The National Association of Realtors (NAR) has admitted to grossly overstating its numbers of reported home sales over the first years of this Lesser Depression. After the trusted real estate data firm CoreLogic questioned the accuracy of NAR’s numbers, the real estate trade union took a second look and revised its reported home sales data down by nearly 3.5 million homes.

Original NAR reports claimed 24.8 million homes were sold nationwide from January 2007 to October 2011. Revised data shows this figure to be off by 14% from readily available recorded data, with a total of only 21.3 million homes sold nationwide over the course of the Great Recession

(From: first tuesday)

Just last week, in Harbour Vista, LLC v. HSBC Mortgage Services Inc., 2011 WL 6318525 (Cal.App. 4 Dist. 2011), the California Court of Appeal held that plaintiffs may not obtain default judgments in quiet title actions. But … (And the “But” is fascinating.)

Harbour owned a ground lease under a condo complex. Julie Nugent purchased a condo and paid her mortgage to Fieldstone Mortgage Company. She also subleased from and paid rent to Harbour. Both the mortgage and the sub-lease were secured by the condo. Nugent eventually defaulted on both her rent and mortgage. After HSBC purchased the condo from Fieldstone at a foreclosure sale, Harbour filed a complaint to quiet title. HSBC failed to respond to the complaint and Harbour obtained a default judgment. HSBC then moved to set aside the default judgment, but the trial court denied the motion. HSBC appealed.

The Court of Appeal reversed the judgment based on the language of California Code of Civil Procedure Section 764.010, which expressly provides that the “court shall not enter judgment by default.” According to the Court, this language “is unequivocal,” and the “prohibition against default judgments in quiet title actions appears absolute.” The statute does not, however, prevent a quiet title plaintiff from taking a default.

Instead of a default judgment, after taking a default, the court must hold an evidentiary hearing at which the parties (including the defaulted defendant) are entitled to present evidence regarding their conflicting claims to the property. Thus, even though HSBC had not answered the complaint and was in default, the trial court should have allowed HSBC to present evidence about its claim to the condo. Once a court holds a properly noticed evidentiary hearing, it may render a regular judgment in accordance with the evidence and the law regardless of whether the defaulted defendant appears.

Here is the fascinating part …

Though a defaulted defendant has a right to appear at the evidentiary hearing, a plaintiff has no obligation to provide notice to the defaulted defendant of this hearing. Nor does the plaintiff have any obligation “to serve documents or give notice of any future court dates” to the defaulted defendant.

If the defaulted defendant nevertheless learns of the evidentiary hearing and appears, it may be heard.

If it does not appear, the Court will proceed and render judgment without the participation of the defaulted defendant. Following the evidentiary hearing, the Court should issue a judgment resolving all issues as to title.

Imagine the HOA’s joy:  It gets a default, then notices the prove-up hearing without the need to even give notice to the other side.  Talk about form over substance.

Other causes of action and claims for relief will not be addressed at this evidentiary hearing and are not affected by this rule. If a defendant defaults as to other claims, normal procedures for obtaining entry of default and default judgment apply.

So did the lenders win?  Or not?  I’d say not.

Representative Zoe Lofgren, a California Democrat, proposed securing meaningful principal write-downs for underwater homeowners by allowing a temporary reduction in the interest rates of those homeowners who file for bankruptcy.

She presented the plan in a letter to President Barack Obama earlier this month and it was discussed by the Democratic lawmakers and FHFA’s acting director Edward DeMarco on Wednesday.

A cramdown is a would-be bankruptcy process whereby a borrower would file bankruptcy, and as part of a reorganization plan, cram a principle reduction of a mortgage down a lenders throat. (Not just a “temporary” reduction in interest, by the way, but a true write down of principal.)

Seems counter-intuitive, doesn’t it?

“Hi, Judge. I’m a bankrupt borrower, but I could afford my house if I owed less, and had to pay less interest. The lender won’t agree. Will you make them, please.”

How does someone who is “bankrupt” afford a house?

It’s simple, in some cases anyway.

The largest debt of a cramdown borrower would be the mortgage. The borrower ** would be ** able to afford the house mortgage ** if ** the mortgage amount was equal to the value of the house – not 125% or 150% of the value of the house. If the interest rate were lower, that would help too.

Who loses in this scenario?

Fannie Mae and Freddie Mac – those GSEs that hold 75-85% of all mortgages in the US. (Oh, and some private banks that hold the balance. After all, what’s good for the goose…)

Can Freddie and Fannie afford to take the hit? THAT’s the question.

We’ve (as a Country) already dumped 2 TRILLION dollars into the economy. The Government (that’d be you and me by the way) will need to pay for the write offs any cram down allowed. How much more would that be – and where would it come from?

