Editor's Pick
FEBRUARY 10, 2010 1:21AM
After the Foreclosures: Lender Revenge?
Rate:
19
Think of the entire Snidely Whiplash mortgage lender mess as an endless pile of stinky onions, all with very moldy cores.
Lenders knew they were in a precarious position before the full weight of the mortgage failures began. At first, in the court of public opinion, they tried with great valor (read: foolishness) to blame the consumer for the rash of the first foreclosures. Too many flimsy loans to unqualified individuals who were facing the wrath of fluctuating interest rates didn't fly well. When those consumers could not pay, lenders foreclosed. With the house debacle out from under, the former home owner, even with the black mark of foreclosure on the credit report, could breathe and perhaps start over. Or so they thought.
Meantime and almost simultaneously as the big banks were begging for public bailouts, the second wave rolled forward. Commercial and multi-property investors were tossing in the towel. This group, commonly referred to as flippers, was caught with too much inventory that plummeted in value when the markets crashed. They could not sell their inventories and simply walked away. In some cases these property owners included the same banks and lenders (hello, Morgan Stanley) who were now asking for the public
The next wave was by far the most emotionally draining and the lenders were smart to back off the PR that blamed the consumer. These were the very people who were the solid rock of the real estate market. These homeowners, well qualified for their loans, paid them religiously on time and never in arrears. For the most part they viewed the property as a long term investment.
Their home values fell along with the rest of the market. And what got them into financial ruin was absolutely out of their control. They lost the very jobs that brought the income to pay those mortgages. Without income or assets, lenders were forced to foreclose. These were not the greedy flippers, or the pie in the sky unqualified buyers. These people were a good part of the bedrock of our economy. If they didn't make the economy sing, they at least allowed it to hum.
And now, another wave of foreclosures in this mortgage debacle is emerging as the stinkiest layer of the onion. These walk-away foreclosures are probably the ones that will be a part of every economics ethics syllabus for the future. The ethics of economics? A true oxymoron.
The walk-aways are ably employed. They have assets. They have income to spare. But their investment, their home, is under water and will never recover to the point where they will see a profit. These people are looking at the bottom line and calling it a day. They are walking away and taking the FICO hit. They are washing their hands, running far away and starting over. Or so they believe.
If a homeowner could sell the property before it was foreclosed, it was typically for an amount way less than the original loan. This is a short-sale. If the lender forecloses and sells at auction, it also is typically for an amount that isn't anywhere near the original loan or even the current value.
The difference in the loan(s) balance outstanding at the time of sale, and the selling price is something that most people assume was a hit the lender would take. A write off, a loss. People assumed that if they were rid of the property through any sale, or foreclosure, they were free from the whole burden. Unfortunately, this is not true. To recoup the loss, the lender's legal remedy is the deficiency judgment.
Lenders are recouping those losses any way they can. They have years, once a deficiency judgment is issued, to collect. With interest. In the beginning of the economic meltdown, courts were sympathetic to the plight of the borrower and would deny the judgments. But there is an uptick in the number of deficiency judgments in States where they are allowed.
Protection from this practice, non-recourse is offered in a handful of states. The law forbids a lender from going after the borrower. The difference between the original loan and the short-sale/auction is written off. Forgotten by everyone, that is, except the IRS. Even in non-recourse states, there are circumstances where the lender can and will go after the borrower for the difference. A borrower may be able to negotiate a release for the short-sale/auction difference if the lender will sign off. The end result if you get stuck? The lender would say it is your fault for not reading that tiny fine print.
The industry that is reaping the biggest spoils in this mess? Collection agencies. They're buying up these judgments as fast as they can. The lenders sell them at a loss (which they write off, of course) and the collection agencies employ any means to satisfy the debt, for the next twenty years.
And one more consequence to painfully hammer in that last nail in the mortgage coffin? When lenders in any of these scenarios write off the debt, they can send out IRS 1099 forms to former borrowers for the amount. The borrower must declare it as income on their 1040. Now they have another enormous debt, a tax liability.
Lenders, IRS and collection agencies? The evil Snidely Whiplash has more faces than Eve.
