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Foreclosure Isn't a Foregone Conclusion

By Ilyce R. Glink and Samuel J. Tamkin
Saturday, February 9, 2008

When it comes to foreclosure, most homeowners are clueless.

According to an update of Freddie Mac's Foreclosure Avoidance Research survey, homeowners are generally unaware of many of the options available to them if they are struggling to make a mortgage payment.

Worse, the study found that 20 percent of people say that nothing would happen after missing three or more mortgage payments because "it takes a while for anything to happen if a person is late on a mortgage payment."

In fact, in some states the foreclosure process can begin as soon as 30 days after you have missed a mortgage or home-equity loan payment.

Why aren't more homeowners tuned in to the repercussions of the foreclosure process?

"Fear and embarrassment," said Robin Stout Migala, senior delinquency resolutions manager for Freddie Mac. Some borrowers bury their heads in the sand, "hoping that everything will be okay tomorrow."

In the survey, 75 percent of those who are delinquent on their mortgages said they had tried to contact the mortgage lender directly to discuss their financial difficulties. But Stout Migala said industry observers commonly believe that just half of those who go through the foreclosure process have spoken to their lenders.

"They think foreclosure is the only option and that there is no hope, and that nothing can be done," so they don't call, she said. "After we foreclose on a piece of property, we find all the literature from the mortgage servicer in the home, unopened."

The number of foreclosures jumped nearly 80 percent from 2006 to 2007. But if the more than 2 million Americans facing foreclosure this year don't wake up to the options that are available, the number could grow even faster.

What most homeowners don't realize is that Fannie Mae and Freddie Mac, the largest players in the secondary mortgage market, encourage mortgage servicers to avoid foreclosure whenever possible. They grade servicers on how well they work out delinquent loans.

"Not only do we rank them, we pay them to do workouts. They get a certain dollar amount for every workout type. We spent $7 million in cash bonuses" last year, Stout Migala said.

What should you do if you can't pay your loan?

  • Call your lender immediately. The sooner you contact the lender (look for the toll-free number on your monthly statement), the more options will be available to you. Ask for the loan mitigation department.

  • Talk with a reputable credit-counseling agency. You can call the Homeownership Preservation Foundation (888-995-HOPE) or find a local HUD-approved counseling agency (800-569-4287 or http://www.hud.gov).

  • Know your loan modification options. Depending on how quickly you call your lender, the following options may be available to you: forbearance (an agreement to temporarily let you pay less or nothing while you get back on your feet); reinstatement (pay the total amount you're behind in a lump sum by a certain date); repayment plan (you'll be given a fixed amount of time to repay the amount you're behind by combining a portion of what's past due with your current payment); and loan modification (a written agreement between you and the lender that permanently changes one or more of the original terms of your loan to make it more affordable, such as extending the loan term or lowering the interest rate).

    If your financial circumstances have changed so much that you can no longer afford to keep your house, your mortgage company may offer you one of the following options to forestall the foreclosure process:

    Loan assumption: Even if your mortgage isn't assumable, your lender may allow someone else to take over the payments and bring the loan current. This may allow you to sell your home.

    Short sale: This option, which has been in the news lately, allows you to sell your house for less than the amount owed on the mortgage. Recent, but temporary, changes to the tax code mean that the difference between what you owe and the amount for which you're selling may no longer be taxable as income.

    Deed in lieu of foreclosure: You may be able to transfer title to your property to the mortgage company in exchange for the complete cancellation of your mortgage debt. In most cases, your lender will require you to try to sell the house for 90 days before a deed-in-lieu will be considered.

    If you find the possibility of foreclosure to be overwhelming and want more information, be wary of going to friends, family or the Internet for guidance, Stout Migala warned. "There could be a lot of misinformation going around."

    You could also wind up being snared by Internet scam artists posing as credit counselors or in a foreclosure rescue scam. The best place to start your search for information on the foreclosure process is at http://www.hud.gov.

