LIEB BLOG

Legal Analysts

Showing posts with label Foreclosure. Show all posts
Showing posts with label Foreclosure. Show all posts

Wednesday, July 22, 2015

Voice Your Support for Debt Relief for Underwater Homeowners

The Mortgage Forgiveness Debt Relief Act of 2007, which provided tax breaks to homeowners who were forgiven debt resulting from loan modifications, short sales, or deeds in lieu, was not extended through 2015. Though legislation has been introduced in Congress to extend the Act through 2016, it is incumbent on the people, especially on Long Island, where foreclosure rates are still higher than the national average, to contact their representatives and voice their support for the bill.

If you want to speak to your representatives to push for an extension for this bill, there is now an easy-to-use Web app called Democracy.io that allows its users to email their House representative and senators in a group and on a simple platform instead of having to fill out clunky forms for each representative on outdated government websites. Since easy access to the government is an important way of ensuring that the people’s concerns are heard by the government, Democracy.io will soon allow its users to send letters, call, and schedule meetings with their representatives as well.

Though it is still difficult for Congressmen to filter through the millions of messages that are received every day, Democracy.io is nonetheless a step forward in the right direction. As technology becomes simpler on the constituents’ sides, Congress will need to match on its side in order to keep up with the increased flow of communications. For now, all underwater homeowners should take advantage of Democracy.io and contact their representatives about The Mortgage Forgiveness Debt Relief Act of 2007. The more support behind the bill, the more likely it will be pushed through.


You can also track the bill here

Monday, July 13, 2015

HAMP Streamlined Modifications

The U.S. Treasury Department has issued Supplemental Directive 15-06 “Making Home Affordable Program – Streamlined Modification Process”.

This new program is akin to the Streamlined Modifications already offered on GSE Loans. GSE or “Government-sponsored enterprise”, are privately held corporations for a public purpose such as Fannie Mae and Freddie Mac. These GSEs have had in place streamline modifications that Loan Servicers are mandated to offer to eligible borrowers. One draw-back in any type of modification with a GSE Loan is the fact that principal reduction is not offered.

This new directive is for Non-GSE Loans and the Loan Servicers and Lenders such as Chase, Citibank, Carrington Mortgage, Nationstar Mortgage and so many others. The streamline modification provides a modification opportunity to delinquent borrowers of Non-GSE Loans without the need to submit any docs or for any income verification. In fact, once a Loan Servicer has designated its pool of eligible borrowers a Streamline HAMP Trial Period Plan Offer will be issued to the Borrower. The only thing for the Borrower to do is make the first payment to enter into the trial period. This will greatly improve the approval process for those Borrowers that are directly designated and free up resources for those borrowers that may not be eligible by lessening the modification approval time frame. The bonus is that in Non-GSE modifications, principal reduction can, and may be included in the modification.

Eligible Borrowers will only learn of this from their Loan Servicers directly by mail. Be sure to keep an eye on all mail received from your Loan Servicer to see if you are in luck. Regrettably, if a Borrower does not fit within the specific eligibility pool they will be out of luck for streamline modifications.

Tuesday, May 26, 2015

The Making Home Affordable Program (MHA) has been formally extended 1 year

The Making Home Affordable Program (MHA), has been formally extended 1 year, through December 31, 2016, by Supplemental Directive 15-04. The program has been widely successful in providing affordable alternatives to foreclosure for millions of homeowners nationwide, and the extension through 2016 will provide relief to the millions more who will be in danger of falling behind on their mortgages in the next year.

This extension applies only to mortgages that are not owned or guaranteed by Fannie Mae or Freddie Mac and for applications that are submitted to the Lender on or before December 31, 2016. Though it is not necessary to have a decision on the application for a loan modification, short sale, or deed-in-lieu by the end of 2016 to be eligible under the MHA program, the transaction must close on or before September 30, 2017 if the borrower would like to receive incentive compensation, such as relocation assistance, payments for successfully completing a short sale or deed-in-lieu, or payments for making timely loan modification payments. Since the amount of relocation assistance that Lenders must offer has increased from $3,000 to $10,000 for all HAFA (short sales & deeds-in-lieu) transactions closing on or after February 1, 2015, borrowers must be mindful of the deadlines so that they may be eligible to receive this increased amount to assist them in moving costs.

This Directive also amends the MHA guidebook to allow servicers to establish a cap on the amount that they will pay to release the second mortgage liens, as long as the cap is not less than $12,000. It establishes a floor amount that borrowers may receive from their primary mortgage lenders to assist them in closing on their short sales or deeds-in-lieu.


These amendments ensure that borrowers will continue to have access to adequate relief through the MHA program.

