Merry Christmas says Santa Paterson - Governor increases Bankruptcy Homestead Exemption

Long Islanders filing bankruptcy can now protect $150,000 for individuals and $300,000 for couples in home equity if they file for bankruptcy. This is in contrast to the $50,000 and $100,000 previously available. This is a huge change and a huge chance for a fresh start for many homeowners with equity. If you haven't considered bankruptcy because your house has a lot of equity, but you are otherwise strapped with bundles of credit card debt, this one is for you. Thank you Santa Paterson.

To read the law, click here.

Also, for all you contractors out there, the new law also increases the exemption from bankruptcy for tools of the trade from $600 to $3,000. So, now you can keep working after a bankruptcy with your tools by your side.

Hey California - borrowers need lawyers too

In an almost crazy move, California has enacted a new law where lawyers who work on loan modifications cannot receive any money until the work is complete.

Now, don't get me wrong, I have many clients who were previously swindled by a loan modification company who inaccurately made promises of grandeur in their success in getting a modification. Yet, lets look at it another way. Why would an attorney want to trust that their client will eventually pay them when they are in default on their current obligations to make payments before they have even met the lawyer.

To read a NY Times article on the topic, click here.

My opinion is that instead of preventing borrowers from receiving legal help, our society may want to make lawyers more readily available with public funding and public oversight of ethics. Now, that would solve the problem of lawyers making themselves into liars while also providing access to reputable attorneys who can actually help clients save their homes.

Having a problem negotiating a modification with your bank?

Often the people on the front lines for the banks inaccurately address your situation under the MHA guidelines. Click here to escalate your case to get answers and results.

Bankruptcy and Modifications can coexist

Clients often inquire if they should get a modification or file for bankruptcy. The answer is to do both. Click here to read a great article that will answer many of your questions in what is often a very scary time.

Knowing what the servicers know - The Servicer Handbook - Version 3.0

This reference guide outlines the requirements and guidelines for the Makhing Home Affordable (MHA) Program for non-GSE mortgagees.

To get your copy of the guide, click here.

The 8 chapters are:
Chapter I -- contains standard information affecting all MHA programs
Chapter II -- contains specific program information on the Home Affordable Modification Program (HAMP)
Chapter III -- contains specific program information on the Home Affordable Unemployment Program (UP)
Chapter IV -- contains specific program information on the Home Affordable Foreclosure Alternatives Program (HAFA)
Chapter V -- contains specific program information on the Second Lien Modification Program (2MP)
Chapter VI -- contains specific program information on government loans
Chapter VII -- contains specific program information on the Treasury/FHA Second Lien Program (FHA2LP)
Chapter VIII -- contains specific program information on interactions with HFA Hardest Hit Fund Programs

LIEB's Offer to Real Estate Agencies - Dual Agency Disclosure

Please contact Lieb at Law at 631-878-4455 to schedule a complimentary 20 minute question & answer at your office about the new dual agency disclosure forms - the new forms will be provided.

Email from Department of State on Dual Agency

Dear Real Estate Education Coordinator,




Please be advised that the recent amendments to Article 12-a of the Real Property Law, regarding agency disclosure requirements, have been added to the real estate qualifying course curriculum.



Effective January 1, 2011, the amendment will permit real estate licensees to obtain advance consent to dual agency from consumers. This consent would be obtained at the time of the first substantive contact between the agent and consumer. The amendment is clear that advance consent to dual agency must be ‘informed’.



Accordingly, the Department is of the opinion that the bill would require real estate licensees to disclose the benefits and detriments of providing advance consent prior to the form being executed and to provide later disclosure when the dual agency relationship has actually been consummated. Not providing this follow-up disclosure would be a violation of the broker’s fiduciary duties of full disclosure and reasonable care to the consumer and would be a demonstration of untrustworthiness pursuant to section 441-c of the Real Property Law.



Additionally, condominium and cooperative apartments in buildings containing more than four units are currently exempt from the disclosure form requirements of section 443 of the Real Property Law. This amendment eliminates this exemption.



