at HousingWire.

New Foreclosure in NYC Up 79% in 3rd Quarter 2017
The number of first-time foreclosures in NYC surged 79% year-over-year in Q3 2017 – 859 homes were scheduled, compared to 481 in Q3 2016. After a peak in foreclosure activity in Q2 2017, with 911 new foreclosures scheduled across all 5 boroughs, Q3 2017 brought a slight slowdown in the number of cases. This translates into a 6% decrease quarter-over-quarter, following a trend we’ve noticed when tracking foreclosure data as Q3 is usually slower than Q2. By property type, single- and two-family homes have seen the highest increases in Q3 2017. Read More at Property Shark. 

Latest Student Loan News - 10-2-2017

Half all Millennials would Give up Their Right to Vote to have Their Student Loans Forgiven
It's not news that millennials are in debt. 42.3 million Americans owe a total of $1.33 trillion in federal student loans, according to the U.S. Department of Education. 20-somethings pay on average $351 a month, reports the Federal Reserve. The median monthly payment for that age range is $203. Now a survey from Credible, conducted through Pollfish, offers insight into just what millennials would be willing to do to be free of those loans. The most popular answer the 500 respondents between the ages of 18 and 34 chose for what they would be desperate enough to sacrifice: suffrage.Half of them said they would give up the ability to vote in the next two presidential elections. Read more at CNBC

From studentloanhero.com - The Complete List of Student Loan Forgiveness Programs and Options
Have you ever wished your student loans would just go away? While there’s no way to snap your fingers and have your student loan debt magically disappear, there are ways to get it forgiven. There are various student loan forgiveness programs out there for people who work in public service, education, and other areas. Some states are even helping debt-saddled graduates pay off their loans. Whether you’re struggling with six-figure debt or looking for “free money” to pay off your student debt, student loan forgiveness could save the day.

Latest Student Loan News - 7-18-2017

As Paperwork Goes Missing, Private Student Loan Debts May Be Wiped Away
Tens of thousands of people who took out private loans to pay for college but have not been able to keep up payments may get their debts wiped away because critical paperwork is missing.

The troubled loans, which total at least $5 billion, are at the center of a protracted legal dispute between the student borrowers and a group of creditors who have aggressively pursued them in court after they fell behind on payments.

Judges have already dismissed dozens of lawsuits against former students, essentially wiping out their debt, because documents proving who owns the loans are missing. A review of court records by The New York Times shows that many other collection cases are deeply flawed, with incomplete ownership records and mass-produced documentation... Read More at NY Times

Your Student Loans Might Be Forgiven Thanks to Some Lost Paperwork
Ah, student loans. The first of many bad decisions you made in college. At the time, they seemed like a great idea. After all, how could you be expected to get a job in the modern world without a four-year degree in English literature? It's not like they're going to let you make money in this world if you don't have an informed opinion on Shakespeare's comedies! But now that years have passed and you've realized that you could probably have the exact same career that you have right now if you just started interning after college while picking up bartender shifts on the side, the $60,000 you owe is beginning to look a little ridiculous. Throw in all the recent news stories about Betsy DeVos and the Trump administration's plans for the Department of Education, and the picture begins to look a little terrifying. Well, have I got some potentially good news for you! According to a new report from The New York Times, a combination of lost paperwork and the shady way in which private student-loan debt is handled has conspired to potentially wipe away your loan debt... Read More at GQ

Latest New York Foreclosure News - 5-9-2017

Repeat foreclosures in New York City have reached an all-time high

New York homeowners are in default mode — again. The city leads the nation in repeat foreclosure filings and the winner in all this is the residential mortgage servicing industry, which collects monthly payments and cashes in on fees for every homeowner’s misfortune. The number of repeat foreclosure filings in New York City far outstrips that of other major cities like Los Angeles, while New York state is No. 1 for repeat foreclosures, outpacing every other state and the US as a whole. In a report prepared exclusively for The Post, Attom Data Solutions found that in New York City last year, roughly 4,900 — or more than half of all new foreclosures filed — were repeats, up from just 5 percent in 2008. Read More at NY Post

QUIET TITLE NY - Mortgage Eliminated and Removed from Property Due to Acceleration of Mortgage Loan and Statute of Limitations. 

