Facing Foreclosure? Read On. . .

foreclosureRecently, a single mother lost her job in a central Florida town and was about to lose her house, too. But then she made a seemingly simple request of the bank: Show me the original mortgage paperwork. And just like that, the foreclosure proceedings came to a standstill. This homeowner, and others like her around the country, are managing to stave off foreclosure by employing a strategy that goes to the heart of the whole nationwide mess.

During the real estate frenzy of the past decade, mortgages were sold and resold, bundled into securities and peddled to investors. In many cases, the original note signed by the homeowner was lost, stored away in a distant warehouse or destroyed.
Persuading a judge to compel production of hard-to-find or nonexistent documents can, at the very least, delay foreclosure, buying the homeowner some time and turning up the pressure on the lender to renegotiate the mortgage.

In recent interviews with The Associated Press, lawyers, homeowners and advocates outlined the produce-the-note strategy. Exactly how many homeowners have employed it is unknown. Nor is it clear how successful it has been; some judges are more sympathetic than others. A Tampa lawyer, whose Consumer Warning Network Web site offers the free court documents this woman used to file her request, has played a major role in promoting the produce-the-note strategy.

Conversely, the deputy executive director of the American Securitization Forum, a group that represents banks, law firms and investors, dismissed the strategy as merely a stalling tactic. He said homeowners are “making lawyers jump through procedural hoops to delay what’s likely to be inevitable.” In his opinion, the original note is almost always electronically retained and can eventually be found.

Although Judges MAY be willing to accept electronic documentation; and, lenders are sometimes allowed to produce other paperwork to establish they are the holder of a loan, assembling such documents, to a judge’s satisfaction, takes time, which to homeowners is the point.

A University of Iowa study last year suggested that companies servicing mortgages are often negligent when it comes to producing the documentation to support foreclosure. In the study of more than 1,700 bankruptcy cases stemming from home foreclosures, the original note was missing more than 40 percent of the time, and other pieces of required documentation also were routinely left out.

The first big success of the produce-the-note movement came in 2007 when a federal judge in Cleveland threw out 14 foreclosures by Deutsche Bank National Trust Co. because the bank failed to produce the original notes.

Democratic Rep. Marcy Kaptur of Ohio endorsed the strategy in a fiery speech on the House floor during debate on the federal bank bailout last month. “Don’t leave your home,” she said. “Because you know what? When those companies say they have your mortgage, unless you have a lawyer that can put his or her finger on that mortgage, you don’t have that mortgage, and you are going to find they can’t find the paper up there on Wall Street.”

April Charney, head of foreclosure defense for Jacksonville Area Legal Aid in Florida, said the strategy has been so successful for her that she now travels around the country to train other lawyers in how to use it. She said she has gotten cases delayed for years by demanding that lenders produce paperwork they cannot find.

“This is an army of lawyers getting out there to stop foreclosures so we can get to the serious business of creating solutions,” Charney said. “Nothing good is going to happen as long as we continue to bleed homeowners.”

So, what about that central Floridian single mother’s case? Well, she filed her “produce-the-note demand” last fall after the bank acknowledged that her original mortgage document had been lost or destroyed. Since then, there has been no activity on the foreclosure – no letters from the lender, and no court filings.

No Real Mortgage Relief Despite Government Efforts

To say 2008 has been a bad year for real estate is just a wee bit of an understatement. Property values have plunged by some 35% nationwide and foreclosures are expected to exceed 2.2 million for the year. Nearly 4% of all outstanding mortgages are currently delinquent and in Florida the rate of delinquent mortgages leads the nation at 7.82%.

The impacts of the sub-prime fallout, resulting credit crunch and global recession are all taking a serious toll on homeowners who often find themselves unable to sell or refinance as they owe more than their homes are currently worth. The Federal Government has made several impotent attempts to bring relief to homeowners and stem the tide of foreclosure and it seems more plans are bandied about almost daily.

So what options are available to struggling homeowners?

Early this year, the President announced an informal plan that brought together a coalition of banks, mortgage-servicers, credit counselors and investors to provide loan work-out solutions to borrowers facing foreclosure. The Hope Now Alliance, as it was called, was a non-governmental effort and since its inception has helped some 1.7 million homeowners through loan restructuring and modification. Unfortunately, the Comptroller of the Currency reported this week that, of all those helped in the first six months of the year, more than half were already back in default.

In July, The Housing and Economic Recovery Act of 2008 became law creating, among other things, the Hope for Homeowners program to be administered through HUD and offer a vehicle for borrowers who were upside down in the homes to refinance to a lower, more affordable interest rate. The plan, intended to help hundreds of thousands of homeowners relied on the current lien-holders of the properties willingness to write down the principal balance of the mortgage to 90% of the current market value. Second lien holders would have to also agree to re-subordinating their liens to the new first making them basically worthless.

As one might imagine, most lenders were reluctant and chose to pursue their own work-outs with borrowers on a case by case basis. As a result, only a handful of borrowers were helped by the plan. HUD has since revised the principal write down requirement to 96.5% of market value but still requires the borrower’s new payment be no more than 31% of their gross monthly income.

So what is on the horizon? Is there any real relief in sight for homeowners facing foreclosure? Several plans have been presented from a variety of governmental agencies but none yet have the full support of Congress and the White House. One plan offered by Sheila Bair, Chairwoman of the FDIC, would lower borrower’s rates to as low as 3%, extend the amortization period to as much as 40 years and defer a portion of principal to some future time.

