What is a Short Sale?

Short sales occur when the value of the property is less than the encumbrances or liens on the property.  The property is still owned by the owner and not the bank.  It is being sold with the understanding that the total liens on the property will not be satisfied by the proceeds of the sale.  Therefore the owner will need the lien holders approval to be able to sell the properety.  This can take months to get approved, and may not end in a successful sale.

What is Foreclosure?

When a property is in foreclosure, the owner has stopped making payments and the lender has given the borrower a written Notice of Default that the payments must be brought up to date or the property will be sold off. The notice is a public document (which is why so many websites offer foreclosure lists). It normally takes about two missed payments for a lender to issue a Notice of Default, but not always.

Notice of Trustee’s Sale, after receiving a Notice of Default, the owners of a property allow their home to be foreclosed, then a Notice of Trustee’s Sale gets posted by the trustee. This is usually the trustee holding the primary note. In California, it’s not the bank that forecloses, it’s the Trustee.

Once the trustee decides to foreclose, it goes to a Trustee’s Sale. This sale is held on the courthouse steps in the applicable county. Usually, the bank buys its’ own property from the trustee for the full amount owed on the primary mortgage. In the current market, the price the bank pays to obtain the property is often more than market value. Any subsequent mortgage holders get nothing. The “courthouse steps” is typically not a good place for a potential end-user to buy the property – it’s geared towards investors who buy many properties at wholesale prices. In fact, it can be a downright unfriendly environment if you don’t know how the game is played.

What is an REO?

Once the bank has purchased the home, it is now foreclosed and is called an REO (Real Estate Owned). The bank will then usually list the property at or near full market value and place it on the local MLS.

Finally on the Market. At this point, it shows up on the MLS as an REO and your Realtor can show it to you. Once the bank purchases the home at the Trustee’s Sale and it’s now an REO, the bank tries to get as much for it as possible. The price usually goes back up to at or very near market price.

SHORT SALES: THE LONG AND SHORT OF IT

1. What is a short sale?

A short sale* is a sales transaction in which the seller’s lender agrees to accept a payoff of less than the balance due on the loan. In addition to absorbing any loss on the loan, the lender in most cases agrees to pay the costs of the sale.

2. How long does the average short sale take?

It can take anywhere from 28 days to six months once the lender receives a signed offer from both the buyer and seller. The process frequently moves slowly. Currently, many lenders are working to revamp their system to speed up the procedure.

3. If a short sale transaction can take up to six months, why do they call it a “short sale”?

Clearly an oxymoron! Or look at it this way: the value is “shorter” than the loan amount.

The truth is, a short sale has multiple phases that may affect the transaction time frame. Depending on market trends, price positioning, and other factors, it can take anywhere from seven to 180 days or more for a property to sell. Once the negotiations are complete, the short sale proposal is sent to the lender who will evaluate it from a financial perspective. In addition, the homeowner must establish eligibility for the short sale by providing supporting documentation such as, W-2 forms, bank statements, tax returns, and other financial documents. Understandably, this process takes time!

4. Why would a lender agree to a short sale?

There are various reasons why a lender may agree to a short sale. For example, Senate Bill 1137 (which became effective in July 2008) imposes strict requirements on lenders prior to exercising their right to foreclose. Foreclosures take time, and as we all know, time is money.

The expense to the lender is another factor. Foreclosure costs may include: internal fees and expenses, eviction, repairs and maintenance of the property, security, as well as Home Owners Association (HOA) dues and utilities. These factors, combined with the federal and state government’s push to halt foreclosures, make it easy to see why a short sale may be in the lender’s best interest.

5. Is a short sale still an option if foreclosure has already taken place on my home?

No. Once the lender has completed the foreclosure process, a short sale is no longer an option. For that reason, it is vital that homeowners understand the importance of early communication with the lender. Don’t wait until it is too late. Speak to your lender, and let him or her know that you are having financial or other difficulties. If you want to retain ownership of your home, you may be able to work with your lender to explore alternatives to foreclosure.