Comments
You hit a nerve here
with this one. I could go on for hours about the mortgage mess; and how
are government continues to perpetuate the problems rather than
alleviating them. As an attorney whose real estate practice exploded
with the housing market boom and has since imploded with the current
crisis, I have seen too many people who should not have received
mortgages, too many people who were made false promises by their
mortgage companies, and, now (as you point out) too many people who have
become innocent victims of their homes' plummeting value through no
fault of their own.
The day our "leaders" wake up and admit that the crisis was the result of overzealous lenders, responding to the cries of a pandering government pleased that all of its constituents could get their "American Dream" home, even if they really couldn't afford it, will be the day that the healing can finally begin.
Until then, it will be wave after wave. Tsunami is more like it.
Rated
The day our "leaders" wake up and admit that the crisis was the result of overzealous lenders, responding to the cries of a pandering government pleased that all of its constituents could get their "American Dream" home, even if they really couldn't afford it, will be the day that the healing can finally begin.
Until then, it will be wave after wave. Tsunami is more like it.
Rated
The IRS won't likely
inform those who have lost their house through short sale or foreclosure
of the Mortgage Debt Relief Act of 2007. Details at www.irs.gov on a
FAQ page. It is for "acquisition" loans, both first and second
mortgages. It does not apply to home equilty lines of credit, known as
HELOC loans. It may not apply to certain re-finances. It's intent is to
prevent the IRS from collecting tax on the 1099 amount. It is limited to
a $2 million sales price cap so keep reading.
Some are using it on their first mortgage. Then instead of getting a 1099, they negotiate with the second mortgage lender like this: Let's say the second is 50K. The second maybe gets 5K in the short sale, and says they will issue a 45K 1099. So the borrower says, in lieu of issuing a 1099 generating the tax obligation,what about taking the 5K now and release the lien so it sells. Then take the 45K, and ask that they reduce it to a promissory note
( private unsecured debt), about 1/3 of the amount owed. Say 15K .Maybe 5% interest spread out over 10 years. if they agree, the borrower either pays that or as many find they cannot, their bankruptcy attorney advises that they specifically name the new 15K unsecured debt in a bankruptcy.
No tax. More taxpayers holding that bag. Individual moves on.
It's an ugly pie no matter how you slice it.
Some are using it on their first mortgage. Then instead of getting a 1099, they negotiate with the second mortgage lender like this: Let's say the second is 50K. The second maybe gets 5K in the short sale, and says they will issue a 45K 1099. So the borrower says, in lieu of issuing a 1099 generating the tax obligation,what about taking the 5K now and release the lien so it sells. Then take the 45K, and ask that they reduce it to a promissory note
( private unsecured debt), about 1/3 of the amount owed. Say 15K .Maybe 5% interest spread out over 10 years. if they agree, the borrower either pays that or as many find they cannot, their bankruptcy attorney advises that they specifically name the new 15K unsecured debt in a bankruptcy.
No tax. More taxpayers holding that bag. Individual moves on.
It's an ugly pie no matter how you slice it.
There are many good
observations here but let me add some specific recommendations for
people who are in these situations.
1. Never – ever- agree to a short sale. Short sales do not benefit you as an afflicted homeowner. Short sales benefit lenders, real estate agents and buyers….they never benefit you and they have the same effect on your credit as a foreclosure. The only exception to this rule is when you are selling the property to a related party who is going to help you to keep the property “in the family.” Even then, be very careful to get a written exemption from recapture claims by the lender or third parties to whom the debt has been sold.
2. Never give back a deed in lieu of payment because the consequences are exactly the same as though triggered by a short sale.
3. Do NOT walk away from a property. Abandonment does not protect you from subsequent legal actions to recover losses.
4. If you are facing foreclosure, and you want to stay in the area, stay in the house, make the utility payments, maintain the property as well as you can…but do not leave until the foreclosure process has run its course.
5. If you do not want to stay in the house, try to rent it out. Renters have specific rights in some states that prevent lenders from easily foreclosing on a rented property.
6. When the foreclosure process has run its course, declare bankruptcy. This stops foreclosure in most states and buys you more time in the house.
7. Before you declare bankruptcy, use up all of your available credit – if you have any left- and convert obligations that survive bankruptcy – tax obligations and student loans – into obligations that will be wiped out by the bankruptcy. (There are books out there that tell you how to prepare for bankruptcy in ways the give you material benefits – lawyers and accountants usually do not give you this advice so you have to do your own research.)
