Second Trust Deed Deficiency Judgement

For release:
July 15, 2011

CALIFORNIA ASSOCIATION OF REALTORS® applauds Gov. Brown on signing SB 458 into law
LOS ANGELES (July 15) – The CALIFORNIA ASSOCIATION OF REALTORS® (C.A.R.) applauds Gov. Jerry Brown on signing SB 458 (Corbett) into law.   SB 458 extends the protections of SB 931 (2010), to ensure that any lender that agrees to a short sale must accept the agreed upon short sale payment as payment in full of the outstanding balance of all loans.

Under previous law (SB 931 of 2010), a first mortgage holder could accept an agreed-upon short sale payment as full payment for the outstanding balance of the loan, but unfortunately, the rule did not apply to junior lien holders. SB 458 extends the protections of SB 931 to junior liens.

“The signing of this bill is a victory for California homeowners who have been forced to short sell their home only to find that the lender will pursue them after the short sale closes, and demand an additional payment to subsidize the difference,” said C.A.R. President Beth L. Peerce.  “SB 458 brings closure and certainty to the short sale process and ensures that once a lender has agreed to accept a short sale payment on a property, all lienholders – those in first position and in junior positions – will consider the outstanding balance as paid in full and the homeowner will not be held responsible for any additional payments on the property.”

SB 458 contains an urgency clause making it effective upon signing.

So if you want to be certain that you will not be subject to deficiency judgement you have the option of a short sale to avoid a foreclosure and any deficiency judgement.

HAFA Facts Home Affordable Foreclosure Alternatives

HAFA is a government-subsidized Home Affordable Foreclosure Alternatives program for distressed homeowners to sell their homes to avoid foreclosure, even if the sales price is not enough to pay off their existing mortgage loans. Under HAFA, a participating lender will pre-approve the terms of a short sale and give the borrower at least 4 months to market and sell the property using a licensed real estate professional.

The eligibility requirements for a HAFA short sale include the following:

• Property must be borrower’s principal residence;

• Loan must be a first trust deed originated before 2009;

• Loan must be delinquent or default must be reasonably foreseeable;

• Current unpaid principal balance must be $729,750 or less for single-family home (or higher amounts for 2-to-4 units); and

• Borrower must be eligible for, but unable to complete, a loan modification under the Home Affordable Modification Program (HAMP).

The government incentives under HAFA are as follows:

• $3,000 to borrower for relocation expenses;

• $1,500 to servicer for each successful short sale; and

• $1 reimbursement to investor for every $3 paid to extinguish junior liens, up to $2,000 maximum, and not to exceed 6% of unpaid balance.

The effective dates are April 5, 2010 to Dec. 31, 2012.

The general standardized procedures for HAFA short sales are as follows:
Step 1: Lender evaluates borrower for a loan modification under HAMP.
Step 2: Lender evaluates borrower unable to complete HAMP modification for short sale.
Step 3: Lender issues Short Sale Agreement (HAFA SSA).
Step 4: Borrower lists the property for sale using a licensed real estate agent.
Step 5: Borrower and agent market and sell the property.
Step 6: Borrower submits to lender a Request for Approval of Short Sale (RASS).
Step 7: Lender approves RASS within 10 business days.
Step 8: Sale closes escrow.*See Addendum for Estimated HAFA Timeline

Each participating lender will have its own written policy for approving or rejecting a HAFA short sale, based on factors such as the severity of the loss, market conditions, the borrower’s motivation and cooperation, property valuation, and title review.

The Short Sale Agreement (HAFA SSA) will include, among other things, the following: 

• Either a list price or net proceeds acceptable to the lender;
• An agreement to fully release borrower from all liability for repayment of the loan;
• An agreement not to complete a foreclosure sale if borrower complies with SSA;
• Amount of acceptable closing costs and up to 6% real estate commission.
• Notice that the sale must be an arm’s length transaction; and
• Notice that the buyer must agree not to resell the property within 90 days of closing.

A HAFA short sale may have serious tax, credit, financial, legal, and other consequences.  A homeowner is strongly encouraged to seek the advice of a qualified professional regarding these consequences.

A list of participating lenders is available at http://makinghomeaffordable.gov/contact_servicer.html.

