Short Sale, Foreclosure, or Deed in Lieu: Which is Best for the Borrower?

Writing in Realty Times, Bob Hunt, a director of the National Association of Realtors, and Realtor in his own right, addresses the "benefit" to the borrower between a short sale, foreclosure, or deed in lieu transaction. It's an important article, here it is in full:

Short Sale, Foreclosure, or Deed in Lieu: Which is Best for the Borrower?

If only the President’s foreclosure-prevention plan worked as well as “cash for clunkers”. But it hasn’t. When the Administration announced the Making Homes Affordable plan in February of 2009, officials said they hoped it would help 4 million distressed homeowners to stay in their homes. As of this writing (8/2/09), the Administration has acknowledged that there are only 200,000 trial loan modifications under way.

Clearly, lenders have been reluctant to modify loans. (Moreover, there are good reasons for their reluctance according to a recent study by the Boston Federal Reserve.) Also, many borrowers have turned out to be ineligible for the programs or – because they are so far ‘under water’ – uninterested. Whatever the cause, the result is the same: a distressed borrower typically needs to choose between (1) a short sale (where the lender agrees to take less than the amount owed) in which, among other things, a commission (paid by the lender) is generated. (2) a foreclosure, or (3) a deed in lieu of foreclosure (where the borrower ‘gives back’ the property to the lender without a foreclosure proceeding). Which is better for the borrower?

Many real estate agents will say and advertise that a short sale is clearly preferable. In support of this view, two claims are usually asserted. (1) A short sale is less damaging to the borrower’s credit than a foreclosure. (2) A short sale provides the borrower with a shorter ‘waiting period’ until the borrower will be able to purchase a home again.

It is important to note that these are two different claims. For example, in a period of time a borrower could become eligible for a purchase loan under Fannie Mae/Freddie Mac guidelines, but he or she might still not have sufficient credit or income to qualify for the loan.

While many say that a short sale is less damaging to one’s credit than is a foreclosure, documenting that claim is another story. This writer has looked hard, but can’t find any verification from Fair Issac (the developer of the FICO scoring system) or any of the major credit providers. That is probably no surprise, because their systems are proprietary. Nonetheless, one wonders what might be the source of the claim.

On the other hand, people who apparently should know deny that there is any difference. Greta Guest of the Free Press (Freep.com) quotes John Ulzheimer, president of consumer education for Atlanta-based Credit.com. Ulzheimer spent seven years at Fair Issac. “The credit bureau sees those all as equal,” Ulzheimer said. “They are all essentially in the eyes of FICO a major delinquency.” Elizabeth Razzi wrote in the Washington Post (July 20, 2008), “A foreclosure and short sale inflict equal damage to your FICO score, according to Fair Issac…” though she provides no specific citation.

Moving on from the credit score issue, there is the question of being again eligible to buy. More precisely, it is a question of when, in the future, the defaulting borrower could get a loan that would be purchased by Fannie Mae or Freddie Mac. The issue is dealt with in Fannie Mae Announcement 08-16, released June 25, 2008.

When it comes to foreclosures and deeds in lieu of foreclosure, the policy distinguishes between events that were precipitated by extenuating circumstances (e.g. job loss, major illness) and those that were not (e.g. financial mismanagement). If you’ve had a foreclosure without extenuating circumstances, you can’t purchase with a Fannie Mae – backed loan for five years. However, if there were extenuating circumstances, it drops to three years. Suppose you chose the deed in lieu of foreclosure option. If there were no extenuating circumstances, the period would be four years, but with such circumstances, it drops to two. Fannie Mae doesn’t draw the distinction when it comes to short sales: the period is two years, the same as doing a deed in lieu with extenuating circumstances.

May 15, 2009, the Treasury Department issued an update to the Making Home Affordable plan. Among other things, it provides for financial incentives (e.g. a $1,500 moving allowance) to distressed borrowers who meet the general eligibility requirements for a loan modification and who will engage in an approved short sale or who will give a deed in lieu of foreclosure. Distressed and underwater borrowers face a minefield of options for resolving their problems. Not the least of their problems is the vast amount of misinformation floating around. They need to step very carefully.

For your next title order,
or if you have questions about what you see here,

contact Stephen M. Flatow
Vested Title Inc.
648 Newark Avenue, P.O. Box 6453, Jersey City, NJ 07306
Tel 201-656-9220 - Fax 201-656-4506
E-mail vti@vested.com - www.vested.com

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FDIC's Bair weighs in on financial regulation

Sheila C. Bair, chairman of the FDIC, has an Op-ed in the New York Times supporting President Obama's call for a new regulatory network for banks and other financial providers.

"THE Obama administration has proposed sweeping changes to our financial regulatory system. I am an active supporter of the key pillars of reform, including the creation of a consumer financial protection agency and the administration’s plan to consolidate the supervision of federally chartered financial institutions in a new national bank supervisor. This consolidation would improve the efficiency of federally chartered institutions while not undercutting our dual system of state and federally chartered banks."

Bair then outlines the advantages of the Obama plan over other plans that have called for a single regulatory agency.

What concerns me is that Bair has been wrong before, most notably about the mortgage modification debacle. And when she says, "this is not about protecting turf. This is about protecting consumers and the safety of our financial system," my first urge is to run for the hills.

Read the full article, The Case Against a Super-Regulator.

