Time is of the Essence for Short Sales right NOW!

Posted on 01. Aug, 2013 by ctlms in Blog, Foreclosures, My Blog, Real Estate, Short Sale, foreclosure

The Mortgage Debt Forgiveness Act of 2007 Expires 12/31/13

What does this mean and why is it important?

This act is what many short sale sellers use to avoid owing any taxes on the debt forgiven by their lender in a short sale.

You see, the IRS considers any forgiven debt to be taxable ordinary income, unless you qualify for an exemption.

This exemption was signed into law in 2007 and has been extended a few times as the housing crisis has continued.  It was most recent extended at the end of 2012, when it was set to expire, as part of the last minute fiscal cliff agreement.

So far there are no signs that it will be extended again and given the budget issues of the federal government, it is very possible it will not be extended again.

So what does this mean for you?

What this means is we have to do everything we can to get your short sale closed by 12/31/13 in order for the seller to be able to utilize this exemption to avoid potentially owing thousands of dollars in taxes to the IRS.

But it is only Aug... Why worry yet?

The reason I bring this up now is that it may already be too late.  The average short sale takes about 90 days from submission of an offer to when the approval letter is issued.  This process has been taking longer in recent months, not less.  Plus, after we have short sale approval it is often 30-60 days before the buyer's financing is ready to close.

So that means we are looking at potentially a 5 month process from Offer to Closing.  We have exactly 5 months left before 12/31/13.  So for some short sales, it may already be too late if they do not already have offers, or have circumstances that may cause their short sale to take more than 90 days to get approval.

So what can you do?

The biggest take away here is that we cannot sit on our hands when marketing these properties.  If it has been 2-3 weeks at your current price and there is no reason to believe an offer is coming, it is time for a price adjustment.  Right now sellers have no time to be waiting around for the perfect buyer at the perfect price.  They need the best offer they can get NOW.

This may mean that the offer you get could be a little lower than the very best offer out there.  And yes this may mean that the offer does not get accepted and the bank counters.

If they counter the buyer has the option to raise their offer.  We can also try to dispute the bank's opinion of value to reduce the counter.  But in the end, an offer may not be accepted.  At this point the seller typically has the option to ask the bank if they will accept a Deed in Lieu of Foreclosure (DIL) and basically give the bank the property in exchange for being relieved of their obligation to repay the loan.  In this situation there is still debt forgiven and if completed by 12/31/13 the seller still may qualify for the exemption.

In a DIL there is typically no commission meaning the agents do not get paid and neither does a debt negotiator like me.  But we have to be always looking out for what is in the best interest of the homeowner, not ourselves.  To that end we have to do everything we can to get the homeowner's debt forgiven and this situation resolved for them by 12/31/13 if at all possible.  It is just the right thing to do, even if not beneficial to us in the end.

The karma will come back to you 10 fold with referrals from grateful homeowners you helped.  Trust me.  I have probably earned more income from referrals from clients we helped but never got paid for, than if each of those transactions had resulted in a short sale closing and a check, rather than some other workout for the homeowner we did not get paid for.

So please keep this in mind moving forward for the rest of this year as it is very important to your clients.

Sean Wilder

Disclaimer:  These are my opinions and nothing here should be considered to be tax or legal advice.  All homeowners should consult with a qualified attorney and CPA when completing any workout option.

Short Sales and Title Searching

Posted on 17. Nov, 2011 by ctlms in Blog, Foreclosures, My Blog, News, Real Estate, Short Sale

Should an agent do a search of the title on a listing?

Alright, so it has been way too long since my last post on short sales.  I totally apologize.

Today's topic is going to be on searching title.

In today's real estate environment there are a few things agents should be doing with their listings to cover their own "assets".  Asking the sellers about their mortgages and any liens is one of these.

You do not want to be the agent that takes the word of a seller that they have plenty of equity to sell without a short sale, only to find out a week before closing that it is not true.  This just doesn't look good for you or your brokerage and it can jeopardize your commission if the deal falls through.

Plus, there are many cases where the seller does not know that they have title issues.  Many people do not realize that small claims and collections judgments as well as medical judgments can be, and often are, attached as judgment liens to their property.

It is very important today that you research the title of your listings before taking the listing.  Many agents already go down to the town hall and pull the field card for the property and allot of agents also get a copy of the deed.  Some Broker's actually require this be in the file, as they should.

So while you're there you should be searching the title for mortgages and any other liens that may be on the property.

Many towns now have their land record index right online where you can search the title and get an index of what documents are recorded for that property.  A simple search like this can quickly reveal documents of concern such as; Judgment Liens, Tax Liens, Water or Sewer Liens, Lis Pendens, etc.

Now I am not saying that every Realtor needs to be a title search expert.  But a simple purchase date forward search of the land records can uncover any possible issues to your transaction closing so that they can be addressed long before the 11th hour before closing.

In the case of a short sale this is critical.  Any money judgments against the property need to be negotiated with the lien holders.  If we do not know about them, we can't negotiate them.  It is also very difficult to renegotiate with a mortgage company to pay a judgment after they have already approved a short sale and that judgment was not listed as an expense from the beginning.

On top of that, many judgments for credit card liens and medical liens are very difficult to get released for less than full payoff.  Spending months negotiating a short sale on a property that has unknown judgments on it that will doom the property to foreclosure, or the seller into bankruptcy, is not fair to all parties involved.  These need to be known up front so that if they are unwilling to negotiate, all parties know it sooner rather than later.

