RREAL IN – The form only title agents see

As most people involved in real estate are aware, the past few years have seen the State of Indiana and the federal government focus on mortgage fraud.

As a part of those efforts, since January 1, 2010, Indiana has required closing agents to fill out an electronic form for every closing involving single-family residential first lien mortgage loans whether purchases or refinances (practically all mortgages). The form was developed through the Indiana Department of Insurance (IDOI) which regulates and licenses title insurance and closing agents and is known as RREAL IN, which stands for Residential Real Estate Acquisition of Licensee Information and Numbers Database for Indiana, and is mandated by Indiana Code 27-7-3-15.5. The purpose is to develop an electronic system for collection and storage of information about persons participating in or assisting with applicable transactions.

Some of the information the RREAL IN form calls for must be provided by persons or companies closing agents don’t deal with, which makes filling out the form problematic. For example, closers rarely see appraisals but must report the appraiser’s name and license number, the appraisal company’s name and license number, the amount the property appraised for, and the appraisal completion date.

Here’s a list of other information the closer must enter:

1. Name & license number of each:
a. salesperson or broker;
b. principal broker;
c. mortgage loan originator;
d. mortgage brokerage company;
e. mortgage loan originator company;
f. title agent (closer); and,
g. title agency;
2. Name of each seller;
3. Name of each buyer;
4. Purchase price;
5. Property description by tax parcel number & street address;
6. Date closing instructions received; and
7. Date of closing.

As mentioned previously, the RREAL IN form is electronic. It’s accessible only online. Unfortunately, it can’t be filled out partially and saved. Long pauses between entries void the form, meaning closers have to start over again if, say, they take a phone call during data entry. Closers chuckle when IDOI says it takes only 2 or 3 minutes to fill out the form; in reality 20 minutes is more likely. Much of the information on RREAL IN is already on the Sales Disclosure Form (another “simple” form title agents have been required to fill out for years), which leads me to wonder whether anyone at state-level considered combining the forms into one. My cynical side says probably not. Of course, double entry adds to the workload and drives up costs. Maybe no one thought of that either.

While we title agents and closers are doing our part in exposing mortgage fraud (we have strict rules on funding, disbursing, anti-flipping, etc.), we hope agencies tasked with combating the problem are looking at data we’re submitting. But if the targets of RREAL IN are fraudsters, why is House Bill 1273 making its way through the 2011 Indiana General Assembly? Curiously, HB 1273 makes RREAL IN applicable to cash transactions. Which raises the question: What is the actual purpose of RREAL IN?

- Morrie Erickson

Buying Foreclosed Property – Risky or not?

Foreclosures can be treacherous these days.

We’ve all read the news about lenders doing a shoddy job handling foreclosures. But what does that mean for buyers of foreclosed property? Can their transactions be set aside? Can they lose the properties they’ve just bought?

At this point, it's not clear who bears liability for a bungled foreclosure, but it may depend in part on where the time line is in the process. Certainly, the foreclosing lender should be responsible for not handling it correctly, but what if the sheriff's sale and a subsequent sale have already taken place? In that case, a title company will be involved which is why most title companies have received instructions from their underwriters about how to handle insuring foreclosed property.

The risk most lenders and title companies see is a lawsuit being filed after the property has already been transferred to a new buyer. While it’s likely most buyers wouldn't want the house back because they couldn't afford the mortgage payments anyway, there's always the chance that foreclosed buyers (and their lawyers) will smell $$ which will result in a lawsuit being filed (even a class action) to put pressure on a host of parties (principally the old lender and the new title insurer) to throw $$ at them to make them go away.

That said, most underwriters require Indiana title companies to take extra steps to clear the way for a valid sale, including (this isn't an exhaustive list):

1. Verifying Indiana's foreclosure requirements were met and that it's too late for an appeal.
2. Verifying the foreclosed borrower has moved out.
3. Verifying no tenants live there.
4. Making sure there aren't any rights to redeem the property (especially if agricultural land or if IRS liens were foreclosed).
5. Verifying Indiana hasn't filed a lawsuit against the foreclosing lender to stop foreclosures generally.
6. Verifying no lawsuit has been filed to attack the foreclosure or to recover damages.
7. Making sure the foreclosing lender isn't pursuing a deficiency judgment against the former owner.
8. Verifying the amount owed on the foreclosed mortgage is greater than the current sale price.

In addition, sometimes the foreclosed owner has to sign a quitclaim deed in favor of the new buyer. Realistically though, quitclaims may be hard to get.