    Q: Forty years ago, my parents were given land from my mother's cousin on which to build a summer home for their children, including me, my sister and my brother.

    My parents told everyone for 30-plus years that this property was to be left to all of us. My brother moved to Florida 20 years ago and does not visit often. Actually, he has been in Connecticut only six times since his move to Florida.

    I have been staying at or visiting the summer home continually since 1968. My sister and her husband and two daughters visit as frequently.

    Although I was not able to perform any of the regular maintenance on the exterior of the house, my sister and I took care of the interior as necessary. My parents paid for the house and were responsible for it. They never asked any of us for money.

    Here's my problem: Without my brother's or my knowledge, two years ago my parents surreptitiously sold the house to my sister for approximately $19,000. The house is appraised at approximately $485,000. It is a year-round residence with five bedrooms and two full baths.

    I do not believe that this is a legal transfer and would like to know what my legal rights are.

    A: Why wouldn't this be a legal transfer? Certainly you can consult with a lawyer on this issue, but if your parents own the property and pay for the maintenance and upkeep, they are well within their rights to sell it to whomever they want, for whatever price. If you feel you have been treated unfairly, you should talk to your parents, not sue them.

    Just because your parents said they would leave the house to all of their children equally doesn't mean they have to do that.

    While your parents told you that they intended to give the house equally to all of you sometime in the future, they probably have the right to change their mind and sell the home to your sister. (You didn't mention that your parents are unable to take care of their financial affairs, so I assume that, as adults, they have the right to take care of their financial assets.)

    I would open a conversation with your parents about what happened and find out what they were thinking. Perhaps they are planning to leave you and your brother other assets. If you don't ask, it will seriously taint your relationship with them -- and with your sister.

    I'm one of 12 family members who own a large piece of land with one rental house on it. The property was inherited some time ago, and I'm ready to sell my share of it. However, the other family members are not willing put it on the market and don't have the money to buy my 1/12 interest. Is there some way I can get out of the property? Can the others be forced to sell the property, or would a lawsuit need to be filed to get them moving?

    You don't really want to bring a partition lawsuit against your entire family. That would be time-consuming and emotionally messy.

    Unless the property is worth millions, you may spend more than your one-twelfth share is worth. (And can you just imagine the talk around the Thanksgiving table?)

    If none of the other family members has the cash to buy you out, and you don't want to sue them, you're probably stuck for now.

    Your situation is a great example of what not to do when leaving property to heirs. It's difficult to have a dozen people inherit a single piece of property, unless it is an extremely valuable one that generates significant revenue.

    It's tough enough to get two people to agree on a financial course of action, but getting a dozen people to come to a meeting of the minds is next to impossible. There are always one or two who want to keep a property when everyone else wants to sell, or who want to sell when everyone else wants to hold.

    The owner of this property should have directed his or her estate to sell it and then divide the proceeds. At that point, with the property officially up for sale, anyone (or even a couple of anyones) could have stepped up and purchased it.

    It's far better to choose to purchase something than to force others to sell.

    I refinanced my house, and the title guy had me sign a "quick claim" and a deed of trust. He said because I had my married name on the title, it needed to be put in my maiden name.

    Should I be worried? I didn't get copies of what I signed.

    First, you refer to a "quick claim" deed, but the correct term is a quitclaim deed. It's a common mistake.

    You should contact the title company immediately to get copies of all your documents.

    After you close on the purchase of a property or complete a refinance, these documents are often collected into what is known as a "closing book." You should keep these documents as a record of the transaction, should something go wrong.

    But let's get to the stranger part of your letter. You didn't include any information about being divorced, but the only legitimate reason I can think of why you would need to execute a quitclaim deed from your married name into your maiden name is if you have been divorced and you have gone back to using your maiden name.

    By executing a quitclaim deed, you are essentially transferring any ownership interest you have in the property to yourself.