Fannie Mae and Freddie Mac have their own HAFA guidelines for their loans.

http://makinghomeaffordable.gov/hafa.html.  

See also, Supplemental Directive 09-09 dated March 26, 2010 available athttps://www.hmpadmin.com/portal/docs/hafa/sd0909r.pdf. 

Regina Realty

888-474-8022

Basics of A Short Sale

California Association of Realtors

Basics of A Short Sale

Orange County Shortsales: Home Affordable Foreclosure Alternatives Program

Home Affordable Foreclosure Alternatives Program (HAFA)

Because so many million homeowners across the United States are struggling to make their mortgage payments and facing foreclosure, the US Treasury Department under Making Home Affordable implemented the Home Affordable Foreclosure Alternatives Program (HAFA). Effective April 5, 2010, HAFA offers incentives to homeowners, investors, and loan servicers to complete a short sale or deed in lieu of foreclosure.

The incentives for homeowners include receiving $3,000 in relocation costs and avoiding foreclosure.
Not all homeowners qualify. The HAFA program applies to homeowners who:
1. do not qualify for a trial mortgage modification under the Making Home Affordable Program;
2. do not successfully complete the trial period for their modification;
3. miss at least two consecutive payments during their modification period; or
4. request a short sale or deed-in-lieu of foreclosure.

In addition, the property must be the homeowners primary residence, the first mortgage must have been obtained prior to January, 2009, loans balances cannot exceed $729,750, and the homeowners' monthly principal, interest, taxes and insurance must exceed 31% of their gross monthly income.

Mortgage servicers participating in the Making Home Affordable Program (HAMP) must evaluate homeowners for a Home Affordable Modification before evaluating them for other options as well as implement the Home Affordable Foreclosure Alternatives Program (HAFA).

Some limitations under HAFA include the bank pre-approving short sale terms (the servicer can dictate price before the home can list it), the deficiency will be reported to the IRS, the servicer may still deny the short sale, VA and FHA loans are excluded, and investor properties are excluded.

Roger W. Herrick
California Real Estate Broker
Contact me for Free Consultation

Underwater? Short Sale Truths and Myths

Short Sale Myths

A short sale can be an excellent solution for homeowners who must sell and owe more on their homes than they are worth. Unfortunately, a number of myths about short sales have developed, and it is important to understand the reality of this process should you find it meets your current needs.

Myth #1 - The Bank Would Rather Foreclose than Bother with a Short Sale

This is one of the most common misconceptions. The reality is that banks do not want to foreclose on your property because the foreclosure process is incredibly costly. Banks, investors, and even the federal government have all publicly stated that if a person is qualified for a short sale, the deal needs to be considered. Overwhelmingly, banks receive more on their investment through a short sale than a foreclosure.

The qualifications for a short sale include:

1. Financial Hardship - There is a situation causing you to have trouble affording your mortgage.
2. Monthly Income Shortfall - "You have more month than money." A lender will want to see that you cannot afford, or soon will not be able to afford your mortgage.
3. Insolvency - The lender will want to see that you do not have significant liquid assets that would allow you to pay down your mortgage.

Myth #2 - You Must Be Behind on Your Mortgage to Negotiate a Short Sale

While this may have previously been the case, today lenders are looking for verifiable hardship, monthly cash flow shortfall, or pending shortfall and insolvency.

If you meet these three requirements and believe that you soon may be unable to afford your mortgage, act immediately. Any delay could limit your options. Do not wait until the countdown clock to foreclosure has started and you have even less time left.

Myth #3 - There is Not Enough Time to Negotiate a Short Sale Before My Foreclosure

This is a myth that probably hurts homeowners the most. Many do not realize that foreclosure is a process, and that there is time to make decisions that may result in better outcomes.

The foreclosing party-in most cases a lender-can stall a foreclosure up to the final day of the process. Today, many lenders will stall a foreclosure with as little as a phone call from you explaining that you are trying to sell, and almost all lenders will stall a foreclosure with a legitimate contract. For real estate professionals who understand foreclosures and short sales, there is time available until the foreclosure process is complete.

