Massive Mortgage Settlement Finally Coming Together

The multibillion-dollar deal, more than a year in negotiations between the biggest home mortgage servicers on one side and the states’ attorneys general and federal agencies on the other, may be just days from being finished. The deadline for each state’s attorney general to decide whether to sign was Friday, February 3, but that has now been extended to Monday, February 6.

This settlement is to resolve allegations about an extensive series of foreclosure and mortgage loan-servicing abuses that came to light in the summer and fall of 2010. State and federal officials have since then been negotiating an agreement with five major mortgage servicers. It would provide some very specific mortgage relief to homeowners and would establish strict requirements for how banks could conduct foreclosures. The negotiations have gone back and forth, with various proposals being floated, resulting in very public displays of protest by various bank-friendly sets of attorneys general on one hand and by other more aggressive attorneys general on the other. A settlement now looks imminent, in large part because of the timing of the current election cycle, as well as the dire need for progress on the never-ending home foreclosure front —and because this has dragged on for so long.

Since this story is evolving every day, I’m going to provide you with a few recent news articles about it, introducing each one to help you decide if you want to look at it.

This USA Today article gets right to what we all care about, “Who benefits from possible $25B mortgage settlement?”  It’s actually a good summary—in a Q&A format—of the likely terms of the settlement and its effects on homeowners and the housing market. Some of the questions include: “How might the $25B be spent?” “Who will get [mortgage] principal reductions?” “How tough are the potential settlement terms on the banks?

“Mortgage deal would give states enforcement clout” from Reuters addresses the concern “that banks have not adequately followed through on prior settlements, a concern that has pushed government negotiators to establish more forceful enforcement mechanisms in this deal than have been used in the past.” So this deal gives the states, along with a separate “monitoring committee,” the power to go to court to enforce the terms of the settlement and to ask for penalties of up to $5 million per violation.

And if you want to get a taste of how complicated these negotiations have been on the technical side (without even accounting for the intense political pressures), here is a letter dated January 27, 2012 from the Nevada Attorney General to the officials who have been spearheading the settlement. In the letter, she asks for written answers to 38 questions so that her state can decide whether or not to sign on to the settlement. It’ll make your head spin. Don’t say I didn’t warn you.

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Quick Rules about Preserving Your Home through Bankruptcy

When does filing bankruptcy save your home?  When is “straight bankruptcy”—Chapter 7—the right tool, and when do you need Chapter 13?  

If your most important goal is to preserve your home, here’s how each kind of bankruptcy helps (or doesn’t help) in different circumstances.

1. If you’re current on your home mortgage(s) but struggling to keep that up, and are behind on some or many of your other debts:

Chapter 7:  Would likely discharge (legally write off) most if not all of your other debts, freeing up cash flow so that you can make your house payments. Would also stop those other debts from turning into judgments, which would likely be liens against your home. May also enable you to avoid falling behind on other obligations—income taxes, support payment, utility bills—which could also otherwise turn into liens against your home.

Chapter 13:  Does the same as above, plus is often a better way to deal with many other special debts, such as income taxes, back support payments, and vehicle loans. May be able to get rid of a second or third mortgage.  Is better at protecting assets, if you either have more equity in your home than your homestead exemption allows or have any other “non-exempt” asset(s).

2. If you’re not current on home mortgage(s) but are only very few payments behind, with no foreclosure started:

Chapter 7:  May buy you enough time to get current on your mortgage, if you’ve slipped only two or three payments behind. Most mortgage companies will agree to give you several months—sometimes up to a year—to catch up on your mortgage arrears. That’s a “forbearance agreement”—they agree to “forbear” from foreclosing as long as you make the agreed payments. Tends to work only if you have an unusual source of money (a generous relative or a pending legal settlement that’s exempt from the other creditors), or if the Chapter 7 filing will allow you to stop paying enough to other creditors so you will be able to pay off the mortgage arrearage quickly.

Chapter 13:  Even if you’re only a few thousand dollars behind, you may well not have enough extra money each month to catch up quickly on that mortgage arrearage.  Lenders seldom voluntarily give you more than 10-12 months to catch up, but a Chapter 13 forces them to give you a much longer period to do so—three to five years. That greatly reduces how much you need to pay towards the arrears every month, often turning the impossible into the achievable.

