Archive for January, 2016

Right or Wrong, Your Note and Mortgage Are Rescinded After 20 Days

Homeowners across the country owe a debt of gratitude to the states of Hawaii and Illinois. No, not for deep dish pizza and black sand beaches, but because their Appellate courts just handed down two of the strongest, pro-homeowner rulings on the issue of rescission that I have ever seen. Despite the fact that the Supreme Court of the United States was explicit in its Jesinoski decision, many lower courts across the country have been acting on their own and interpreting the law as they see it. As you can imagine, this tends to benefit the banks, with their high-priced legal teams, and not the homeowners who are fighting to keep their houses. Fortunately, this is not the way our government works. Our friends in Hawaii and Illinois are the latest and strongest courts to clear things up and ensure that TILA rescission continues to be a strong tool for homeowners to use to fight back against the banks.

One of the most important things that the Illinois court clarified is that ALL notices of rescission are effective upon mailing. It does not matter if the rescission is right or wrong. If the bank does not respond and contest the rescission in court within 20 days from the date they receive it, the rescission is done. Sending a letter at 19 days saying they aren’t going to approve the rescission is not a valid response by the bank. If the bank believes a rescission was mailed too long after consummation of the loan, they have to be able to prove their standing, prove that the rescission is wrongful WITHOUT using the note and mortgage as proof, then hope that the court sides with them and reinstates the note and mortgage. If they don’t file within 20 days of receiving the rescission, they are out of luck.

The Hawaii court hammered down the point for us that the law is the law is the law. The Truth in Lending Act was very clearly written and leaves no room for interpretation. According to the law, the bank MUST disclose the identity of the true lender. If they have not done this, the loan has not been consummated. It doesn’t matter if the borrower signed the loan and the money has changed hands. If the true lender of the money is not identified, the loan has not been consummated. This gives homeowners a much longer window during which they can rightfully rescind their loan. Hawaii’s Appellate court wrote that “the court may not read in its own view of a statute that is clear on its face.” The court went so far as to say that, when a lower court decides to take the matter into its own hands and ignores a rescission because it thinks it knows who would win a case to reinstate the loan, they are flipping substantive and procedural law on its head. No court except the US Supreme Court itself is able to overrule SCOTUS decision in our system of government.

What these decisions show us is that the law is finally catching up to the banks. Along with District and Appellate Courts all over the country, the Supreme Court has ruled as clearly as possible in the homeowners’ favor. With their ruling in the Jesinoski case, the Supreme Court has clarified that TILA rescission is a powerful tool to stop foreclosure and help homeowners stay in their houses longer. It also creates an opportunity for investors to do some pretty amazing deals. The tides have turned and the banks are being forced to negotiate on our terms. No more begging the banks to accept our short sale and REO offers only to have them demand ridiculously high prices. We can now get the banks to the table and demand that they prove they have the right to enforce a loan.

This makes it more important than ever that homeowners and real estate investors act NOW. This is a massive opportunity for real estate investors. If you know of anyone with a defaulted or underwater note, you need to get in contact with my office immediately at (706)-485-0162. I have spent the last two years building up a team of experienced attorneys and fraud examiners/forensic auditors who specialize in exposing fraud committed in the mortgage process and using that fraud as leverage to negotiate the sale of notes. This opportunity is not going to be available forever; we need to strike while the iron is hot!

We have a huge opportunity to help homeowners and do some great deals with multiple exit strategies. For more information, call me at 706-485-0162.

Bob MasseyBob Massey is a recovering corporate executive who is now living the dream running his own successful real estate investing business and teaching others how to do the same. In the process he has become the nation’s leading educator on the foreclosure investing process.

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Short Sales Can Be “SHHHHORT!!”

I know that many of you believe that short sales can’t be short; however, on this deal, the time frame from beginning to end was approximately 35 days. The Seller had lived in the property for years and the foreclosure action had been going on for approximately 4 years. During the 4 year period, the seller attempted to do a loan modification and had never attempted a short sale. There was a Foreclosure Auction Sale date scheduled for December 15, 2015. We had to act quickly as there were two loans on the home.

We pulled title work and found out that the $80,000 second mortgage was discharged as so many second mortgages were, due to the Banks being fined for all the fraudulent things they had done to the Sellers.   This was a great break for the Seller, as now we only had to deal with one Lender with having a court date so soon.