6. I have a second mortgage on my home. Does this make me ineligible for a short sale?

In many cases, a short sale can be achieved on properties with multiple loans. Depending on the amount of the loss to the junior lien holder (second trust deed), a short sale may be possible under certain circumstances. Proposals and requests for short sale consideration should be submitted to both lenders at the onset.

7. Once I have an offer on my home, what happens next?

Your realtor will assist you in negotiating the best price and terms. Once the negotiations are complete, the offer and all supporting documentation should be packaged and submitted to the lender’s loss mitigation department. Follow-ups and ongoing communications are significant components of a successful short sale.

8. Will I have to pay capital gains taxes if I sell a property as a short sale?

A short sale has no bearing on the calculation of capital gains taxes. However, there are other tax liabilities that must be evaluated. Seek the advice of tax and legal advisors before agreeing to a short sale. For additional information, you may visit www.irs.org to learn more about taxation of short sales.

9. Will a short sale affect my credit?

Yes. Your tax advisor will be able to address your specific situation.

10. I would like to buy a short sale. Where do I start?

Choose a REALTOR® who has the ability to recognize a short sale property and who possesses the skill and training to work through any difficulties that may arise during the buying process. Be prepared for a bumpy road. If your REALTOR® is knowledgeable, he or she will help you manage your expectations.

11. When buying a short sale, do I have to pay all of the escrow fees?

The allocation of costs is a negotiable item in any real estate transaction. Typically, the buyer and seller each pay their own fees.

In short sales, lenders may request that certain fees be paid by the buyer, as a condition of the lender’s approval. Some of these costs may include: funds owed to junior lien holders, closing costs, delinquent property taxes, and Home Owners Association Dues. Expect the unexpected and work with a REALTOR® who understands short sales and can walk you through the process prior to preparing an offer to purchase.

12. How is Coldwell Banker Residential Brokerage simplifying and streamlining the short sale process?

Coldwell Banker Residential Brokerage has been working diligently on a multi-faceted program to educate its managers and sales associates regarding the intricacies of the short sale. In response to the unprecedented challenges today’s homeowners face, the company has developed a unique short sale package that allows Coldwell Banker sales associates to deliver comprehensive proposals to lenders, thereby increasing the likelihood of a successful and swift transaction.

13. How do I determine if I’m eligible for a short sale?

Homeowners must be aware of their options before considering a short sale. Other options include: loan modification/refinance, deed in lieu of foreclosure, foreclosure, and bankruptcy. There are many non-profit counselors available to advise homeowners on the advantages and disadvantages of each of these options. A complete list of counselors may be obtained at www.hud.gov

* When the amount of the loan and other costs of the sale exceed the current market value of the property, there are a number of options struggling homeowners may consider, including loan modification, deed in lieu of foreclosure, foreclosure, bankruptcy and short sale. Any homeowner considering a short sale should consult with legal and tax advisors. A complete list of non-profit counselors is available at www.hud.gov

This topic, which is raised in news articles, has generated many questions mainly how scores are calculated based on each of the distressed property sale scenarios.

While many people have associated a target point impact anywhere from 100 points on a Short Sale to 280 points on a foreclosure, Fair Isaac has told us that FICO risk scores do not distinguish between the three types of foreclosures. There are so many variables in a consumer’s credit report (do they have collections or other public records?) in addition to the foreclosure account that a point impact is almost impossible to gauge. Further complicating the score prediction is how the foreclosure account is reported, and if a public record accompanies it.

Each article we’ve seen suggests that a Short Sale has less of an impact on an applicant’s FICO score than a Foreclosure, but downplays the fact that there could be legal action taken by the lender on the deficiency balance from a Short Sale. This is the same result as a Foreclosure; a derogatory tradeline plus the Foreclosure Public Record.

Even without the Public Record filing there would still be the reporting of an MOP 8 (method of payment on the Short Sale tradeline. This would have a negative impact on the applicant’s score equivalent to a foreclosure tradeline. Finally, Short Sales are typically facilitated to those applicants who have encountered credit issues. These issues would be reflected in the derogatory reporting of other credit items within the consumer’s credit profile.

Although it still remains unclear the exact impact that these different scenarios can have on one’s FICO, the consenses is that your credit will be severly impacted by either scenario.

