This economic recession has brought little hope for homeowners. Despite numerous government sponsored programs such as HAMP and HAFA, very few borrowers get loan modifications and thus upside-down owners are left facing either short-sale or foreclosure.  But there may be a more effective approach… fighting back.

Part of what created this economic collapse was the willingness of lenders to make loans virtually to anyone without any real checking to see if they could really afford the loan. But with this drop of standards also came a drop in diligence in handling the loan paperwork properly. The reality is that millions of loans are legally defective and, in some cases, may not be collectible.  This has given rise to a new wave of scams by so called “forensic auditors” who, for a large up-front fee,  promise to search the loan documents for defects but more often would take the money and run.  As readers of my Blog know, I’ve opposed such approaches because, even if they found defects in the loan, the legal remedy for Truth in Lending (TILA) violations was rescission: the lender gives you back what you paid but you have to give back the loan proceeds.  This simply didn’t work.  But now, there may be new strategies available through this process that can potentially stop foreclosure, stop judgments, and maybe even force a loan modification.

I recently attended a seminar put on by a Florida company called AmStar which is in the forefront nationally of assisting lawyers in challenging lenders.  The critical issue is not TILA but rather the underlying changes in ownership of the loan and security: 1) Who really owns the loan?  2) Who really can foreclose (it’s not MERS); 3) Do the Loan Agreements conflict with HAMP and HAFA and specific State laws requiring good faith efforts to resolve loan disputes?  Courts throughout the Country are starting to rule that lenders cannot foreclose if their loan documents or handling are defective.  If the lender can’t foreclose, they’ll want to settle and that could mean a principal reduction modification enabling the borrower to keep their home.

Determining whether a borrower’s loan is defective requires several steps: 

First, a Qualified Written Request (QWR) should be sent to the loan servicer to obtain their loan documents and payment and handling history. Recent law changes require a lender to acknowledge receipt of the Request in 5 days and actually send the responsive documents within 30 days (15 day extension possible). 

Second, have the loan documents reviewed by a qualified and certified auditor to determine if defects exist and whether they are minor or fatal to enforcement of the loan.  Beware of “auditors” charging upwards of $5,000 for this service. A good residential home audit will cost approximately $2,000.

Third, if the loan documents and audit results indicate that the loan is not enforceable, then you may have good cause to get a legal injunction to stop a pending foreclosure and possibly even beat the lenders in Court. Of course, most homeowners can’t afford the legal cost of a protracted litigation. But most lenders also don’t want a Court to dig in to the validity of their loan practices. The result is a greatly increased interest in settlement which can be a win-win for everyone, especially for the homeowner that gets to keep their home at an affordable payment rate.

Are these strategies for you?  Every person’s situation is different. The information presented in this Article is not to be taken as legal advice.  If you are upside-down on your loan(s), get competent legal advise in your State immediately so that you can determine your best options. 

If you have specific questions about your liability in California or about short sales, foreclosure, or any legal issues, feel free to contact us at sjbeede@bpelaw.com.  We offer a $200 flat fee consultation to evaluate your liabilities and strategize a resolution. This can be done in person or by phone. If interested, please call us at 916-966-2260.

One of the most common complaints we hear from upside-down owners is that lenders are non-responsive to their requests for loan modification or short sale. Documents are getting lost, or the lender says they have not been received, or the negotiator has changed, or many other excuses.  All of this has led many frustrated upside-down borrowers to believe that lenders have no intention of helping them despite all of the hype about government programs such as HAMP (Modifications) and HAFA (Short Sales and Deeds in Lieu). While I believe that most lenders are trying but are overwhelmed, there is a very real question of whether OneWest Bank is pushing for foreclosures.  The evidence suggests that it is.