3. If you’re many payments behind on your mortgage(s), regardless whether a foreclosure has started:

Chapter 7:  Not helpful here unless you have some extraordinary means for paying off the large mortgage arrears. Buys only a few weeks of time, at most three months or so (if the mortgage lender chooses to do nothing while your bankruptcy case is pending). Also, cannot get rid of a second or third mortgage.

Chapter 13:  Again, gives you the option of up to five years to slowly but surely pay off the mortgage arrearage, during all of which time your home is protected from foreclosure as long as you maintain the agreed Chapter 13 Plan payments. Assumes that you can at least make the regular mortgage payment consistently, along with the arrearage catch-up payment. Does not, under current law, enable you to reduce the first mortgage payment amount, although again might be able to get you out of your second or third mortgage

If any of this looks like it could provide the help that your home needs, please give me a call. Remember: these are just the broad rules. There are lots of other twists and turns which will likely apply to you. To understand the advantages and disadvantages of each option, and to get practical advice about what direction to go, you should see an attorney. Let me show you how the law can help meet your needs.

 

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Refinance Your Mortgage No Matter How Far Underwater It Is

One million more homeowners have just become eligible for refinancing at the current very low interest rates. Until now, the federal Home Affordable Refinance Program (HARP) has been limited to homeowners with mortgages of no more than 125% of the value of their homes. By way of example, for a home currently worth $200,000, the mortgage could be no more than $250,000. Now that 125% limitation has been eliminated, allowing homeowners more deeply underwater to qualify for HARP refinancing. So some people who have not been able to take advantage of the low interest rates will be able to do so and get the resulting lower monthly mortgage payments. This change should especially help homeowners in those parts of the country hardest hit by reduced home values, where a large percentage of homeowners have been cut off from being able to use HARP.

To qualify under the revised refinancing:

1. You must have a mortgage owned or guaranteed by Fannie Mae or Freddie Mac, which include about half of all U.S. home mortgages. You can find out whether yours is by looking that up online at Fannie Mae and Freddie Mac or calling 800-7FANNIE or 800-FREDDIE (8 am to 8 pm ET for both numbers).

2. Your mortgage must have belonged to either of these two institutions by no later than May 31, 2009.

3. You cannot have been late on any of the mortgage payments during the last 6 months or on more than one payment in the last 12 months.

4. You can’t have already refinanced through HARP.

The program continues to be voluntary for the mortgage lenders, so there are additional incentives for them. Lenders have been accused of being extremely picky about income documentation and home valuation under HARP, apparently fearing that they would have to buy-back the new mortgages being sold to Fannie Mae or Freddie Mac. So the new changes eliminate most of that risk. As a result, the application process should be much easier and less expensive for borrowers.

Detailed rules are expected by the middle of November, with lenders ready to implement the revamped program starting around December 1.

 

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The Option ARM Foreclosure Time Bomb Fuse is Burning . . . But Will it End with a Fizzle?

Does the recent increase in foreclosures signal the long-anticipated surge in defaults of Option ARMs (adjustable-rate mortgages) that were scheduled to reset their interest rates right about now?

That’s a question that came to mind when I noticed the recent uptick in new home foreclosures.

Option ARMs gave borrowers a choice of paying principal and interest, interest-only, or else lower payments covering only a part of the interest and none of the principal. Most people paid on the low end, which increased their principal balances every month. Plus many of them had low “teaser” interest rates. These rates would reset after 5 years, or sooner if the principal balance reached a certain threshold, say 120% of the original amount. People could get more house for less money, but with a greater gamble that house values would continue to rise.

Since $600 billion worth of Option ARMs were made from 2005 through 2007, we are now right in the thick of when they were scheduled to reset. A similar flood of resets among subprime mortgages in 2006 and 2007 likely was a major cause of the “subprime mortgage crisis” which ignited the Great Recession. Around that time lots of smart folks were warning about this huge second wave of mortgage defaults and foreclosures that was to hit now.

But it’s not happening, or at least not nearly with the intensity anticipated. Why not?

1. Because many of these mortgages never got as far as their reset dates. They fell into default as the economy got worse and property values declined. They’ve just been part of the mix of mortgages in the foreclosure pipeline through these last two-three years.

