Please Take Off Your Clothes

I just finished my first day of CDPE (Certified Distressed Property Expert) class, and am reflecting on one of the more profound insights given by the instructor, Mark Boyland. Mark, who is an excellent presenter, compared the difficult issues we have to sort out with distressed homeowners with the rather matter of fact way a doctor handles another rather touchy thing:

“Please take off your clothes. ”

At my last physical, the doctor hardly looked up from his clipboard when he said that. But he was pretty comfortable about the request- so comfortable, that it seemed as mundane as asking his secretary if anyone called while he was out.

Now, when a guy is that blasé about your prostate test, there is a lesson to be learned.

We have to ask clients questions that are probing and invasive in any other context but real estate:

• How much do you owe on your house?
• Are you current on your mortgage?
• Why did you fall behind on your payments?
• Etc. etc.

These aren’t comfortable questions to ask. And the answers might be very difficult to examine for a seller who is facing foreclosure or imminent default. But we have to ask.  As I have blogged before, privacy does not reside in a vacuum. The more we know about a client’s situation, the better we can serve them.

A physician can’t give a physical to a person in a parka. We can’t help a distressed home seller whose equity position and status with their mortgage company is a mystery. We have obligations of disclosure to others in the market place, but more importantly the answers to the uncomfortable questions affect our pricing strategy, marketing, negotiation methodology, and literally dozens of other critical issues that arise in the obstacle-laden, serpentine maze of loss mitigation.

We are between borrowers under financial stress and a large monolithic financial institution. Information is crucial. Patients need to tell their doctor where it hurts or they can’t be helped. It is the same in real estate. It isn’t fun to ask these personal financial questions, and while some of us are more comfortable than others about it, we have to ask. The more honest and forthcoming the client is in their answers, the higher the likelihood that they can be helped.

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How Much of a Loss Will The Bank Accept in a Short Sale?

How much of a loss will the lender accept in a short sale? I am asked this from time to time by consumers and agents alike. We always disclose when a property is being sold subject to lender approval, and I understand the rationale for asking about the numbers, especially with the high dollar value of New York area properties, but the question is actually a non sequitur. Here’s why:

Which home has a better chance of having the short sale being approved:

• A $600,000 home with a $650,000 mortgage
• A $600,000 home with a $850,000 mortgage

Many people assume that the house with the $50,000 shortfall is the one that will be easier to have the short sale approved. That assumption is incorrect. The fact of the matter is that the amount that the lender loses in a short sale is immaterial to the approval. Once hardship is established, short sale approval is based on the banks’s valuation of the home, chiefly through an appraisal or Broker Price Opinion (BPO). The lender could be losing $25,000 or $250,000- it doesn’t matter. It all hinges on that appraisal or BPO.

Why? Because you can’t expect to get more than the market will bring. And if the lender has to seize the home, they will do a BPO on the home and price it accordingly with no regard for the loan amount they foreclosed on. The lender is simply trying to minimize their loss. For that reason, the buyer’s terms are less important in many cases. A regular seller might give a significant premium to a cash buyer for example. A lender in a short sale probably won’t give that term much deference at all.

Therefore, the big question in a short sale is not how much the bank is losing or what they are owed, but if the offer on the table reflects comparable sales activity. That is the great yardstick by which approvals are measured.

 

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Recent Media Appearances

I have been prominent in two separate stories in the media this past week regarding default properties and their effect on the market and the borrower. This past Sunday I was in the New York Times, and on Tuesday I was in a nice piece on AOL Daily Finance.

The Times piece centered on strategic defaults, where borrowers who could otherwise afford a mortgage stop paying on purpose. Many people who do this do so for cash flow reasons; if you paid $350,000 for a house in the peak and the same house is for sale at foreclosure down the street for $180,000, some people just buy the cheaper one and let the old house go, cutting their payment. However, the credit consequences can be dire. The debate on the ethics of the practice is heated.