In a pair of decisions in which lenders lost the right to foreclose a New York Supreme Court judge and a New York Appellate Court each decided that the 6 year statute of limitations prevented the lender from collecting the mortgage loan. In Augustine Diji v. Deutsche Bank, a judge for the New York State Supreme Court, Kings County, wrote a decision eliminating the plaintiff, Diji's, mortgage. The judge ruled that Diji's mortgage loan was accelerated in 2007 and after 2 failed foreclosure cases Deutsche Bank's time ran out to file a foreclosure. Based upon Deutsche Bank's failure to file in time the mortgage was removed from the property. In a highly watched case, the Appellate Court in Beneficial Homeowner Service Corp. v. Tovar, ruled that the lender's foreclosure case must be dismissed because the statute of limitations had passed. The Appellate justices said that even if a homeowner is not served with foreclosure papers a lender's acceleration of a mortgage loan still remains valid.          

CoreLogic: Foreclosures sink to lowest level since 2007: Serious delinquency rate remains relatively high on East Coast
Serious delinquencies and foreclosures continue to drop, hitting near decade lows in February, according to the Loan Performance Insights Report from CoreLogic, a global property information, analytics and data-enabled solutions provider. Mortgages delinquent by 30 days or more, including those in foreclosures, made up 5% of the market share in February, a decrease of 0.5 percentage points from the year before, according to the report. “Serious delinquency and foreclosure rates continue to drift lower, and are at their lowest levels since the fourth quarter of 2007,” CoreLogic chief economist Frank Nothaft said. “Moreover, the past-due share dropped to 5%, the lowest since September 2007.” Read More at Housingwire.

Brooklyn court moves to dismiss thousands of foreclosure cases: Lawyers say homeowners will be negatively affected by the action
The court said it planned to dismiss all cases filed before Jan. 1, 2016 that have seen no court activity after Sept. 30, 2016. It quietly published a notice of the administrative dismissal in the New York Law Journal on Thursday, April 27, giving parties until Monday, May 1 to contact the court to keep their cases alive. Foreclosure defense lawyers say that while it might seem like a good thing for foreclosure cases to be dismissed, it would in fact be extremely negative for homeowners battling lenders. For one, all of the motions a homeowner had filed taking issue with the lenders' claims would be lost. In addition, many of the delays could be due to the lenders dragging their feet, lawyers say, but dismissing the case without fault to either side would allow the lenders to relaunch their case with a blank slate. Read more at DNAInfo.

Latest Foreclosure News 11-1-2016

Freddie Mac Plans to Make Crisis-Era Foreclosure Prevention Permanent 

Freddie Mac is working with it's regulator the Federal Housing Authority to "create permanent foreclosure-avoidance programs as" HAMP is set to expire this year, December 31, 2016 and HARP is set to expire on September 30, 2017. Read more at HousingWire.com.

Boomerang Borrowers are Here!!

Housing Wire reports on the rise of the "Boomerang Borrower". Essentially, a "Boomerang Borrower" is a borrower who has established "responsible credit behavior" and "improved" credit scores. These borrowers, once hit by the 2008 and 2009 financial crisis (foreclosure, short sales, etc.), are now experiencing the removal of negative credit data from their credit report due to the seven year limit for negative information. Thus the opportunities for this "group to qualify for mortgage loans" are growing. Read more here at HousingWire.com.

New York Foreclosure Alert - 9-29-2016

New York recently adopted sweeping legislation to reform the foreclosure process. New York's Governor, Andrew M. Cuomo, signed legislation into law that:

1. Enhances the effectiveness of settlement conferences for homeowners by prescribing the rights and duties of the parties and clarifying how the process should work to best protect homeowners contesting foreclosures and prevent them from losing their homes.