8. Never sign anything without consulting an attorney, not even the most innocuous seeming piece of paper can come back to castrate you.
As you go through this process, you’re going to feel like an asshole.
Keep remembering this: you were sold down the river by an evil industry, aided and abetted by the government that was supposed to protect you from the wolves.
1. Never – ever- agree to a short sale. Short sales do not benefit you as an afflicted homeowner. Short sales benefit lenders, real estate agents and buyers….they never benefit you and they have the same effect on your credit as a foreclosure. The only exception to this rule is when you are selling the property to a related party who is going to help you to keep the property “in the family.” Even then, be very careful to get a written exemption from recapture claims by the lender or third parties to whom the debt has been sold.
2. Never give back a deed in lieu of payment because the consequences are exactly the same as though triggered by a short sale.
3. Do NOT walk away from a property. Abandonment does not protect you from subsequent legal actions to recover losses.
4. If you are facing foreclosure, and you want to stay in the area, stay in the house, make the utility payments, maintain the property as well as you can…but do not leave until the foreclosure process has run its course.
5. If you do not want to stay in the house, try to rent it out. Renters have specific rights in some states that prevent lenders from easily foreclosing on a rented property.
6. When the foreclosure process has run its course, declare bankruptcy. This stops foreclosure in most states and buys you more time in the house.
7. Before you declare bankruptcy, use up all of your available credit – if you have any left- and convert obligations that survive bankruptcy – tax obligations and student loans – into obligations that will be wiped out by the bankruptcy. (There are books out there that tell you how to prepare for bankruptcy in ways the give you material benefits – lawyers and accountants usually do not give you this advice so you have to do your own research.)
8. Never sign anything without consulting an attorney, not even the most innocuous seeming piece of paper can come back to castrate you.
As you go through this process, you’re going to feel like an asshole.
Keep remembering this: you were sold down the river by an evil industry, aided and abetted by the government that was supposed to protect you from the wolves.
As always, a great
piece of work here, LnP. My heart is broken and bleeding for these
people.
There but for the grace of god....
There but for the grace of god....
Kasey - You are exactly
right. The middle class is getting screwed six ways to Sunday on this.
It will be a never ending nightmare for some families.
Sophieh - thanks for coming by!
Andy - tsunami is exactly right. I wish that everyone would get a really great real estate attorney before dealing with the lender. So many people think they are able to walk away safely and start over. Thank you for coming by and adding words of wisdom.
also - yes, true. That can happen (I did say they can get a 1099, not will). However, in order for all that to work smoothly for the borrower, they should have access to some sort of support outside of what a lender might offer (because we know the lender is going to protect their asset first) and that really ought to be an experienced legal source. Since it is not automagic that the debt is forgiven, the right questions/answers need to be delivered on all the paperwork. And certainly while many qualify, others will not, like many of the walk-aways. Thanks for pointing out the Debt Relief Act. I should have probably discussed that as well. And I agree, the whole thing is one big smelly pie. My take is that if a lender through their own representation or by selling the debt to collections, wants to recoup the loss, they will find any means necessary and they have a posse of lawyers to make it so. And thank you for adding this info. It is important.
sage - a great list. should be handed out to every borrower who is in arrears so they are prepared. unfortunately most are struggling privately until it can't be private anymore, and then it is too late. And thank you for adding this.
donna - what a great observation. I can just visualize the round-up. Morgan Stanley, Merrill, Goldman, Citi, BOFA, all gathered in front of the court to answer the deficiency judgment summons. Where is Bob, the cartoon guy when you need him?
Bonnie - thank you!
Ash - thanks so much. mine too. so many people's lives changed on a dime.
Sophieh - thanks for coming by!
