Matt Weidner – Fighting For The American People

Archive for November, 2009

As foreclosures in Pinellas County continue to increase, there is news that the Obama administration plans to announce a new campaign to pressure lenders to modifiy mortgages for borrowers.  This will come as welcome news to the many homeowners struggling to obtain a mortgage modification from their lender but who have hit a brick wall.

The Lucky 2000

Last month, an oversight panel created by Congress reported that fewer than 2,000 of the 500,000 loan modifications then in progress had bdecome permanent under the Making Homes Affordable Program.  The same report expects thousands of permanent modifications out of the more than 650,000 trial modifications that will then be in progress, but I frankly doubt we will seee that many.  That’s a dismal percentage when you consider that the federal government has poured $75 billion into the mortgage modification program.

For the full text of an article that appears in today’s New York Times, click here.

If you’re one of the thousands of homeowners in Pinellas or Hillsborough County struggling with attempts to obtain a mortgage modification or in foreclosure trouble, contact Matt Weidner at www.mattweidnerlaw.com

The Florida Legislature recently found that homeowners who are in default on their mortgages, in foreclosure, or at risk of losing their homes due to nonpayment of taxes may be vulnerable to fraud, deception, and unfair dealings with foreclosure-rescue consultants or equity purchasers.

In response, the Legislature passed Chapter 501.1377, The Foreclosure Rescue Fraud Prevention Act, (the full text can be found here) the intent of which is to provide a homeowner with information necessary to make an informed decision regarding the sale or transfer of his or her home to an equity purchaser. It is the further the intent of the law to require that foreclosure-related rescue services agreements be expressed in writing in order to safeguard homeowners against deceit and financial hardship; to ensure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure or default; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms.

Under the law an “Equity purchaser” means a person who acquires a legal, equitable, or beneficial ownership interest in any residential real property as a result of a foreclosure-rescue transaction.

A “Foreclosure-rescue consultant” is a person who directly or indirectly makes a solicitation, representation, or offer to a homeowner to provide or perform, in return for payment of money or other valuable consideration, foreclosure-related rescue services.

And “Foreclosure-related rescue services” means any good or service related to, or promising assistance in connection with Stopping, avoiding, or delaying foreclosure proceedings concerning residential real property; or Curing or otherwise addressing a default or failure to timely pay with respect to a residential mortgage loan obligation.

Finally, “Foreclosure-rescue transaction” means a transaction by which residential real property in foreclosure is conveyed to an equity purchaser and the homeowner maintains a legal or equitable interest in the residential real property conveyed, including, without limitation, a lease option interest, an option to acquire the property, an interest as beneficiary or trustee to a land trust, or other interest in the property conveyed.

It is important for realtors, title agents, attorneys and especially homeowners to understand the new law and its broad application to just about any interaction between a homeowner and any party who provides any service to that homeowner.  For questions about the law or to determine whether the law applies to your conduct or any other party, you are encouraged to visit the website of the Florida Attorney General here.

1. Title Underwriters Are Going to Go Bankrupt

For as long as any of us can remember, we paid little attention to the title underwriter that was issuing title insurance right? Well those days are long gone.  All of the title underwriters are under extreme financial pressures caused by decline in new premiums and claims on old policies.  The vast majority of new policies being written are being written over foreclosure properties, REO’s and other properties that have a much greater risk of hidden problems and title claims.  Because of this we can expect extreme pressure on these companies and some just will not make it in the long run.  To protect your client, you need to take an active role in considering who will close your deals and you should go the extra step to confirm the title work with your agent.

2. You Must Take A Much More Active Role In Your Closing

The days of turning your contract over to the title company then waiting for your closing date are long over.  You need to be very proactive with your title agent, making sure that all bases are being covered and that all conditions and problems are being actively resolved from the moment the contract is signed.  The days where your involvement in closing was limited to reviewing the HUD when you arrived at the closing are long gone.  Develop a strong working relationship with your title agent and be actively involved in every step of the process.

3. Make Sure Your Listing Agreement and Sales Contracts Reflect The New Closing Realities

In previous postings, I have described where the FAR/BAR Short Sale Addendum is deficient, does not adequately protect sellers and may lead to complaints and litigation against realtors.  The reality is that every contract, from the listing agreement to the sales contract should be modified to reflect the inevitable delays, miscommunications and problems that are now a part of every closing.  If you do not, you can expect complaints and problems at some point in time.

4. Know Your Clients and Their Situation

Every listing agreement should contain explicit instructions that your client must notify you in writing if they are served with a foreclsoure lawsuit.  If they are served with a foreclosure suit, they must retain a local attorney who can properly defend the foreclosure.  Defending the foreclosure creates the space you and your clients need to help effectively negotiate a sale.  If your client fails to respond and a default is entered against them, you lose important negotiating power against the lenders.