2. Establishes a Consumer Bill of Rights informing property owners of their rights in foreclosure proceeds to prevent people from losing their homes.

3. Creates the Community Restoration Fund (CRF), a new tool for the State of New York Mortgage Agency (SONYMA) to assist homeowners facing mortgage foreclosure. CRF will purchase defaulted mortgage notes from other lenders and offer favorable mortgage modifications to keep homeowners in their residences. CRF will have the ability to forgive a portion of a loan’s principal and make the loan affordable in areas where home values have declined or where a homeowner has experienced a decrease in income.

4. Imposes a pre-foreclosure duty on the banks and servicers to maintain vacant and abandoned properties. The bank has a duty to maintain and secure a residential real property where there is a reasonable basis to believe it is vacant and abandoned, and faces civil penalties up to $500 per violation, per property, per day for failing to do so.

5. Expedites foreclosures for vacant and abandoned properties.

6. Requires a lender to auction a property within 90 days of obtaining a foreclosure judgment. In addition, a foreclosing party would be required to take action to ensure that the property is reoccupied within 180 days of taking title.

7. Establishes an electronic registry of vacant and abandoned properties.

8. Provides a mechanism to “expeditiously complete a foreclosure” and work with land banks, Community Development Financial Institutions, and other local nonprofits to rehabilitate properties and resell them to new buyers.

Latest Foreclosure News 5-3-2016

Ocwen responds to National Mortgage Settlement foreclosure holds 4-28-2016
Early Thursday morning, Joseph Smith, the monitor of the National Mortgage Settlement, announced that Ocwen Financial was not in compliance with one of the performance metrics of the National Mortgage Settlement and prohibited the nonbank from taking foreclosure actions on more than 17,000 loans. According to Smith’s office, Ocwen “was delayed” in implementing its Corrective Action Plan for the failure of Metric 31, which relates to the mortgage servicer sending a loan denial motivation to a borrower, because of “difficulties in resolving the technical issues that led to the original fail.” Smith’s office said that because of those issues Ocwen must place 17,496 loans that "could have been affected" by this issue on foreclosure hold... Read More at the Housing Wire

Ocwen foreclosures frozen after National Mortgage Settlement compliance failure 4-28-2016
Less than one day after posting a massive loss for the first quarter of 2016, the nonbank has run afoul of the terms of the National Mortgage Settlement and is now forbidden from taking foreclosure actions on more than 17,000 loans. According to Joseph Smith, the monitor of the National Mortgage Settlement, Ocwen is not yet back in compliance with one of the performance metrics of the National Mortgage Settlement that it failed in the second half of 2014. Smith’s office announced in October that Ocwen failed metric 31, which tests whether the mortgage servicer, Ocwen in this case, sent a loan modification denial notification to a borrower that included the reason for the denial, the factual information considered by the servicer in making its decision and a timeframe by which the borrower can provide evidence that the decision was made in error... Read More at the Housing Wire

Greece Economic Crisis : Pros and Cons of Debt Forgiveness

A recent Bloomberg article provided, in my opinion, the most succinct analysis of the pros and cons of debt forgiveness.

Bloomberg reported on the economic plight of Greece. Greece basically "strategically defaulted" on its debt due to it's inability to pay its creditors. Greece fell victim to Europe's debt crisis when Wall Street imploded in 2008. All of the risky investments finally caught up to Greece like so many other countries, companies, and individuals. A group of European countries tried to help Greece (to keep it from destroying the European Union) by providing several bailouts to Greece totalling, at least, $264 billion. At the same time, the International Monetary Fund (as a condition to lending money) has been pushing for the forgiveness of Greece's debts by its creditors.