For your next title order,
or if you have questions about what you see here,

contact Stephen M. Flatow
Vested Title Inc.
648 Newark Avenue, P.O. Box 6453, Jersey City, NJ 07306
Tel 201-656-9220 - Fax 201-656-4506
E-mail vti@vested.com - www.vested.com

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Brooklyn Judge Takes on the Big Bad Lenders

The New York Times reports today on Judge Arthur M. Schack who has taken the time to review mortgage foreclosure complaints and discovered that many of them are plain wrong.
He

"fashions himself a judicial Don Quixote, tilting at the phalanxes of bankers, fore- closure facilitators and lawyers who file motions by the bale. While national debate focuses on bank bailouts and federal aid for homeowners that has been slow in coming, the hard reckonings of the foreclosure crisis are being made in courts like his, and Justice Schack’s sympathies are clear.

"He has tossed out 46 of the 102 foreclosure motions that have come before him in the last two years."

I understand the judge's pique at sloppily presented papers, but I think he overeaches a bit when he puts the blame solely on lenders who made sub-prime loans. Don't borrowers who pocketed tens of thousands of dollars in cash-out refinances deserve part of the blame for gambling with their residence?

Read the full article, A ‘Little Judge’ Who Rejects Foreclosures, Brooklyn Style

What do you think?

For your next title order
or if you have questions about what you see here,
contact Stephen M. Flatow
Vested Title Inc.
648 Newark Avenue, P.O. Box 6453, Jersey City, NJ 07306
Tel 201-656-9220 - Fax 201-656-4506
E-mail vti@vested.com - www.vested.com

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Rebate Filing Date Extended

New Jersey's Governor Jon S. Corzine has announced today that the deadline for filing 2008 "Senior Freeze" (Property Tax Reimbursement Program) and Homestead Rebate applications has been extended until November 2, 2009.

"With the deadlines for these programs approaching, many potential applicants still need time to file," said Governor Corzine. "This extension will help to ensure that everyone who is eligible gets the chance to participate," he said.

According to the Governor's press release, rebate checks are already on the way to eligible senior and disabled residents who applied for property tax relief benefits under the Senior Freeze and Homestead Rebate Programs. Checks for those who filed after the original deadline "will be processed and issued as quickly as possible."

"Homestead Rebate checks for nonsenior and nondisabled homeowners are scheduled to be issued in October. "

"Information about the Homestead Rebate Program is available by calling the Homestead Rebate Hotline (1-888-238-1233 for homeowners or 1-888-213-8623 for tenants) from 8:30 a.m. to 4:30 p.m. Monday through Friday.

"Status of rebate checks can be found by calling 1‑877‑658‑2972, or online at www.state.nj.us/treasury/taxation/homestead/hrintro.shtml. Rebate check information for homeowners who are under 65 and not disabled will not be available either online or by phone until October.

"Homeowners who still have not filed their Homestead Rebate applications can do so by phone (1‑877‑658‑2972) or online at www.state.nj.us/treasury/taxation/. The automated telephone filing system and Internet filing application are available 24 hours a day, 7 days a week. The tenant rebate application and instructions are available on the Division of Taxation's Web site for those senior and disabled tenants who have not yet filed.

"For more information on the Senior Freeze (Property Tax Reimbursement) Program, to obtain an application, or to check the status of a reimbursement check, contact the Property Tax Reimbursement Hotline at 1-800-882-6597 from 8:30 a.m. to 4:30 p.m. Monday through Friday. Information about the Program is also available on the Division of Taxation's Web site at www.state.nj.us/treasury/taxation/propfrez.shtml. "

For your next title order
or if you have questions about what you see here,

contact Stephen M. Flatow
Vested Title Inc.
648 Newark Avenue, P.O. Box 6453, Jersey City, NJ 07306
Tel 201-656-9220 - Fax 201-656-4506
E-mail vti@vested.com - www.vested.com

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Changes coming to Durable Powers of Attorney?

Following on the heels of changes in New York's law regarding powers of attorney, the New Jersey Law Revision Commission was scheduled to discuss at its July meeting a memorandum comparing New Jersey's existing law on durable powers of attorney with New York's changes to its law.

The memo, available here, compares the new law in New York and current law in New Jersey.

Among the changes adopted in New York outlined in the memo-- the new form of power of attorney

"is not valid until it is signed by both the principal and agent, whose signatures are duly acknowledged in the manner prescribed for the acknowledgement of a conveyance of real property. The effective date of the power of attorney as to a given agent is the date on which that agent’s signature is acknowledged. If two or more agents are designated to act together, the power of attorney takes effect when all the agents so designated have signed the power of attorney and their signatures have been acknowledged."

"A grant of authority to make major gifts and other asset transfers must be set out in a separate rider which contains the principal’s signature, duly notarized and witnessed by two persons not named in the instrument as permissible recipients of gifts or other transfers, in the same manner as a will. In the alternative, the principal may grant such authority to the agent in a nonstatutory power of attorney executed in the same manner as a major gifts rider. An agent acting pursuant to the authority granted by this rider or nonstatutory power of attorney must act in accordance with the instructions of the principal or, in the absence of such instructions, in the principal’s best interests."

"The agent must sign the power of attorney as an acknowledgment of the agent’s
fiduciary obligations if the agent intends to accept the appointment. In transactions on behalf of the principal, the agent’s legal relationship to the principal must be disclosed where a handwritten signature is required."

The minutes of the Commission's July meeting have not yet been released and an inquiry seeking more information has not yet received a response.

We'll keep you posted.

A tip of the hat to Nickolas Nasuta, Esq. for pointing us to these developments.

For your next title order,
or if you have questions about what you see here,

contact Stephen M. Flatow
Vested Title Inc.
648 Newark Avenue, P.O. Box 6453, Jersey City, NJ 07306
Tel 201-656-9220 - Fax 201-656-4506
E-mail vti@vested.com - www.vested.com

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