2. Something like 20% of the Option ARMs have been modified by mortgage lenders and servicers, many into fixed-rate mortgages. Although mortgage modification efforts overall have been roundly criticized for their ineffectiveness, the lenders recognized their self-interest in avoiding the anticipated Option ARM defaults and so they were proactive with this category of mortgages.

3. Because the economy has been so slow in its rebound, interest rates have stayed extremely low for much longer than most anticipated. As a result the interest rate resets have increased mortgage payments much less than expected. In fact, in some cases mortgage payments have actually gone down.

4. Unlike subprime loans which mostly went to homeowners with shaky credit scores, Option ARMs went to borrowers with average or better credit. Those that have not already defaulted, and who are getting relatively modest payment increases at reset time, tend to be borrowers who can better afford to make the payments.

However, there still are millions of Option ARMs, most of which ARE requiring payment increases when they reset.  A large percentage of ARMs are at least 30 days late. So although the reset impact is not nearly as bad as many anticipated, with the very shaky economy many homeowners with these mortgages, even if they had decent credit a few years ago, are very vulnerable now.

If you have an Option ARM, or any other kind of mortgage, and need advice about your options, please come in to see me.

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Another Five Ways to Save Your Home through Chapter 13

In my last blog I gave you the first five of ten big ways that Chapter 13 allows you to keep your home.  Here are the other five.

 

6. If you need to sell your home, Chapter 13 usually gives you much more time to do so than a Chapter 7 case. More time means more market exposure, which usually means selling at a better price. That’s especially true if you are otherwise forced to sell during a slower time of the year, or are trying to sell on a short sale (where the house is worth less than the debt against it). If you are behind on your mortgage payments and in danger of a foreclosure, a Chapter 7 case will usually only buy you an extra three months, and sometimes even less if the creditor is aggressive. Often the only way to stop the foreclosure is by paying the entire arrearage of payments, interest, late charges, foreclosure fees and attorney fees in a lump sum, often totaling tens of thousands of dollars. In contrast, in a Chapter 13 case you can usually maintain the status quo and stay in the house by resuming regular monthly mortgage payments and making meaningful progress towards paying the arrearage. If there is sufficient equity in the property, most or even all the arrearage can often be paid from the proceeds of the anticipated sale, reducing what needs to be paid monthly before then.

7. If you are behind on your child or spousal support obligations, Chapter 7 does nothing to stop collection efforts against you on those obligations, including against your home. Support obligations in most cases turn into liens against the real estate you own, including your home, often giving your ex-spouse the ability to force the sale of your home to pay the support arrearage. On the other hand, Chapter 13 does stop most collection efforts during your case as to any support arrearage which existed as of the time your bankruptcy is filed.  Your Plan must show how you are going to pay that arrearage before your case is completed, and you must stay current on those Plan obligations. But as long as you do, any support lien cannot be enforced against your home. At the end of your Chapter 13 case, you will have paid off the support arrearages, so the lien will be released, with no further risk to your home. (Important: Chapter 13 does NOT stop collection against any new support that you fail to pay after the filing date, so you must stay current on any such new obligations.)

8. In our last blog, I showed how Chapter 13 is usually the better option when dealing with an income tax lien against your home. There I used the situation in which the lien is on a tax debt that cannot be discharged—written off—in bankruptcy. But if the tax upon which the tax lien has been recorded can be discharged—because it is old enough and meets the other conditions for a dischargeable tax debt—dealing with the lien against your home in this situation is also better under Chapter 13. Depending on the amount of equity you have in your home and other possible factors, the IRS or other taxing authority may well not release the tax lien even after the underlying tax debt is discharged in a Chapter 7 case. In a Chapter 13 case, in contrast, there is an established mechanism for determining the value of that lien, and for paying it, so that at the completion of your case the tax debt is discharged and its lien is satisfied.

9. If you have fallen behind on property taxes, Chapter 13 is often the better way to deal with them. Usually, being current on property taxes is a condition of your mortgage, giving your mortgage lender an additional independent reason to foreclose if you are not. (This assumes you are not set up to pay the taxes through the “escrow” portion of your mortgage payment, but rather directly to the property tax authority.)  By showing in your Chapter 13 Plan how you are curing your property tax arrearage—even if it takes years to do so—your mortgage lender is no longer able to say you are in breach of your mortgage and justify foreclosing on that basis.