The article briefly outlined the benefits of debt forgiveness as follows:

Strategic Default Alert

2 factors driving the trend toward strategic defaults for student loans 1-13-2016
The term “strategic default” was added to the financial glossary during the housing crisis of 2007-08. It meant homeowners made deliberate decisions not to keep making mortgage payments because they believed foreclosure would ultimately cost less than continued ownership of underwater homes. Now, the trend is gaining ground among recent college graduates with student loans--but it is impacting certain types of students and schools far more than others. Nationally, about 14 percent of all federal student loans default within three years after students leave college. A default generally is declared when a student fails to make timely payments for 270 days, and the consequences are severe including wage garnishment, loss of Social Security benefits, and confiscation of federal tax refunds. Read More at BenefitsPro

Short sale tax break on verge of being extended until 2017 12-18-2015
Homeowners who had short sales in 2015 are about to get big break on their taxes, thanks for a massive federal spending bill that’s about to be signed into law by President Obama. The Mortgage Debt Forgiveness Act was set to expire at the end of 2015, and without an extension, any mortgage forgiveness achieved in a short sale would have been counted as income for homeowners whom banks allowed to sell their homes for less than the amount of their mortgage during 2015. But an extension to the Mortgage Debt Forgiveness Act was included in the fiscal 2016 federal appropriations and tax relief bill, which passed both the House of Representatives and the Senate on Friday. Read More at the Housing Wire

Debt Defense News Alert

Consumers Will Get $60 Million in Refunds From Debt Collectors 9-12-2015
Two of the nation’s largest debt collectors must refund nearly $60 million to consumers and stop trying to collect on another $128 million in debts, after an action filed by federal regulators Wednesday. San Diego-based Encore Capital Group and Virginia-based Portfolio Recovery Associates are accused of pressuring consumers with false statements and churning out lawsuits using robo-signed court documents by the Consumer Financial Protection Bureau. The two firms and their affiliates purchased a mammoth amount of debt resulting from unpaid bills — together, more than $200 billion in defaulted consumer debts on credit cards, phone bills and other accounts, according to the CFPB. Encore and Portfolio purchase the right to collect on the debts for pennies on the dollar, then attempt to collect the original amount from consumers... Read More at Time Money

Student Debt Update

Recent news on the student debt movement have brought light to the solutions commonly associated with mortgages and linked them as the potential solution to the growing issue of student debt. Aside from the utilization of the approach of strategic default, increased concern by the government has led to debt forgiveness initiatives targeted to students who had been misled by for-profit colleges across the United States. Check out the link to the Student Debt Monitor page to read more.

Got Questions? Get Answers... MD Is Concerned About Her Family's Future And Is Considering Strategic Default

Got Questions?

To Whom it May Concern;

I came across the term 'strategic default' recently while researching the idea of letting my home go into foreclosure. I am not a homeowner struggling to pay my bills, I have excellent credit and not very much credit card debt.  I was looking for a way to avoid bankruptcy if possible.

I purchased my home about 7 years ago.  I was a single mom of 2 young boys and my tiny, 2 bedroom ranch made perfect sense for us at the time.  I planned on making improvements over the years and being able to some day sell my home and make a profit.  However, we are now desperate for a bigger home and unfortunately owe more than I could sell it for.  I have talked to representatives with HARP who say that because I have no trouble paying my mortgage that they can't help me. I have talked to my mortgage servicer and they can't help me either.  I would not qualify for a short sale, deed in leiu or even to refinance.

I struggle with this idea feeling that staying here and paying my mortgage every month is the morally right thing to do but this home no longer suits our needs as a family and is in need of repairs that I simply cannot afford. I met with a "real estate" attorney thinking he could help guide me.  He had never heard of strategic default or the mortgage debt relief act.  He was unable to tell me anything.  He said I was asking a lot of what if type questions he couldn't answer.  He told me because I pay my bills I should simply keep doing that.

