Sell My Short Sales

Los Angeles, California:

Bernie Germani, a short sale investor in Southern California said “He personally knows of siutations where the homeowner was notified the foreclosure was postponed until further notice, and Bernie said some of these familes cried with joy that they could stay through the holidays.”

Written By Susan Park

Popularity: 53% [?]

Remember it was first the sub-prime market and now mortgage experts agree, adjustable rate mortgages combined with rising unemployment and falling property values could create another economic storm capable of ravaging the weak economic recovery. Here’s a quick breakdown of the ARM Storm-Tracker for those savvy short sale investors to beginning their planning:

Resetting Rates: Current interest rates are at or near historic lows with 30 year fixed mortgages below 5 percent while ARM’s are likely to readjust and drive the cost of monthly mortgage payments to double their former payments. Unfortunately, many current ARM holders do not qualify for refinancing due to changes in employment status, high loan to value ratios and increased debt to income percentages.

Evaporating Equity: Not only did millions of Americans take out Adjustable rate mortgages but they built additions and over-improved their homes based upon loans. As home values fell, so did the equity reserves required to refinance their ARM mortgages. Whether it was a first mortgage with minimal down payment or a second (and even third) mortgage, lower property values have all but erased excess equity from a large number of buyers.

Cheaper to Walk: Many homeowners are finding it less expensive to simply walk away from rapidly rising mortgage, rent for awhile then repurchase. According to industry experts, a significant number of homeowners are capable of making the mortgage payment but simply don’t desire to do so given the cost of purchasing the same home after foreclosure. Jesus Yinh of Exit Real Estate Group, said ” he has seen a trend of this happening in the mid Wilshire area of Los Angeles.” Current homeowners are eligible for FHA loans in as few as three years after default – creating an inverse incentive to continuing paying on a property worth tens (or even hundreds) of thousands dollars less than the existing mortgage.

Renting an Increased Option: Throughout the nation lenders are getting creative in order to reduce the inflow of defaulting properties on their portfolio; one of the more popular options among existing homeowners is the ability to rent your current property for a specified period of time.

ReFi with an ARM? It’s true, the FHA has a 3.87 five year adjustable rate mortgage option designed to help keep payments affordable. Unfortunately, it may simply delay the pain until interest rates continue to rise later. However, with a 2 percent cap on each adjustment/rate increase, it could conceivably buy time for those in unusual short term situations such as temporary illness, job loss of other large expenses. It also has the benefit of “buying time” for the banks and lenders who are in no hurry to acquire even more properties given the current backlog of non-performing properties in their portfolio.

What is a California short sale investor to do? Get ready for the coming wave of ARM properties to hit the market. Be sure your mindset is in place and position yourself to solve problems for both homeowners and lenders in need of a new start. Well first off, please come back shortly to http://www.shortsalewealthbuilders.com/
We can show you how to take advantage of California’s short sale market, and in 2010-2011 it will become California’s second Gold Rush… So saddle up, and get ready for the ride of your life.

Popularity: 39% [?]

Late Monday afternoon The Obama administration came to a conclusion on the final guidelines that may make it easier for some financially troubled borrowers to have the ability to shortsale their homes.

The guidelines are to help encourage the use of short sale transactions in which the borrower with lenders approval sells the home for less than what is owed on the loan.
The program taunts that it will now become easier for borrowers to voluntarily relinquish ownership of properties through a “deed in lieu of foreclosure.” (In the past banks said this program would be rolled out, but it has never quite taken off.) A homeowner just gives the property back voluntary to the bank while being in default, and it was not to have as much damage as a foreclosure to the credit score, but banks balked at this program.

Short sales generally results in higher profits for the bank than a foreclosure, and will have less economic effects to the local neighborhood, because homes aren’t left vacant, they are not exposed to squatters, and vandalism.

The new proposal would allow borrowers to receive $1,500 from the government if they sell their home as a short sale. Mortgage-servicing companies(the companies who manage the mortgage for the investor.) will receive $1,000 for each completed short sale. Is this a big enough incentive for them to get the job done?

The program is open to borrowers who have 1st pursued a government loan modification but did not qualify, or are delinquent on their modification.

This program was first introduced in May, but did not include short sales. This is the Obama administration’s $75 million foreclosure-prevention plan, which include incentives fore mortgage companies and investors to rework these troubled loans.