If title companies work their way through all these issues - and most of the time they can - buyers can close. So, if the unlikely happens in the future and buyers’ properties are taken away, buyers would have claims against their title underwriters for the face amounts of their policies.

Walking away from your mortgage – Risk or reward?

An idea has been making the rounds. That underwater borrowers – owners whose homes are worth less than what’s owed on their mortgages – should stop making payments and let their lenders foreclose.

The thinking is this: because house prices in some markets have declined so steeply it will take years for property to be worth what it was before the economic meltdown, many owners – even those not financially strapped – don’t see the point of continuing to fork out monthly payments, especially if they don’t intend to stay in the house long-term.

But does this so-called ‘strategic default’ really make sense?

On the plus side, the strategy of getting out from under heavy debt and not throwing good money after bad amounts to pulling the plug on a lose-lose situation. Given the months on end it takes lenders to foreclose and repossess property, owners can stay in their houses rent-free while padding their bank accounts with money otherwise thrown down the rat-hole.

Sounds good on the surface. Trouble is, strategic default has serious consequences.

Deficiencies

Depending on the state, the defaulting owner may have to pay the deficiency – the difference between the amount owed and the price brought at the foreclosure sale. So, if you have to pay the balance anyway, what’s the point in walking away? Sure, the deficiency might be discharged in bankruptcy, but not everyone is that far in the hole. Bankruptcy, remember, is only for the insolvent – those who owe more than they own.

Keep in mind too that state foreclosure laws vary, especially about whether lenders can go after borrowers for deficiencies. So, persons contemplating a strategic default need to know what their state allows.

Painting with a broad brush, most states east of the Mississippi (Indiana among them) allow lenders to collect deficiencies, while many western states do not. It comes down to state law and the papers signed at closing (mortgages in the east, deeds of trust in the west).

To foreclose mortgages, lenders have to go to court. When that happens, borrowers usually have the right to redeem (buy the property back) and lenders can go after the deficiency. Deeds of trust, on the other hand, allow lenders to take property back without going to court, the trade-off being borrowers can’t redeem but don’t have to pay the shortfall. Then again, some states’ procedures are a hodge-podge of both methods.

To find out what each state requires, check out www.foreclosurelaw.org.

Credit scores

Anytime a debt isn’t paid on time or in full, a borrower’s credit score will suffer. So whether a borrower is selling short (the lender agrees to take less than owed), or losing the house in foreclosure, or filing bankruptcy, the borrower’s credit score will drop.

Some strategic defaulters rationalize a credit score hit because they don’t plan to buy another house. They’re over home ownership and perfectly happy to be renters. But credit scores can keep rearing their heads. Landlords run credit checks. So do car dealers. And interest rates on credit cards may be higher as credit scores plummet.

Taxes

Thanks to the Mortgage Forgiveness Debt Relief Act of 2007, the deficiency forgiven by the lender is not taxable as income to the borrower who has defaulted and is being let off the hook. (The IRS considers debt forgiveness the same as receiving cash, and therefore taxable.) This law provides welcome relief but is temporary, applying to forgiven debt only in years 2007 through 2012. And, it’s limited to debt on owner-occupied principal residences, provided the debt was incurred to buy the house, build it, or remodel it (or to refinance that debt). In other words, debt pertaining to a refinance to take out cash to, say, buy a car isn’t covered. For more on the MFDRA, see my September 27, 2010, blog, which covers IRS Form 1099-C (‘C’ stands for cancellation) that lenders will send forgiven borrowers and IRS Form 982 that borrowers must file with their federal return (even if the cancelled ‘income’ is excluded).

Remember too, the MFDRA is a federal law applying to federal income tax. State income tax laws aren’t affected by it. So, unless a state has enacted a similar law, state income tax on the forgiven debt may still apply.

- Morrie Erickson

Banking – How safe is your money?

Suppose you sold your house in October, 2010, and netted $300,000 after expenses. Because you won’t be closing on your purchase for a few weeks, you deposit your net proceeds in a savings account at your bank so it can earn interest in the meantime.

Should you be worried whether your $300,000 is protected if your bank fails before your second closing? Yes, you should.

In response to the economic meltdown in the fall of 2008, the FDIC came up with a temporary liquidity guarantee program (TLGP) which increased the insurance coverage on bank accounts generally (including interest-bearing accounts) from $100,000 to $250,000 through December 31, 2009. But the TLGP also provided unlimited coverage for non-interest-bearing accounts (so-called transaction accounts) under the Transaction Account Guarantee Program (TAGP). Within certain time frames in 2008 and later, banks could opt out of the unlimited coverage under TAGP, which some banks elected to do because of the fees charged to them by the FDIC for this extra coverage.