Myth #4 - Listing My Home as a Short Sale is an Embarrassment

It is understandable to have reservations about letting the world know that you owe more on your home than it is worth. However, according to recent estimates, one out of five homeowners in the U.S. is in the same situation. You are to be congratulated for admitting you need help, taking action, and finding a professional who can work with you toward a solution.  With recent estimates showing 40-60% of U.S. sales will be short sales or foreclosures, you are not alone.

Myth #5 - Short Sales are Impossible and Never Get Approved

This is a complete falsehood. Are short sales more difficult to execute? Yes. Do you, as a homeowner, need to learn about a new process? Yes. Are they impossible? Absolutely not.  For example, agents with the Certified Distressed Property Expert® (CDPE) Designation receive thousands of short sale approvals on a monthly basis. These professionals have undergone extensive training in methods to help homeowners in distress and process short sales. While there are no guarantees in any transaction, more and more short sales are being approved regularly. This is far from an impossible process.

Myth #6 - Banks are Waiting on a Bailout and Not Accepting Short Sales

You may have heard this, but the reality is that banks (and the U.S. government) are trying to do anything they can, within reason, to avoid foreclosing on properties. It is preposterous to believe they would deny a short sale in hopes that some future legislation would pass and pay them for losses.

Today, more banks are aggressively pursuing short sales and working with agents who understand how to process them. Freddie Mac recently hosted a national training Webinar for real estate agents where they expressly stated the organizational goal of "eliminating distressed assets through modification or short sale."

Myth #7 - Buyers are Not Interested in Short Sale Properties

This is a myth that potential sellers hear all the time. Thankfully, this is just not true. In fact, many agents are getting calls from buyers who say they only want to look at foreclosure and short sales.

For buyers, short sales and foreclosures have become synonymous with "good deals." More specifically, international buyers are targeting these properties. Listing with an experienced agent who is educated in the short sale process will provide you with a great chance of quickly seeing a contract on your property.

In conclusion, While these pitfalls may seem troublesome, the right agent can help you navigate your way to a successful closing. Don't endanger your financial future and the potential sale of your home with an agent who does not fully understand the process. Contact me to discuss your specific situation at no charge.  Real experience is what this process requires.   We understand what you are going through, and are here to serve and help save your family's interests.  Remember, 100% of agents will tell you they know everything to know about this process.  Reality is that unless you are engaged daily in this process that is the only way to know what is happening regarding these tricky real estate transactions.  Mitigations are not traditional real estate sales and there are few real "experts".

Roger W. Herrick

California Real Estate Broker

949-365-6585

Was Your Loan Modification Denied-Now What?

Was Your Loan Modification Denied-Now What?

If a loan modification or refinance isn't possible or feasible, your options come down to these:

Negotiate a short sale. If you owe substantially more on your home than it's worth, you may be able to get the lender to accept less than it is owed by negotiating a "short sale." You essentially sell the house for whatever you can get, and the lender agrees to accept the proceeds and not go after you for the deficit.
A short sale can further damage your credit scores, often showing up as a "settlement" that indicates you paid less than you owed. You may also face an IRS bill on the unpaid debt, which is generally considered income to you. A skilled negotiator may be able to avoid these consequences or at least minimize them, so you may want to consider getting an experienced and licensed short sale negotiator.

Offer a deed in lieu of foreclosure. If you can't sell the house for what you owe, but you're not deeply "upside down" on your mortgage, this may be an option: you propose handing over the deed to your home and your lender agrees to release you from your mortgage. This usually keeps you from having to pay any deficit that might be owed on the property, while the lender avoids further legal costs related to a foreclosure.
Lenders can't be forced to accept a deed, however. Typically, lenders require that the borrower make "a really good effort" to sell the home first, Ulaga said, and show that their delinquency was due to "unavoidable hardship" before they'll agree to a deed in lieu of foreclosure.

Allow the foreclosure to proceed. This is generally the worst choice. In some states and in some circumstances, the lender can even go after you in court for any deficit between what the house eventually sells for and what you owe. Even if the worst happens, though, the damage to your financial life needn't be permanent. If your situation improves, you may be able to get another mortgage, at a reasonable interest rate, within a few years. For more details, call us for information on how to rebuild your credit after financial disaster.

Roger W. Herrick
California Real Estate Broker
949-365-6585

Shortsale Difficulty?