Under the new guidelines, second- mortgage holders can receive up to $3,000 of the sales proceeds in exchange for releasing their liens.

Another great idea(hopefully it works) is that borrowers who complete a short sale under the new program must be “fully released” from the future liability for the debt.  Susan Park, an Exit Real Estate Group Realtor said ” this will be a huge opportunity for homeowners to help insure no further repercussions of worrying if they will be sued from their lender over the remainder of the mortgage balance.”

Bernie Germani, a short sale investor in California said “he has been waiting for this day to come, but has some reservation that it will not be able to help more people out who truly need this program.”

Jeff Coga, said ” If this program works out the way it is designed to, this will have a very positive impact on the real estate community across the country.”

Popularity: 46% [?]

An unfortunate event in this economic crisis is the increase in short sales and foreclosures of homes, and now The all American Dream may need life support.

In most cases, a short sale is a sale by an owner in which the amount owed on the property is greater than the amount the seller will receive from the sale. We Recommend to our clients that they must obtain an agreement from the lender that the proceeds from the sale will satisfy the debt in full in order to convey clear title to the property to the  new buyer. Lenders are sneaky they will try and have you sign a promissory note for the remainder of the balance, but we always tell our clients to say “No” to this.

A foreclosure or a deed in lieu of foreclosure results in the repossession of a property by the lender due to default on the loan on the part of the borrower. We have heard the Government is offering cash for keys, but we have yet to find 1 homeowner who have recieved that alleged cash.

Each of these events can carry significant tax consequences unless the borrower meets specific exclusions.

With either a short sale or a foreclosure, two distinct, potentially taxable events may occur.
These include: (1) income resulting from the forgiveness of the debt is realized by the homeowner.
(2) gain or loss resulting from the sale of the residence to a third party or deemed sale of the residence to the lender in satisfaction of the debt must also be considered.

The Mortgage Debt Foregiveness Act of 2007 and the Emergency Economic Stabilization Act of 2009 provide tax relief for debt forgiven through a short sale, foreclosure or deed in lieu of foreclosure on a principal residence.

In most cases, in order to qualify as a taxpayer’s principal residence, the taxpayer must own and use the property as their primary residence for periods totaling two out of five years before the sale.  Under Internal Revenue Code Section 108, the discharge of qualified debt incurred to buy, construct or substantially improve a principal residence can be excluded from income if the discharge occurs in calendar years 2007 through 2012. The residence must secure the debt. Up to $2 million of forgiven debt is eligible for this exclusion for married couples filing joint tax returns.

If the taxpayer does not meet the Principal Residence Debt Exclusion under the Mortgage Debt Forgiveness Act of 2007 or the Emergency Economic Stabilization Act of 2009 discussed above, they must look to other provisions for possible tax relief.

Recourse versus non-recourse

The first step is to determine if the debt is “recourse” or “non-recourse.” If the debt is recourse, the borrower is personally liable for the debt and the lender is able to pursue the borrower’s other assets in satisfaction of the debt.

If the debt is non-recourse, the lender’s remedy is limited to the property and the borrower is not personally liable for any deficiency. In California, most loans incurred to purchase a home are non-recourse. Mortgages from refinancing a previous mortgage or home equity line of credit are typically recourse.

Cancellation of indebtedness

The second step is to determine if a taxpayer has cancellation of indebtedness (COI) income. When a property subject to non-recourse debt is foreclosed on or is sold subject to a short sale, the property is treated as being sold for the balance of the mortgage. Therefore, there is no COI income.

For property subject to a recourse loan, COI income is the difference between the principal balance of the debt and the fair market value of the property securing the debt.

There are specific exceptions to this, including the Principal Residence Debt Exclusion, which blurs the distinction between recourse and non-recourse debt in determining the type and amount of discharged debt eligible for favorable tax treatment.

Gain or loss on sale

The third step is to determine the gain or loss on the sale of the property.

Short sales, foreclosures and deeds in lieu of foreclosure are treated as sales or deemed sales for tax purposes.

The gain or loss is determined by subtracting the net sales price of the property from the owner’s adjusted basis in the property.

The adjusted basis of the property is generally equal to the purchase price plus costs to acquire the property and improvement costs less any depreciation taken.

The selling price is equal to the outstanding principal balance of the loan in the case of non-recourse debt and the price that a third party would pay for the property if the loan is recourse, less any transaction expenses related to the sale.