First a little history.  A great many banks are insured by the FDIC, the national program designed to protect depositors’ assets. During the height of the real estate bubble, lenders were giving out loans without really any care for whether the borrower really could pay them back.  When the market crashed starting in 2006, foreclosures skyrocketed, banks lost their source of income and capacity to operate, ie: they “failed”. When a bank fails, FDIC steps in and takes control. This is what happened in 2008 with the collapse of Indymac. But FDIC does not want to run the bank. First they took control then found a buyer: OneWest Bank.  OneWest was created by a handful of very wealthy investors solely to take over Indymac from the FDIC.  What made this an attractive investment was the unique “Shared Loss Agreement” between Indymac and OneWest wherein OneWest purchased Indymac’s loans for between 58-70% of the balance owed but if there was a foreclosure, FDIC would pay 80-95% of the losses on the original balance. It is not rocket science to figure out that under this deal, OneWest could make far more money from a foreclosure than they could from a modification or short sale.  To learn more about this history, read Patrick Pulatie’s blog: http://iamfacingforeclosure.com/blog/2009/12/01/anatomy-of-a-government-abetteded-fraud-why-indymaconewest-always-forecloses/

So what does this all mean to you, the upside-down property owner: If you’re dealing with OneWest Bank or Indymac, don’t expect help because it may not be there.  Note also that FDIC has entered these Shared Loss Agreements with over 50 different lenders and servicers, although apparently none are as uncooperative as OneWest. Is there anything you can do to force them?  Possibly. First - write your Congressman for help. It is certainly unlikely that our legislature intended this perverse result when they approved the FDIC operations. This may put on pressure.  Second - use the Courts to get relief. Many States, such as California, require that a lender negotiate in good faith to attempt a resolution before commencing a foreclosure. Paragraph 2.1(a) of the FDIC-OneWest Shared Loss Agreement requires OneWest to “undertake, reasonable and customary loss mitigation efforts”.  A judge or jury can decide if OneWest has met their responsibilities. Remember, the squeaky wheel gets the grease. Faced with a legal challenge or Congressional pressure or both, OneWest may fix your problem to make you go away even if they are unwilling to change their policies.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are upside-down on your loan(s), especially if you’re having problems communicating with OneWest or Indymac, get competent legal advise in your State immediately so that you can determine your best options. 

If you have specific questions about your liability in California or about short sales, foreclosure, or any legal issues, feel free to contact us at sjbeede@bpelaw.com.  We offer a $200 flat fee consultation to evaluate your liabilities and strategize a resolution. This can be done in person or by phone. If interested, please call us at 916-966-2260.

As the recession has deepened and lengthened, many people who are fully able to afford the payments on their real estate loans on over-encumbered property have decided to walk-away and let the property go to foreclosure. For these people, the long time it would take to reach break-even simply doesn’t make financial sense. This practice has come to be called “Strategic Default”.   While the rights of the affected lenders will still be solely governed by the loan documents, as expected the lending industry is pushing for stronger penalties to curtail Strategic Defaults.

As reported widely on the web, Fannie Mae (”FNMA”), the government-sponsored enterprise that creates the “secondary market” by buying up mortgages, has stated that: “Defaulting borrowers who walk away and had the capacity to pay or did not complete a workout alternative in good faith will be ineligible for a new Fannie Mae-backed mortgage loan for a period of seven years from the date of foreclosure”.  We had previously reported that both FHA and FNMA were talking 5 years for this practice so we are not surprised at this announcement.

More worrisome is the FHA Reform Act (HR 5072) which was passed by the House of Representatives with nearly unanimous consent and is now being debated in the Senate. The proposed Act contains a provision that would bar strategic defaulters from getting an FHA loan any time in the future!  This Bill was supported of course by the lending lobby, but also by the National Association of Realtors and even by that  champion of the common man, Barney Frank.  Will it pass through the Senate? Almost certainly although it’s final form remains to be seen. While the overall objective of the Act is to save the financially-damaged FHA through raising the costs of mortgage insurance, this provision is obviously targeted at stopping the practice of strategic default. 