The AOL Daily Finance article is part of a series on how the housing crisis has affected different places. Mount Vernon, a city in Southern Westchester County which has been rife with short sales and foreclosures, was discussed in the article. Values are down in the neighborhood I am quoted on about 50%. What is not mentioned is that many of the foreclosures were actually renovated by the prior owner before they ran into financial problems, which punctuates the crisis, for me, in a very sad way. You hate to witness broken dreams.

Which is why we work so hard on getting our short sales closed and done for our clients. Preventing foreclosures is what we are all about.

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Can an Owner Reject an Offer in a Short Sale?

Contrary to what some may think, an owner is not obligated to submit every offer to the lender for approval in order to do a short sale. As a matter of fact, there are offers that an owner should never submit to the lender. That is the owner’s right, as they still hold title and ownership of the property, and the bank’s decision in a short payoff is simply the amount they’ll take to release the lien and settle the debt.

In Westchester and the surrounding areas of New York, offers are not submitted to the lender for approval, contracts of sale are. And those contracts are between buyer and seller, not the bank. The contracts are conditioned upon bank approval, but they are binding contracts none the less. And it can take every bit of 3-6 months for the lender to render a decision, all while the foreclosure wheel turns. If the owner goes to contract with an offer that is less than a realistic expectation of value, they can be six months closer to foreclosure when the bank issues their denial of the short sale.

Sellers are therefore looking for realistic offers, not for their own pockets, but to ensure the bank accepts the short payoff. If an offer can be judged favorably by 3 recent (i.e., 6 months or less) closed and 3 active comparables, the offer bodes well. Buyers who submit speculatively low offers, unsupported by 3 sold and 3 active,  are doing something ill advised; if their amount is not close to what comparable sales for similar properties are getting on the market, they could waste months waiting for the inevitable “no.” And that “no” could cost the owners their house.

We have a enough offers in multiple bid situations meeting resistance to the banks; lowball offers invite peril to the seller and frustration to the buyer. And it is ultimately the sellers decision as to whom they’ll go to contract with. A short sale sellers surrenders proceeds. But no owner surrenders their rights. While the bank makes the final decision on amount, it is the owner, on advice and market data from their agent, who determine what to submit to the bank for that decision.

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NY Times: Banks Resisting Short Sales

The top emailed story on the New York Times website today, Short Sales Resisted as Foreclosures Are Revived, is over 2 days old. That it remains pinned as the top story to share is significant, especially to anyone in New York who is facing foreclosure or in a short sale. Bank of America has, after an absurdly short period of time, ended its moratorium on foreclosures and deemed that its house is in order to resume foreclosures. Aside from the field day that thousands of attorneys will have in the coming years with this, my thoughts are a mixture of dislike for the decision and sadness for borrowers who are in default with Bank of America.

The resistence to short sales is particularly unfortunate. The suspension was hoped to be a catalyst for making short sales a more viable option, but banks have yet to devote sufficient resources to streamline the process. The rationale is a fear of fraud, but fraud only accounts for a minuscule percentage of short sales- like 1 or 2 percent. The other 98 or 99% ought not to suffer because of it. The resumption of foreclosures removes any chances of positive change, unless the government steps in, which the Obama administration seems unwilling to do.

There is a silver lining to the story: The New York Times is finally getting interested in examining why banks resist short sales when they are so much of a better option for all involved. The Times is also starting to follow the money- banks do have some financial incentives, such as accounting practices which you or I could not do to write off a loss, which makes foreclosures more attractive.

Make no bones about it: in the absence of a government with a spine, banks will look at short term gain and little else. Changing their architecture to accommodate short sales is an expense and a learning curve, and they will resort to dumb rationalizations and red tape hell to keep the foreclosure train rolling.

This makes a savvy short sale specialist more of a necessity than ever. We are still batting .900, closing  more than 90% of the short sales we list, and I think it is due in no small part to understanding who, and what, we are dealing with. Choose your agent wisely.