Definitions:

Foreclosure: An owners right to their property is terminated, usually by default. Property is purchased back by bank or public auction (sheriffs sale). Proceeds of public auction applied to mortgage debt. Most states will zero out deficiency balance.

Deed in Lieu: An owner avoids foreclosure by voluntarily surrendering their property by deeding to the lender as satisfaction for the debt. Deed in Lieu allows the lender to take possession sooner than would be possible through formal foreclosure.

Short Sale :

A short sale typically is executed to prevent a home foreclosure. A short sale is nothing more than negotiating with lien holders a payoff for less than what they are owed, or rather a sale of a debt, generally on a piece of real estate, short of the full debt amount.

In Santa Clara County credit is everything.  A poor credit rating can affect your purchasing power and your ability to get a home loan. If you have a poor credit history there are many things you can do to restore your credit.  Don’t rely on paying these professional institutions to restore your credit.  Most of these companies are scams and offer guarantees that are unenforceable. 

Feel confident that with some diligence you can restore your credit yourself and through the process learn about creating a good credit history.

Make sure your credit file is accurate. Credit files are maintained by three credit reporting agencies—Experian, Trans Union and Equifax. You can contact one of them and request a copy of your credit report for a small fee. Review the report for errors and outdated information. If you feel that any of the reported information is inaccurate, you can request that the date be removed. The credit agency will contact the creditor who has 30 days to respond and confirm the disputed items. If they do not verify it, the date will be deleted. If the creditor verifies that the information is accurate, you can write a 100-word statement explaining your position and have the credit reporting agency include it in your credit file.

Contact your creditors. Some creditors will remove derogatory information from your credit file if you pay a full or partial payment towards the debt. They may also “re-age” the account by making the current month the first repayment month, thus showing no late payments. You can call the creditor directly to do this.

Add positive information to your file. Send information to the credit bureaus that shows stability and the ability to make payments on time. For any accounts on your credit report that do not show you pay on time, you can send account statements and copies of cancelled check to show your payment history, and the credit bureaus may add them to your history. If you have long-term employment, have lived in the same place for a length of time, etc., be sure to add documentation to your file that shows this stability.

Get credit in your own name.If you are married and your spouse has had financial problems, be sure that you establish credit in your name alone.

Re-establish good credit.If you have had credit problems in the past (especially a bankruptcy or a foreclosure), it is important that you re-establish good credit. There are several ways to do this:

• Get a secured credit card. Many banks will, in exchange for a sum of money deposited with them, give you a credit card. Use the card and make the payments on time. Your credit rating can quickly improve.

• Obtain a secured loan. If you have a passbook savings account or can open one, ask the bank to give you a loan against that money. They keep your passbook until the loan is paid in full. Make sure the bank reports on the loan to the credit bureau.

• Work with a local store. Some businesses will give you credit on a purchase regardless of your credit standing. Although you may pay a higher rate of interest, this in another way of re-establishing good credit.

• Satisfy judgments, liens and collections whereever possible. Make it a priority to satisfy any unpaid judgments, liens, and collections against you, or at the very least try to negotiate with these creditors.

REO vs. Foreclosure

An REO (Real Estate Owned) is a property that goes back to the mortgage company after an unsuccessful foreclosure auction. You see, most foreclosure auctions do not even result in bids. After all, if there was enough equity in the property to satisfy the loan, the owner would have probably sold the property and paid off the bank. That is why the property ends up at a foreclosure or trustee sale.

Foreclosure sales begin with a minimum bid that includes the loan balance, any accrued interest, plus attorney’s fees and any costs association with the foreclosure process. In order to bid at a foreclosure auction, you must have a cashier’s check in your hand for the full amount of your bid. If you are the successful bidder, you receive the property in "as is" condition, which may include someone still living in the property. There may also be other liens against the property.  So you better know what you are buying, and don’t expect your real estate agent to help you out, since foreclosures do not pay commissions.

These days, and the Santa Clara County is no exception, what is owed to the bank is almost always more than what the property is worth, and as a result very few foreclosure auctions result in a successful sale. Then the property "reverts" to the bank. It becomes an REO, or "real estate owned" property.