What remains unclear despite all the hype is how to define who exactly is a Strategic Defaulter.  While obviously a person with plenty of assets and financial capacity who defaults as a business decision would seem to fit the description, that may be more the exception than the norm. More common is the person, as reported in the Washington Independent http://washingtonindependent.com/88445/strategic-default-penalties-threaten-struggling-homeowners, that suddenly realizes that they have been sinking steadily and if they don’t stop now they’ll lose everything.  Should that person be barred forever?  Of course not. What will most likely come out of this is a recommended process that upside down owners should always follow: First seek modification; then seek short sale; and only last let it go to foreclosure. For the borrower with financial capacity, the outcome may be the same but the process may infuence future borrowing ability.  Of course, if there is actual deficiency liability on the loan, the financially solvent borrower may not want to disclose their assets to the lender through a modification or short sale since this would certainly invite a demand for contribution or even for a judicial foreclosure (in California).

Lastly, there is the very real question of whether targeting strategic defaulters is fair and equitable. The loan being defaulted is a contract between the borrower and the lender that already provides remedies that the lender can take if a borrower defaults.  Both borrower and lender take on the known risks of what will happen on default. Why should government intervene in this contract to give the lenders even more remedies by effectively increasing the borrower’s risks?  Certainly the government has refused to effectively intervene to protect borrowers from the extraordinary risks in the sub-prime loans promoted by the lenders through 2007.  Meanwhile, the HAMP modification program hyped to help homeowners limps along with only 4.5% getting permanent modifications and virtually no-one getting principal reductions. 

Millions have lost their homes with no realistic assistance from the government and now this Act will not only further hurt future borrowers but will once again send a very clear message that as far as Congress is concerned, what’s good for the lenders is good for the country.  If you believe that this provision of the proposed Act should be dropped or changed, be sure to write your State Senator and make your concerns known.

The information presented in this Article is not to be taken as legal advice. Every person’s situation is different. If you are considering default on your loans, get competent legal advise in your State immediately so that you can determine your best options. 

If you have specific questions about your liability in California or about short sales, foreclosure, or any legal issues, feel free to contact us at sjbeede@bpelaw.com.  We offer a $200 flat fee consultation to evaluate your liabilities and strategize a resolution. This can be done in person or by phone. If interested, please call us at 916-966-2260.

The wave of possible lender lawsuits against borrowers has started, primarily by junior lenders whose seconds (often HELOCS) were wiped out when a senior lender foreclosed.  We presently are representing borrowers in a number of these lawsuits and have already settled several. The most important points to remember if you are served with a lawsuit are: 1) don’t panic and ignore it. Get competent legal counsel in your State to advise you how and when to respond; and 2) almost all such lawsuits will resolve without going to trial.

There are several defenses that can be raised in defense to any lender lawsuit that may reduce or even eliminate their claim. These include:

1. Lender does not own the loan - In order to file a lawsuit against you, the lender must actually “own” the loan, that is they own and have possession of the Promissory Note.  Loans change ownership all the time and it is possible that the lawsuit has been brought by a loan “servicer” or collection company, not the actual owner. If they cannot prove ownership, they do not have “legal standing” to file the lawsuit and they should lose.

2. Loan was predatory - One of the key reasons why we had this market collapse was that from 2000 through 2006, lenders made loans to borrowers who in reality could not afford the loan.  Sometime this was done by misstating income on “stated income” or “no document” loans and often this misstatement was done by the lender, not the borrower. Other times the loan was unrealistic, such as a 1% interest rate on which the borrower qualified for the loan but which jumped up much higher after the first month.  So the buyer only qualified on month one but would never qualify on month two.  Failure was inevitable unless the buyer could quickly flip the property.  If the lender should never have made the loan, they likely will not recover against the borrower in court.

3. Loan was result of fraud - Similar to predatory loans, many borrowers obtained loans through actual fraud where the loan agent altered information supplied by the borrower or made false representations to the borrower such as:  “take this adjustable rate now and we’ll convert it to a fixed rate within a year”. For most borrowers, that loan agent was never to be found within the year, the fixed rate was not obtainable, and the increasing adjustable rate forced the borrower into default.   If the lender’s loan agent defrauded the borrower into getting the loan, they likely will not recover against the borrower in court.