Attached to this communication are the statutory amendment, the updated real estate sales and broker syllabus, learning objectives and the amended agency disclosure form which take effect on January 1, 2011. Although the new agency disclosure form will not be required to be used until January 1, 2011, it is recommended that you immediately begin including this new curriculum in your qualifying course lesson plan.



The attached new agency disclosure form will be posted on our website at www.dos.state.ny.us in the near future.



Please feel free to contact me if you have any questions.



Sincerely,



Marc Mastrobuono

Department of State

Division of Licensing Services

Bureau of Educational Standards

There are approximately 78,000 pending foreclosure cases in NY

To read a fascinating report on the current state of foreclosures in NY brought to you by the Chief Administrator of the Courts click here.

Some highlights include the following:

1. Over 20,000 more foreclosure cases were pending in 2010 than 2009;
2. 40% of the total cases pending in Supreme Court Suffolk County are foreclosures;
3. This year through October 42,536 foreclosure cases had settlement conferences;
4. In 2010, the default rate on appearing at any point during a foreclosure case was 20% by homeowners;
5. Only 27% of homeowners have representation during foreclosure settlement conferences; and
6. This year through October only 4,062 settlements occurred in foreclosures. 

Your License = Your Livelihood

We get many questions at our school about the process that happens when someone makes a complaint to the Department of State about your actions as an agent. To learn about the Licensing Complaint Resolution Process, click here.

Department of State Update - For Real Estate License Renewal

ONLINE RENEWAL FOR REAL ESTATE LICENSEES

Beginning February 1, 2010, Licensees will no longer be sent a paper renewal in the mail. In accordance with New York’s Green Initiative, the Division of Licensing Services will be requiring that all real estate licensees renew their licenses online. When a license is due for renewal, the licensee will be notified in two ways: a postcard reminder will be sent to the licensee’s business address and an email reminder will be sent to the email address provided in the licensee’s eAccessNY account. In addition, brokers will be included in the email reminders(a “cc” copy) for any salespersons and associate brokers who are employed by their office. Both of these renewal reminders will include instructions on how to renew a license online utilizing eAccessNY.

The online renewal process is a much quicker and more efficient process. Online renewal applications that meet the requirements will be approved immediately and licensees will receive their License and Photo ID Card within two to three weeks.

Instructions for Completing an Online Renewal

To renew your license online you must have an active eAccessNY account and follow the directions below:

• Go to the Department of State website, www.dos.state.ny.us, and select the eAccessNY link (to the right of the screen)
• Select “access” link under item 3, “Access My Account” and log into your account
• Select list of licenses/select the license number you wish to renew
• Select the “Renew License” link and complete the online application


If you have not yet activated your eAccessNY account, NOW is the time. Please email us at eAccessNY@dos.state.ny.us to obtain a password for your account.

Further updates will be posted as we move forward with this new requirement.

Home Inspection - Code of Ethics

On October 27, 2010, the Code of Ethics for Home Inspectors was adopted. Click here to read the Code.

Debt-to-Income ratios get tougher by FANNIE MAE

At the beginning of our recent class, entitled Mortgage Mania at Bethpage FCU, I was asked a question, which was more like a statement, inquiring if a lower Loan to Value (L/T) ratio (more money down) was a key predictor of default risk.

IN ENGLISH - If a borrower puts down more money (has more equity) shouldn't that imply they won't default? I took issue with this statement by saying that I believe that back-end Debt to Income (DTI) ratio mattered a hell of a lot more. My rationale was that even if you had a lot of skin in the game, your inability to make your mortgage payments trumped your desire to make your mortgage payments. The student took issue with my sentiment throughout the class thereafter by defending his position.

It’s true that both L/T ratio and DTI ratio are relevant and evaluated by lenders in making a loan. Yet, my message was that DTI ratio is much more important in making the determination to provide funding. 