This article focuses on the income tax aspects of foreclosures and short sales involving principal residences and other personal property.

The above information relates only to federal income taxes under the Internal Revenue Code. SB 1055 in California was intended to make California laws more closely conform to federal legislation and was only effective for 2007 and 2008. This legislation has expired. Conformity legislation has been introduced that would adopt the same rules as provided under federal law through 2010.

But with the current budget situation in California, its enactment may be in jeopardy.

Our local economy has been heavily impacted by the tightening mortgage market and the liberal loan policies of the early to mid 2000s.

If you are involved in any form of debt restructuring or a forced sale of property, you should consult with your tax adviser to gain an understanding of how these settlements will affect your federal and California income tax returns.

It is our expectation that The Mortgage Debt Relief Act of 2007 and the Emergency Economic Stabilization Act of 2008 will provide some tax relief to those individuals having to face these difficult decisions.

We are not tax experts, we are just an Exit Real Estate Group/ short sale investorsin Southern California. Please consult your own CPA or attorney for more clarification that would pertain to your situation.

Popularity: 43% [?]

CIVIL CODE – SECTION 1695-1695.17

1695.
(1) To provide each homeowner with information necessary to make an informed and intelligent decision regarding the sale of his or her home to an equity purchaser; to require that the sales agreement be expressed in writing;  to safeguard the public against deceit and financial hardship; to insure, foster, and encourage fair dealing in the sale and purchase of homes in foreclosure; to prohibit representations that tend to mislead; to prohibit or restrict unfair contract terms; to afford homeowners a reasonable and meaningful opportunity to rescind sales to equity purchasers; and to preserve and protect home  equities for the homeowners of this state.
(2) This chapter shall be liberally construed to effectuate this intent and to achieve these purposes.

1695.1.  The following definitions apply to this chapter:
(a) “Equity purchaser” means any person who acquires title to any residence in foreclosure, except a person who acquires such title as follows:
(1) For the purpose of using such property as a personal residence.
(2) By a deed in lieu of foreclosure of any voluntary lien or encumbrance of record.
(3) By a deed from a trustee acting under the power of sale contained in a deed of trust or mortgage at a foreclosure sale conducted pursuant to Article 1 (commencing with Section 2920) of Chapter 2 of Title 14 of Part 4 of Division 3.
(4) At any sale of property authorized by statute.
(5) By order or judgment of any court.
(6) From a spouse, blood relative, or blood relative of a spouse.
(b) “Residence in foreclosure” and “residential real property in foreclosure” means residential real property consisting of one- to four-family dwelling units, one of which the owner occupies as his or her principal place of residence, and against which there is an outstanding notice of default, recorded pursuant to Article 1 (commencing with Section 2920) of Chapter 2 of Title 14 of Part 4 of Division 3.
(c) “Equity seller” means any seller of a residence in foreclosure.
(d) “Business day” means any calendar day except Sunday, or the following business holidays:  New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, and Christmas Day.
(e) “Contract” means any offer or any contract, agreement, or arrangement, or any term thereof, between an equity purchaser and equity seller incident to the sale of a residence in foreclosure.
(f) “Property owner” means the record title owner of the residential real property in foreclosure at the time the notice of default was recorded.

1695.2.  Every contract shall be written in letters of a size equal to 10-point bold type, in the same language principally used by the equity purchaser and equity seller to negotiate the sale of the residence in foreclosure and shall be fully completed and signed and dated by the equity seller and equity purchaser prior to the execution of any instrument of conveyance of the residence in foreclosure.

1695.3.   Every contract shall contain the entire agreement of the parties and shall include the following terms:
(a) The name, business address, and the telephone number of the equity purchaser.
(b) The address of the residence in foreclosure.
(c) The total consideration to be given by the equity purchaser in connection with or incident to the sale.
(d) A complete description of the terms of payment or other consideration including, but not limited to, any services of any nature which the equity purchaser represents he will perform for the equity seller before or after the sale.
(e) The time at which possession is to be transferred to the equity purchaser.
(f) The terms of any rental agreement.
(g) A notice of cancellation as provided in subdivision (b) of Section 1695.5.
(h) The following notice in at least 14-point boldface type, if the contract is printed or in capital letters if the contract is typed, and completed with the name of the equity purchaser, immediately above the statement required by Section

1695.5
(a):  “NOTICE REQUIRED BY CALIFORNIA LAW
Until your right to cancel this contract has ended, (Name) or anyone working for __________(Name) CANNOT ask you to sign or have you sign any deed or any other document.”

