Loan Modifications
August 6th, 2008
Foreclosure Alternatives - Mortgage Loan Modification
Loss Mitigation Source 4/2008 ©BOTB, LLC Page 1
Saving your Real Estate from Foreclosure with a
Loan Modification Agreement
By Lance W. Newton – lance@sdrpsolutions.com
Because I’ve spent the last several years working with Real Estate Investors and homeowners
and because the market for real estate has changed so dramatically, I am now getting many
calls from owners of Single Family real estate that are in real distress. I am often asked “Is it
possible for a Homeowner to Negotiate a Mortgage Modification with a Lender?” The answer is
yes.
It is possible to “Do It Yourself” and to work directly with a lender or loan servicer/trustee, but
before you try this approach, take a look at the information and discussion below and carefully
consider your alternatives.
The Loan Environment in 2008
Home owners in a real estate markets with rapidly falling values are in trouble with loans that
have variable interest rates that have adjusted or are about to adjust. Usually they are in trouble
because of an illness in the family that has reduced or eliminated vital income, or there is trouble
in typical two income families (where both incomes are necessary because of the size of a
house payment and there is a loss or reduction of employment for either spouse). More and
more, divorce is becoming the issue as payments are too large for either spouse alone.
Sometimes it is a simple matter of too much negative cash flow.
Borrowers in trouble are searching for answers to very difficult questions. By some accounts,
more than 25% of all residential loans in California at the end of 2005 were Adjustable Rate
Mortgages with similar or higher percentages in other Bubble markets like Arizona, Florida and
Nevada. Interest rates on these loans are “resetting” now and will continue to do so into 2009.
In most cases this means a big increase in interest rates and in the size of monthly payments
due.
In many cases, the current value of properties in these areas is well below the balance of all
outstanding loans and the property is considered to be “upside down”. Where payments remain
affordable to the borrowers this is not a problem. Over the long term (maybe the long, long
term), values should go up again and if the borrowers were not making house payments, they
would be making rental payments somewhere, without the benefits of interest and depreciation
deductions available to homeowners and investors. Of course rental payments may be far more
affordable than current house payments, but there is a huge emotional block for homeowners
who do not want to face up to moving from a home in a good area to an apartment, even if it is
in the same area. A quick look at the rental prices for equivalent housing in your area will give
you an idea of what the premium is today for owning versus renting.
When payments are no longer affordable, many have chosen to ignore the problem for too long
and borrowed more money to keep up payments, hoping the problem might go away. Some
have simply walked away from their homes and investments. Borrowing alone will never solve
the problem of too much debt.
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Media and Reality
Everywhere you look in the media there are stories about Sub-Prime borrowers who are in
trouble on their home mortgages. In general people do not realize that 1/3 of American
Homeowners own their home “Free and Clear” and have no mortgage.
Most homeowners are current on their mortgage, but all we hear about are those who are not.
Unfortunately, if enough Sub-Prime borrowers give up their homes, or cannot keep them, the
entire market is affected by oversupply and prices will continue to drop, which affects all
borrowers.
Stories in the media are about working people (often with marginal credit histories) who made
the decision to try and reach for the American Dream of “Home Ownership”, using one of the
widely available, low or no down payment, Adjustable Rate Mortgages (ARM’s) or Option
ARM’s. Option ARM’s offer a menu of payment options, most of which do not “fully amortize”
(pay the amount that will pay off or “retire”) the loan during the loan term.
Many ARM or Option ARM borrowers did not understand the terms and conditions of their loan
contract and many lenders will no doubt be sued as a result of violations of the Truth in Lending
Act (TILA) or the Real Estate Procedures Settlement Act (RESPA) related to these loans.
Sadly, minority borrowers were steered into these loans by unscrupulous salespeople, at the
same time, many of these borrowers
understood exactly
what they were buying, but saw the
profit potential of doing these transactions in a market that appeared to be going up forever.
It remains to be seen what the success of these individual and class action suits by borrowers
will be against the incredibly deep pockets and top notch law firms retained by the large lenders
still in business or what remains of the many lenders and mortgage brokers that have failed.