4. Lender failed to do diligence - One of the biggest causes of the market collapse was that the lenders failed to exercise any diligence in checking to make sure the information on the loan application was true, such as checking tax returns and confirming the borrowers employment and income.  The banking deregulation in the late 1990’s created a flood of money in the market for new loans to be made and lenders accepted virtually any application without checking whether the loan was good. The result was billions of dollars of bad loans secured with property that was not worth the debt.   If the lender should never have made the loan, they likely will not recover against the borrower in court.

5. Lender knew the market was inflated in a bubble - The combination of banking deregulation and easy money created a huge increase in demand by possible homeowners and investors which drove up the prices on available properties, often increasing by $10,000 or more in a single month.  Developers rushed in with new subdivisions everywhere trying to fill the demand as competition for homes kept driving prices upwards.  This inflationary bubble was almost entirely fueled by high-risk loans, speculative appraisals, and the lack of real underwriting and diligence by the lenders. It was completely foreseeable to lenders that this bubble would burst but they made the loans anyway because they earned commissions and could sell the loans in the secondary mortgage market.  It was no real surprise to lenders when the borrowers started defaulting in 2005 on the increasingly expensive loans which led to the collapse starting in 2006.  If the lender should never have made the loan, they likely will not recover against the borrower in court.

6. Lender has insurance for the loss - Many of the loans made were 100% of purchase price and even more. Generally, if the loan was for more than 80% of the property value, mortgage insurance (PMI) was required. Although paid for by the borrower, this insurance paid the lender for any loss on a default. The lawsuit may be an attempt by the lender to collect on a loss that they have already recovered on through the insurance. If the lender has already been compensated for any loss, they likely will not recover against the borrower in court.

7.  Lender has been bailed out by the taxpayers - Between 2008 and 2009, Federal bailout monies paid by taxpayers (including the borrower) provided protection for lenders damaged because of loan losses.  Our government guaranteed billions of dollars in lender bad debt, guarantees that we and our children will be paying for years to come. Many consider these bailouts to be a reward for bad business practices instead of the punishment that might be deserved. If the lender has already been compensated for any loss, they likely will not recover against the borrower in court.

How Should You Prepare? - In California, the deadline for a lender to bring a claim against a borrower is four years from the date the borrower defaulted. With hundreds of thousands of borrowers just now in default, these lawsuits will be a constant threat for many years to come.  These may be joined by deficiency lawsuits following short sales to which the same defenses can be raised in addition to several other defenses unique to short sales which I’ll cover in subsequent Blogs.

Before you make any decision concerning your upside-down home or investment property, be certain to get tax and legal advice from qualified professionals in your State who can look at your specific situation and advise you on how these rules apply to you, particularly on how to identify and minimize the risks of a lender lawsuit.  This Article is solely intended to give you an introduction to key legal concerns affecting borrowers today but you should not rely on it to apply to your financial circumstances.

If you have specific questions about your liability, short sales, foreclosure, or any legal issues, feel free to contact me at sjbeede@bpelaw.com.  We offer a $200 flat fee consultation to evaluate your liabilities and strategize a resolution. This can be done in person or by phone. If interested, please call us at 916-966-2260. Need help Coping with an Upside Down Loan? Checkout Steve’s audio-seminar and e-book at: http://www.stevebeede.com/copingwithanupsidedownmortgage/.

As home owners throughout our nation have struggled to either retain their properties or minimize the damage in losing them, they have looked towards a patchwork of government programs for help.  These programs such as Hope for Homeowners, HAMP, and now HAFA have promised a lot but delivered very little results so far.  The one effective relief program has been the Federal Debt Foregiveness Relief Act and comparable State laws which enables homeowners to avoid taxes on the forgiven debt on their principal residence.  No such program has been created to protect investors but… relief from these taxes may be available anyway.

Debt Forgiveness Tax arises anytime a lender is not paid in full on a loan. Typically, this is measured by the lender issuing an IRS 1099 for miscellaneous income showing what was owed and what was paid. You get taxed on the difference as income unless some exemption applies. There are several.

