Dual Agency Issues: The New Depressed Property Law

June 17, 2008

Real estate agents are concerned about the situation in which they present an offer to buy unlisted property that is being foreclosed.

In that context if the agent says that the owner ought to sell to avoid the foreclosure or something of the sort the agent risks risk being deemed a “distressed home consultant,” and would then have fiduciary obligations to both sides of the transaction, as the agent would with a dual agency. In this situation though there is an inherently strong conflict of interest.

I believe that you would have to have the seller consult with a lawyer of his or her choice and have the seller be independently represented in the sale by the lawyer or an independent agent, perhaps chosen by the lawyer. The seller’s interests would then be protected and in the abstract I believe the agent would probably be deemed to have fulfilled his or her duty to the seller.

I would certainly recommend that even after the seller has independent representation the agent make full disclosure to the other side and maintain the highest level of honesty. I would strictly comply with the other requirements of the new law.

I’m not sure whether the new NWLS forms cover this situation, but it would certainly be appropriate to discuss the details of the situation with a lawyer at that time.

Don’t Buy Foreclosed Property From Dirty Lenders

June 4, 2008

There is a hidden risk in buying foreclosed property that nobody seems to be talking about.  Many of the houses being foreclosed upon were subjected to liens securing sub-prime loans.  Many of these loans were made by disreputable lenders, sometimes by now indicted loan officers.

In Washington, like many other states, the purchaser at a foreclosure sale takes the title that existed at the time that the loan was made and the deed of trust recorded.  If the lender had nothing to do with any deceit on the owner and was not on notice of any irregularity, then the lender is deemed a “bona fide purchaser for value.”  This is a legal term meaning that title cannot be recovered by the owner, even if there was fraud.  When the lender was involved in the fraud or had reason to know of it, then the owner can clear title of the deed of trust and the ownership interest of the purchaser at the foreclosure sale.

Thus, a truly prudent buyer at a foreclosure sale or purchaser from a bank after foreclosure should check to see which lender made the loan originally.  Only after finding out about that lender can the purchaser have comfort that title cannot be reclaimed by a defrauded or deceived owner.

A Victim of the “Foreclosure Crisis”

May 9, 2008

For many of the people in our community in the Northwest the “foreclosure crisis” is not an exercise in economic theory or a lame talking point. To some degree we have all been affected by the recent financial crisis which involves the selling of consumer mortgage debt as if it were a security. The billions of dollars that are washing around banks and investment firms and pouring out of our federal government to solve the crisis give us a notion of the scope of the problem. But that is all so theoretical seeming.

Over the last few years in the consumer lending industry there has been a frenzy not at all unlike the one that gripped our area 110 years ago. In the 1890’s the Puget Sound area experienced a boom driven by the rush to riches in Alaska. Timber was needed on a large scale, outfitting, shipping. This was the staging area for the search for gold in Alaska. At the same time wood was needed to rebuild Tokyo and logs could hardly be taken down fast enough. Coal then was found and mined in Eastern King County. People here were getting rich fast.

With our frontiers pretty much explored and exploited, the vast timber reserves gone, we discovered that our growing number human resources were not just a labor force but a potentially rich field for financial exploitation. Traditionally the home loan market has been relatively stable. Everybody want to buy a house and the average home is occupied about seven years before it is sold again.

The savings and loan scandal during the Aust years of the Regan administration was tremor of instability in which the relatively unregulated savings and loan industry was found to be exploiting home buyers and investors. It was quelled with federal money and added scrutiny. While it devastated many people scope of the problem was relatively confined. Here a few savings and loan institutions disappeared (anyone remember Shoreline Savings and Loan?) and a few real estate agencies were hurt.

That paled in comparison to what happened more recently. A few years ago people decided that mortgage loans could be bundled and sold on the open market. Investment banking firms could buy and sell these things. For a long time banks had been making home loans and selling them to quasi government institutions, Freddie Mack and Sallie Mae. Suddenly there was a new market for these instrument and far greater demand than ever. Not only that but this new makrket was largely unregulated. Banking has been highly regulated since the Great Depression of the 1930’s but investment banking was pretty much wide open. When banks had only Sallie Mae as a buyer of their home loans, all the home loans had to meet rather strigent requirements, but with new buyers in the field those requirements could be fudged. This new demand also allowed lending institutions that were not national banking associations to sprout up all over.

The federal reserve cooperated by keeping interest rates low so that money for buying homes could be obtained relatively cheaply. A set salary could afford the monthly payments on a higher debt with lower interest rates. This was magnified by the now well established custom of married couples both working. The housing industry boomed, the building industry boomed and house prices soared.