Here’s my $0.02.

The economy limps along like overcooked spaghetti. It’s going nowhere until the banks can get rid of the toxic debt, and consumer confidence rebuilds. Take the losses now, and we can start the recovery sooner. Yes, the losses WILL BE staggering. The bankruptcy courts will be overwhelmed. (I’d bet that some smart folks will start renegotiating those loans without the need for bankruptcy court intervention if the law allowed a borrower to do it through a bankruptcy proceeding – after all, it’d be cheaper for the banks that way…)

But, once the borrowers start paying on their loans again, once borrowers “feel” like they have readjusted on their homes, confidence – i.e. certainty – returns. And with certainty comes spending. With spending comes an uptick in the economy, and the ability for everyone to start making money again. Even he Banks. THAT’s how we pay for the losses Fannie and Freddie will take. We tax our way through it, with the increased economic activity.

Hell no, it’s not pretty. But it could work!

In a bold attempt to further energize the economic recovery, the federal government through the SBA 504 Loan Program has modified its debt refinance program to help small businesses facing imposing balloon payments.

Imagine a scenario where you have a small business in a building you purchased in 2001 for $1 million, and for which you have a loan of $850,000.

The property has gone up in value, and is now worth $1.5 million. You have inventory of $100,000 that needs to be paid, and a new order that needs an additional $100,000 for inventory. You would love to tap into the equity in the building to pay off that old inventory, fund the new, and lower your interest rate on the original loan. Your commercial bank has told you that your credit is great, and your cash flow is good, but that it will only loan 65% of the market value of the property. That’s only $975,000. You need $1,050,000. What can you do?

You call a Certified Development Company (CDC) and apply for an SBA 504 loan. CDCs are conduits for commercial banks and their borrowers to access Small Business Administration-guaranteed financing.

Mark Stebbins and Fernando Alvarez of California’s CDC Small Business Finance commented on the recently revised SBA 504 Debt Refinance loan program. Regulations were made substantially less restrictive Oct. 12, 2011.

“We think there are many commercial property owners who can benefit from this program, who have been shut out of refinancing programs in the past,” Stebbins said.

The SBA rules previously required that borrower’s provide historical records showing that each and every refinance of their commercial property resulted in at least 85% of the proceeds going towards the acquisition and or improvement of the real estate. That restriction is gone, replaced by the requirement that only the original loan satisfied the requirement that 85% of the loan proceeds were used for the acquisition and or improvement of the real estate. In addition, if the original purpose in acquiring the real estate was for investment purposes, but now the property is at least 51% owner occupied, the refinance of the original and all subsequent debt would be eligible.

Another huge obstacle that has been removed is the requirement that the commercial bank no longer has to finance 50% of the property’s value. That’s huge. CDC Small Business Finance’s Fernando Alvarez explained: “Under the recently revised 504 debt refinance program, the commercial bank and the SBA lender can each loan the same amount, as long as that isn’t more than 90% of the property’s value.”

A 90% LTV (loan-to-value) is an advantage to a commercial property owner, in and of itself. But the critical point is that the commercial bank doesn’t have to loan the first 50% LTV anymore.

Imagine if the owner in the scenario above wanted to refinance a total debt of $1,050,000. Under the old rules, the SBA 504 loan required the bank to loan the first $750,000 (50% of the value of the property). The SBA could then loan the difference for an additional $300,000. The old rules did not allow for cash out to cover inventory or any other business purpose.

Under the new rules, the commercial bank can lend the same amount as the SBA, not the first 50% of LTV. That means the commercial bank loan would only have to be $525,000 instead of $750,000 thereby saving the business owner increased interest expense for the additional $225,000 . The interest savings is derived from the SBA taking an equal share of the loan at rates historically below current commercial rates.

In the last couple of years of very depressing economic news, the changes to the SBA 504 debt refinance program is certainly a breath of fresh air and a step in the right direction.

What is H.O.M.E. ?

The Hardship Outlays to protect Mortgagee Equity Act (HOME) is the legislation currently being discussed in Washington. HOME proposes to allow underwater homeowners to make tax-penalty-free hardship withdrawals from their 401(k) retirement accounts to avoid foreclosure.

The way the tax code currently stands, individuals who make early hardship withdrawals from their 401(k) accounts pay a 10% penalty in addition to income taxes. HOME pushes to remove the penalty and grant homeowners the right to withdraw up to $50,000 to either pay a delinquent mortgage, make up for lost household income or incorporate it in a lender’s loan modification arrangement. The legislation provides withdrawals be capped at 50% of the 401(k) account and requires the withdrawn amount be spent within 120 days. Proponents of HOME believe the plan gives distressed homeowners one last alternative to foreclosure while avoiding additional government expenditures.