I came across your website and it said you offer consultation on such a process and to email you.  So, I would appreciate any information you could provide to help guide me in the path that is right for my family and I.

Thanks for your time.

Sincerely,
MD

Get Answers...

Strategic Default Best Practices: Consider The Tax Implications

In this article we will explore how to properly analyze a strategic default in connection with any potential tax liability. This is the first article in our new series: Strategic Default Best Practices. 

Many homeowners who have strategically defaulted now recognize it can several years for a lender to collect a debt or to foreclose on a property. In fact, many homeowners continue to live in and/or rent their property while strategically defaulting.

It stands to reason that a homeowner who strategically defaults intends to be in a better financial position.  The homeowner has not made mortgage payments for several years while living in and/or while renting part or all their property. What a paradox?  By not making mortgage payments a homeowner can potentially improve their financial profile. In fact a properly implemented strategic default can create a better financial future for you, your family, or your business. Keep in mind that maintaining a good credit score is not possible when implementing a strategic default. Thus a “credit score" is not an important financial consideration during a strategic default. The primary goals of a strategic default are to protect and increase cash flow, to protect and increase savings, and to protect and preserve wealth/assets; all with the aim of reducing or eliminating the total debt and/or any tax. 

There is no free ride when it comes to not paying a debt. In our book, Strategic Default: How To Create A Better Financial Future for You, Your Family, or Your Business we outlined the principle "Debt Is Similar to the Physics Principle of Matter and Energy". There is a principle in physics that matter and energy can neither be created nor destroyed; they can only be rearranged. Debt follows the same lines. Once debt is created it cannot be destroyed unless it is restructured and resolved. Therefore, if a debt is not settled or resolved, then the debt will remain as long as the creditors are legally allowed to chase you for it. For example, a money judgment can last for 20 years in New York. Original lenders and 3rd party debt collectors will always attempt to collect unpaid debts plus interest and penalties. The tax authorities (IRS and states) will always attempt to collect taxes on forgiven debt and/or rental income. Keep in mind that the Mortgage Forgiveness Debt Relief Act ("MFDRA") provides a tax exemption for forgiven debt in certain circumstances. However, the MFDRA is set to expire December 31, 2012 unless the federal government renews the law. 

Debt Defense 101: The Must Know Rules Of Debt Defense

The basic rules of Deficiency Debt Defense 101 are an ever growing list of MUST DO and MUST IMPLEMENT RIGHT NOW basic strategies in order to achieve the goal of deficiency debt defense.

Deficiency debt also known as debt deficiency arises when collateral that is used to secure a loan cannot satisfy the total amount due on the loan. It happens most often with debt involving real estate. However, it can occur in other types of collateralized loans such as car, business, and equipment loans. When a loan goes unpaid, the lender has the right to auction off the property to pay off the debt. If the lender collects less than what is owed at the sale, the shortage is called debt deficiency. A lender can turn a debt deficiency into a deficiency judgment. Please read What Everyone Should Know About Debt Forgiveness, Obligations and Deficiencies to learn more about debt deficiency and the consequences of a deficiency judgment.

The primary goals of deficiency debt defenses are to:

1. Reduce the Risk and Amount of Deficiency Debt.
2. Strengthen Your Defenses Against Deficiency Debt.
3. Lengthen The Time To Pay Back The Deficiency Debt.

A proper defense requires that you plan and prepare now. So make sure to implement all of these rules. Make sure you come back and read these rules every month. We will be adding new rules along the way. Also, each rule will be further detailed and expanded in future blog posts. We will do our best to apply each rule to a real life scenario.

In the meantime start reading and start preparing.

1. Do not ignore any legal papers. Always prepare a defense to every legal action. Always respond to a legal action in writing. It LENGTHENS the time and STRENGTHENS your defense 100% of the time.