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Short Sale Fraud and Strawmen

This article in today’s NY Times makes reference to banks being reticent to approve short sale because of a fear of fraud. This is not the first I have heard the concern, and while any fraud is wrong, the argument is a straw man excuse to not streamline the process. Are there fraudulent short sales, where a family member buys and rents back, or an investor is flipping the house at a below market purchase? Yes. Should that ruin it for the 99% of the rest of the people? No, of course it shouldn’t. It is like being against health insurance because there are hypochondriacs out there.

A very small percentage of short sales are fraudulent.

Per the Times:

Concerns about fraud are one of the reasons lenders are so careful about short sales. Sometimes well-off homeowners want to portray their finances as dire and cut their losses on a property. In other instances, distressed homeowners try to make a short sale to a relative, who would then sell it back to them (a practice that is illegal). A recent industry report estimates that short sale fraud occurs in at least 2 percent of sales and costs banks about $300 million annually.

So 98% of the people should suffer? You’ll probably see the similar percentages on shoplifting. Should we close the malls?

It is just another excuse to not do the right thing.

$300 million is a drop in the bucket compared to the massive amount of wealth that has been plundered by the banks’ own fraud and deception. I’ll say it again: In the New York area, and Westchester county, where I am based, the property values are enormous and the dollars at stake for the regular borrowers facing foreclosure are enormous. They need to be treated right and presumed innocent.

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Who Negotiates a Short Sale in New York?

Recently, a listing brokerage instructed one of my agents to include a HUD-1 as part of our client’s offer on that brokerage’s short sale listing. To say that it was a peculiar request is an understatement; The HUD-1, which is a mandatory form in any transaction involving a mortgage financing, itemizes and documents all expenses for both buyer and seller. In New York, especially Westchester and the Metropolitan area, it is prepared by the seller’s attorney in a short sale, with approval from the bank approving the short sale, the  buyer’s attorney, their bank attorney, and the title company. Aside from the real estate commission line item, there is no involvement of the real estate agent.

While the request was for a “preliminary” HUD-1 and not the final form, the instruction for us to provide one was ill advised and questionable to my thinking. A I said, the form includes the seller’s expenses as well. How can the buyer’s agent possibly know the seller’s mortgage amount, mortgage payoff, back taxes, back payments, or other liens and expenses? The answer is that they can’t, unless the seller provides it. Why the seller would provide such information to the other side in a transaction is beyond me. They have their own fiduciary in their listing agent and attorney.

Maybe they had a great, innovative point; if so, I didn’t glean it from their Kramdenesque stutter when I inquired. We had an offer. They needed to present it and crunch the numbers on behalf of their client.

Upon occassion, I am contacted by “short sale investors” who promise my full commission, will buy my listing for cash, and re-list the house with me after they close. Tantalizing, huh? Oh, just one little thing: They want to negotiate the short sale themselves. In other words, they want to be an authorized third party designated by my seller client to deal with my seller’s bank.

No deal. You know who deals with my seller’s lender? Myself and the seller’s attorney as their fiduciary advocates. The bank won’t even talk to us for reasons of confidentiality without a signature authorization from the client. For a seller to authorize the purchaser to negotiate on their behalf with the bank for the short sale is antithetical to any agency rule on a listed home I have ever known.

As I said, it is the seller’s broker and lawyer who negotiate a short sale in New York. There are some outside companies who are paid by the seller to do so for a fee, but I do not hire them. I refer my short sale clients to an attorney who can do short sales in their sleep.

The point here is that everyone needs to play their position in a short sale transaction, and that our fiduciary responsibilities and duties to be an advocate don’t go out the window when a short sale is involved.

Who negotiates for the seller? It should be the people the sellers hire, preferably their agent and attorney, not the people they sell to.

Originally posted on my Westchester Real Estate Blog.

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Foreclosure Moratorium Will Boost New York Short Sales

Now that Bank of America has joined Chase and GMAC in suspending foreclosures in 23 states (BoA is actually suspending them in all 50), including New York, the entire industry is abuzz with questions as to what the consequences are for the market, a recovery, and most of all, distressed homeowners. Now known as the robo-signing scandal, the issue is calling into question the legitimacy of thousands of foreclosures.