One of the most useful resources here in CT is Jud.CT.gov.  Here you can search by the seller's name and find foreclosures and lawsuits.  There are 2 areas to search.

Under the Case Look-up link on the left;

1. Civil/Family will find foreclosures, collections and divorces.  If the plantiff has the same last name as your client, it's probably a divorce

2. Small Claims will find all small claims files.

Any judgments for collections or small claims that do not show as satisfied are more than likely recorded as a lien on the property as well.

In addition to this resource, the town clerk's office will have any and all liens recorded against the property.  When searching though an electronic index the following guide of commonly used document short cuts may be useful.

ASN = Assignment, FCL = Foreclosure, IRS = IRS Tax Lien, JDG = Judgment Lien, LN = Lien, LPN = Lis Pendens (foreclosure initiated), MEC = Mechanics Lien, MTG = Mortgage, QTC = Quit Claim, REL = Release, SOJ = Satisfaction of Judgment, TXL = Tax Lien, WAR = Warantee Deed

This is by no means an exhaustive list and the short cuts differ from town to town.  You may also come across others that are less common.

But if you are fortunate, your listing will have 1 War, 1 or more MTG and that is it.

When processing a file for a short sale, we typically try to check any online resources available to us to investigate the status of the title.  But we rely heavily on the listing agent and the seller to inform us of any issues that need to be addressed in the short sale negotiations.  The only other alternative would be to require every single seller that we process a file for to pay for a title search on their property.  Since these issues come up without being presented to us by the agent or seller a small percentage of the time, we feel that would add cost to many sellers unnecessarily.

These issues can be easily discovered by a cursory search of the land records by the listing agent and many brokers already advise or require their agents to do so given the pervasiveness of title issues today.

So if you do not often take this extra step on your listings, I hope these suggestions cause you to consider doing so in the future to save yourself some future headaches.

Sean Wilder

State of CT finally sets it straight for Debt Negotiators.

Posted on 20. Jul, 2011 by ctlms in Blog, Foreclosures, My Blog, News, Real Estate, Short Sale

Clarification is finally here!

So it has been over 2 months since the CT Depts of Banking and Consumer Protection confused the entire real estate community with a joint warning letter regarding Debt Negotiators in CT.

The letter dated 5/10/11 was apparently in response to one or more complaints brought about by the actions of one or more Debt Negotiators.  I do not know the specifics of the issues or complaints but can gather enough from the letter to know the actions indicated were not only bad business, but obvious to result in complaints.  We always strive for 100% transparency and disclosure with all parties involved and all our agreements are in writing.

In general the letter made it appear that all Debt Negotiators in CT may be violating the regulations.  It also suggested that if a debt negotiator were paid more than $500 from any party,the were violating the $500 max fee cap to the mortgagor and that real estate Brokers could not pay for the service.

This letter jeopardized the businesses of all Debt Negotiators in CT and the services they provide to their clients.

It has taken the Debt Negotiator industry over 60 days to get these state agencies to clarify their opinions on what we do.  Over that time we have had several phone and email conversations with both agencies.  This all culminated with a meeting, which I attended, with the Commissioner of the Debt Of Banking and several representatives of the Dept of Consumer Protection who attended on the behalf of their commissioner who could not attend.

This meeting was extremely helpful to all parties in clearing the confusion and both agencies agreed to address our concerns in writing by the end of this week.

On Monday 7/18/11 the Dept of Banking issued it's opinion letter. DOB Opinion Letter 7-18-11 The letter stated clearly that the fee cap of $500 for payments from the Mortgagor DOES NOT prohibit a real estate firm or any other person or entity who is not the Mortgagor from paying for Debt Negotiation services and that the $500 cap does not apply.  The $500 fee applies to payments for Debt Negotiation services paid for by the Mortgagor (seller) directly. So it is perfectly legal for a real estate firm to hire a debt negotiator who is properly licensed in CT to negotiate on their clients behalf in securing a short sale approval.  This service is provided to the real estate firm to accomplish a task that the real estate agent is either not properly equipped to do themselves, or simply does not wish to do.  It is also legal for that Broker to agree in writing to compensate the debt negotiator for this services contingent on the successful sale of the property.

On Wednesday 7/20/11 the Dept of Consumer Protection issued it's own opinion letter. DCP Opinion Letter 7-18-11 In it, the Dept of Consumer Protection states that "It is appropriate for real estate licensees to retain an outside party for the purpose of debt negotiation and those services fall within the scope of the debt negotiator's work." The letter also address how this "fee for ancillary service" should be paid.  1. The fee should be a dollar amount agreed to by the Broker and the Debt Negotiation company in writing and should not be a % of the sales price so as not to be construed as a commission split.  2. The fee should be paid by the Broker after closing.

These two letters finally put to rest the confusion resulting from the letter these agencies issued on 5/10/11.

It also seems that the actions of one or more debt negotiators has tainted the view of the industry by some.  This is very unfortunate for those of us who work within the laws and regulations we are governed by and strive to provide the very best service to the sellers' and real estate agents we serve.

It is unfortunate that it took so long to get these issues addressed but we have done our best during this time to not let this affect our clients.

Please contact Sean Wilder at Loss Mit Services for any questions about what this means for your clients.

Sean Wilder

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