This is the MOST STUPID of all the dumb, dumber and dumbest of the Federal Programs I’ve seen yet.

Let’s think about it.

The Homeowner should take money out of a 401(k) retirement account and dump it into an underwater home loan.

What stupid goober thought this one up? Some Banker I’d bet.

Who wins in this? The Banks – who get paid on a mortgage that should be flushed down the toilet; and the Federal Government (those folks that de-regulated the Banking Industry and allowed all this to happen in the first place) – who will have to continue to bail out the Banks if the homeowner defaults.

Why – WHY! – would someone with an ounce of sense want to spend “good” retirement money on a “bad” mortgage? They won’t.

Write off the loan losses.
Take the hit.

Yes, it will hurt the already hurt economy even more. But then – and only then – will we be able to begin a true recovery.

Historical trends don’t lie. At least that’s what “smart people” are saying. And “they” are saying that we have not reached bottom, yet.

first tuesday – a real lestate publication that I’ve come to enjoy, and agree with (on almost everything . . . almost) pegged a 15% decline yet to come.

http://firsttuesdayjournal.com/the-equilibrium-trendline-the-mean-price-anchor/?utm_source=first+tuesday+Students&utm_campaign=93ae2b9454-Monthly_Email_October_11_2011&utm_medium=email

Yale economist Robert Shiller agrees, and sees an even bigger drop to come.

http://www.slideshare.net/RealtyTrac/why-is-real-estate-not-rebounding

So, what’s one to do?

Grab on tight to buyer-investors. Make what feels like low-ball offers. They may give the client room to survive the coming downturn, and still propser, 5 – 7 years from now.

The Sacramento Bee recently reported that the “move-up” buyer (the one who has the starter home, and now, a growing family) has no way to sell the old house and move – anywhere.

A fascinating statistic was reported by the Bee:
“Andrew LePage is an analyst with DataQuick, a San Diego real estate information firm. He said the lack of move-up buyers can easily be detected by looking at what’s happened to sales of homes in the $250,000-to-$600,000 range.
In 2006-07, when the local market was near its peak, that segment accounted for 70 percent to 80 percent of all sales in the Sacramento region, according to DataQuick. These days, homes in that price range account for less than 19 percent.” ((Read more: http://www.sacbee.com/2011/08/29/3868485/generation-of-homeowners-stuck.html#ixzz1aPXy6jHp ))

80% down to 20%. That is where the market transaction counts are as well.

“Starter homes” are being bought up by savvy investors, who can rent them for more than the mortgage, because they can be bought cheap. But what about the “middle?”

Just like the middle class on every other front (loss in income levels, increased taxation, stagnant employment) the middle home-buyer-owner market is stuck in the mud.

Here’s a thought that ought to strike fear in strategic defaulters…

What impact does the “partially worthless security” exception (Calif. Code of Civil Procedure section 483.010(b)) to the “non-recourse” status of a purchase money loan (see the conjunction of CCP 726(a) and CCP 580b and 580d)?

If the lender can seek a deficiency – or foreclose judicially, even on purchase money, owner occupied, 1-4 unit loans and collect a judgment that isn’t protected by the 726/580 cocktail, because eh security was “partially worthless” – can the lender negotiate from an even stronger position to get more money from a short sale seller?

I’d urge caution…on both sides.

Vickie Elmer, of the New York Times recently reported that “About a third of the 65-and-older households that owned a home in 2009 had a mortgage, according to the Census Bureau’s American Housing Survey, which also put homeownership in this age group close to 81 percent during the second quarter of this year.”

“And lenders … expect to see a debt-to-income ratio of no more than 40 or 45 percent…”

What does that do to the value of housing that a “senior” can afford?

If retirement income is $2,000 per month, and 45% of that can be sued for “debt” then housing debt should be capped at about 31%. 31% of $2,000 is $620, and if the interest rate is 5% over a 30 year amortized loan, that’s $115,000 (before taxes and insurance are factored in.

Better go buy that REO house in the California central valley now.

As you know, I have been preaching that “Strategic Defaults” are – often – a good thing for a borrower.

first tuesday agrees.
“If mortgage lenders will not lend homeowners a hand, then homeowners can force lenders’ hands by exercising their right to default, made imperative by a loan-to-value ratio (LTV) above 125%. Waiting for a modification that isn’t available just isn’t the best bet for a homeowner or for California’s economy. And don’t listen to the preaching on the effect on how a strategic default is better or worse for Fair Isaac Corporation (FICO) credit scores – a short sale delivers the same amount of adverse credit scoring as does a foreclosure. ”

Couldn’t have said it better myself.