5. Know All Parties That Are Involved in Your Closing

Clients these days are approached by all sorts of individuals and businesses who are offering to help them and in some cases take advantage of their situation.  Florida recently passed one of the toughest consumer protection statutes that makes most of these activities illegal and which subjects all parties involved in such transactions subject to penalties and fines.  You may be surprised at all the activities and made illegal, but as the professional involved in the transaction, you are responsible to know these details and take steps to protect your clients!  The text of the statute can be viewed here keep in mind that the language is drafted so broadly that many activities that were once permissible are now illegal.

These are challenging times in the industry and you need to work harder than ever to protect your clients and yourself.  Make sure you’re working with an attorney who knows this market and who can properly advise you.

Visit www.mattweidnerlaw.com

1. BEWARE THE FAR BAR SHORT SALE ADDENDUM!

The existing FAR/BAR short sale addendum is deficient in many respects but one section in particular poses real risks for real estate agents ad brokers who encourage their clients to sign the addendum as part of a sales contract.  Due to a glaring oversight in the language contained within the addendum, a situation could develop that will guarantee you will be faced with an unhappy client. In the worst case scenario, you could be subject to a complaint or litigation! Don’t sign another acceptance until you find out what this crucial problem is!

2. BEWARE THE SHORT SALE “FLIP” TRANSACTION!

It’s no secret that the only real action in this challenging economic environment are short sale transactions. Many agents are either knowingly or unknowingly getting involved in “flip” transactions where a second transaction for a higher price is on the table immediately behind the first transaction.  You need to be aware that in most cases, these transactions are fraught with liability for all parties involved and as the licensed professional, you’ve got the most to lose.

3. BEWARE OF PROVIDING YOUR CLIENTS LEGAL ADVICE!

If a client is behind on his mortgage they will look to you for advice.  Should they stop paying? What are the consequences of not paying or of a short sale?  What should they do if they get served with foreclosure?  You risk serious consequences for attempting to answer any of these questions and you will almost certainly be subject to liability if anything goes wrong.  Don’t make the mistake of crossing the line between trusted sales advisor and providing legal advice.  It complicates and interferes with the relationship you have worked to build and may work against getting your deal closed.

4. CLIENTS IN FORECLOSURE ABSOLUTELY MUST HIRE AN ATTORNEY!

So you’ve got a listing that you’ve been working on for days, weeks or months and you find out a foreclosure case has been filed against them…what should you do?  The most important thing you can do to protect your client’s interest in the property and your interest in the closing is to insist that your client hire an attorney.  Even if you’ve got a contract on the table or feel like you can get the home sold before a foreclosure sale occurs, you cannot risk the possibility that this might not happen.  Only an attorney properly licensed in the state can represent your client and the most effective attorney is one who practices before the local judges all the time.

5. BEWARE OF LOSS MITIGATORS, “SHORT SALE EXPERTS” AND OTHERS

Florida’s Foreclosure Rescue Fraud Act makes it a crime and subjects parties to fines of up to $25,000 for any party who takes any money or who engages in virtually any activity on behalf of a homeowner who is in foreclosure.  This law is very broad and applies to just about every conceivable interaction with a homeowner in foreclosure.  Don’t risk getting drawn into the wave of prosecutions and enforcement actions that are coming…carefully consider any party involved in your transactions and do not associate with parties who may be violating the Act.

These are tough and challenging times for everyone…protect yourself and your clients…work with an attorney who knows how to do both!

www.mattweidnerlaw.com

An article in today’s Wall Street Journal reports that despite receiving billions in aid from me and you, banks across the country continue to hoard the money, a fact that continues to hamper the long overdue recovery.  This has broad implications for the broader US recovery

• 7% of US banks insured by FDIC are in trouble
• The banking industry recorded a net profit of $2.8 billion in the third quarter 2008
• Banks wrote off $50.8 billion in bad loans third quarter 2008
• Unemployment is 10.2%, projected to decrease to 9.7% this time next year

Today’s St. Petersburg Times quotes an article that I first wrote about yesterday which suggests that more than 46% of homes in the Tampa bay have mortgages on them that total more than the value of the homes.  While the article, and the study in the Wall Street Journal do not report exactly how they came up with the value of the homes, I rather suspect the value of the homes is overstated and that as a result, ther are ore than 50% of homes that are underwater.

For decades Americans worked hard to pay their bills and protect their credit.  Certainly part of the motivation for this behavior was good old fashioned value and morality, but a big motivation for many people was so that the consumer  could continue to access credit to buy all the things that are required to be a good American consumer.  With the consumer credit market across the country very much locked up and consumer’s buying and borrowing habits changed, this motivation may no longer be as important.

As reported earlier, lenders are faced with very few options when a consumer fails to pay their mortgage and the reality is if your credit is already tanked, the consequences for walking away from a mortgage may be acceptable when compared to the alternative of slaving away making payments to creditors that your income can no longer support. Make no mistake, this is not advice or a suggestion to stop paying bills, it’s merely a practical reflection of a judgment many consumers are already making!

For more information visit my website at www.mattweidnerlaw.com