What’s more, with foreclosures halted, what will banks do to dispense with default properties and non-performing loans? The answer to my mind is clear: start paving the way for more short sales. Title is passed from one owner to the next with no interruptions or questions, the process saves the banks both time and money, and more borrowers can move on with their lives with dignity which is all to often a missing element of the current system.

The advantages are enormous:

• In a short sale, the bank doesn’t have to take 1-2 years to repossess the home. They get their money faster.
• In a short sale, there are no legal fees associated with a foreclosure.
• In a short sale, the bank does not have to manage the property, put the utilities in their name, or winterize the property except in rare cases.
• Short sales are seldom boarded up, vandalized, or vacant. They therefore net the lender more money.

This has always been the case, and made me wonder why banks are so difficult, but with foreclosures off the table short sales now appear to be their only option.  With New York among the states that more lenders are suspending foreclosures, this gives distressed sellers breathing room, and, more importantly to my thinking, dignity.

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NY Times Discovers Short Sales 14 Months After They Arrived in New York City

With their article entitled The Roller Coaster Ride Called a Short Sale, the NY Times has examined the phenomenon’s arrival in Manhattan. Of course, I posted Short Sales Have Come to New York City in March of 2009. That is when I referred one of the first ever in Manhattan to my esteemed colleague, Eileen Hsu of Prudential Douglas Elliman. Eileen brokered the deal very well and it closed successfully, which came as no surprise because she is a fantastic agent. It doesn’t surprise me that the short sale is now in the news. The thing is, it isn’t new news. Eileen and I know that very well.

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Dealing with Second Mortgages in a Short Sale

New HAFA rules are forcing home sellers to negotiate directly with subordinate liens, or, in common terms, second mortgages, on their own, according to Bankrate.com. The way the rules are written, there is a financial incentive for the 2nd mortgage  to settle and release the lien, but the onus of getting assurances that the bank will settle rests on the borrower, which seems incongruous with the intent of the law. If the law is that the bank gets $3,000 from the government to settle, then it is the government who should be getting written assurances that they will indeed settle, not the borrower. The article points out that distressed sellers are already bleaguered and beaten up and in no condition to play hardball with another bank.

I agree. Distressed home sellers ought not do this on their own. They need an advocate, and a 3rd party with experience is very likely going to get a better result than a beaten up home owner. This is what we do, but rather than make this post a commercial I’ll also add that here in New York, the attorney should be on the front lines dealing with the 2nd mortgage as well as the first. The attorneys that we have on our team are excellent; the sellers can rest assured that the arrangements they help negotiate are the very best that can be agreed to. They also read the “fine print” with a fine tooth comb. The devil is in the details in these things, especially in New York.

All short sale agreements from lenders should be in writing, and all short sale agreements from lender should specify that they will not go after the borrower for the difference after closing. Anyone can get a short sale with no assurances of financial security after the closing. It takes a professional to ensure that the seller’s obligations in a short sale end at closing with no residual debt. That is our job, and that is how we do our short sales.

Doing a short sale on your own invites peril. We have done dozens, and that puts you in good hands compared to the guy in the mirror.

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The Wall Street Journal Agrees with Me on Short Sales

Amy Hoak’s timely article on HAFA and short sales in yesterday’s Journal concludes with timely advice that I wrote myself the very same day. The article focuses on the many pitfalls of short sales, as well as the new HAFA (Home Affordable Foreclosure Alternatives) regulations which are set to go into effect on April 5, 2010.

Here is what I wrote yesterday:

Yet people still do not ask their prospective agents how many short sales they have closed. You simply cannot be a specialist with no experience; I’m sorry. I don’t care if you have a PhD or a photo shaking the Pope’s hand. What they taught you in class simply isn’t all it takes to handle the loss mitigation department of a lender. Sellers need to understand that if they hire an inexperienced agent to do their short sale, they do so at their own peril. I’d never want a surgeon cutting their teeth on my gall bladder, a lawyer apprenticing at the expense of my freedom, or an agent getting their feet wet at the expense of my finances.