The property was built in 1950 and was wood framed. The house had 2 Bedrooms, 1 Bath, 1 car garage, and 792 square feet in Madeira Beach, Florida. The home just needed some cosmetic repairs in the eyes of the Short Sale Lender. However, to the Buyer, there was approximately $20,000 needed to update the home to a “2015” buyer’s expectations. The property was listed in late October, 2015, and an offer of $100,000 was submitted to Ocwen for review. After we submitted a complete short sale package to the Lender, which consists of a Purchase Agreement, Proof of Funds Letter, HUD Settlement Statement, Authorization to Release Information, Listing Agreement, MLS Detailed Sheet, Financial Statement from the Seller, 3 months of Bank Statements, Letter of Employment, and Tax Returns, we found out that Ocwen had sold the Loan to Caliber Home Loans. Normally it takes the new Lender at least 2 weeks to 30 days to get the loan into their system so we could submit a package. We contacted the new lender and submitted a complete short sale package to them on October 27, 2015.

The new Short Sale Lender ordered a value on the home, which is called a Broker Price Opinion or an Appraisal.   The Appraisal was on November 10, 2015 and we provided to the Appraiser a list of repairs, but no comparables, as there were none that justified the low offer of $100,000. This Appraiser was very persistent that he was very familiar with the neighborhood as he too lived in Madeira Beach and had been appraising for years. We spoke to the Lender on November 18, 2015, regarding the offer and the value on the property. The Negotiator informed us that the offer was way too low and that they would not take anything less than $165,000 for the property.

At this point in the negotiations, we had to counter the buyer to bring their highest and best offer, provide us with contractor estimates to justify the repair costs along with 3 sold comparables. This loan was in foreclosure for 4 years so the short sale lender was not willing to postpone the sale date and the Seller couldn’t hire an attorney to request a postponement in order to fight the value. The Seller was very familiar with the short sale process, the dispute process for value, and knew the legal process. The Buyer did not counter any higher as the Seller would not accept an offer for less than the $165,000 price that the Short Sale Lender stated they would accept.

The likelihood of us getting a Foreclosure Sale Auction postponed just to do a short sale was very slim due to the fact that the house had been in foreclosure for 4 years. At this point, knowing all the facts of the condition of the home, the comparables that were much higher in the area and how long the foreclosure action had been going on, the property would now have to be listed for the $165,000. Only a cash buyer would be accepted, as we did not want the Seller to lose the house at foreclosure, so there was no time for a mortgage buyer.

We increased the listing price on November 20th, 2015, and gave the buyer stipulations, such as, inspection period was only 3 days and closing needed to be before December 4, 2015. I am also working with a Title Company who will NOT close a short sale with a sale date less than 30 days away from closing and requires that if we close during that 30 day period, that an attorney would need to be hired to make sure that the Foreclosure Auction Sale would be postponed. I know you think this is a weird request from the Title Company; however, Short Sale Lenders don’t always dismiss the foreclosure action even though they closed on a short sale with a buyer. This has happened before on files that this title company had closed. So … make sure you know the rules and regulations of your Title Company, as it could cost you an additional $1,200 to order an attorney if the Seller could not afford one. However, to be a great negotiator, when you close on a short sale, you need to make sure that the Attorney representing the Short Sale Lender in the foreclosure action does dismiss the foreclosure action. You should always fax the Final HUD Settlement Statement and Proof of Wire to the Attorney and YOU request that they dismiss the foreclosure action and make sure that they follow up with their client (Short Sale Lender) to get it dismissed.

This property ended up being a direct sale to an individual who was purchasing the home as a vacation property, as there was no spread for the Investor buyer based on the value that the Short Sale Lender placed on the home.

On November 22, 2015, we received a Cash Offer from a Realtor that was representing the Buyer who complied with all of our terms and conditions and we closed on December 2, 2015. The foreclosure action was dismissed on December 14, 2015. I only received commission on this deal; however, I did save a Seller from going into foreclosure and they also received $3,000 relocation money. It was quick cash in my pocket for a deal that blew through my office in a quick 35 days.

What’s the message in this article? If you are an Investor only and your Seller needs to sell to a Buyer other than you, the only way that you could make any money on this deal is if you were a Realtor and received commission. So … You may strongly consider becoming a Realtor so you can benefit from multiple income streams. In addition, Short Sales can be Short! I just gave you the proof in the pudding, now take a bite and get back on the phone and call some leads!

Please keep sending me your questions and topics that you would like to hear about, so I can be sure to keep feeding you with the information that you need in order to move confidently through 2016 and bring your Real Estate Dreams to Life!

Happy Negotiating!

Kimberlee Frank

Kimberlee FrankKimberlee Frank is a Master Negotiator who has closed over 600 deals since 1998. She is a Mentor, Trainer, Author and Real Estate Broker teaching Investors and Realtors how to creatively purchase and sell short sales with her Step-by-Step System. She has helped Investors and Realtors earn hundreds of thousands of dollars.

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