Another plan proposed would have Fannie and Freddie offer a low fixed rate to both homeowners and buyers to not only help those with unaffordable payments but also generate demand for housing as buyers would presumably be drawn into the market – attracted by the lower rates. This would help stabilize home prices that ultimately are at the heart of the problem. The Obama transition team also is said to be working on a plan though no details have yet emerged.

So what help is there for struggling homeowners right now? Sadly, very little. The silver lining is that several robust plans that could have a real impact on the problem are being discussed seriously and the new administration will have the political capital to insure that whatever plan emerges victorious passes quickly. That is why Fannie Mae and Freddie Mac, along with Governor Charlie Crist, have placed a temporary moratorium on foreclosures until January.  The hope is that by that time, after a new president is sworn into office and details of the plan are ironed out, there will finally be a real and workable alternative to foreclosure for millions of Americans.

To have any teeth, the final plan will have to contain several aspects of the plans already discussed. It will have to provide for a low fixed rate, a forty year amortization and some postponement and/or forgiveness of some portion of principal. It must also, and this is critical, offer the same terms to homebuyers with a minimum down payment requirement of 5% and a HUD backed mortgage insurance plan to safeguard banks so they will indeed lend. Without renewed demand for housing to stop home price decline, any new mortgage rescue plan will simply be buying time.

For this and more, visit my blog at www.activerain.com/blogs/hpalmer

Hunter Palmer

Laketown Wharf Busts, Leaves Developer Crying

We’ve all heard the rumors about what is happening with Laketown Wharf.  Jerry Wallace, the developer, once positively referred to the area around Laketown Wharf as a “condo canyon” and himself as the Trump with a drawl.  I bet he doesn’t feel so Trumpish now.

I was VERY critical of this development from the get-go, extremely worried what this “behemoth” would do to the image of our area.  A largely vacant, 750 condo, elephantine monolith, Laketown Wharf actually had great aspirations, with some possibility of success had it come unto creation mid 2004.  With huge swimming pools, a Balagio-style fountain/light show, a 650-seat live performance theatre, 5 restaurants and 1,000’s of square feet of retail space, it was planned to be almost a small town.  And, it is actually kind of awesome, even though it is not on the beach.

On the 12th of September, Jerry Wallace, developer of Laketown Wharf and President of Laketown Wharf, Inc. signed over the remaining unclosed units to Corus Bank, the institution that originally financed the construction of the project.  With only 8% of the 750+ condos built actually closed, the only option was to hand the rest back to the bank.

At this point, a new chapter is created in the life of Laketown Wharf.  The sad part is that the image of a huge traffic crossing point on the beach is now completely up to a financial institution that may or may not have our best interests in mind.

As of two weeks ago, it had looked like the grounds were being neglected, but after going by today, I noticed that some of the pools had been filled back up.  The water-features were not on, nor were any of the fountains and the whole place looked like a ghost town.

We’ll be following this closely.

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House OKs Controversial Housing Plan

The House approved a federally backed bailout for the housing market; as skimpy as it may seem.  Not supported by the White House, the foreclosure prevention package was passed in a 266-154 vote.

The package will let FHA insure up to $300 billion in new loans over the next four years as long as lenders agree to reduce the mortgage principle. The lender would have to cut the amount owed to no more than 85% of the current appraised value.  If they FHA insured loans went into default, then the FHA would pay the lender the remaining principal owed.

Continue reading “House OKs Controversial Housing Plan”

Housing Starts Lowest in 17 years

Housing starts, down almost 12% from February are the lowest they’ve been in 17 years.  With 947,000 starts, building permits were also down to 927,000, from 984,000 in February.

The nationwide foreclosure rate is up 57% from last March with nearly 235,000 homes hit with foreclosure filings last month alone.  Of this number, 51,393 homes were actually lost to foreclosure with “1 in every 538 households being affected by a filing in March.” (The Business Journal of Phoenix)

Continue reading “Housing Starts Lowest in 17 years”

Have we hit bottom?

Has the real estate market nationwide hit bottom?  I hear Realtors all the time say that business is picking up for them.  In addition, I was looking through the New York Times Real Estate section, and not one article in the  18+ articles posted was negative.  Not one article was telling of how we are all doomed to suffer endless real estate woes for the next million years or that prices have dropped again for the umpteenth time.

The National Association of Realtors is predicting a “notable improvement” in the real estate market in the second half of 2008. Lawrence Yun, cheif economist for the NAR, said “Existing home sales could start to show a sustained increase within a few months, unless there are some additional economic problems or excessive inflationary pressure,” he said.  “We’re looking for essentially stable sales in the near term, before higher mortgage loan limits translate into more sales in high-cost markets.  The wider access to affordable credit should increase sales activity notably this summer as pent-up demand begins to be met.”

Continue reading “Have we hit bottom?”

Foreclosures and what the government is going to do about it.

Thursday the Senate began a debate on taking measures to help curb foreclosures nationwide. Highlights for the bill:

  • Make loans backed by the Federal Housing Administration more widely available
  • Makes $4 billion available to communities to buy and rehabilitate foreclosed homes
  • Provides tax credits of $7,000 for buying a foreclosed home
  • Provides tax credits to homebuilders and businesses hurt by the housing downturn
  • Returning soldiers will be given an extra 6 months before foreclosure procedures could begin

This came after outcry that the government was more interested in bailing out the financial industry and less interested in the suffering American public. Many lawmakers are criticizing this bill saying that it isn’t going far enough.

Continue reading “Foreclosures and what the government is going to do about it.”