In 2009, the $250,000 limit was extended through December 31, 2013. However, the unlimited protection under TAGP was extended only through December 31, 2010, with banks being given another chance to opt out after the first half of 2010. Because the banking sector seemed to be more stable by mid-2010, many banks opted out of TAGP this past July.

Now, back to your $300,000. Is it or is it not protected? After your first closing, only $250,000 of your $300,000 deposit was covered because it was in a savings account that earned interest. The remaining $50,000 in your savings account is not insured, even if your bank didn’t opt out of TAGP (because TAGP doesn’t cover interest-bearing accounts). To be fully protected, you should move the extra $50,000 in your savings account into a regular checking account and make sure your bank is still participating in TAGP. If it isn’t, consider switching banks.

But, let’s fast-forward to January 1, 2011.

Thanks to the Dodd-Frank Wall Street Reform and Consumer Protection Act signed into law on July 21, 2010, banks must participate in TAGP as of January 1, 2011. No longer will banks be allowed to opt out. However, under Dodd-Frank, TAGP will have a limited life of two years, expiring at the end of 2012 – unless Congress extends it in the future.

What this means is during the uncertain economic times we’re in, depositors will need to balance earning interest against protecting principal. Because interest rates are so low, most may prefer the TAGP safety net. Ultimately, decisions will be made in part based on the strength of individual depositors’ banks. A useful tool in finding out your bank’s strength is www.bankrate.com.

By the way, in addition to making TAGP mandatory, Dodd-Frank made permanent the $250,000 FDIC limit for bank accounts generally, including interest-bearing accounts.

- Morrie Erickson

Short Sales – Taxes & IRS Form 1099

These days, short sales – selling for less than is owed with the mortgage holder forgiving the balance – are as common as college students sporting tattoos. In a depressed housing market, sellers getting off the hook on their mortgage loans might seem like a slice of heaven. But is not having to pay every penny owed really as good as it sounds?

Suppose Carol bought a house a few years ago for $300,000, putting $15,000 down and signing a promissory note and mortgage for $285,000. Today, she needs to sell but can’t find a buyer willing to pay more than $250,000. To make matters worse, Carol still owes $275,000. But because Carol lost her job and is financially strapped, her lender is willing to take $230,000 (sale price minus sale expenses) to release its mortgage. Carol is bummed about her sale price but ecstatic at getting the house off her back.

But are Carol’s financial woes really over?

To figure that out, we have to know what really happened between Carol and her lender. In most cases, there are three possibilities: (1) The lender might expect Carol to pay the $45,000 shortfall later, having agreed to release its mortgage but not cancel Carol’s note. (2) The lender might have required Carol to sign a new note for $45,000 in exchange for releasing its mortgage. (3) The lender might have cancelled the $45,000 balance, taking the you-can’t-get-blood-out-of-a-turnip approach.

If the answer is (1) or (2), the good news is Carol doesn’t have a tax consequence; the bad news is she still owes $45,000. If the answer is (3), the good news is she doesn’t owe the $45,000; the bad news is her lender will send her a 1099-C showing debt cancellation to the tune of $45,000, meaning Carol may have to pay taxes on it at ordinary income tax rates.

You ask, “What do you mean ‘may have to pay taxes on it’?”

Here’s the scoop. When real estate is sold, the seller may incur tax consequences. In Carol’s case, she will receive a 1099-S showing the sale price of $250,000 but she won’t owe a capital gain tax because she’s selling for less than her tax basis (in this case, that’s the amount she bought it for). But she may owe income tax if her lender has cancelled the $45,000 shortfall (resulting in the 1099-C). Why? Because to the IRS, debt forgiveness is the same as income, which means the $45,000 forgiven will be treated as if Carol was handed $45,000 in cash – unless Carol qualifies for exclusions recognized by the IRS.

In the residential real estate world, special exclusions apply to owner-occupied principal residences. Best known is the capital gain exclusion, allowing sellers to enjoy a gain of up to $500,000 for married couples filing jointly ($250,000 for individuals) upon sale of their houses. But there’s another helping hand, thanks to the Mortgage Debt Relief Act of 2007. The 2007 law provides that debt forgiven or cancelled in calendar years 2007 through 2012 is excluded from income realized as a result of mortgage modification, foreclosure, or short sale. In other words if you can’t pay off your mortgaged home and your lender cancels some or all of your debt, you don’t have to pay income tax on the amount cancelled.