Wednesday, January 21, 2015

Ocwen Financial May Lose its Mortgage License

By the end of this year, Ocwen Financial, one of the largest mortgage servicers in the U.S., may lose its mortgage license in California.

Ocwen has been subjected to numerous investigations over the years regarding improper foreclosures, misplaced and mislabeled borrower documentation, billing issues, and overall failure to comply with federal and state laws and regulations. In December, Ocwen settled an ongoing investigation by the NYS Department of Financial Services (DFS) by agreeing to pay $100 million, which was to be used to support foreclosure defense programs and other relief and $50 million to Ocwen borrowers who reside in New York. As a result, not only did the company’s chairman step down from his position, but DFS will continue to monitor Ocwen in the upcoming years for further unlawful conduct. Although this settlement greatly impacted borrowers in New York, it was held as a victory for borrowers all over the country because it was supposed to put Ocwen in check and to stop it from continuing its cycle of financial abuse.

Unfortunately, the story does not end there. California now wants to suspend Ocwen’s mortgage license in the state as a result of Ocwen’s failure to provide mandatory documentation to the Department of Business Oversight, which is responsible for determining whether Ocwen is complying with state regulations in California. Ocwen issued a press release on January 13, stating that it is committed to resolving the issues in California, especially since its shares are crashing as a result of the news. It is crucial that Ocwen turns its business practices around and finally provide high quality assistance to its borrowers. Otherwise, it will surely fail.

Settlement conferences will begin in February. If nothing is resolved, Ocwen will not be able to do business in California for at least a year. If that happens, Ocwen may not be able to survive such a huge blow.

Monday, January 12, 2015

New NYS Foreclosure Prevention Program is Closing its First Loans

Yesterday, the New York Attorney General, Eric Schneiderman, announced in a press release that the first loans have closed in the New York State Mortgage Assistance Program (NYSMAP) to help homeowners across the state pay off their mortgage arrears and/or liens in order to avoid foreclosure.

This program was launched on Long Island in September and was opened to the rest of the state in mid-October to provide funds to homeowners so that they may apply and be approved for loan modifications. Since one of the most common reasons for loan modification denial is the inability to pay off mortgage arrears, unpaid property taxes, and liens on properties in foreclosure, these NYSMAP loans are specifically designed to help homeowners pay off these types of debt up to $40,000. The program has already received 41 loan applications and approved 9 loans from Long Island alone. Mr. Schneiderman is predicting that hundreds of loans across the state will be approved over the next year, helping homeowners obtain loan modifications and keep their homes into the future.

Click here at nysmap.org or call 855-466-3456 to see if you are eligible for a loan through NYSMAP.

Wednesday, January 07, 2015

Important Decision on Right of First Refusal in Foreclosure Sale

An important decision came out on December 23, 2014 regarding the right of first refusal—the requirement that a property owner, if and when he is offered to sell his property to a third party, must first present that offer to the party who previously entered into a contract which gave that party the right to purchase the property before others. The right of first refusal is easy to understand if we use a basic example. Let’s say Allison wanted to sell her real estate to Bobby but Carrie had a written right of first refusal for the property in question. Allison would first get an offer from Bobby and then, offer that to Carrie. If Carrie accepts the terms set by Bobby, she can purchase the property. If not, Bobby has a deal to buy the property.

Here, in the case, Centech LLC v. Yippie Holdings LLC, the issue was whether a party who had a right of first refusal could exercise it based upon a foreclosure sale. The Court found that the right of first refusal was not applicable in the foreclosure sale because the language of the right of first refusal did not clearly provide for a foreclosure sale as a trigger to the right of first refusal.

The takeaway is that when you have a right of first refusal, make sure that it clearly sets forth the trigger to our ability to exercise your right. Vagueness can prevent you from having a right that you otherwise believe to be yours. 

Friday, January 02, 2015

TAX RELIEF GRANTED FOR UNDERWATER HOMEOWNERS

Terrific news is here with a tax break for those who sold or lost their underwater homes to foreclosure in 2014.

The Mortgage Forgiveness Debt Relief Act (MFDRA) was extended through 2014 by the Tax Increase Prevention Act of 2014 on December 19, 2014.

Homeowners who were forgiven debt a/k/a “cancellation of debt income” (difference between the total amount of the mortgage still owed at closing and the sale price or fair market value of the property) resulting from a short sale, deed in lieu of foreclosure or foreclosure sale, will have the forgiven debt excluded from their taxable income for transactions completed through 12/31/2014. 
             
The MDFA previously expired on December 31, 2013.

So, for those who lost a home to foreclosure or a short sale in 2014, you will receive a nice holiday tax break when you file your taxes in the new year.  

Thursday, November 13, 2014

New York Foreclosure Settlement Conferences are Tools to Help Homeowners Stay in Their Homes

New York is one of many states across the country that has implemented court-mandated settlement conferences for residential foreclosure actions.