    If you have not been divorced, then you should start to investigate what has happened and make sure you understand the transaction.

    No one should ever sign a legal document without understanding exactly what the document says and what the transaction is all about. I know that mortgage documents can run to several dozen pages and that you have to initial each page. But by initialing each page, you're certifying that you have read and understand what each page says.

    If you don't understand, keep asking questions until you do.

    My husband and I are divorcing. He is refinancing our property and buying me out. He says I will get the check two or three days after signing the quitclaim deed.

    My local bank says normally there is just an exchange of signing and money at the same time. He is financing at a Federal Bank. Does this make a difference, or is there something else going on?

    Whether you're working with a local bank or national mortgage lender, when you refinance your primary residence, there is a three-day right of rescission. That means you have three business days to cancel the transaction. So it's possible that your husband won't receive the funds until three business days after the transaction closes.

    But you have to protect yourself. I wouldn't hand over the quitclaim deed and then trust that your soon-to-be ex-husband will come through with the cash. What you might do is deliver the quitclaim deed in trust and give the escrow company specific instructions not to hand over the deed until your check has been received. That should protect you.

    The problem is that many escrow or title companies won't do this. If they won't, then you should refuse to sign over the quitclaim deed until you have a check in hand.

    A man proposed to my sister. They planned to marry and purchased a home together. But the way things worked out, they never got married. In fact, they never even lived together.

    My sister never took steps to remove this man's name from the papers on the house. She paid every penny for the house and he paid nothing, not one red cent.

    The house is completely paid for. He now wants her to sell the house and give half the money to him.

    What can she do at this point to keep from having to give him half the profit of the house if she should sell it? My sister is now 73 years old with minimal income.

    Your sister is in an unfortunate situation. Did they purchase the house recently? Or did your sister buy the home some time ago? Did the man pay any expenses towards the maintenance or real estate taxes for the home?

    If the man paid nothing to buy the home, never paid any of the expenses and never lived in the home, then the question is determining what your sister's intent was when she purchased the home and allowed this man's name to be put on the deed.

    Did she intend at that time to give him a gift of half of the home? Was the gift predicated on them becoming married?

    It might be fair to say that, morally, the man should not claim any interest in the home if he did not contribute to purchasing it and never paid anything to maintain it. But legally this might not be so simple. If your sister intended to give him the gift, then he might have a claim for his share. Certainly the circumstances surrounding the purchase are important.

    People who buy property together and plan to marry should make sure that their intentions are clearly known. It's even better to state those intentions in writing and document what each party's expectations are and what their financial and other contributions to the property will be.

    One important issue you did not discuss is whether the home is owned by your sister and this man as joint tenants or tenants in common. If they own the home as joint tenants and the man dies, he and his estate would lose any interest in the home upon his death. But the same is true if your sister dies -- he would become the sole owner of the home.

    If they own it as tenants in common, she would always keep her share and he would always have his share. Upon either one of their deaths, his or her estate would receive whatever interest that person owned.

    You're wise to try to resolve this issue now, but it's not an easy one to fix. Your sister might have to sue the man to void his interest in the home and claim the entire home as her own. Another option would be to give the man some money to transfer his interest back to your sister. While it may seem like blackmail, it might be cheaper and easier than suing him to get the title in your sister's name alone.

    Finally, a skeptical and inquisitive person might try to determine whether this man has done this before to other women. If he has, you may be able to call the authorities and have them assist you in getting him out of the picture.

    I am at my wit's end. My adjustable rate mortgage (ARM) has reset and my mortgage payment has increased by $400. I also have a second mortgage and am unable to pay what I owe on my student loans each month.

    I know I need to sell my home, but I also need to put floors down before I sell. I had the carpet removed shortly after buying the house and want to place laminate floors on top of the plywood. The problem is that after I put in the floors, I don't think I can get what I paid for the house.

    Right now, I am current on my first and second mortgages, but I am running low on money.