REO Properties For Sale

The bank now owns the property and the mortgage loan no longer exists. The bank will handle the eviction, if necessary, and may do some repairs. They will negotiate with the IRS for removal of tax liens and pay off any homeowner’s association dues. As a purchaser of an REO property, the buyer will receive a title insurance policy and the opportunity to investigate the property.  Much better than buying a foreclosures.

A bank owned property might not be a great bargain. Do your homework before making an offer. Make sure that the price you pay (if you’re successful) is comparable to other homes in the neighborhood. Consider the costs of renovation, including time to complete them. Don’t get caught up in a ‘bidding war’ and pay over market value. Not all REO’s are great deals.

How Banks Sell REO’s

Each bank/lender works a little differently, but they all have similar goals. They want to get the best price possible and have no interest in "dumping" real estate cheaply. Generally, banks have an entire department set up to manage their REO inventory.

Once you make an offer to purchase, banks generally present a "counter-offer." It may be at a higher price than you expect, but they have to demonstrate to investors, shareholders and auditors that they attempted to get the highest price possible. You should plan to counter the counter-offer.

Your offer or counter-offer will probably have to be reviewed and approved by several individuals and companies. Even once an offer is accepted, the bank may insert wording like “..subject to corporate approval with 5 days."
Property Condition

Banks always want to sell a property in "as is" condition. Most will provide a Section 1 pest certification, but not unless you include it in your offer and negotiate the point. They will allow you to get all the inspections you want (at your expense), but they may not agree to do any repairs.

Your offer should include an inspection contingency period that allows you to terminate the sale if the inspections reveal unanticipated damages that the bank will not correct.

Even though you agreed to “as is," always give the bank another opportunity to make repairs or give you a credit after you’ve completed your inspections. Sometimes they’ll re-negotiate to save the transaction instead of putting the property back on the market, but don’t take it for granted.

Banks do not want to see a lot of proprietary disclosures; they are exempt from the California Seller’s Transfer Disclosure Statement (TDS-14). If there are real estate agents involved, either representing you or the bank, those agents are required to provide you their disclosure statements.

Some REO’s are in such poor condition it may be difficult to get a lender to lend on the property.  Even the bank who owns the property may not even provide the loan.  Some banks will provide financing on their REOs.  So you definitely want to have a financing and appraisal contingency.

Making an Offer

Offers are usually FAXED to the bank. The listing agent needs your originals. There is no formal presentation. Keep in mind: nothing happens evenings and weekends since the banks are closed.

In Santa Clara County which by national standards is an active real estate market there are thousands of REO properties.   Some localities have more REO’s than others.  Where there are fewer REOs, areas like Sunnyvale, Mountain View, Santa Clara, Saratoga, and Cupertino don’t expect to get that great of a deal on an REO property.  In areas like South San Jose, East Valley, Milpitas, Morgan Hill, Blossom Valley, and Gilroy, where REO’s and Short Sales make up a large percentage of the total inventory, you will see that prices have dropped significantly.  This will include standard homes that are competeing with REO’s.

If you still want to buy an REO, make sure you find a Realtor who knows the market in the area you are looking, and can decipher if its a good deal or not.

On the surface, it may appear that a short-sale buyer is getting a good deal. Although a slim margin of short sales may be profitable for a buyer — because there are always exceptions — much of the time, a buyer would be better off buying a home that is not in default.

In Santa Clara County, where I work, for example, many agents ignore short sales like the plague.

Here are 9 Reasons Why Buyers Should Not Want to Buy a Short Sale:

1) Sellers Paid Too Much.

If a home sold for $500,000 a few years ago and is now for sale at $400,000, that doesn’t mean the buyer is picking up $100,000 of equity for free. It means the seller paid too much in a rising market and now the market has fallen. It means the seller has no equity.

2) Stringent Qualifications.

Inexperienced or unethical real estate agents might push a seller into considering a short sale when the seller does not qualify for a short sale. Sellers must prove a hardship and submit evidence of the hardship to the lender for approval. Some agents list homes as short sales without ever talking to the lenders or pre-qualifying the sellers.  Thus this results in a waste of time for the buyers who are attempting to buy the short sale home.