Andy - tsunami is exactly right. I wish that everyone would get a really great real estate attorney before dealing with the lender. So many people think they are able to walk away safely and start over. Thank you for coming by and adding words of wisdom.
also - yes, true. That can happen (I did say they can get a 1099, not will). However, in order for all that to work smoothly for the borrower, they should have access to some sort of support outside of what a lender might offer (because we know the lender is going to protect their asset first) and that really ought to be an experienced legal source. Since it is not automagic that the debt is forgiven, the right questions/answers need to be delivered on all the paperwork. And certainly while many qualify, others will not, like many of the walk-aways. Thanks for pointing out the Debt Relief Act. I should have probably discussed that as well. And I agree, the whole thing is one big smelly pie. My take is that if a lender through their own representation or by selling the debt to collections, wants to recoup the loss, they will find any means necessary and they have a posse of lawyers to make it so. And thank you for adding this info. It is important.
sage - a great list. should be handed out to every borrower who is in arrears so they are prepared. unfortunately most are struggling privately until it can't be private anymore, and then it is too late. And thank you for adding this.
donna - what a great observation. I can just visualize the round-up. Morgan Stanley, Merrill, Goldman, Citi, BOFA, all gathered in front of the court to answer the deficiency judgment summons. Where is Bob, the cartoon guy when you need him?
Bonnie - thank you!
Ash - thanks so much. mine too. so many people's lives changed on a dime.
Thirty years experience
managing foreclosed real estate for banks from eviction through closing
has taught me that former owners should never relinquish possession
until legally evicted!
Government policy in an attempt to rescue the real estate market will ensure that the foreclosure train will not stop anytime soon. Fannie Mae, Freddie Mac and FHA are absorbing the lion's share of risk for the U.S. mortgage market. A huge percentage of buyers receiving the $8000 1st time buyer credit financed their purchase with 6% seller concession, 3.5% down, FHA financing. They left the closing with money in their pockets and put nothing down! Our government decided this was a responsible practice, creating new loans which were already under water during the underwriting process.
March 31, 2010 the government will stop buying Mortgage Backed Securities. It is difficult for me to believe that this void can be adequately filled. Rates will certainly increase. The plot thickens. In addition to higher mortgage rates, state and municipal governments are experiencing financial problems which will cause increases in property taxes. Where will the money for these higher taxes and mortgage costs be deducted from? With negative income growth, high unemployment and falling real estate values, home buyers will compensate for these increased costs by reducing the price they pay for a home.
A continuing stream of foreclosures, a weak economy and increased principal, interest, taxes and insurance expenses will assure downward pressure on real estate values for many years to come.
Government policy in an attempt to rescue the real estate market will ensure that the foreclosure train will not stop anytime soon. Fannie Mae, Freddie Mac and FHA are absorbing the lion's share of risk for the U.S. mortgage market. A huge percentage of buyers receiving the $8000 1st time buyer credit financed their purchase with 6% seller concession, 3.5% down, FHA financing. They left the closing with money in their pockets and put nothing down! Our government decided this was a responsible practice, creating new loans which were already under water during the underwriting process.
March 31, 2010 the government will stop buying Mortgage Backed Securities. It is difficult for me to believe that this void can be adequately filled. Rates will certainly increase. The plot thickens. In addition to higher mortgage rates, state and municipal governments are experiencing financial problems which will cause increases in property taxes. Where will the money for these higher taxes and mortgage costs be deducted from? With negative income growth, high unemployment and falling real estate values, home buyers will compensate for these increased costs by reducing the price they pay for a home.
A continuing stream of foreclosures, a weak economy and increased principal, interest, taxes and insurance expenses will assure downward pressure on real estate values for many years to come.
@ sagemerlin.
Good list. I would take exception to #'s 1 and 5.
Short sales appear to be having a negative impact on credit for approximately 2-3 years. Foreclosures on the other hand, can have an effect for as much as 10 years. Foreclosures more so than short sales also are effecting borrowers ability to obtain insurance,
therfore medical care, transportation and a slew of other pitfalls. Negotiating a short is extremely difficult and do benefit some unscrupulous sorts. True enough. Nothing in this world is exempt from that. But not all involved in the process are unscrupulous.
Your suggestion that borrowers rent their house rather than not pay has cost many the protection of the Mortgage Debt Relief Act as well, cementing the tax obligation for the monies not repaid as if those monies were income, because then the borrower has become a landlord. The protection from tax is meant only for owner-occupied properties.
Your admonition to consult an an attorney specializing in these matters is the best of all your suggestions, and imperative for any in this situation.
Thanks for your contribution to the discussion.
Good list. I would take exception to #'s 1 and 5.
Short sales appear to be having a negative impact on credit for approximately 2-3 years. Foreclosures on the other hand, can have an effect for as much as 10 years. Foreclosures more so than short sales also are effecting borrowers ability to obtain insurance,
therfore medical care, transportation and a slew of other pitfalls. Negotiating a short is extremely difficult and do benefit some unscrupulous sorts. True enough. Nothing in this world is exempt from that. But not all involved in the process are unscrupulous.
