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Treasury hopes new rules send short sales to the rescue of underwater mortgages

By Tracey L. Longo
Special to The Washington Post
Saturday, March 13, 2010; E01

With new Treasury Department rules designed to expedite short sales set to take effect April 5, relief can't come soon enough for some area buyers, sellers and real estate agents who have waded through a long and arduous process to get short sales approved by the bank.

In a short sale, a homeowner sells the property for its current market value, which is less than what's owed on the mortgage, and the lender agrees to accept the lower amount. The new rules that offer participating lenders cash incentives to get them to approve more short-sale deals also allow them only 10 days to approve or reject short-sale purchase offers, said Treasury spokeswoman Meg Reilly.

Incentive payments written into the Home Affordable Foreclosure Alternatives Program are designed to help offset some of the financial pain that banks experience when they agree to settle for less than they are owed on a home loan. Mortgage servicers (the companies that accept and process homeowners' mortgage payments) may receive up to $1,000 for the successful completion of a short sale. Treasury will also pay up to $1,000 to those holding second liens and home equity loans, if they agree to the deal. While junior lien holders have begun to ask for more compensation, the rules now limit incentives to $3,000.

To help speed up short sales, the program calls for lenders to use standardized paperwork and to establish an acceptable sale price before the home is put on the market. Sellers will be allowed at least 120 days to market the home and possibly as long as one year. During that time, the lender cannot foreclose. At closing, the government will give sellers up to $1,500 to cover relocation expenses.

Banks participating in the program have also agreed not to negotiate reductions in real estate agents' sales commissions after they receive a short-sale contract. Such commission reductions have discouraged some agents from listing and showing short sales, according to the National Association of Realtors.

According to the Treasury rules, a participating loan servicer must offer the short-sale program to a borrower who does not qualify for, or did not succeed at, a loan-modification under the administration's home affordable mortgage program.

Nationally, 38 percent of all sales in January were distressed sales, which include short sales and foreclosures. In the Washington area, short sales accounted for 6 percent of all sales in Maryland and 8 percent in Virginia during the last four months of 2009. That number is expected to rise significantly in the next several months, according to NAR. Agents have not yet reported short-sale activity in the District.

Some who have worked with short sales, however, are skeptical that the new rules can compress the approval process into 10 days.

"I've done five short sales in the past year and, frankly, I don't want to do another one," says Cyndy Davis, president of Flaherty Group Realty in Kensington. Her most recent short sale, which required a sign-off from Bank of America, took 10 months.

"I contacted the bank at least every other day, and it still took them 90 days to respond to our first offer on a Silver Spring townhouse," Davis said. "They took from June until August. Then when we ordered the appraisal, it came in $33,000 below my buyer's offer. When we resubmitted the new offer, it took the bank another 45 days to respond."

Mortgage servicers take 90 to 120 days on average to approve short sales, according to NAR.

Juwana Bauwens, a spokeswoman for Bank of America, acknowledged that the process did take that long.

"When the buyer lowered the offer, we had to almost start the process all over again," Bauwens said. "Short sales are a very complicated process, and at times we have to get approval from the bank and the investor on the loan and the second lien holder. We are working on ways to improve technology and resources so we can get an approval in the hands of Realtors as quickly as possible."

Sometimes buyers are willing to wait on what they believe is a good deal. Sometimes they walk away. Davis's client, two aid workers currently stationed in Kenya, didn't mind the 10 months it took to purchase the property. They bought the Silver Spring townhouse for $214,000. It originally sold for $380,000 in 2005 and had been on the market for 285 days.

Writing down loans is a tough business. Short sales involving home-equity lines and second liens often require the junior lien holders to write off the loans altogether. But when lenders hold on to offers, hoping that a better one will be presented, they risk not only losing the buyers, but that real estate prices will fall.

"We see this all the time," Davis said. "Banks stop communicating as they wait for better offers. Then months go by."

When an offer is finally accepted, if a home doesn't appraise at the buyer's first offer price, they lower their offer. That's what Davis's buyers did -- lowering the offer on the townhouse by $33,000 after it didn't appraise.

To avoid such long delays, the new Treasury rules requires banks to establish fair market-value prices on homes at the front end of the short-sale approval process, instead of waiting until after offers start rolling in. They can modify that price if a real estate agent is willing to sign an affidavit stating that the new price reflects its market value.

"I think if lenders can make it work, it could be amazing. But the issue we see time and again is a hold up getting banks' approvals," said Guled Kassim, who works on more than 40 closings a month as a settlement officer with Atlantic Title & Escrow in Bethesda.

"Banks have to be convinced that the sales price is market value and that a reduced payoff amount is better than foreclosure," added Kassim, who bought a distressed property using Flaherty Group last year. "Essentially, you're asking lenders to take a bath. It's not a business model most companies have set up. They are very doubtful about pricing, which is why I think the 10-day timeline may be wishful."

Pilot program launches

To quicken the pace of its own short sales, Bank of America has launched a pilot program for customers and real estate agents to help them through the process.

"If an offer is received, we will be in a position to approve the sale within two weeks," Bauwens said. "This program is currently in a limited pilot stage, and we hope to expand it soon."

The bank has also deployed a password-protected Internet portal that agents, sellers and bank employees can use to track short sales in real time, communicate and exchange documents, Bauwens said.

"We hope the new rules revolutionize the short-sale situation," said Jeff Lischer, managing director of regulatory policy at NAR. "It has the potential -- by setting deadlines, identifying property values upfront and providing standardized forms."

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