1.  Capital Loss Offset - When you buy a property, your purchase price generally establishes your “taxable basis”, ie: what you invested. This is increased by capital improvements you make, such as a new roof, and it is decreased by your depreciation write off.  For many investors, your taxable basis may be much higher than the current market value and higher still than the amount owed on the property. For example, if you purchased for $500,000 with a $400,000 loan and the property sells or is foreclosed at a price of $250,000 (not uncommon); then you would have a debt forgiveness of $150,000 (amount of loan unpaid in the sale) but you would also have a capital loss of $250,000 (amount invested less sale price).  Accountants are generally in agreement that you can offset the debt forgiveness tax with the capital loss. In this example, the result would be elimination of the debt forgiveness tax and a carry-over remaining capital loss of $100,000 which could be applied against other investment losses. 

2.    IRS Insolvency Exclusion - In my February 19th posting, I wrote about how the Insolvency Exclusion works as detailed in IRS Publication 4681 “Cancelled Debts, Foreclosures, Repossessions, and Abandonments”. http://www.irs.gov/pub/irs-pdf/p4681.pdf.  The important point is that this Exclusion applies equally to homeowners as well as investors.  In short, you list all of your liabilities and below that list all of your assets. If your liabilities are greater than your assets, you are “Insolvent” for debt forgiveness purposes and can avoid the debt forgiveness tax. Many States, including California, have adopted the IRS Exclusion to apply to State debt forgiveness taxes as well.

3.  Bankruptcy - although this is a last resort for owners and investors alike, if a property is lost during the pendency of the Bankruptcy there will be no debt forgiveness tax applied. You cannot use BK to avoid taxes already incurred before the Bankruptcy is filed.

Before you make any decision concerning your upside-down home or investment property, be certain to get tax and legal advice from qualified professionals in your area who can look at your specific situation and advise you on how these rules apply to you.  This Article is solely intended to give you an introduction to what might be available for you but you should not rely on it to apply to your financial circumstances.

If you have specific questions about your liability, foreclosure, or any legal issue, feel free to contact me at sjbeede@bpelaw.com.  Need help Coping with an Upside Down Loan? Checkout Steve’s audio-seminar and e-book at: http://www.stevebeede.com/copingwithanupsidedownmortgage/.

 has been the investor market

As many already know, the California legislature passed SB 401 on April 9th. While Gov. Schwarzenegger originally said he would not sign the Bill due to tax riders, but he signed the Bill yesterday  and it is now law.  California law will now be aligned with the Federal Mortgage Debt Forgiveness Relief Act and will give CA owner-occupant property owners debt forgiveness tax protection through 2012 and retroactively running from 2009 (2007-2008 already protected). To learn more, read today’s article by Jim Wasserman in the Sacramento Bee: http://www.sacbee.com/2010/04/13/2674065/california-wont-tax-forgiven-home.html.

There is some confusion in the Blogging world concerning debt forgiveness relief.  Some believe that the forgiveness automatically exists if the loan or loans were acquisition loans (1 to 4 unit, owner-occupied). This would be correct if the owner never refinanced and stayed owner occupant throughout. But it would not be correct if the owner later moves and rents the propertyout.  If you are in this situation, be sure to check with your accountant to determine how this will apply yo your situation.

If you have any questions concerning your rights and obligations concerning real property, foreclosure, or any related issues, please feel free to contact me at sjbeede@bpelaw.com or contact my office at 916 966-2260 for a confidential appointment by phone or in person.

Last week I posted comments on the Home Affordable Foreclosure Alternatives program which is taking effect on April 5th. I was not very complimentary and in fact was pessimistic as to its impacts on the economy. While those negative sentiments may still prove true, I have since then taken a closer look at the program and spoken extensively with lenders, real estate agents, and upside-down borrowers. From this, I must now admit I see a lot to like in HAFA… if the lenders will cooperate.

HAFA has two parts: First an attempted Short Sale and then, if that fails, a Deed in Lieu of Foreclosure.  Since it was designed as an add-on to the Home Affordable Modification Program (HAMP), the particpation requirements are the same: principal residence, first-lien mortgage, serious delinquency, unpaid balance under $729,750, and a mortgage payment over 31 percent of gross income.  If a borrower fails a modification or is denied a modification under HAMP, then they can enter the HAFA program and their lender must participate. 