Articles very seldom discuss “well qualified borrowers”, the people with good jobs and credit and
who could afford to put down 5-10% or more on their property. They do not discuss the
speculators who hoped for quick appreciation on properties in rapidly appreciating areas, using
“stated income” or so called “liar loans”, (some of which required little or no down payment), to
purchase and “flip” properties just a few months after purchasing them, presumably for a fat
profit on the highly leveraged down payment.
Likewise there has not been much discussion of otherwise well qualified buyers who purchased
the largest possible property with the highest leverage (lowest down payment and lowest cost
loan terms) they could, thinking that they could “move up” to something even better , based on
profits from the sale of that property, rolled up into the next purchase. In California and some of
the other “hot” markets, some real fortunes have been made by the most able, shrewdest
buyers/investors during the growth of this real estate bubble and real money has been made by
those blessed with lucky timing too. For a sizeable percentage of buyers, the real estate
downturn presents a number of choices, any of which could mean sizeable financial loss,
bankruptcy or even financial ruin. Some will be starting their financial lives over as renters.
If home prices had continued to go up (historically this is an enormous “if”) or even if they had
stayed the same, and interest rates remained steady for these borrowers things would be OK.
If borrowers left the equity in their property instead of using their home as an ATM by accessing
Home Equity Lines of Credit (HELOC’s) and spending the money, there would be no need for
this discussion.
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Everyone knows deep in their heart that “There Is No Such Thing As A Free Lunch”
(TINSTAAFL). If you borrowed more than you could really afford and banked on appreciation or
new borrowing to float your boat, you helped create the risk of loss that we are all now
experiencing in the marketplace.
In the overall euphoria of an unnaturally long up market most of us forgot or ignored the reality
of historical market cycles in Real Estate (What Goes Up Must Come Down) every 10 years or
so.
Wall Street and the Bankers did little to slow down the business that generated the profits they
were raking in. Now the time has come for all to pay the piper and the cost will hurt many
Americans for years to come. It is unclear whether the Wall Street or Big Banks will pay their
fair share of the losses that they helped create for consumers especially in the “Sub-Prime”
market we have heard so much about in the media.
For those still trying to stay in a home with some equity, or those who want to fight to keep what
they have, there is the possibility of negotiating with a lender for a “Loan Modification”
agreement that could substantially improve the terms of an existing loan and allow the borrower
to stay in their home. Of course if the home is in the foreclosure process already, the remedy of
a loan modification may be impossible.
As a DIY project, the successful negotiation of a loan modification presents a steep uphill climb
for the average borrower, but it is possible and the costs are mostly in time and anguish (but
may involve attorney fees too). There are reputable consumer oriented services, “Loan
Modification Facilitators” (LMF) that offer to help consumers with this process, but they must be
carefully evaluated before a commitment is made and the borrower needs to clearly understand
the obstacles they face in the process.
Loan Modification Facilitators
This is a relatively new business concept, created by market conditions and many new
businesses claim to offer similar services. A reputable Loan Modification Facilitator is affiliated
with legal professionals who specialize in real estate and contract law, especially RESPA and
TILA. If you are speaking with a service that has no affiliation with a licensed attorney who
reviews your documents, walk away and look elsewhere. Similar services offer only to assist a
homeowner to process the paperwork necessary to walk away from a mortgage and do not do
any kind of document review. This type of service may be beneficial if you have made the
decision to walk away, but if you still have time, why not evaluate all of your options?
The strongest argument for using this type of consumer service is the fact that they specialize in
these services, have affiliations with specialized real estate attorneys and connections with the
banks, loan servicers and other trustees that handle your loans. They know which lenders are
making modifications and which are not. In this market they are negotiating all day, every day
with lenders and servicers. A reputable LMF will be able to demonstrate successful results by
enabling you to contact clients who are happy with the service rendered. There is a cost on the
front end for these services that runs somewhere between $1000 and $5000. This is a fee that
must be recognized and paid. Anyone that uses a consumer service like this needs to clearly
understand that requesting a loan modification, even with professional help, may not result in
getting a modification or in some cases, enough of a modification to effectively save the
property.