Back to Carol. If Carol’s house was her principal residence (and she didn’t move out more than 90 days before the debt was cancelled), she won’t have to treat the $45,000 as income. Otherwise she will, unless she can show she was insolvent (total debts greater than total assets) at the time of cancellation or if Carol’s debts are discharged in a Chapter 7 bankruptcy proceeding.

Tread carefully though, because not all cancelled debt is subject to the exclusion – even on a principal residence. For example, the debt forgiven must have been used to buy, build, or substantially improve the principal residence, or to refinance debt for those purposes. So, if the seller refinanced the house and took out cash – say, to buy a car – the cash portion would not qualify for the exclusion. But if the exclusion does apply, up to $2-million may be forgiven tax-free (married, filing jointly; $1-million if filing separately).

By the way, the onus to give the 1099-C is on all lenders forgiving debt of $600 or more. And sellers must report the amount forgiven on their tax returns using Form 982 (even if the income is excluded).

What if real estate doesn’t qualify for the principal residence exclusion? In most cases, short sellers will be taxed on the amount forgiven – unless they fall into the insolvency or bankruptcy categories or their promissory notes are non-recourse (loans in which the lender can only take the property back). In these cases, the seller will receive a 1099-S in the amount of the forgiven debt, based on the premise that the forgiven debt amounts to the sale price. For deeds in lieu of foreclosure, the seller should expect to receive either a 1099-C or a 1099-A (Acquisition or Abandonment of Secured Property).

In some states, mortgages taken out to buy principal residences are non-recourse by statute (California, for example), but Indiana isn’t one of them. Even in those states though, non-recourse loans can become recourse in cash-out refinances.

As always, sellers should consult their tax advisors for information specific to their circumstances.

- Morrie Erickson

Indiana’s First Lien Mortgage Lending Act – Death to seller financing

Recently, many real estate lawyers have stopped preparing purchase money mortgages and land contracts for buyers and sellers of 1- to 4-family dwellings (unless the seller has lived in it) or land on which 1- to 4-family dwellings may be built. In other words, seller-financing transactions on non-owner-occupied property have slowed to a trickle.

This radical change is partly because of the SAFE Act, which took effect on July 1, 2010 (see my blog of three weeks ago). As a reminder, “SAFE” is an acronym for the Secure and Fair Enforcement for Mortgage Licensing Act of 2008. But seller-financing has also been shut down by Indiana’s First Lien Mortgage Lending Act (IC 24-4.4-1), which dates back to January 1, 2009. Not heard of FLMLA? You’re not alone.

Double coverage

Both SAFE and FLMLA cover the same ground using practically the same wording. When Congress passed the Housing and Economic Recovery Act of 2008 (HERA) which President Bush signed into law on July 30, 2008, HUD was tasked with assisting in revitalizing of the US housing market, preventing foreclosure, and enhancing consumer protection. Title V of HERA is the SAFE Act. The SAFE Act, or something similar, must be enacted in every state. In states failing to act, HUD's model act will control. In any event, Indiana passed its version of the SAFE Act, which took effect July 1.

Interestingly, Indiana already had a law – the FLMLA – which had been in effect for 18 months and which covers the same subject. Nonetheless, two separate provisions now apply, the SAFE Act being a regulation and FLMLA being a statute. The difference is Indiana’s Department of Financial Institutions (IDFI), which enforces SAFE, can change the regulation fairly easily, while the legislature must change the statute. So, tweaking the two provisions to eliminate unintended consequences (did the legislature really mean to prohibit casual investors from using seller-financing on their own property?) may be straightforward on the one hand but rather difficult on the other.

Land contracts vs. mortgages

What’s clear is that both the SAFE Act and FLMLA don’t allow sellers of dwellings to deed their property to buyers and take a mortgage back (unless they’re licensed as a mortgage loan originator or have lived in the dwelling). But some lawyers believe the SAFE Act doesn’t apply if the sale is by land contract instead. Before you think you’ve found a loophole, though, be sure to take a close look at FLMLA, because it clearly outlaws land contracts as well.

While there are exclusions from both the SAFE Act and FLMLA (such as selling your own house and selling, say, a commercial building or a 5- or more-unit residential building), some exclusions are ambiguous enough to discourage lawyers from taking a chance on being considered a mortgage loan originator. The definition is so broad, almost anyone involved in a seller-financing transaction runs the risk of being considered a mortgage loan originator.

