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Are you aware of the FHA Short Sale 15 day marketing rule?

Posted on 12. Apr, 2018 by ctlms in Blog, Foreclosures, My Blog, News, Real Estate, Short Sale, foreclosure

HUD's confusing 15 day marketing rule for FHA short sales

If you have not done a short sale on an FHA loan in the last year you may not be familiar with this very confusing rule.

Before delving into this topic there is one thing I should explain about the HUD/FHA guidelines.  The rules are written assuming that the homeowner contacted the servicer about saving the home and they were reviewed and denied for all home retention options.  It then assumes that the lender suggested the homeowner to pursue a short sale and they were then reviewed and "preapproved" into the short sale program. Unfortunately, it is common for a homeowner to know they cannot afford to keep the property and seek to sell it, before they ever contacted the servicer.  In fact, the likely did not know they needed a short sale until they contacted a real estate agent.  So in most cases, the seller has not done any of this before listing the property.

HUD/FHA requires that all short sale properties be listed as ACTIVE on the MLS for at least 15 days after the Approval to Participate (ATP) is issued.  It does not matter if you already have an offer or at what price.

Let me define a couple things.

The Approval to Participate (ATP) is a document that is given to the seller to sign, informing them that they have been "pre-approved" into the FHA Preforeclosure Sale Program.  That is what FHA calls a short sale.  This document has an issue date, an expiration date (120 days after issue date) and lists the appraisal value.

Once the ATP is issued. the seller is required to get the property listed at EXACTLY the appraisal value and the property has to be ACTIVE on the MLS for at least 15 days before the servicer can review any offers.  So if the property was listed prior to the ATP being issued, it would still have to go back on ACTIVE, even if you already had a signed contract.  The servicer is not allowed to review that contract until they see proof that the property was ACTIVE on the MLS, at the appraisal value, for at least 15 days after the ISSUE DATE of the ATP.  Even if the contract that you have is higher than the appraisal value.

Some of the servicers are getting confused by this rule. In particular, if you already have a contract when the ATP is issued and put it back on ACTIVE to comply with this 15 day rule, some of the servicers are expecting that the sales contract would be dated after the 15 days.  The FHA rules do not actually state that.  They just state it must be active before the servicer can REVIEW an offer.  But not all servicers fully understand the FHA rules.  Never mind that putting the property back on ACTIVE when you have a signed contract, violates MLS rules also.  Not that HUD cares about that.

In order to be fully compliant with HUD and MLS you would have to terminate the contract you already have, wait the 15 days and then sign a new contract.  Understandably, the buyer may not be too happy about that.  If you are listing the property, prior to an ATP being issued, it would be best to inform the buyer up front that this requirement will need to complied with later down the line.

Now here is where it gets even more confusing. If the loan is more than 120 days late before the homeowner applies for assistance, the servicer can send it to First Legal Action.  This starts the foreclosure process.  Once the file is past First Legal Action, it is no longer eligible for the ATP and "pre-approval".  So then, if an ATP cannot be issued, how can you market the property for 15 days AFTER the ATP is issued?  You cannot.  However, the HUD guidelines do not specify any change in the 15 day marketing rule if the file is already past First Legal Action... That is right, the rules conflict. The only way around this is for the servicer to submit a Variance request to HUD to waive the 15 day rule.  HUD will waive that rule for files that are past First Legal Action, but no longer approves variances for files that are not past First Legal, but already have an offer when the ATP is issued.

So what are best practices with all of this?  Unfortunately, it depends.  If the loan is already past First Legal Action, a waiver of this rule can be approved so the 15 days doesn't become an issue later on after having accepted an offer.  If the file is not past First Legal Action then it is important to start the process with the servicer asap.  But do you wait to list it? That is up to you and your seller.  If you wait, you have less time to market the property for an offer.  You will be givn just 120 days during the preapproved marketing period.  Also, you will not have any current marketing history, or offers, to show to the FHA appraiser that will be sent out for the bank.  If that appraisal comes in higher than market value, which is common, you will end up marketing the property for 120 days and not get any offers.  So marketing the property, prior to the ATP being issued has benefits.  If doing so, it would be advisable to make sure the buyer and their agent are aware of the 15 day rule that will need to be met and the seller and agent should decide if the will be terminating the contract or not, during that 15 days.

Have more questions on this or some other short sale topic? I'm here to help.

Sean Wilder

Loss Mit Services

860-265-3727