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You must weigh the cost of the service and the possibility of a modification against the
possibility, that (due to the specifics of your loan contract or the policies of your lender or
servicer), you may not get the results you desire. This means that you will have paid fees to an
LMF without a positive result. In any case, if you cannot negotiate a modification you will truly
know exactly where you stand on your loan and you can then look at your alternatives (Loss
Mitigation through a short sale, deed in lieu of foreclosure, etc.) to make an informed decision.
In almost any case the cost of these services is far less than the economic loss of losing your
property and far cheaper than the costs of deposits for a rental property if you have to move.
An LMF may also have the ability of offer help with other Loss Mitigation Strategies on a fee for
service basis. Typically no guarantees are made by an LMF and I will now attempt to explain
why this is the case.
Sub-Prime Issues
While the original idea behind Sub-Prime loans was for marginal buyers to have the opportunity
to buy a home, the sad fact is that Sub-Prime loans were designed to generate more revenues
for their originators and brokers and fees for the servicers of the “Securitized” loan pools.
These pools became very profitable and in demand on Wall Street and by investors all over the
world (supposedly because of higher than average returns with minimized risks to investors).
The availability and profitability of Sub-Prime loans indirectly fueled the sales of even more real
estate to owner occupants and speculators. Clearly the originators were never concerned about
the possibility of a bubble or the ability of borrowers to repay in an economic slowdown, since
they were able to sell of the loans they originated to Wall Street as fast as they could process
them and the profits at all levels have been enormous in the short term.
Of course a few Sub-Prime borrowers who would not otherwise be able to qualify for a home
were able to do so and are able to keep up their payments now (especially if they bought wisely
in areas where prices have not been affected by the bubble and did not borrow against equity).
This is a good thing, but the absolute numbers of these types of buyers is very small compared
to the havoc created in the overall marketplace by the availability of these loans to all borrowers
and the incentives to the creators and sellers of these loans to sell them.
Unfortunately the commission and profit structures of these loans incented brokers to sell them
to borrowers that could easily qualify for loans with much better rates and terms (the so called
“A and Alt-A paper”) loans. There was little in the way of regulation to keep lenders and brokers
from steering borrowers into Sub-Prime loans except their own ethical standards. In hindsight,
there could have been strict rules for qualification and classification of borrowers, but why spoil
all the fun? As the American author Sinclair Lewis once said, “It is hard to get a man to
understand a thing, when his salary depends on his not understanding it.”
While many originators were reckless and greedy, at the same time, very few borrowers walking
in to a lenders office
knew or understood their own credit profile and most did
little or no
research before borrowing
in order to see and compare what the best available terms should
be, given their credit history, income and overall circumstances and perhaps one in twenty had
the discipline to create a written budget that anticipated the increased costs of a new home and
a new loan over time.
Ultimately, we are each responsible for our actions in this regard.
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Having said all this, I have set the stage for a discussion of the real difficulties faced by
borrowers attempting to negotiate a loan modification.
Securitization Issues
I read an article by a respected New York attorney that said, “It is estimated that more than 75%
of the Single Family loans originated in 2006 were funded by the securitization process. Among
the approximately six hundred billion dollars of subprime mortgages originated in the year 2006,
some 75% of those were funded by the securitization process. That 75% figure also creates
some concern when observing that such percentage of securitized subprime mortgages vintage
2004 and 2005 with a hybrid loan structure have a fixed rate for two or three years, then
adjusting to a variable rate for the balance of twenty-seven or twenty-eight years.
Because, though, the spread between the initial rate and the fully indexed rate usually varies
from 300 to 600 basis points, a substantial number of borrowers are or
will imminently be faced
with increased interest rates which they may not be able to afford.
All the publicity previously mentioned has ripened into a storm of events forming the subprime
meltdown. In the resultant credit crunch, here are some of the events occurring
which then
impact upon borrowers’ ability to rescue themselves:
1. Property values are falling;
2. Prospective purchasers of properties are finding it far more difficult to obtain mortgage
financing which in turn contributes to plummeting prices;
3. Mortgage companies which might have been in the market to loan money have filed for
bankruptcy;
4. Increasing vigilance by loan purchasers has caused them to require the originators to buy
back loans which have breached the sales agreement (such as an initial payment default)
so that originators’ funds are increasingly tied up in loans they did not intend to hold;
5. Rating agencies are downgrading mortgage pools, thereby discouraging liquidity and
reinvestment;
6. The value of subprime mortgages in securitized pools is often unquantifiable, further
depressing the market for the securities.