It turns out that FANNIE MAE agrees. They just changed, effective December 13, 2010, their requirements with respect to each of the above discussed ratios. Specifically, maximum DTI ratios for a conventional mortgage change from 55% to 45% under the new guidelines. Additionally, borrowers can now utilize gifts and grants to satisfy their minimum down payment, which impacts the L/T ratio. To read a great New York Times article that summarizes these changes, click here. Remember, that FANNIE MAE sets the standards for the rest of the industry because they are the largest secondary market purchaser, so this will likely become the standard.

The takeaway for students reading this blog is that a lender cares more about your ability to pay (how much money you have left at the end of the month after paying your other bills) as opposed to your desire to pay (how much equity you have to lose if you don't pay).

Spinner overturned - enforcement of the CPLR 3408 Foreclosure Settlement Conferences' good faith requirement held unauthorized

Appellate Division, Second Department, held in an unsigned ruling that the "severe sanction…was not authorized by any statute or rule…nor was the plaintiff given fair warning that such a sanction was even under consideration." "The reasoning of the Supreme Court that its equitable powers included the authority to cancel the mortgage and note was
erroneous, since there was no acceptable basis for relieving the homeowner of her contractual obligation to the bank," - IndyMac Bank, F.S.B. v. Yano-Horoski, 17926/05.

Open Letter from the Bar to the Courts

Click here to read a letter from the chair of the Real Property Law Section of the New York State Bar Association to Mr. Paul Lawis of the New York State Office of Court Administration. This letter called for changes to the Affirmation Requirement in foreclosures. As can be seen from my previous post, many of the calls from the chair of the section went unanswered. More importantly, I disagree with many of the chair's statements, as do many other attorneys who question how such a letter could be written without a vote. Specifically, the chair discusses how this requirement violates the attorney-client privilege of confidentiality. Yet, if he would read the ethics rules for attorneys, click here to read, he would learn that not perpetrating a fraud on the court trumps that rule.

Foreclosure attorney affirmation modified

As I always advise to real estate experts, foreclosure defense requires being on top of the issues (they change all of the time). In less than a month after announcing an Affirmation requirement for foreclosure attorneys to hopefully weed out robosigners, the court system has already changed the affirmation requirement on November 17. The new affirmation requirement can be found by clicking here.

Nominee to head the Federal Housing Finance Agency

As has been discussed at length on this forum and others, public policy on foreclosures shifts between periods of pro-borrower and pro-lender. To predict the next move of public policy its important to follow who makes policy. Just recently it was learned that President Obama will nominate North Carolina's chief banking regulator, Joseph A. Smith Jr. to run the agency that oversees both Fannnie and Freddie. To learn more about Mr. Smith, click here. It seems that he will be pro-borrower. Hopefully this can strengthen a pro-workout / modification culture where people can stay in their homes.

Mortgage Mania - Free 3 Credit CE in Bethpage on 11/18

Attention Real Estate Agents: If you haven't taken the course Mortgage Mania, we are offering the class next week on 11/18 at 5:30pm at Bethpage Federal Credit Union. Advanced Registration is Required. Course is 3 Credits. To Register CLICK HERE

Mortgage Mania

Credits: 3 Hours

Instructors: Andrew M. Lieb, Esq., MPH; Karen R. Laurence

Summary: It's time to learn the secrets in order to qualify for a mortgage. This seminar will begin with the basics, discussing everything from the definition of a mortgage to types of mortgages. You will learn who the players are at the bank and how their respective roles impact your deal. Mr. Lieb will discuss the differences between a prequalification and a commitment and how to close your deal smoothly under the Real Estate Settlement Procedures Act. Mrs. Laurence (Mortgage Loan Officer) will share secrets that occur behind the scenes at the banks and let you know how to navigate through issues with credit scores. This course will enable you to weed-out high-risk clients and to advise average credit score clients on structuring their applications to get approved. Let's prevent mortgage contingency clauses from killing our deals.