Short Sale - There are several benefits to pursuing a Short Sale through HAFA compared with doing so outside of the Program: 1) Lenders will pre-approve what will be an acceptable sale price;  2) The Application must be considered within 30 days; 3) Up to $3,000 is provided to satisfy the liens of junior lenders (juniors must release their liens); 4) Borrowers can get $1,500 in moving assistance; 5) Real Estate Agents get commission protection; and most importantly 6) No Deficiency judgment is allowed against the borrower.  These are all very good benefits that will both speed up short sales and improve the market.  The downside is whether lenders will actually cooperate with the HAFA program. They are only compelled to consider the Short Sale Application, they are not compelled to approve it.  Nevertheless, cooperation may grow as lenders realize that it is in their own best interests to get the Short Sales done and remove upside down properties from the market faster.

Deed In Lieu - This is an important addition as well.  Currently, if a short sale fails, the property goes into foreclosure with  all of the negative consequences of credit damage, job impact, and depending upon the State, potential recourse liability.  The HAFA Deed in Lieu program eliminates this.  The 1st lender will accept a Deed transferring ownership of the property to the lender. Any junior lenders must agree to release their liens and any recourse. if this occurs, foreclosure and all of its impacts are avoided.

Will all of the benefits of HAFA work? We’ll all have to wait and see how the Lenders respond.

If you have any questions concerning your rights and obligations concerning real property, foreclosure, or any related issues, please feel free to contact me at sjbeede@bpelaw.com or contact my office at 916 966-2260 for a confidential appointment by phone or in person.

As readers of my Blog know, there has been very, very little help provided by any government programs that theoretically are to help troubled homeowners keep their homes.  Even less help has been provided by the lenders.  The original Hope For Homeowners program failed to get lender cooperation. This was followed last year with the Home Affordable Mortgage Program (”HAMP”) which also has failed to deliver any substantial help to upside down borrowers.  And now, effective April 5th, the government will open their newest program, the Home Affordable Foreclosure Alternatives Program (”HAFA”).  Significantly, this Program is being introduced as a part of the HAMP program but it has nothing to do with helping people keep their homes. Rather, it is designed to assist lenders in getting the existing owners out through a short sale or deed in lieu of foreclosure. 

The sad reality of HAFA is that it effectively gives the lenders what they wanted… a politically correct reason to deny modifications (which they don’t want to do) and a faster way of getting the existing owners out (which they do want to do). So, for upside-down owners, there’s no help in HAFA.  But for our economy, the results may be even worse.

Today’s real estate market, especially in California, is operating on an artificial economy.  The lenders are holding back putting all of their foreclosed properties on the market. This keeps the supply down and keeps prices up.  The lenders could put more properties on the market but that increase in supply would cause prices to fall since demand by buyers is not growing. The result of this is that the lenders have been slowing down the foreclosure process so they don’t get more properties that they’ll just hold back.  But since all of these must eventually get sold, this means that it will be many years before our real estate economy is not driven by the lender’s inventory of foreclosed homes. And, thanks to HAFA, it may now get much worse.

Under the rules of HAFA, all lenders that participate in the HAMP program must participate in HAFA. This means that if a lender denies a homeowner a modification under HAMP or the modification fails or is not accepted, the lender must offer the homeowner a short sale or a deed in lieu of foreclosure and our government (we the taxpayers) will pay the lenders and borrowers to participate.  This will speed up the change of ownership.  But what will be the effect on the already over-supplied real estate economy?

According to the lending industry information service, Mortgage News Daily, as of the end of 2009, only 4.3% of all HAMP modifications resulted in permanent loan modifications. Over a million trial modifications are in process. Unless the permanent modification numbers increase dramatically, we could be facing an additional 950,000 short sales and foreclosures coming on the market.  This would be a disaster as these get added to the already over-supply driving down the values of property. Existing buyers, investors, and lenders would be scared away from an unstable market and the problems in the economy would become even worse.