This same attorney feels that securitization has created a servicing structure for mortgages that
is not very conducive to negotiated restructuring of loans, in part due to the fact that once the
loans originating lender sells the loans, the lenders ability to restructure is eliminated. The
servicer or trustee is limited by the wording of the securitization documents and if the loan is part
of a “Real Estate Mortgage Investment Conduit” or REMIC, it cannot be modified unless it has
been delinquent for a certain period, in which case a modification may be available according to
REMIC statutes. This type of modification would need to be supported by a legal opinion
(translation, legal fees incurred by the servicer) and this could impact the servicers interest in
doing the modification.
Two other key obstacles to a successful loan modification are:
1. Restrictions are imposed on a loan in a specific security by something called a “Pooling
and Service Agreement” or PSA. If the PSA language is vague, the servicer is will be
reluctant to pursue a modification because of cost and legal liability.
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2. Issues related to Rating Agency requirements. Many securitization agreements have
clauses that require the approval the Bonding companies or rating agencies that
evaluated the pool and provided insurance before loan modifications exceed 5% of the
pool. This means your chances of a modification would improve if a given pool had
already modified more than 5% its loans. It may be too early for this to be a common
situation. The reverse is also true. A servicer may need approval for any modification
that takes the modified loans in the pool over 5% of total loans.
Traditional Alternatives to Foreclosure through Loss Mitigation
If you need to sell in a healthy real estate market you simply list and sell your property, often at
a profit. When markets soften or turn and a quick sale is not possible, a borrower needs to
consider all “Loss Mitigation” (LM) strategies in order to minimize losses and expenses.
“Loss Mitigation” is the process of moderating or reducing losses related to mortgages used by
lenders and servicers. Loss mitigation includes many strategies other than Loan Modification
Agreements.
Loss mitigation programs were established by the federal government and the mortgage
industry in order to reduce or stop home foreclosures. They help foreclosure victims in default
on their mortgages to find alternatives to home foreclosure. Every homeowner’s situation is
unique and each lender has their own policies regarding the use of these programs to stop
foreclosure.
1. Loan Modification
(Available on a very limited number of VA loans with lender and/or investor approval) (Called
Recast for FHA)
If you have incurred a long term financial hardship, an LMF can assist you in supplying the
appropriate information to lender to take the appropriate measures to modify the term(s) of your
mortgage. This could lower the interest rate and/or extend the term of the loan resulting in lower
payments. There are costs and fees associated with a modification that you will be responsible
for. All property taxes must be current or you must be participating in an approved payment plan
with your taxing authority to be eligible for a modification. Any additional liens or mortgagees
must agree to be subordinate to the first mortgage. All requests are subject to your lender’s
approval.
2. VA Loan Modification/Refunding
(Available for VA loans only) (Need at least 30 days to process)
A refunding is when the VA buys your loan from the lender. Refunding may give VA the flexibility
to consider options to help you save your home that your current lender either could not or
would not consider. When the VA refunds a loan under 38 U.S.C. 36.4318, the delinquency is
added to the principal balance and the loan is re-amortized. Your new loan will be nontransferable
without prior approval from the Secretary. If your interest rate was lowered and an
assumption is approved, the interest rate will be adjusted back to the previous rate.
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3. Short Payoff
(Short Sale) (Pre-foreclosure Sale) (Compromise of Sale)
If you have suffered a long term financial hardship and are unable to maintain your loan or if you
need to sell the property to avoid a default loss on the property, it is possible that the lender may
be able to accommodate you with a short payoff. A qualified buyer is required. If this is an option
you wish to pursue, you must inform the loss mitigation specialist assisting you immediately.
There may be tax ramifications associated with any short payoff or foreclosure; therefore, we
recommend you contact your tax advisor for details.
See your state’s foreclosure laws for more information and check with an attorney for advice on
your personal situation. There is information on debt forgiveness at the IRS Website at:
http://www.irs.gov/individuals/article/0,,id=179414,00.html
.