About the Instructors:

Andrew M. Lieb, Esq., MPH

Andrew M. Lieb is the Managing Attorney at Lieb at Law, P.C., a family-owned law firm with offices in Center Moriches and Manhasset, New York. In such, Mr. Lieb is licensed to practice law in the Courts of New York State and the Eastern District of New York. Mr. Lieb is further licensed as a Real Estate Instructor in New York State by the Department of State, Bureau of Educational Standards.
Mr. Lieb is also the founder and lead instructor of the firm's New York State licensed Real Estate School, which serves as the Pro Bono arm of Lieb at Law offering certified continuing education (CE) courses to Real Estate Professionals.
Mr. Lieb actively instructs New York State continuing legal education (CLE) classes, holds a Masters of Public Health, and is an Adjunct Professor at Nassau Community College. He's served as a Faculty Member of the Suffolk Academy of Law, and as an Associate Instructor at Indiana University in Bloomington. Mr. Lieb currently sits on the Board of Directors for Colonial Youth and Family Services, is the Chairman of Center Moriches High School Business Advisory Board, and is a Contributing Editor for both Homes of the Hamptons and Homes of Eastern Long Island magazines.


Karen Laurence, Mortgage Loan Officer

Karen Laurence currently serves as a Mortgage Loan Officer at Bethpage Federal Credit Union, focusing in residential real estate. With over 13 years in the industry, Ms. Laurence offers additional expertise in commercial lending and maintains certifications and licenses in Mortgage, Insurance, Real Estate and is also a Notary.
Ms. Laurence excels with first time home-buyers and refinancers, while her specialty is foreclosures and short sales, reverse mortgages, new construction, mortgage originations and refinancing.
Prior to working at BFCU, Ms. Laurence was a Branch Manager at Countrywide Home Loans, a corporate Loan Consultant at GMAC Mortgage, and held further roles in private and public institutions.
Ms. Laurence's professional affiliations include: Women's Council of Realtors, Long Island Center for Business and Professional Women, Huntington Township Chamber of Commerce, Long Island Builder's Institute, Huntington and North Nassau Chapters of the Long Island Board of Realtors.
Ms. Laurence received her Bachelor of Arts from the University Of Miami, Florida, where she majored in Psychology and minored in Mass Communications.

Great resource for foreclosure fraud information

Learn about robo-signers, NY foreclosure cases, MERS, and Steven Baum. Read the depositions of robo-signers, the law on Regulation X, and RESPA. All available at stopforeclosurefraud.com

Great resources for FHA workouts

A number of documents by HUD providing guidelines for FHA workouts. Click here to view the page.

Sample Distressed Property Agreement

As promised at the Lieb at Law, P.C. Foreclosure Filibuster class last night in Bethpage, please find below a sample distressed property agreement. This sample is intended for use by individuals, corporations, partnerships, LLCs or other business entities that, directly or indirectly, solicit or undertake employment to provide consulting services to a homeowner for compensation or promise of compensation with respect to a distressed home loan or a potential loss of the home for nonpayment of taxes. It is not necessary that attorneys and other persons/entities use the same (please see N.Y.RPP.LAW § 265-b: NY Code - Section 265-B: Distressed property consulting contracts). Please be aware that the two (2) "Notice of Cancellation" provisions contained below are there by design. It is necessary, under the above law, to attach two (2) copies of the Notice of Cancellation provision to any sample distressed property agreement. Therefore, we've provided the same for your use. Here it is:

WHEREAS, “Homeowner” and Distressed Property Consulting Firm, who’s primary place of business is located at _____________________and telephone number is ________and fax number is________, are parties to a Consulting Agreement dated as of _____,__,201_; and;

WHEREAS, the Consulting Agreement provides the Services to be delivered by Distressed Property Consulting Firm (‘Consultant”) or such other persons as Consulting Firm may designate.