The contract required by this section shall survive delivery of any instrument of conveyance of the residence in foreclosure, and shall have no effect on persons other than the parties to the contract.

1695.4. 
(a) In addition to any other right of rescission, the equity seller has the right to cancel any contract with an equity purchaser until midnight of the fifth business day following the day on which the equity seller signs a contract that complies with this chapter or until 8 a.m. on the day scheduled for the sale of the p pursuant to a power of sale conferred in a deed of trust, whichever occurs first.
(b) Cancellation occurs when the equity seller personally delivers written notice of cancellation to the address specified in the contract or sends a telegram indicating cancellation to that address.
(c) A notice of cancellation given by the equity seller need not take the particular form as provided with the contract and, however expressed, is effective if it indicates the intention of the equity seller not to be bound by the contract.

1695.5. 
(a) The contract shall contain in immediate proximity to the space reserved for the equity seller’s signature a conspicuous statement in a size equal to at least 12-point bold type, if the contract is printed or in capital letters if the contract is typed, as follows:

“You may cancel this contract for the sale of your house without any penalty or obligation at any time before
____________________________________________________________.
.                      (Date and time of day)

See the attached notice of cancellation form for an explanation of this right.” The equity purchaser shall accurately enter the date and time of day on which the rescission right ends.
(b) The contract shall be accompanied by a completed form in duplicate, captioned “notice of cancellation” in a size equal to 12-point bold type, if the contract is printed or in capital letters if the contract is typed, followed by a space in which the equity purchaser shall enter the date on which the equity seller executes any contract.  This form shall be attached to the contract, shall be easily detachable, and shall contain in type of at least 10-point, if the contract is printed or in capital letters if the contract is typed, the following statement written in the same language as used in the contract:  “NOTICE OF CANCELLATION________________________________________.
                                             (Enter date contract signed)

You may cancel this contract for the sale of your house, without any penalty or obligation, at any time before_______________________________
                           (Enter date and time of day)
To cancel this transaction, personally deliver a signed and dated copy of this cancellation notice, or send a telegram to___________________________
                                            (Name of purchaser)
at ___________________________________________________________
                  (Street address of purchaser’s place of business)

NOT LATER THAN _______________________________.
                                            (Enter date and time of day)
I hereby cancel this transaction _______________________________.
                                                                            (Date)
                        ___________________________________”
                                              (Seller’s signature)
(c) The equity purchaser shall provide the equity seller with a copy of the contract and the attached notice of cancellation.
(d) Until the equity purchaser has complied with this section, the equity seller may cancel the contract.

1695.6. 
(a) The contract as required by Sections 1695.2, 1695.3, and 1695.5, shall be provided and completed in conformity with those sections by the equity purchaser.
(b) Until the time within which the equity seller may cancel the transaction has fully elapsed, the equity purchaser shall not do any of the following:
(1) Accept from any equity seller an execution of, or induce any equity seller to execute, any instrument of conveyance of any interest in the residence in foreclosure.
(2) Record with the county recorder any document, including, but not limited to, any instrument of conveyance, signed by the equity seller.
(3) Transfer or encumber or purport to transfer or encumber any interest in the residence in foreclosure to any third party, provided no grant of any interest or encumbrance shall be defeated or affected as against a bona fide purchaser or encumbrancer for value and without notice of a violation of this chapter, and knowledge on the part of any such person or entity that the property was “residential real property in foreclosure” shall not constitute notice of a violation of this chapter.  This section shall not be deemed to abrogate any duty of inquiry which exists as to rights or interests of persons in possession of the residential real property in foreclosure.
(4) Pay the equity seller any consideration.
(c) Within 10 days following receipt of a notice of cancellation given in accordance with Sections 1695.4 and 1695.5, the equity purchaser shall return without condition any original contract and any other documents signed by the equity seller.
(d) An equity purchaser shall make no untrue or misleading statements regarding the value of the residence in foreclosure, the amount of proceeds the equity seller will receive after a foreclosure sale, any contract term, the equity seller’s rights or obligations incident to or arising out of the sale transaction, the nature of any document which the equity purchaser induces the equity seller to sign, or any other untrue or misleading statement concerning the sale of the residence in foreclosure to the equity purchaser.