There is a way out, but not a very good one. Lawyers could continue drafting mortgages and land contracts on non-excluded transactions by becoming licensed mortgage loan originators. But I think it’s safe to say (no pun intended) most lawyers (including this one) won’t be doing that.

- Morrie Erickson

The SAFE Act – Are the days of seller-financing over?

I got a phone call the first week of July that went something like this:

“I’ve sold my duplex near campus and want you to write up a contract,” the caller told me.

“What kind of contract?” I asked, wondering if the caller meant an offer to purchase.

“You know, a contract where the buyer pays me monthly installments then balloons in five years. My buyer has good income but his credit isn’t great, so he can’t get a loan at a bank.”

“Have you ever lived in the duplex?”

The caller laughed before saying, “No, it’s a student rental.”

“Are you a licensed mortgage loan originator?” I went on.

Another laugh. “Of course not. I manage a pizza place and own student rentals on the side.”

“In that case, you can’t sell on contract,” I told him, “or deed the duplex over and take a mortgage back.”

“That’s crazy. I must’ve bought or sold on contract 10 times.”

“Can’t do it anymore. Not since July 1^st.” Then I told him about Indiana’s new SAFE Act.

Bad loans, the Feds & HUD

The Secure and Fair Enforcement for Mortgage Licensing Act of 2008 (the SAFE Act) is federal legislation growing out of the recent mortgage loan crisis and is a response to the perception that a lack of oversight of mortgage loan originators (not necessarily actual lenders) contributed to the problem.

The Federal SAFE Act requires all states to come up with their own legislation to govern and control mortgage loan originators (MLOs) or to allow HUD’s version of the legislation to control. Each state’s legislation must be compliant with the Federal SAFE Act, and HUD is responsible for ensuring compliance.

Indiana’s version of the SAFE legislation is contained in Article 9 of the Indiana Administrative Code (750 IAC 9). This means Indiana’s legislation is a “rule” not a “statute”. The rule has been promulgated by the Indiana Department of Financial Institutions (DFI) and requires MLO licensure by July 1, 2010.

What does 750 IAC 9 say?

To get a grip on the new limitations on contract sales and seller-created purchase money mortgages, real estate practitioners should read the rule. Build in some time though, because it’s 20 pages long. The rule is too comprehensive to analyze here in detail, but the main point is that selling on contract or by taking back a mortgage on a 1- to 4-family dwelling is all but prohibited – unless the seller is a licensed MLO.

Whether this is an unintended consequence is hard to say, but given the wording of the rule, it’s unlikely. This is because, in the words of the DFI’s FAQs, “An MLO is an individual who, for compensation or gain, engages in taking a mortgage transaction application or offering or negotiating terms of a mortgage transaction.” Pretty broad, right?

And there’s more. The FAQs go on to say that a “Mortgage Transaction means a credit transaction (loan or credit sale) that is or will be used by the debtor primarily for personal, family, or household purposes and is secured by a mortgage, land contract, or other equivalent consensual security interest on a dwelling or residential real estate. A mortgage transaction includes a credit transaction secured by a mobile home, and a home improvement credit transaction secured by a mortgage or equivalent security interest on the home.”

The actual rule goes further, stating that a “mortgage transaction” includes a security interest “…on a dwelling or residential real estate upon which is constructed or intended to be constructed a dwelling.” (I added the italics.) So, does that mean a person can’t sell a vacant lot on contract? Sounds like it. At least if a residence is going to be built on it.

Exclusions

Happily, there are situations where Indiana’s SAFE rule doesn’t apply – but not many. Among them are transactions:

- primarily for non-personal, -family, or –household purposes;

- primarily for business, commercial, or agricultural purposes;

- originated by depository institutions (banks and credit unions) and the Farm Credit Administration;

- involving the government;

- involving family members;

- involving property that was the lender’s residence; and,

- involving attorneys negotiating for clients unless the attorney is paid by a lender, mortgage broker, or MLO.

So, the good news is an owner can sell his or her own residence on contract or by taking a mortgage back. The bad news is, if the seller hasn’t lived in the property, he or she can’t.

Enforcement

Who are the mortgage police? The DFI. Civil penalties can go up to $10,000 per violation. Restitution can be ordered. What would restitution amount to? Nobody knows at this point, but presumably the offending creditor would have to give the debtor’s money back. Not a good thing, if you’re the creditor.

At this point, the best thing to do is brush up on the new rule and steer clear of trouble.

- Morrie Erickson