Shortsale Difficulty?

As a homeowner considering a short sale, it is important you understand the process. Following are some of the most common mistakes agents and homeowners make when handling a short sale.  Remember 100% of the agents will tell you they understand the process and may have taken a class on the subject.  10% actually do the work and close those most difficult transactions.  86% of short sale listings become foreclosures.  Do not be a statistic.  

Pitfall: The Buyer's Contract is Not Strong Enough
Especially in our current economic climate, willingness to make an offer on a property does not mean that a buyer is truly qualified to purchase. The reality is that buyers need to be preapproved for financing, closing funds must be verified, and their ability to buy needs to be confirmed.
Solution: An Agent Familiar with Qualifying Buyers
Your agent should be familiar with what must be verified in order to qualify a buyer to submit an offer on your property. Otherwise, these offers may have little chance of closing. Don't risk this process with an uneducated agent who does not appreciate this aspect of short sales.

Pitfall: The Buyer's Offer is Too Low
Many agents will encourage you to submit any offer that comes in. The reality is that a short sale is not the same as a fire sale. In order to have a legitimate chance of getting your deal approved, you must have an offer that is more attractive to the lender than a foreclosure
Solution: Proper Negotiation
The right agent will work with you to properly negotiate any offer that you receive to get the ‘highest and best' from each potential buyer. This ensures you are presenting the best possible  solution to your lender.

Pitfall: Your Deal is Not Submitted Properly
If you do not follow the directions you receive for submission, then you are expecting an over-worked, under-staffed department to go out of their way to handle your file. There is very little likelihood of this situation working out in your favor.
Solution: Follow Instructions Closely
If you are instructed to fax your file, fax it and send a backup copy in the mail. If you are instructed to mail two copies, mail two copies. When you reach the point of having a contract, all your information, and a completed proposal, you do not want your deal to fall apart because no one sees it.

Pitfall: There Isn't Enough Time
It is critical that your agent understands the foreclosure laws in your area. They should be able to show you an estimated timeline for the process, from start to closing. In addition, they should know how to communicate with your lender. Certain information can be provided to lenders to postpone your foreclosure for weeks or months in order to negotiate a sale.
Solution: Provide Accurate and Useful Information
Make sure you provide your agent accurate information as to exactly how many payments you have missed and any correspondence you have received from your lender. This will allow your agent to understand your situation and work to improve it.

Pitfall: There has been Inadequate Follow-up and Communication
As your property goes through each stage of the short sale process, an agent can jeopardize the transaction by not properly communicating with everyone involved. As the homeowner, you may not know that your file has been delayed, and that you again may run out of time to close and avoid foreclosure.
Solution: Select an Agent With Experience
The right agent knows exactly how to follow up to ensure that your lender's issues are addressed in a timely manner, and will make certain you do not have unnecessary delays.

Pitfall: Your Short Sale Proposal is Incomplete
This is one of the most frequently seen causes for the rejection of short sales proposals. Most agents do not understand the short sale process and what your lender will be looking for
Solution: Understand All Aspects of the Process
Your agent should understand the short sale process in detail and be able to explain it clearly. The agent should also be able to communicate effectively with both you and lenders to produce a complete and cohesive proposal.

Pitfall: Your Property is Priced Incorrectly
This is the most common mistake made with all properties, and the most common reason a property doesn't sell.
Solution: Agent Providing Understanding and Transparency Your real estate agent will go through a detailed listing price strategy with you, allowing you to see exactly where your property should be priced based on its current condition, sales in your area, and most importantly, how much time you have left to sell.

In conclusion
While these pitfalls may seem troublesome, the right agent can help you navigate your way to a successful closing. Don't endanger your financial future and the potential sale of your home with an agent who does not fully understand the process. Contact me to discuss your specific situation at no charge.  Real experience is what this process requires.   We understand what you are going through, and are here to serve and help save your family's interests.  Remember, 100% of agents will tell you they know everything to know about this process.  Reality is that unless you are engaged daily in this process that is the only way to know what is happening regarding these tricky real estate transactions.  Mitigations are not traditional real estate sales and there are few real "experts".

Roger W. Herrick
California Real Estate Broker
949-365-6585