4. Deed-In-Lieu (of Foreclosure)
If you have incurred a long term financial hardship and your house has been on the market (at
fair market value) for at least 90 days, you may be eligible for a deed-in lieu of foreclosure. To
be considered for this option, you must complete a financial package for your lender and provide
a copy of your recent active listing agreement. Also, there cannot be any additional claims or
liens (other the mortgage) against the property. If you are approved for a deed-in-lieu, you will
be giving up all rights to the property and the property will be conveyed to your investor. In
exchange for the deed-in-lieu, the lender may waiver all deficiency judgment rights. You may be
asked to participate in a Short Payoff program before a deed-in-lieu of foreclosure is accepted.
5. Repayment Plan
(Reinstatement)
If you have incurred a short term financial hardship and your loan is two or more months past
due, your loss mitigation specialist will also consider submitting a request for a payment plan to
your lender for approval. Only after reviewing your financial situation will this option be
considered. All clients must be able to show that they can afford this plan in order to be eligible.
6. Forebearance
Forebearance involves a repayment plan that is based on the borrower’s specific financial
situation. The plan may include a temporary reduction or suspension of payments for a specific
length of time. Forebearance may be offered/used when the borrower has a reduction in income
or increase in expenses that is not expected to be permanent typically a job loss or illness.
Forebearance is most likely to be offered on loans from a portfolio lender.
7. Special Forebearance
(FHA loans only) (Type I & II)
If you have incurred a short term financial hardship and your loan is 90 days to 365 days past
due, the loss mitigation specialist will also consider submitting a request for a special
forbearance. A special forbearance is designed to provide you with more relief than is possible
with a regular repayment plan. Typical approval can result in spreading the repayment over 12
to 18 months. Type II – can be utilized in an unemployment situation whereby the promise of
future employment is present. We have done VA loans that resulted 27-month repayment plans.
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8. Partial Claim
(FHA mortgages only) (Some Freddie Mac Investor loans)
The loss mitigation specialist may assist in requesting a partial claim if you qualify. You may be
eligible if your loan is 120 to 365 days past due. A partial claim results in placing your past due
payments into a subordinate mortgage (2nd mortgage) between you and the Secretary of
Housing Urban Development. The partial claim note will require you to start making payments
when you pay off the first mortgage. There is no interest. The partial claim can be for no more
than 12 months of past due payments.
9. Loan Assumption
This is an arrangement where a qualified borrower agrees to assume responsibility for
repayment of the mortgage from the existing borrower. Again, the most likely case for this
scenario is a portfolio loan.
Conclusions
As you can see the challenges to loan servicers in particular are significant and represent
significant obstacles to borrowers seeking a loan modification agreement. Keep in mind that
obtaining a modification is not impossible and if you are successful you keep far more than you
lose.
The highest probability for the successful negotiation of a loan modification comes from the
following three scenarios:
1. Where a borrower only has a first mortgage and that mortgage was originated and is still
serviced at the same portfolio lender (portfolio lenders are generally regional Savings and
Loans or Credit Unions and the loans that stay in a portfolio tend to be loans to “A”
borrowers, not Sub-Prime. You or your LMF can determine if your loan is in this category
by reviewing documents and confirming with the servicer that the loan is portfolio)
2. Where a borrower has a first and second mortgage, both originated and serviced at the
same lender chances of a modification are reasonable.
3. Where a first and second mortgage are with different portfolio lenders a modification is
possible if the two lenders co-operate, or may be possible on one of the notes.
Where the first and second mortgages are with different lenders, or with a servicer or trustee,
the chances of a modification are greatly reduced but not eliminated. If a modification is
negotiated, it is likely to be in the form of a lower “interest only” rate for a specified term on a first
mortgage. This may be enough for the borrower to keep the property.
Ultimately only the borrower can decide if the effort to get a loan modification is worth
the time and the cost either as a DIY effort, or when using a Loan Modification Facilitator.
Loan servicers typically have software that integrates the guidelines for modifications of each
mortgage pool they service for investors. The question is can a borrower working on their own
compel the lender to share this information? It could also happen that the guidelines in the pool
that hold your particular loan won’t allow a modification to be made or limit the number of loans
in the pool that can be modified.