2. Try to save every debt collection message with a live voice on your answering machine. Save messages that appear to be aggressive, intimidating, or threatening.  It may be useful if you need to prove a creditors improper tactics. Make sure you keep track of calls about your debts to other people or businesses.  There are creditors who may contact family, friends, or business associates. This must be stopped. You can use a cease and desist letter to try and put a stop to phone call communications. 

Debt Defense Must Read Alert: Principles and Strategies for Dealing with Deficiency

The Wall Street Journal reported in its aptly named article House Is Gone but the Debt Lives On that lenders and/or third party debt collectors are suing borrowers for deficiency judgments. 

This is not a new issue. This has been a growing concern among borrowers. There is a dawning realization that if a property cannot pay off the mortgage loan balance in full then the borrower will be responsible for the shortage. We talked about deficiency debt in our March 2010 post entitled Plan To Be Followed When You Walk Away From Debt. As predicted, there has been an increase in lawsuits for deficiency judgments.

This current post focuses on principles and strategies that can be a guide  towards resolving deficiency debt.

A deficiency debt arises when a property sold at a foreclosure auction cannot generate enough proceeds to pay off the entire loan amount. If a lender can prove to a court that a borrower is personally responsible for the payment of a deficiency debt then the lender can obtain a deficiency judgment against a borrower. A deficiency judgment is a court order that directs a debtor to pay the lender a certain amount of money. A deficiency judgment includes the principle balance, unpaid interest, legal fees, escrows, and/other costs. A deficiency judgment allows the lender to collect interest until the balance is paid in full. It provides a lender with various tools to collect the judgment such as the right to garnish wages, the right to place a hold on a bank account, and the right to place a lien on personal property or real estate. A deficiency judgment can appear on a credit report. If you are not clear about deficiency debt please read the article What Everyone Should Now About Debt Forgiveness, Obligations, and Deficiency.  

There are three alternatives that can arise from the auction of a property at a foreclosure sale:

1. The property is sold to the highest bidder or,
2. The lender takes the property in full satisfaction of the debt or,
3. The borrower redeems the property by paying in full at auction.  

If a lender takes the property at an auction then there is no deficiency debt arising from the loan made by the lender. If the lender decides to take a cash bid at an auction, instead of the property, then the borrower may be responsible for the difference between the total amount due on the loan and the amount collected from the cash bid.  

Keep in mind that an auction may not always eliminate a second mortgage and/or Home Equity Line of Credit ("HELOC"). A foreclosure auction typically deals with the loan that is the subject of the foreclosure lawsuit. A foreclosure lawsuit is usually started by the first lien mortgage lender. A borrower can still remain liable for a second mortgage and/or HELOC after the first lien mortgage lender takes the property at an auction.

Each state has specific laws governing the collection of a deficiency debt. In some cases, states prohibit the creditor from seeking more than the collateral used to secure the loan. This is called “non-recourse” or “anti-deficiency.” This means that a creditor cannot hold the borrower personally liable for more than the value of the property at the time of sale. In a “recourse” jurisdiction such as Ohio, if a borrower owes a lender an $100,000 deficiency after a foreclosure sale, then the lender can sue the borrower for the difference, i.e., get a deficiency judgment against a borrower. You can learn more by reading What Is The Difference Between Non-Recourse and Recourse States. 

The WSJ article contained important points which should serve to remind all strategic defaulters about the need to develop a written action plan. The following are the main points from the article: 

Planning For A Strategic Default Series : Putting Together Your Financial Snapshot and Gathering Documents

In our last post in our Planning For A Strategic Default Series we wrote about the importance of Developing an Action Plan before initiating a strategic default. We are now going to focus on preparing an income and expense form and gathering documents. These are steps 2 and 3 respectively of Chapter 8 from our guide book Strategic Default: How To Create A Brighter Financial Future For You, Your Family Or Your Business. Chapter 8 provides an introductory step-by-step guide on how to successfully initiate and complete a strategic default. 

If you are like most strategic defaulters, in addition to owning underwater property, you possess other types of debt such as school loans, business loans, credit cards, and home equity lines of credit.  