It is important to understand how these conferences work so that homeowners can take full advantage of this opportunity to delay and avoid foreclosure. The initial conference must be scheduled within 60 days after the proof of service of the complaint has been filed with the county clerk and allows the borrower to meet with his or her Lender and a court referee or judge to discuss potential workout options, such as loan modifications or payment plans. If the borrower decides to apply for a loan modification, the Lender provides the borrower with a document request for the loan modification application, and the court referee sets deadlines for the submission and review of the application. Typically, there are numerous conferences throughout the application process in order to ensure that the borrower is complying with the Lender’s document requests and that the Lender is properly reviewing the application. If a borrower believes he was improperly denied a loan modification, his attorney may request a bad faith hearing with the judge to determine whether the Lender should be sanctioned for bad faith negotiations. These settlement conferences not only help homeowners delay the foreclosure process but also can stop the foreclosure process all together.

Not every person who has a property in foreclosure in New York State is entitled to these mandatory pre-trial foreclosure settlement conferences. The law in New York (CPLR 3408), extends the conferences only to owner-occupied residential properties, so if a homeowner has a vacant property or a rental property in foreclosure, he or she is not entitled to a CPLR 3408 conference as of right.

Further, CPLR 3408 does not apply in federal court, but settlement conferences are still available at the federal level. Rule 16 of the Federal Rules of Civil Procedure allows federal courts to hold pre-trial conferences for the purpose of settlement negotiations and encourages judges to take an active part in the settlement negotiations. The procedures differ at the federal level but the purpose is still the same. These conferences are often the difference between a homeowner staying in his or her home and losing it.

Wednesday, October 22, 2014

Ocwen Mortgages May Get a Reprieve from Foreclosure

On October 21, 2014 the New York State Department of Financial Services sent correspondence to Ocwen's General Counsel raising issue "with Ocwen's systems and processes".

The issue presented by NYS DFS deals squarely with Ocwen engaging in bad faith negotiations to modify mortgages. 

Borrowers in New York should be arming their applications for violations of CPLR 3408's good faith negotiation requirement as they review this correspondence and asking the Courts to sanction Ocwen should they have experienced the issues highlighted in the correspondence.

Of note are the record keeping inaccuracies attributed to Ocwen by NYS DFS, which impact RPAPL 1303 and 1304 as well as issues with standing and, in particularly, the attorney verification requirements embodied CPLR 3012-b. How can a Court trust their applications to foreclose in light of this correspondence?

The correspondence claims that "these issues remain unresolved today". This is very concerning. 

Friday, June 27, 2014

New Foreclosure Prevention Program launched in New York State

Yesterday, the New York Attorney General, Eric Schneiderman, announced the New York State Mortgage Assistance Program to help homeowners avoid foreclosure. 

Long Island, with its beautiful, expensive real estate, was devastated by the economic crisis in 2008 and is still struggling to recover six years later. It currently has the highest rate of defaulted mortgage loans and some of the highest foreclosure rates in New York State. In order to speed up the recovery process, Mr. Schneiderman launched this program yesterday to help struggling homeowners borrow up to $40,000 to stave off foreclosure. This program will become effective in September and will be available to Long Island before the rest of New York State, using the money from the National Mortgage Settlement of 2013 to fund these loans.  Many homeowners have been denied for loan modifications in the past because they were unable to pay off their arrears or because there were liens against their property. These loans, which are interest-free and not due until the mortgage is paid off in full, will help struggling homeowners pay off the obstacles to their loan modification approval and allow them to keep their homes.


Tuesday, May 27, 2014

Foreclosure Activity is Down Nationwide

Nationwide foreclosure activity is at its lowest point since 2007. The amount of auctions, defaults, and repossessions have substantially decreased across the country. Only 17% of all mortgaged homes are seriously underwater as opposed to 29% in 2012, and negative equity is down overall.

It is anticipated that we will also start to see a decline in short sales in 2014 due to two major reasons:

a. The Mortgage Forgiveness Debt Relief Act has not been passed for 2014. This means that borrowers are liable for the income tax on the forgiven debt in a short sale. In many cases, this kind of tax bill is too high and the borrower must default on his or her tax bill. The IRS can subsequently garnish wages, freeze bank accounts, and place liens on assets without having to first obtain a judgment. Many borrowers are unwilling to put themselves in such a position and would rather let the property go to foreclosure than to have the IRS go after them for money they do not have.

b. Lenders are less likely to approve short sales today because they know they can successfully sell the properties at auction or as an REO (bank-owned property) at a higher price because fair market value for real estate is on the increase.