    What exactly is a short sale? Do they work? How about a deed in lieu of foreclosure? How hard will that hit my credit and for how long? Can I ask the lenders to readjust the loan?

    You're in a difficult situation, and I'm not sure how much help is out there for you.

    You may have heard about the interest reset relief program lenders are participating in with the blessing of the federal government. You must be current on your mortgage (as you are), and you must have less than 3 percent equity in your property (it sounds as if that is the case). However, your loan must be scheduled to reset between 2008 and 2010, and because your loan already has reset, it's possible you won't qualify.

    Still, it's worth a shot. Call the program's toll-free mortgage crisis help line at 888-995-HOPE to see if you qualify.

    If not, then you have to figure out next steps. Can you find a way either to bring in more cash (can you rent out a bedroom in your house?) or reduce expenses until you get through this crisis?

    I would hate to see you do a short sale, whereby you sell the home for less than the loan amount, or a foreclosure, which will stay on your credit history for up to seven years, or even a deed in lieu of foreclosure, whereby the bank accepts the deed instead of you paying off the loan. You would be better off trying to trim your expenses or bring in extra income to put down the flooring you need and wait out the current mortgage crisis. Staying in your home will be the least costly choice, both in terms of cash and your credit. I hope you can find a way to make it happen.

    No matter what, please talk to someone at the Federal Housing Administration. You may qualify to refinance your mortgage at a lower rate through the new FHASecure plan. Go online to http://www.fha.gov/about/fhasfact.cfm to get contact information or call 800-CALL-FHA for more information.

    I am looking at a fairly major renovation of a home I have lived in since 1981. I paid $60,000 for the house, and there is no mortgage. If I put the house on the market with some inexpensive curb-appeal-type spiffing up, I think it would be listed for around $325,000.

    I'm guessing that the renovation costs would run about $300,000, and the house would then sell for $450,000. I plan on continuing to live there for at least another 10 years.

    Should I sell the house, or should I stay and finance the renovation? Should I get a construction loan followed by a 15-year mortgage? What about a home-equity loan or line of credit? Does my age or income matter?

    Your numbers are interesting, if they're accurate. For simplicity's sake, let's assume they are.

    If you sold your house today for $325,000, you would have a rough profit of $250,000, which you could keep tax-free. If you improved the property, it would be worth $450,000, for a net profit of around $90,000.

    Why would you do all of this work for a much smaller profit? Wouldn't you be better off selling your property, pocketing the cash and buying something else? If you sold your home, do you know how much you would have to pay for another home? Could you sell the home and buy another for less money? If you bought another home for $350,000 to $400,000, you could have some price appreciation over the next few years, and you would start the clock ticking on the next $250,000 in profit that you could keep tax-free.

    Ideally, at the end of 10 years, you would have sheltered at least $500,000 in profit tax-free. That's a lot of cash.

    Now let's assume that despite the numbers, you still want to improve your property and then stay there for 10 years. How should you pay for your renovation?

    The cheapest thing to do is pay cash. Barring that, the next cheapest thing would be to do a cash-out refinance and get a new mortgage at today's reasonable interest rates. You can do a home-equity loan, but for as much money as you're talking about, you will have an easier time with a cash-out refinance and will be able to lock in the lower interest rate. As for a construction-to-permanent loan, you could do that, but the fees may be higher and you will have more paperwork.

    Ilyce R. Glink is an author and nationally syndicated columnist. Her latest book is "100 Questions Every First-Time Home Buyer Should Ask." Samuel J. Tamkin is a real estate lawyer in Chicago. If you have questions for them, write to Real Estate Matters Syndicate, P.O. Box 366, Glencoe, Ill. 60022, or contact them through Glink's Web sites,http://www.thinkglink.comandhttp://www.expertrealestatetips.net.

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    Copyright 2008 Ilyce R. Glink and Samuel J. Tamkin

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