This caused the proliferation of what had been a rather quiet industry: mortgage brokers. With interest rates low and all sort of different lending program, a broker could be very helpful in finding a good deal. Everybody made money by closing deals. The mortgage broker made money when the loan closed, as did the real estate agent and the lender. The lender made more money when it sold the loan to a bundler who made money when the bundle was sold and so on down the stream of finance.

Around here people were now more plentiful that the forests that they had replaced and we began profiting on each other with the frenzy of a gold rush. This was of course a national phenomenon and often the loan was made by a far away lender but we were certainly on the front end of this financial sunami.

Somewhat ironically greed seems to flourish best when money accumulates. It must have to do with oppotunity. At any rate significant segments of our community sttod to profit by getting loans to close. Even the lenders were not motivated to make sound loans becasue they were just selling the paper upstream. Big profit depended on large vloume.

I’ve recently met a few people who were sucked into this vortex of greed and induced to obtain mortgage financing. I’ll tell you about one of them. Nancy was a retired widow who wanted to buy a small home in the Redmond area but everything seemed too expensive, even the modest homes that she desired. She met a nice lady in a senior singles group who worked as a mortgage broker who told her that she should not be put off by the price. Instread she should look at the amount of the monthly payments and she should gage what she could buy by the amount she would have to pay each month. Prices increased quickly enough that she should view the payments as an investment because when she sold she would make a lot of money on th eequity she built up.

This made sense to Nancy so she decided to at least have a real estate agent show her some houses. They found a modest house and the real estate agent assured her that it was an excellent investment; houseswere going up in price so much that she could always sell the house without any trouble and after a year or so sell it at a profit. Nancy did not want to sell the house but this did give her comfort. She went back to her “friend” the morgage broker who said that she was getting a great deal on the house and that if Nancy did not buy it she would.

When Nancy asked about financing she was told that the payments would be about $1,300 per month. This was a bit of a stretch but something that she could afford. The broker ran off some numbers and printed a page showing that her payments would come to $1,334.50 each month. She was told that by renting the basement (which could be used as a stand alone aprtment) she could easily afford this. Nancy then signed a purchase agreement and went back to the broker who asked her to sign a poan application. She got a call a few days later from the mortgage broker who told her everything was ok and she would receive the loan. She then waived the financing contigency and was locked into buying the house.

Before the closing she went to the borker’s office again and was told that everything went smothly, that she had to tinker with the application a little bit but it was no problem. A couple of days laterwent to the closing office at a title company to sign the papers. She overwhelmed by the stack of papers that awaited her there. The note that she had to sign was three single spaced pages and was utterly incomprehensible. The Truth in Lending sheet showed that the amount would increase over time but not over $1900. When she called her friend about this she was told that this would not occur for anumber of years and that it would be covered by the rent of the improved basement out and anyway she could always sell the house for a profit.

That was two years ago and now she has monthly payments of $3,900, which she cannot afford to make. Foreclosure has been commenced and the house has been listed for six months without an offer. When the foreclosure is completed she will have lost her down payment of $100,000 and installment payments totaling about a third of that. The truth in Lending discloures were false, but the subprime lender that made the loan is long gone and bankrupt.

There are many people in Nancy position, truly victims of unscrupulous lending practices. I rankle when the “foreclsure crisis” is blamed on greed-driven consumers. Most victims are just people who were not very sophisticated and whose fault was misplaced trust.

Washington Legislature Begins Addressing Mortgage Crisis

March 7, 2008
Last night the the State Senate passed SHB 2770. (After passing through the legislature without an opposing vote it would be quie surprising if the governor did not sign this.) The original sponsors of the bill were Representatives Kenney, Lantz, Upthegrove, Conway, Morrell, Schual-Berke, McIntire, Hudgins, Simpson, Rolfes. This bill takes a very positive step to avoiding many of the mortgage-related difficulties that have beset so many home owners and gives the State Department of Financial Institutions rule making authority to address further details. It is important to remember that this bill does not cover national banks and federal institutions.

The bill imposes limits on prepayment penalties, prohibits negative amortization home loans, and makes it a felony for a mortgage broker to steer a home owner to a loan for which he or she is not qualified or for the broker to make a materially false statement. The broker is held to a strict standard of good faith.

The deed of trust act is amended to provide that the notice of foreclosure must include a notice identifying the various legitimate options available to the homeowner. (This is something that was absent from a bill I previously discussed.)

This bill addresses a portion of the foreclosure crisis. Other bills, particularly the foreclosure recovery scam legislation recommended by the Attorney General’s Office, are still pending.