Is there any solution?  Well if the objective is to help people keep their homes through loan modification, then there needs to be a way to compel lenders to reduce principal amounts owed. If lenders continue to refuse, then Congress should pass the Chapter 13 Bankruptcy Reform which the Senate shut down last year. Alternatively, compel lenders (particularly BofA) to waive deficiency recourse so that everyone can move on.

Sadly, there remained no Hope for Homeowners in that program and Making Home Affordable has not made homes more affordable. HAFA gives up on the hope of helping owners stay and instead will only help owners go. Unfortunately, this may hurt us all.

If you have any questions concerning your rights and obligations concerning real property, foreclosure, or any related issues, please feel free to contact me at sjbeede@bpelaw.com or contact my office at 916 966-2260 for a confidential appointment by phone or in person.

For upside down property owners, 2009 was a year of frustration and hype with little if any assistance. 2010 will likely be the same. Two key factors have become clear: 1) the unwillingness of lenders to cut principal balances for existing owners; and 2) the lack political will of our government to force any such cut. Back in 2008 when Hope for Homeowners was first ballyhood across the nation, the concept was that lenders would make more money by reducing existing loan balances and keeping owners in their homes than they would make if they foreclosed and put the property back on the market as an REO. The problem was that lenders disagreed. Lenders believed they would be better off getting what they could now and getting the property in the hands of a more financially stable owner. With loan modification failure rates running over 50%, there could be some validity in that belief. When President Obama was elected in 2009, he gave us the Obama Real Estate Recovery Plan the most valuable tool of which was the proposed Chapter 13 Bankruptcy Reform which would allow Federal judges to “Cram Down” principal values if the lenders wouldn’t. Unfortunately, the Senate wouldn’t go along and so the Plan failed. Instead, the government put forth the “Home Affordable Modification Program” which to date has produced very few home saving modifications.

So what to expect in 2010?  Here are my predictions:

1)  For Existing Property Owners  - Government will continue to tinker with the HAMP program to try to get more lender cooperation. The key obstacle will remain principal reduction. As lenders continue to refuse to make cuts, pressure is building to re-introduce the Bankruptcy cram-down legislation.  Look for increased lender cooperation with HAMP to avoid the cram-down but it will likely be too-little, too-late to avoid large scale foreclosures in 2010;

2)  Foreclosures - As of the new year, there are over 400,000 homes in pre-foreclosure nationwide, over 125,000 in California alone. Without an effective modification program, more owners will realize that it is time to move on and will either walk-away or attempt a short-sale to minimize credit and tax damage.

3)   Short Sales are the Market - For 2010 and probably for several years after, Short Sales will become the primary means of transferring homes.  Lenders have managed to stabalize prices by holding back on foreclosures and listing REO’s but there is a tremendous backlog of upside-down properties that need to be dealt with. Short Sales offer both seller and lender the best solution. The big obstacle - lender demands for recourse against the seller - is changing. Even BofA has dropped their recourse demands. Short Sales will be the path to market recovery although don’t expect prices to start climbing. Right now inventories are low so there has been some upward price movement due to supply and demand. As lenders get their short sale act together, and Realtors become more effective at negotiating and packaging these deals, more properties will come onto the market. Though this will keep prices down, more properties will be sold and we’ll all get through this housing bust faster.

4)  Commercial Real Estate - the big unknown - in 2010, our attention will shift away from upside down homes (that issue is being resolved) and will turn to fears of business collapse and loss of jobs. According to commercial broker, Grubb & Ellis, we’re approaching the highest vacancy rates since the dot com bust, with office vacancy reaching almost 20%.  With banks still fearful of lending and individuals fearful of spending, this double-whammy put more and more companies out of business and with them went a loss of jobs that has continued the downward spiral.  While few expect that these conditions will create a Depression-style generation of non-spenders, clearly the debt-fueled spending of pre-2006 is over. Bob Bach, senior vice president and chief economist at Grubb & Ellis put it clearly: “Retailers and owners of retail real estate will need to adapt to a ‘new normal’ in consumer attitudes that may last for some time, including more conservatism and attention to value as households rebuild their savings.”