Right now the policies and guidelines for each lender, servicer and trustee vary region by region
and even office by office at each lender/servicer/trustee.
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There is no controlling Federal Guideline for loss mitigation efforts by financial institutions and
financial institutions are fighting the implementation of any significant regulation in this area
tooth and nail. HR 5679, The Foreclosure Prevention and Sound Mortgage Servicing Act of
2008 would prohibit the initiation of a foreclosure if the mortgagee or servicer has failed to
engage in “reasonable loss mitigation activities”. This is a very consumer friendly bill and it will
fail without huge public consumer support. You can see what is happening at on this bill at:
http://www.house.gov/apps/list/hearing/financialsvcs_dem/hr041608.shtml
as consumers, this
bill deserves your support.
If you are in financial difficulty and believe that you will soon be unable to make your regular
house payment, do not wait until you are delinquent to contact your lender.
According to a recent survey for Freddie Mac by Roper Public Affairs, the top reasons that
people do not call their lender are:
18% Believed they could handle the situation themselves
16% Believed they lacked the money to repay
15% Fear, embarrassment or nervousness
12% Claimed they never had difficulty paying their mortgage
8% Believed there was nothing the mortgage lender could do to help
Steps you can take with a lender or servicer:
1. If you are in trouble, you are far better off to answer the phone and open your mail. Keep
a file of all your correspondence with your lender including all envelopes. Keep a diary
with dates and times of every call to and from your lender and ask the person who is
calling for their full name, contact number and email address (unwillingness to share this
information is an indication that you are not high enough on the management food chain).
The first call borrowers get is from Customer Service which is basically the collections
department. This first line contact has little or no power to help you and in fact may get
bonuses for collecting any money from you. Be polite, but insist on speaking to someone
in the “Payment Resolutions” or “Loss Mitigation” department. Be sure and get their
names too. In all cases if you are not getting a satisfactory response, ask to speak to a
supervisor or “someone with authority to discuss loan modifications”
2. Openly describe your situation, but do not agree to any terms until you discuss them with
your Lawyer or credit counselor (if you are using an LMF, this will be done on your
behalf). If your contact does not offer the name of a credit counselor, you can call HUD
at (800) 569-4287 or the HOPE 245 hour hotline at (888) 995-HOPE.
3. You can expect that payment resolution or loss mitigation contacts will want information
on your current income and expenses and they most likely will verify employment and
credit too.
4. Before you call, figure out if your financial problem is temporary or permanent.
5. Know exactly what you can really do financially and ask for partial payments if that is
what you need to resolve your money issues. The worst they can do is say no, right?
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6. Be polite, but persistent, even if you are provoked. Servicers are overloaded with files
and have limited tolerance for rudeness. The files of rude or angry borrowers tend to go
to the bottom of the pile.
By now you understand that not every potential foreclosure situation can be resolved favorably,
but the harsh reality is that lenders and servicers do not want more property. If you cannot
seem to get anywhere in your negotiation, try asking them where to send the keys. Of course if
you do this, you may need to be prepared to send them the keys. Many times this strategy will
result in your file being “kicked upstairs” to someone with more authority to resolve issues.
For more information and access to related articles, check out the website at
www.sdrpsolutions.com
and the Blog at http://antwithamegaphone.com or
http://thenewsubprime.
info
.
About the Author
LanceW. Newton
For more than 15 years I’ve sold or marketed financial and investment products for companies
including Merrill Lynch, Transamerica and others. My work has included selling and explaining
financial products and services to Financial Institutions, Financial Services Sales Personnel,
Brokers and Agents and directly to Investors and Consumers. During this time, I’ve facilitated
over 600 presentations nationally and internationally to thousands of people on topics in Real
Estate Finance, Financial Planning, Securities, Commercial and Personal Insurance and Tax
Strategies.
Currently I am a Facilitating Seminars and Webinars to Investors on a variety of Investment
Strategies through long established relationships with California Real Estate Investment Clubs.
I can be reached at 661 775-1549 or
lance.newton@ca.rr.com
and I welcome all inquiries
(Editors Emphasis added)
(Editors Emphasis addedthis
means higher or much higher monthly payments for the borrower)