Remember. The primary objectives of a strategic default are cash flow protection, savings preservation, and wealth protection. So putting together a financial worksheet and keeping proper records is an important step towards your objectives. All of these objectives point to one inescapable conclusion. Your ultimate objective is to be in a better financial position by the end of a strategic default.  

So let's take a look at steps 2 and 3.

Got Questions? Get Answers... RH Wants To Protect His Daughter's College Fund After Strategic Default

Got Questions?

I would like to do a strategic default, however, I'm concerned that BOA will be  allowed to take my daughter's college fund, which is only $17,000, and also pursue me relentlessly for years.  Is this true for residents of North Carolina? Our home, which we paid $385,000 for three years ago is now worth $290,000,  which is less than we owe. We can just about afford to stay and pay all of our  bills but this could change if our income goes down even slightly. Thanks for any advice you can give. RH

Get Answers...

Got Questions? Get Answers...BSE Wants To Walk Away From Two Investment Properties in Vegas

GOT QUESTION?

This question has to do with two properties I own in Las Vegas. Briefly , they are two townhomes in the same develpoment w/ mortgages by two different lenders. Both are intrest only ARM's due to adjust in 2012 and 2013. I've owned them since 2005 and they are currently worth 50% of what I paid. Principe balance on one is $204,000.00 and $172,000.00 on the other. I'm current on both and they are rented but with neg. cash flow. I sold my buisness in 2004 and all of the note payments from the sale of my buisness has gone into these two properties. When these mortgages adjust I most definately will not be able to afford them. My wife and I are both on the notes, she is currently employed and I work part time on a cash basis. We also own our home her in New York as well as a commercial property. The lenders won't talk to me until I miss at least three payments, I'm condisering walking away. What are the potential consequences? By the way I put down $50,000.00 on each of these properties.

Thanks for your help!

BSE

GET ANSWER…

Dear BSE:

Thank you for writing.

First of all, you and your wife are equally liable and equally responsible for the mortgage loan since you both signed the note. A lender or creditor will not differentiate between who signed the note first or last, as long as it has been signed by each party.

The primary risks of a strategic default are:

1. Deficiency debt leading to a deficiency judgment.
2. Lower credit score.
3. Loss of the home or property to a foreclosure sale.
4. Recently, Fannie Mae implemented a rule that bans a person from
obtaining a Fannie Mae mortgage, if that person strategically defaults. The ban last for seven years. Furthermore, the United States Government may pass a law that bans a person from obtaining a government insured loan, if it is proven that a person strategically defaults. Read this link to learn more.
5. Debt collections tactics, including mail, letters, personal visits to the
property, phone calls to cell phone, work, and/or family members. Not all debt collection tactics are legal. You should become familiar with your state’s debt collection protection laws and the Fair Debt Collections Protections Act. Read this link to learn more.

My experience has established that most people who strategically default are most concerned about deficiency debt. Most people do not want to be chased down for more money by creditors or lenders.

Let’s go through deficiency debt issues carefully. A deficiency debt also known as debt deficiency arises when collateral that is used to secure a loan cannot satisfy the total amount due on the loan. The unsatisfied amount due on the loan is a deficiency debt.

A deficiency judgment is an unsecured money judgment against a borrower whose mortgage foreclosure sale did not produce sufficient funds to pay the underlying promissory note or mortgage loan, in full. A deficiency judgment can be obtained when there is a deficiency debt.

You mentioned that your properties are in Las Vegas, Nevada. Nevada is a recourse state. That means a lender has the right to seek a deficiency judgment. A lender must file for a deficiency judgment in a certain period of time after a foreclosure sale. Please read this link to learn more.

If a lender or creditor forgives the deficiency then you will not be exposed to a deficiency judgment. When a lender or creditor agrees (IN WRITING) to forgive a debt as opposed to seeking a deficiency judgment, then the forgiven debt may be considered income by your state taxing authority and the IRS. Forgiven debt is income.