Simply ask : “How many short sales have you successfully closed?” prior to listing your home. That will guide you far better than a patch on their arm.

Sellers at the conclusion of the Journal article are advised much the same thing: to ask their prospective agent how many short sales they have successfully completed, and how many were lost to foreclosure.

Obviously, the word is getting out. Experience trumps marketing when your financial life is at stake.

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New Federal Short Sale Program Starts April 5

The NY Times is reporting on a new Obama initiative to create a financial incentive for banks and home sellers alike to do short sales. A few highlights from the article:

Program starts April 5, 2010

Lenders will be “compelled” to accept short sales. We’ll see about that.

The administration wants to streamline the process. We’ll see about that too.

Financial incentives are $1,500 to the home seller, $1,000 to the lender, and $1,000 to a subordinate lender.

Agents will be used to valuate the properties, but lenders will not be forced to accept offers beneath the agent valuation.

Continued at Westchester Real Estate Blog.

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Short Sale Fraud: By Banks!

CNBC is reporting that some banks are being accused of, of all things, bank fraud in short sales. Those of us who sell short sales know that the hardest cases are often the ones with subordinate financing, or in layman’s terms, a second mortgage. If you owe $500,000 on a house with a $425,000 1st loan and a $75,000 second mortgage, then a short sale for $400,000 cleans the 2nd loan out completely. If they are lucky, they will get $3000 from the first lender. They have little choice- if the house goes to foreclosure, they get nothing.

ON some files, the 2nd mortgage will try and negotiate an unsecured amount to be paid back by the borrower after the closing in exchange for release of the lien. That is their prerogative. It is, after all, money they are owed.

The fraud part comes when the 2nd lien wants cash paid to them that is not disclosed to the first mortgage holder. In other words, a “side deal” cash payment delivered at closing that is undocumented and not disclosed on the HUD-1 settlement statement.

So instead of Tony Soprano conspiring to defraud the first bank, it is the second bank. Has it happened? I’d say yes. Is it widespread? Hard to tell, probably not, but once is too many times. Does this surprise me? No. These are the institutions that screwed everything up to begin with. Nothing they do surprises me.

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Government: We Want 10 Day Short Sales

There is a new US treasury guideline that will, according to a report, mandate that banks make their decision on a short sale in 10 days. The new rule also proposes a $1500 allowance to the seller for moving expenses. I have said before that it shouldn’t take a lender more time to decide on a short sale than it currently takes to underwrite a mortgage. The process is virtually the same.

As enticing as 10 days sounds, I don’t see how it could be enforced, nor do I see 10 days as particularly realistic. It takes a week for example, to get an appraisal done. The pendulum does not need to swing so far the either way from 4 and 6 month short sales to under 2 weeks. I’d be happy with 30 days, and, frankly, so would the buyers. The banks are overwhelmed as it is, and they don’t have the staffing (or so they claim) to speed things up.

So how will they do it? Will this help or hurt? My fear is that, pressed to make a decision, the lenders will issue denials on deals they might otherwise approve if given a reasonable amount of time.

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Will Banks Finally Speed Up Short Sales?

There is some debate. I don’t think they will, for a variety of reasons, not the least of which is that they probably fear that if they make them easier, more people will try for one. Since the other side of the deterrent is foreclosure, and since loan modifications aren’t exactly saving the economy, status quo has at least enabled them to repay their TARP money, so why should they change now?

Bottom line: If you need to do a short sale, you still need an expert with experience, and not some guy who attended a seminar once.

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Bad Blood Toward Bank of America

Russell Shaw passes on a powerful email being sent to agents on how to deal with Bank of America’s difficulty with short sales- don’t send them any new mortgage business.

More thoughts here.

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Monroe, NY Short Sale: First Time Buyers

An old wrestling teammate from high school referred me to his younger brother, who is also newly married and looking for his first home (Thank you Facebook!). Michael and Stephanie had been out looking for a while, and a prior agent had written an offer for them which didn’t work out. They didn’t have a good experience with this agent. It mattered to them that I was not a random agent, but a referral from a trusted relative.