WHEREAS, the scope of this agreement entails that the Consultant provide services to help to achieve any of the following for homeowner:

(i) stop, enjoin, delay, void, set aside, annul, stay or postpone a

foreclosure filing, a foreclosure sale or the loss of a home for

nonpayment of taxes;

(ii) obtain forbearance from any servicer, beneficiary or mortgagee or

relief with respect to the potential loss of the home for nonpayment of

taxes;

(iii) assist the homeowner to exercise a right of reinstatement or

similar right provided in the mortgage documents or any law or to

refinance a distressed home loan;

(iv) obtain any extension of the period within which the homeowner may

reinstate or otherwise restore his or her rights with respect to the

property;

(v) obtain a waiver of an acceleration clause contained in any

promissory note or contract secured by a mortgage on a property in

foreclosure;

(vi) assist the homeowner to obtain a loan or advance of funds;

(vii) assist the homeowner in answering or responding to a summons and

complaint, or otherwise providing information regarding the foreclosure

complaint and process;

(viii) avoid or ameliorate the impairment of the homeowner's credit

resulting from the commencement of a foreclosure proceeding or tax sale;

or

(ix) save the homeowner's property from foreclosure or loss for

non-payment of taxes.

NOW, THEREFORE, in consideration of the foregoing premises and the covenants and agreements herein contained and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto intending to be legally bound, hereby agree as follows:

(a) As consideration for Consulting Firm’s agreement to enter into this agreement and rendering the Services, homeowner shall pay to Consulting Firm at the conclusion of the Consulting Firm’s services a fee of $_______; with no payments being charged or accepted at any time prior to the completion of consultants services. Terms of payment shall be ____________.

(b) Except as specifically amended hereby, the Consulting Agreement shall continue in full force and effect unmodified and the parties hereby reaffirm the same.

IN WITNESS WHEREOF, this agreement has been executed by and on behalf of the parties hereto to become effective as of the day and year first above written.

	HOMEOWNER.
	By:
		_______________________ Dated:___________ Homeowner’s name typed Homeowner

	Distressed Property Consulting Firm.
	By:
		_______________________ Dated:____________ Consultant’s name typed Consultant Sworn to and subscribed before me this _____day of ____2010

Sworn to and subscribed

before me this _____day of ____2010

Notary Public

NOTICE REQUIRED BY NEW YORK LAW

You may cancel this contract, without any penalty or obligation, at

Any time before midnight of _____ (fifth business day after

execution).

(the "Consultant") or anyone working for the Consultant may not take any

money from you or ask you for money until the Consultant has

completely finished doing everything this Contract says the Consultant will

do.

You should consider consulting an attorney or a government-approved

housing counselor before signing any legal document concerning your

home. It is advisable that you find your own attorney, and not consult

with an attorney recommended or provided to you by the Consultant. A

list of housing counselors may be found on the website of the New York

State Banking Department, www.banking.state.ny.us or by calling the

Banking Department toll-free at 1-877-BANK-NYS (1-877-226-5697). The

law requires that this contract contain the entire agreement between you and

the Consultant. You should not rely upon any other written or oral

agreement or promise."

NOTICE OF CANCELLATION

Note: You may cancel this contract, without any penalty or obligation,

at any time before midnight of ______. (Enter date)

To cancel this contract, sign and date both copies of this cancellation

notice and personally deliver one copy or send it by facsimile, United

States mail, or an established commercial letter delivery service,

indicating cancellation to the Distressed Property Consultant at one of

the following:

Name of Contractor_________________________

Street Address_____________________________

City, State, Zip___________________________

Facsimile:_________________________________

I hereby cancel this transaction.

Name of Homeowner:_________________________

Signature of Homeowner:____________________

Date:______________________________________

NOTICE OF CANCELLATION

Note: You may cancel this contract, without any penalty or obligation,

at any time before midnight of ______. (Enter date)

To cancel this contract, sign and date both copies of this cancellation

notice and personally deliver one copy or send it by facsimile, United

States mail, or an established commercial letter delivery service,

indicating cancellation to the Distressed Property Consultant at one of

the following:

Name of Contractor_________________________

Street Address_____________________________

City, State, Zip___________________________

Facsimile:_________________________________

I hereby cancel this transaction.

Name of Homeowner:_________________________

Signature of Homeowner:____________________

Date:______________________________________