Under current Federal Law if a debt is forgiven on a primary residence then there is no tax due to the IRS. However, your properties are investment properties so it is unlikely you can benefit from the rule.

There are ways to minimize your risks of a deficiency judgment:

You can negotiate a principle reduction. This is when a lender or creditor agrees to reduce the principle balance of a loan. You can ask the lender to forgive the difference (IN WRITING) as part of the negotiation.

You can negotiate a deed-in-lieu. This is when you enter into a written agreement to give the property back to the bank. The key is to negotiate a full settlement of your total outstanding mortgage debt including fees and penalties in exchange for the deed to your property. A full settlement of your total outstanding mortgage debt eliminates a deficiency and tax liabilities. A partial settlement still leaves open the possibility of a deficiency judgment or forgiveness of the remaining balance.

You can negotiate a short sale. This is when a lender let’s you sell your property for an amount less than what is owed on the mortgage. Essentially your lender may be willing to accept less than the full amount due on a mortgage. If you owe the lender $400,000 then the lender may agree to let you sell the property for $350,000.

In all these cases you must get the lender to agree to forgive the deficiency.

Beware of the Turn In Your Financial Documents Trap. This happens when the lender’s representative asks you to turn in your financials via telephone or fax in order to see if you qualify for a loan workout, principle reduction, deed-in-lieu, or short sale. Before you agree to turn over your financial documents ask the lender to send you something in writing stating that they will seriously consider a work out option if you turn over your financials. Or ask the lender to direct you to their website regarding their loan workout processing rules. The problem I have is this: What happens to your financial documents, if your lender refuses to negotiate a loan workout? Can the lender use this information against you? For example, can the lender use the information during a foreclosure action or during a lawsuit seeking a deficiency judgment? In order to collect on a properly obtained deficiency judgment, the creditor or lender must locate your bank account, or locate your investment account or locate your place of employment or locate any other asset that has value. I don’t think anyone wants to turn over their financial documents to be used in any way to take their money.

If you do decide to turn over financial documents to the creditor or lender, then cross out all of the account numbers. If the creditor or lender refuses to work with you after you have turned over your financial documents then immediately move all of your money and your investments to another financial institution. Only turn over what the lender asks for nothing more.

A creditor or a lender has the right to garnish wages if it properly and legally obtains a deficiency judgment in a court of law against a person who entered into a legal loan agreement with the creditor or lender. Your wife could be exposed to wage garnishment if the creditor or lender successfully obtains a deficiency judgment against her.

Keep in mind that even if a creditor or lender successfully obtains a deficiency judgment, it does not mean all is lost. You can negotiate a settlement with the creditor or lender. The creditor or lender may take 50% or less than what is owed instead of spending time in court. Also keep in mind to NEVER LET A LAWSUIT FOR A DEFICIENCY JUDGMENT GO UNDEFENDED. NEVER IGNORE THIS TYPE OF LAWSUIT. The simple reason is that you may stop the creditor or lender from getting a judgment or you may be able to use your defense to this lawsuit as a means to negotiate a settlement.

A critical decision is how to protect your assets. There are various tools and strategies that can be employed to legally protect or hide your assets from a creditor. Keep in mind there is a rule called fraudulent conveyance. Essentially, a fraudulent conveyance is when a debtor transfers their assets in a way to prevent a creditor from collecting on a debt. There are specific rules regarding fraudulent conveyance, so this should not prevent you from properly protecting your assets.

Unfortunately, you will lose your initial $50,000 investment. However, you should speak to an accountant to determine what happened to your cash investment if the property is sold at a loss.

You should seriously consider working with a qualified real estate broker, attorney and/or accountant in order to understand your specific risks.

You have much to consider. I am confident you are on the right track.

Please feel free to write me at anytime.

Sincerely,

Augustine A. Diji