Please note that the total amount of foreclosures (percentage of units by area) in Suffolk County is higher than the national average and the New York State average, and the amount of Suffolk County homes in pre-foreclosure is on the rise. Overall, however, foreclosure auctions are down in Suffolk County just as the rest of the nation. Keep this in mind, brokers, as you navigate the real estate in Suffolk County.

Friday, May 16, 2014

New Policy to Reduce Foreclosures on Long Island

Starting in June 2014, judges on Long Island will take on a substantial role in Foreclosure Settlement Conferences as issues arise in foreclosure litigation. The purpose of this new policy is to solve homeowners’ issues in an efficient way and help more homeowners obtain loan modifications in an area of the country where the percentage of foreclosures is still quite high.

New York requires judicial intervention in the foreclosure process. It is New York State Law that the courts must hold Foreclosure Settlement Conferences for all residential foreclosure actions involving home loans originating between January 1, 2003 and September 1, 2008, or nontraditional home loans. Previously overseen only by Court-appointed referees, these conferences allow borrowers to discuss workout options with their mortgage lenders in order to avoid foreclosure. However, the process has always been flawed, as lenders oftentimes would send representatives who not only did not have knowledge of the cases but also had no authority. This new policy is supposed to address these types of issues quickly, correct the flaws of the Foreclosure Settlement Conferences, and protect borrowers against the wrongful practices of these mortgage lenders. A judge is much more equipped to handle these issues than a referee, allowing for fewer foreclosures on Long Island.

Thursday, April 24, 2014

Guidelines Shifting for the Federal Loan Modification Program

Updates to the Making Home Affordable Handbook for the federal Home Affordable Modification Program are available here and will be effective July 1, 2014!

Top things you need to know about HAMP:
  1. The Home Affordable Modification Program (HAMP) is a federal program designed to help homeowners obtain affordable loan modifications.
  2. HAMP Tier 1 only applies to loans of principal residences.
  3. A HAMP Tier 1 mortgage payment must reflect 31% of the homeowner's gross monthly income.
  4. HAMP Tier 2 may apply to loans of principal residences or to loans of rental properties.
  5. A HAMP Tier 2 mortgage payment must be within the range of 25% to 42% of the homeowner's gross monthly income.
  6. A HAMP Tier 2 mortgage payment must represent a reduction of at least 10% of the original mortgage payment amount. 
However, Supplemental Directive 14-02 to the Making Home Affordable Handbook is drastically changing the requirements under HAMP Tier 2 to make it easier than ever to get a loan modification on a non-GSE rental property!

In Section 6.3.3 of Chapter II of the MHA Handbook, the post-modification principal and interest payment under HAMP Tier 2 must be at least ten percent less than the pre-modification principal and interest payment. To clarify, if the original monthly principal and interest mortgage payment is $3,000, then the modified monthly principal and interest mortgage payment under HAMP Tier 2 must be $2,700 or less according to the ten percent reduction rule. Under this Supplemental Directive, however, this required percentage is totally erased. Now, it is only required that the post-modification principal and interest payment be less than the pre-modification principal and interest payment, thus expanding the amount of homeowners eligible for HAMP Tier 2. In the past, many homeowners were ineligible because servicers could not reduce the principal and interest amount by the required percentage due to the default amount, monthly real estate taxes, property value, and other similar factors. Without a required percentage, servicers will have a much easier time reducing the post-modification principal and interest payment for more homeowners across the country.

However, it should be noted that servicers may require a minimum reduction as long as that reduction is not greater than ten percent. Servicers must include this minimum reduction in their written policy if they choose to do so.

Another important clarification is the modification of loans prior to the loss of good standing. If a homeowner would like to modify an already HAMP-Tier 1-modified loan and is not in default on that loan, he or she may be eligible for HAMP Tier 2 if it has been more than five years since the HAMP Tier 1 modification. Once a homeowner accepts a HAMP Tier 1 loan modification, he or she cannot obtain another one in the future if that loan goes into default again. HAMP Tier 2, however, would still be available to this homeowner as a loan modification option (even if the property is a primary residence) as long as it has been more than five years since the original HAMP Tier 1 modification date. Since the Home Affordable Modification Program is the federal program to help homeowners cure their default, it always has priority over Lender in-house modifications.

Also included in this Supplemental Directive are updated guidelines regarding post-modification counseling, assistance for homeowners with limited English proficiency, and notice of interest rate step-ups. Although these guidelines are important as well, it is crucial that real estate agents focus on the new HAMP Tier 2 guidelines, especially if their clients own rental properties that are in risk of default or are currently in default. The more knowledgeable you are able these guidelines, the more your clients will trust you in other aspects of real estate.

Again, these updated guidelines will be effective July 1, 2014, and it is important that you understand and prepare for these changes.