2010 PRESENTS NEW OPPORTUNITIES - So what should you do going into 2010?  Get good advice. We are in a changed economy that is going to be with us for a long time. If the only economy you’ve known is the “go-go” days before 2006, get educated. Our economy operates on booms and busts which generally happen every 8-10 years.  You cannot simply sit on the sidelines and wait for things to get back to where they were. They won’t…. at least not for a long time.  But this new economy is full of opportunities for those willing to work hard and be creative. The US Dept of Labor estimates that more than half of all new jobs will be in in professional and related occupations and service occupations. Learn more at their website at http://www.bls.gov/news.release/ecopro.nr0.htm. I see a rise in demand for Short Sales Specialists;  Consultants in real estate; and small boutique service companies providing cost-effective services to businesses.  Production jobs will continue to disappear.

Lastly, I remain bullish on real estate investment despite having now gone through five down-turns including two crashes.  Throughout history, real estate has been the most stable long-term investment providing both shelter and income potential. This will remain so.  The danger in all investments is expecting continued growth which, if that happened, would not make it an investment at all.  Investment is the taking of “risk” in pursuit of the “potential” of gain. The risk will never go away nor the potential. So my advice to you is don’t give up on investing but keep your day job.

If you have specific questions about your loans, liability, foreclosure, or any legal issue, feel free to contact me at sjbeede@bpelaw.com or call us at (916) 966-2260 for a phone or personal appointment.  We offer a $200 flat fee attorney consultation to enable you to evaluate your judgment and tax risks and to plan a strategy to minimize or even avoid them.  Need help Coping with an Upside Down Loan? Checkout Steve’s audio-seminar and e-book at: http://www.stevebeede.com/copingwithanupsidedownmortgage/.  

As readers of this Blog are aware government efforts to help upside down homeowners keep their homes have been a failure.  First, lenders are not willing to make the principal cuts needed to bring loan balances to an affordable level; and second, government lacks the political will to force the issue.  But this does not stop them posturing.  Last year it was “Hope For Homeowners” and this year it is the “Home Affordable Modification Program”. Both promised loan balance and payment reductions. Both have been a failure since Congress has been unwilling to force the issue by passing Bankruptcy cram-down authority.  HAMP has been especially frustrating because lenders have been offering “trial modifications” with reduced payments but then refusing to continue that payment level after the “trial” period.  Instead, it appears to be nothing more than a short-term money grab.  So, as government officials fret about lack of lender cooperation, foreclosures continue to rise and the real estate market continues to be flooded with short sales and REO’s.  But there is improvement in short sale processing that will help stabilize the market.

Short Sales offer benefits to all parties:  the upside down seller minimizes their credit damage and can negotiate issues of deficiency liability;  the lender gets money now and reasonably gets more than they would through a foreclosure, the buyer gets a home at current market values, and most importantly, one more property is removed from the market thus moving us closer to a real estate recovery.  The sticking point remains lender unwillingness to give up on recourse against the seller/borrower but that has been changing in recent weeks most notably with Bank of America dropping its insistence on recourse is all short sales.  So, while this will not help owners keep their homes, it does help them and the market get on with life and move to a recovery.

Processing the massive amounts of short sale Hardship applications remains a time-consuming effort for lenders. Help may be on the way through new companies such as Mortgage Resolution Services (MResolution.com) which are developing standardized processing and lender negotiation systems that promise to expedite the approval.  As always, borrowers should get independent advice from a knowledgeable attorney as to what their potential judgment and tax liability is before going into any short-sale or letting their property go in foreclosure.

If you have specific questions about your loans, liability, foreclosure, or any legal issue, feel free to contact me at sjbeede@bpelaw.com or call us at (916) 966-2260 for a phone or personal appointment.  We offer a $200 flat fee attorney consultation to enable you to evaluate your judgment and tax risks and to plan a strategy to minimize or even avoid them.  Need help Coping with an Upside Down Loan? Checkout Steve’s audio-seminar and e-book at: http://www.stevebeede.com/copingwithanupsidedownmortgage/.