1695.7.  An equity seller may bring an action for the recovery of damages or other equitable relief against an equity purchaser for a violation of any subdivision of Section 1695.6 or Section 1695.13. The equity seller shall recover actual damages plus reasonable attorneys’ fees and costs.  In addition, the court may award exemplary damages or equitable relief, or both, if the court deems necessary.

1695.8. Any equity purchaser who violates any subdivision of Section 1695.6 or who engages in any practice which would operate as a fraud or deceit upon an equity seller shall, upon conviction, be punished by a fine of not more than twenty-five thousand dollars ($25,000), by imprisonment in the county jail for not more than one year, or in the state prison, or by both that fine and imprisonment for each violation.

1695.9.  The provisions of this chapter are not exclusive and are in addition to any other requirements, rights, remedies, and penalties provided by law.

1695.10.  Any waiver of the provisions of this chapter shall be void and unenforceable as contrary to the public policy.

1695.11.  If any provision of this chapter, or if any application thereof to any person or circumstance is held unconstitutional, the remainder of this chapter and the application of its provisions to other persons and circumstances shall not be affected thereby.

1695.13.  It is unlawful for any person to initiate, enter into, negotiate, or consummate any transaction involving residential real property in foreclosure, as defined in Section 1695.1, if such person, by the terms of such transaction, takes unconscionable advantage of the property owner in foreclosure.

1695.14.
(a) In any transaction involving residential real property in foreclosure, as defined in Section 1695.1, which is in violation of Section 1695.13 is voidable and the transaction may be rescinded by the property owner within two years of the date of the recordation of the conveyance of the residential real property in foreclosure.
(b) Such rescission shall be effected by giving written notice as provided in Section 1691 to the equity purchaser and his successor in interest, if the successor is not a bona fide purchaser or encumbrancer for value as set forth in subdivision (c), and by recording such notice with the county recorder of the county in which the property is located, within two years of the date of the recordation of the conveyance to the equity purchaser.  The notice of rescission shall contain the names of the property owner and the name of the equity purchaser in addition to any successor in interest holding record title to the real property and shall particularly describe such real property.  The equity purchaser and his successor in interest if the successor is not a bona fide purchaser or encumbrancer for value as set forth in subdivision (c), shall have 20 days after the delivery of the notice in which to reconvey title to the property free and clear of encumbrances created subsequent to the rescinded transaction.  Upon failure to reconvey title within such time, the rescinding party may bring an action to enforce the rescission and for cancellation of the deed.
(c) The provisions of this section shall not affect the interest of a bona fide purchaser or encumbrancer for value if such purchase or encumbrance occurred prior to the recordation of the notice of rescission pursuant to subdivision (b).   Knowledge that the property was residential real property in foreclosure shall not impair the status of such persons or entities as bona fide purchasers or encumbrancers for value.  This subdivision shall not be deemed to abrogate any duty of inquiry which exists as to rights or interests of persons in possession of the residential real property in foreclosure.
(d) In any action brought to enforce a rescission pursuant to this section, the prevailing party shall be entitled to costs and reasonable attorneys fees.
(e) The remedies provided by this section shall be in addition to any other remedies provided by law.

1695.15. 
(a) An equity purchaser is liable for all damages resulting from any statement made or act committed by the equity purchaser’s representative in any manner connected with the equity purchaser’s acquisition of a residence in foreclosure, receipt of any consideration or property from or on behalf of the equity seller, or the performance of any act prohibited by this chapter.
(b) “Representative” for the purposes of this section means a person who in any manner solicits, induces, or causes any property owner to transfer title or solicits any member of the property owner’ s family or household to induce or cause any property owner to transfer title to the residence in foreclosure to the equity purchaser.

1695.16. 
(a) Any provision of a contract which attempts or purports to limit the liability of the equity purchaser under Section 1695.15 shall be void and shall at the option of the equity seller render the equity purchase contract void.  The equity purchaser shall be liable to the equity seller for all damages proximately caused by that provision.  Any provision in a contract which attempts or purports to require arbitration of any dispute arising under this chapter shall be void at the option of the equity seller only upon grounds as exist for the revocation of any contract.
(b) This section shall apply to any contract entered into on or after January 1, 1991.

Popularity: 43% [?]