3) Homes Sell at Market Value.

Lenders aren’t naive or unaware of the value of a home. Lenders will insist on a comparative market analysis, known as a CMA, or broker price opinion, known as a BPO. If a lender believes a better price can be obtained by taking the property back in foreclosure over a short-sale offer, the lender may hold out for a higher price. That price will be close to market value.  In the Santa Clara Valley where some areas still have held on to their home values, like Cupertino, Sunnyvale and Saratoga lenders are less likely to take low offers. 

Lenders will accept short sales when the home is worth the short-sale price, which means market value.  Many buyers feel that they can get a deal on a short sale and in some cases they do, but that is more to do with the properties condition and frustrating process then the fact that the lender is relinquishing the property for a better price. 

4) Homes Sell "As Is".

If a mortgage company agrees to a short sale, it is most likely also paying the closing costs in the transaction. Lenders ask buyers to purchase the home in its present condition. Lenders typically will refuse to pay for:

    * Suggested repairs disclosed on a home inspection.
    * Pest inspections or work necessary to issue a clear pest report.
    * Roof certifications or roof repairs.
    * Home protection plans for the buyer.
    * Deferred maintenance.

In a regular sale, sellers may be motivated to sell and offer up incentives and improvements to get their properties sold.

5) Length of Time to Close.

Depending on when the Notice of Default was filed, the lender’s back-log of foreclosures and how much paperwork the seller has already submitted, it could take anywhere from two weeks to two months to get a response on a purchase offer from a lender. In addition, if two lenders are involved because there are two loans secured to the property, it could take longer to satisfy the demands of the second lender.

6) Lenders Can Change Conditions.

Some lenders reserve the right to renegotiate the terms of the short sale at the last minute. If the market changes, new laws pass or new information crosses the lender’s desk, the lender can attempt to change the terms of the contract. Lenders generally have lawyers at their disposal, and ordinary buyers do not.

7) Higher Buyer Closing Costs.

Because lenders rarely will pay for any extras, like a seller would be willing to do, if you want any of those extras, you will pay for them yourself. Sometimes lenders will refuse to pay for standard seller closing costs such as transfer taxes, too. If you want specific inspections, you will probably pay for them out-of-pocket.  Expect to pay higher transcation costs for short sales.  You will have to pay for inspections to have the property inspected, and it has been my experience in areas like Santa Clara, Sunnyvale, and San Jose rarely will the lender agree to make any repairs or offer up any credits.

Lose Control of Transaction.

If you need to close escrow by a specific date, lots of luck with that. A short sale home closing process takes an indefinite amount of time. The seller’s lender calls the shots, not the buyer nor the buyer’s lender. If you are trying to close escrow concurrently with the sale of your home, it might not happen.

9) Little Seller Motivation.

When the seller discovers that the short sale effect on credit is identical to that of a foreclosure, there is little incentive for a seller to cooperate with a short sale. There is no benefit to a seller to consider a short sale and move out before the foreclosure is concluded, except for peace of mind that the nightmare is over.

There are many homes for sale in the Santa Clara Valley that are “short sales”, meaning the mortgage is larger than the asking price.  Other descriptions for short sale listings might be described with the phrases ”subject to bank approval” or “subject to lien-holder approval”.  Rarely will you see “short sale”, so it’s best to be armed with some crucial information about short sales before considering buying one.

• In this type of transaction there is an additional party involved besides the buyer and the seller; the bank. The bank must approve the sale, and this can make the time to close much longer than usual. Expect it to take anywhere from four to six weeks. And once the bank’s approval is granted, they will expect you to be ready to close as soon as possible.

• You will need to pay for your own inspection which is always recommended.   Since the sale is “as-is”, don’t expect the bank to make any repairs or offer any assistance with closing costs.

• You will also need to pay for your own appraisal. The bank will do their own as well, and have been known to reject the sale based on their appraisal. Also, they may ask the buyer to raise their offer before approving the sale.

• Deferred maintenance on the home is a potential risk for the buyer. Consider that since the mortgage payments were not being made, it’s highly likely that the  homeowner was not able to afford regular home maintenance.