They are a very earnest couple, and once we found the right place, it turned out to be a short sale. Now, when I represent the buyer I can’t negotiate the short sale. The listing agent did it herself, the seller’s attorney was no help (useless, actually. wouldn’t answer our lawyers calls for days, if that), and it took over 4 months. There were two mortgages, which complicated matters terribly, and the 2nd released the lien but the sellers had to repay some of the loan. This happens sometimes.

Luckily, when the approval came through they had their act together, and were able to close a day ahead of the lender’s deadline. The closing itself was not without drama, as the seller’s attorney was never on point and our lawyer had to do some fast work that morning to make everything come together. The closing lasted 3 1/2 hours. But close it did.

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New York Short Sales- Now They Are Common

I recall listing my first short sale since the 90’s in 2006. The reaction from both the public and most agents to the term “short sale” was typically one of curiosity and confusion. What is a short sale? How does it work? How long will it take? Is it for real?

Now short sales are so common as to become as normal to real estate vernacular as “appraisal” or “kitchen.” Everyone seems to hear the term, and the explanation now takes 30 seconds instead of 15 minutes. I am currently representing buyers on 1 short sale purchase, have other buyers with a bid on one, and I am brokering almost a dozen on the selling end, which is actually a low number for me. The most expensive is over $700,000; the lowest price is a little over $150,000. Most range between $200,000 and $400,000.

The one thing they all do have in common is financial hardship and an upside down mortgage. Values are falling below mortgage balances and jobs are being lost in this economy. Values will continue to fall as short sales and bank-owned REO foreclosures dominate the sales statistics. If you have a $500,000 house, how can you compete with a $350,000 REO foreclosure down the street? It will be a happy day for this country when short sales become far less common.

For now, however, short sales are as common in New York Real Estate as they have ever been.

J. Philip Faranda is Westchester & the Hudson Valleys’s Premier Short Sale REALTOR. He has listed and sold successful short sales in Westchester, Rockland, Putnam, Dutchess, and Orange County, as well as the boroughs of New York City. Find out more at www.NYShortSaleTeam.com

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Obama and Administration Encourage More Short Sales

The government has moved to increase the incentive for lenders to allow short sales on their defaulted loans. I welcome this, although there is nothing specified as to how they’ll hold banks accountable for streamlining the process, which is rife with red tape, bureaucracy and long waits. If they truly want to make short sales happen more frequently to help more distressed homeowners out, they would mandate a maximum of 6 weeks for a short sale approval.

Continued  here.

J. Philip Faranda is Westchester & the Hudson Valleys’s Premier Short Sale REALTOR. He has listed and sold successful short sales in Westchester, Rockland, Putnam, Dutchess, and Orange County, as well as the boroughs of New York City. Find out more at www.NYShortSaleTeam.com

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Why Armadillos Don’t Own Real Estate

I have blogged previously that lizards who are smart enough to move survive and those that sit still are quickly eaten by any colonies. Both sitting still and moving are survival mechanisms, but depending on the circumstances one can kill you and the other can save your life. In a New York short sale, curling up in a ball might work fine for an armadillo to survive, but it doesn’t help a homeowner avoid a foreclosure. I have often stated that proactive sellers, who help themselves, have far better results. It’s just that simple.

Yesterday, I met with one of my agents and a client who had bought a home with her about 4 years ago. We have known for months that they were having difficulties, and for some reason they delayed meeting with us. In fairness, they were trying to refinance and then for a loan modification, but when that failed they went to an outfit that promised to solve all their problems for a fee. The money for the fee disappeared, but their problems did not.

Continue blog posting  here.

J. Philip Faranda is Westchester & the Hudson Valleys’s Premier Short Sale REALTOR. He has listed and sold successful short sales in Westchester, Rockland, Putnam, Dutchess, and Orange County, as well as the boroughs of New York City. Find out more at www.NYShortSaleTeam.com

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