Your suggestion that borrowers rent their house rather than not pay has cost many the protection of the Mortgage Debt Relief Act as well, cementing the tax obligation for the monies not repaid as if those monies were income, because then the borrower has become a landlord. The protection from tax is meant only for owner-occupied properties.
Your admonition to consult an an attorney specializing in these matters is the best of all your suggestions, and imperative for any in this situation.
Thanks for your contribution to the discussion.
I have heard the myth
that short sales don't affect borrowing ability as much as foreclosure
for years, and it's simply not true.
The short sales do not fall off the credit report. They remain there just as long as foreclosure. When I was underwriting loans, a record of a short sale meant that no conventional borrower would accept the package so, while it was technically possible to get a loan with a short sale on record, the loan would probably require higher down payments, higher interest rates and additional points.
The dangers of short sales documented here far outweigh the distant benefit of possibly getting another mortgage somewhere down the road because it probably won't happen.
As an originator, I wouldn't even write a conforming loan for someone with a short sale on record because I knew that I wouldn't be able to sell that loan to a conventional lender. Such borrowers automatically go into the non-conforming market.
The Mortgage Debt Relief Act is as dysfunctional a piece of legislation as I've ever seen, and the distant possibility of securing meaningful relief from that legislation doesn't outweigh the ability to keep a property out of foreclosure by renting it in the hope (we have to hope, right?) that the might - might - recover.
If nothing else, putting renters into homes that you don't want to stay in gives one more family a home and gives the owner a little more flexibility in terms of relocation.
Your point about cementing the tax obligations on the shortages resulting from the eventual short sale or foreclosure of rental property is problematic, but no more so than the tax obligations on short sales.
The trick is to stay out of court, away from foreclosure, as long as possible because something might happen to change the situation....like the government waking up and making interim payments on behalf of homeowners....which is what they should have done in the first place.
The short sales do not fall off the credit report. They remain there just as long as foreclosure. When I was underwriting loans, a record of a short sale meant that no conventional borrower would accept the package so, while it was technically possible to get a loan with a short sale on record, the loan would probably require higher down payments, higher interest rates and additional points.
The dangers of short sales documented here far outweigh the distant benefit of possibly getting another mortgage somewhere down the road because it probably won't happen.
As an originator, I wouldn't even write a conforming loan for someone with a short sale on record because I knew that I wouldn't be able to sell that loan to a conventional lender. Such borrowers automatically go into the non-conforming market.
The Mortgage Debt Relief Act is as dysfunctional a piece of legislation as I've ever seen, and the distant possibility of securing meaningful relief from that legislation doesn't outweigh the ability to keep a property out of foreclosure by renting it in the hope (we have to hope, right?) that the might - might - recover.
If nothing else, putting renters into homes that you don't want to stay in gives one more family a home and gives the owner a little more flexibility in terms of relocation.
Your point about cementing the tax obligations on the shortages resulting from the eventual short sale or foreclosure of rental property is problematic, but no more so than the tax obligations on short sales.
The trick is to stay out of court, away from foreclosure, as long as possible because something might happen to change the situation....like the government waking up and making interim payments on behalf of homeowners....which is what they should have done in the first place.
sagemerlin writes:
"Keep remembering this: you were sold down the river by an evil
industry, aided and abetted by the government that was supposed to
protect you from the wolves."
Yes, many of these loans were aggressively marketed even when the lenders knew that the whole situation was going over the cliff. Potential borrowers were told that if they didn't buy now, the "train will leave the station," and they would never again be able to buy a house. This was fraud, perhaps not in a legal sense but certainly in a moral sense.
I have a friend who got caught in that. Given the current value of the property it will be ten years before he has even a penny of equity.
Thanks for the interesting post, and for all of the great comments.
Yes, many of these loans were aggressively marketed even when the lenders knew that the whole situation was going over the cliff. Potential borrowers were told that if they didn't buy now, the "train will leave the station," and they would never again be able to buy a house. This was fraud, perhaps not in a legal sense but certainly in a moral sense.
I have a friend who got caught in that. Given the current value of the property it will be ten years before he has even a penny of equity.