10. Saving the most obvious for last, people often file Chapter 13 to prevent a Chapter 7 trustee from taking assets that are worth more than the applicable exemptions. And that applies to your home as much as anything. If you have more equity in your home than the homestead exemption allows, you risk losing your home in a Chapter 7 case. That risk is aggravated these days because the highly irregular housing market makes property appraisals difficult to predict accurately. Chapter 7 trustees have a great deal of discretion, and predicting how aggressive yours will be is made even more difficult because in most places there is no way of knowing which trustee will be assigned to your case. In contrast, usually all Chapter 13s in a region are assigned to the single local “standing trustee.” So we are familiar with his or her inclinations. Even more important, Chapter 13 provides a much more predictable procedure for determining the value of a home, and a mechanism to protect the value of the home in excess of the homestead, if any.

In a nutshell, Chapter 13 provides quite a number of tools to help you keep your home. Simply said, it gives you more control over the situation. It is definitely not the automatic answer just because you have a home in distress, because Chapter 13 certainly has its limitations. But it is often a powerful option that you should discuss carefully with your attorney.  

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Ten Ways to Save Your Home through Chapter 13

In my experience the number one reason people choose to file Chapter 13 instead of Chapter 7 is to save their home. And it’s not just because it gives you a bigger hammer against your mortgage company. It gives you a hammer, but also a whole bunch of other tools. Some are more subtle but just as important in the right case. Each person’s situation probably doesn’t call for more than a few of those tools, but it’s great to have them all in the tool chest. So let’s look at the ten main ones, the first five in this blog and the other five in my next one.  


1.  The one tool most people know about is that in most circumstances you are given the length of your Chapter 13 Plan–as long as 5 years—to cure your mortgage arrears, the amount you are behind on your mortgages at the time your case is filed. Outside of Chapter 13, mortgage companies seldom let you have more than a few months to pay the arrears, an impossible task if you are not expecting to receive some windfall of money. During the entire repayment time that a Chapter 13 allows, you are protected from foreclosure and most other collection efforts, just so long as you play by the rules laid out in your Plan. If you do play by those rules, you will be completely current on your home when you finish your case.

 

2.  A benefit of Chapter 13 which has become tremendously helpful during these last few years of shrinking home values is the “stripping” of junior mortgages. If your home is worth no more than the amount of your first mortgage, then any second mortgage can be “stripped” of its lien against your home and treated in your Chapter 13 case like a “general unsecured creditor.” That means that the second mortgage balance is lumped in with the rest of those bottom-of-the-barrel creditors, and whatever portion of the balance is not paid during your case is written off at the end of it. This is not available in Chapter 7.

 

3. Both Chapter 7 and Chapter 13 prevent federal and other income tax liens from attaching to your home, but, assuming the lien would be on a tax that cannot be written off in bankruptcy, Chapter 7’s protection lasts only a few months. The tax lien can be imposed against your home just as soon as the Chapter 7 case is over, usually only about three months later. This gives the IRS or other taxing authority lots of additional leverage against you, requiring you to pay lots more interest and penalties, AND putting your house in jeopardy. In contrast, if you file a Chapter 13 case before a tax lien is recorded, there will never be a tax lien against your home. That’s because this tax will be paid off in your Chapter 13 case as a “priority creditor,” without any additional interest or penalties, with no tax enforcement—including a tax lien recording—permitted throughout the process.

 

4. Chapter 13 is also the better route if your home already has an unpaid income tax lien against it before you file bankruptcy. Again assuming that lien was imposed for a tax that cannot be written off in bankruptcy, Chapter 7 case neither provides you a way to pay this tax nor protects you from the full force of tax collection for any longer than a few short months. In contrast, Chapter 13 both provides you a mechanism to pay these inescapable debts on a reasonable timetable and protects you while you do so.

 

5. A key point of Chapter 13 is that it slashes your other debt obligations so that you can gain the needed monthly cash flow to better be able to afford your necessary home obligations. Amazingly, in many cases you can have more room in your budget to pay towards your home even than if you had filed a Chapter 7 case. That’s because if you owe certain kinds of debts that would not be written off in a Chapter 7 case—such as an ongoing vehicle loan, certain taxes, child or spousal support arrears, and most student loans—Chapter 13 could well allow you to pay less each month on those obligations, leaving more for the home.

 

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