Thanks for the interesting post, and for all of the great comments.
@sagemerlin - I find
your comments most insightful and interesting. If only the mortgage
brokers here in my home state of NJ, and in the other areas most
affected by the current crisis, had written loans in a fashion like
yours, many of the problems could have been avoided. Instead, in the
no-income verification, no employment verification, no asset
verification euphoria that engulfed the country, there was little such
accountability, at least here. Unlicensed mortgage representatives, many
with little or no working knowledge of what a mortgage even is, were
selling loans to clients with the sole thought that they could cash in
as much as possible on the gravy train. I saw this on a daily basis; and
only a few clients were intelligent enough to walk away.
@mishima666 - the buyers were also told that, if they couldn't make the payments, they could simply sell the house for a profit anyway so there was no way they could lose money. I saw the same realtors sell the same properties three times over in a two-year span; and I'd be willing to bet that the buyers of those homes made one, maybe two mortgage payments at most.
But they walked away with a profit, at least until the last one was left standing with the property and a giant headache. And the realtors and mortgage reps? They made out like bandits.
My advice to the clients now is along the lines of what sagemerlin said - short sale or foreclosure, and then bankruptcy. Their credit is shot no matter what. It used to be that a person could emerge from a bankruptcy and buy a house two years later. In the current economic climate, however, who knows?
@mishima666 - the buyers were also told that, if they couldn't make the payments, they could simply sell the house for a profit anyway so there was no way they could lose money. I saw the same realtors sell the same properties three times over in a two-year span; and I'd be willing to bet that the buyers of those homes made one, maybe two mortgage payments at most.
But they walked away with a profit, at least until the last one was left standing with the property and a giant headache. And the realtors and mortgage reps? They made out like bandits.
My advice to the clients now is along the lines of what sagemerlin said - short sale or foreclosure, and then bankruptcy. Their credit is shot no matter what. It used to be that a person could emerge from a bankruptcy and buy a house two years later. In the current economic climate, however, who knows?
Great post and great
comments. I wish everyone who is facing foreclosure or having trouble
making their payments could read this. A lot of what you do in law and
business is strategize, make bets, bluff, and pick one of several
choices without a clear view of the future. That's what people have to
do now.
On another note, I like sagemerlin's statement that renting at least provides housing for someone. Yes. There's so much discussion of loans and bad-mortgage end-games, that the fact that we're talking about a bunch of houses gets lost. They may not be worth the inflated prices of a couple years ago, but they're worth something, and they're worth more with people living in them.
On another note, I like sagemerlin's statement that renting at least provides housing for someone. Yes. There's so much discussion of loans and bad-mortgage end-games, that the fact that we're talking about a bunch of houses gets lost. They may not be worth the inflated prices of a couple years ago, but they're worth something, and they're worth more with people living in them.
Good post. I was just
recently in the middle of a four day hospital stay (no insurance) when
the Sheriff gave the wife a gift from BoA...a nice foreclosure notice.
(my troubles resulted from an abrupt job loss with no chance of finding
employment with similar earnings)
The average person has NO IDEA how bad this is going to get. Forgetting about the folks who just walk away from their mortgage, the Alt-A and Option ARM defaults are just beginning to get rolling. I was in a pool of about 500,000 people that BoA dropped the bomb on, but that is just a drop in the bucket.
Consider also that our paper money is basically completely worthless and Weimar Germany should be just around the corner. Despite the governments latest fudged unemployment numbers, people are still losing jobs at a soon to be catastrophic rate.
The average person has NO IDEA how bad this is going to get. Forgetting about the folks who just walk away from their mortgage, the Alt-A and Option ARM defaults are just beginning to get rolling. I was in a pool of about 500,000 people that BoA dropped the bomb on, but that is just a drop in the bucket.
Consider also that our paper money is basically completely worthless and Weimar Germany should be just around the corner. Despite the governments latest fudged unemployment numbers, people are still losing jobs at a soon to be catastrophic rate.
One recourse we have is
to make'm pay!--See my Post- "Talking Grassroots Term Limits".

As a lifelong Michigan resident -- perhaps the most depressed state in the Union -- I have seen what's at the bottom of this downward spiral and it ain't pretty lemme tell ya.
Can middle America just get one break? Just one f*kin' break?
Honestly.