What is Foreclosure Defense?

Foreclosure defense is a legal strategy in which a homeowner retains the services of an attorney to complete a forensic loan audit of all the documents associated with the mortgage. The attorney is looking for fraud and predatory lending violations than can then be used to aggressively counter sue the bank for damages and in return force the bank to negotiate with the homeowner or investor.  This process can typically take 12-24 months depending on the severity of the findings.  Remarkably, on average over 80% of all residential loans since 2003 contain such violations.  During the housing boom, banks could not push new mortgages through their system fast enough to satisfy the appetite for profits by Wall Street.

In the midst of this frantic churning of mortgages, many T’s were left uncrossed and many I’s were left undotted.  There is a long list of items than an experienced foreclosure defense attorney will pursue in order to delay the foreclosure process or in some cases even completely rewrite the actual terms of the note.  Just a the few of those items include: chain of title issues, backdating of documents when deadlines were missed, loss of original paperwork including the note, good faith estimate (GFE) numbers not adding up, unauthorized individuals signing paperwork, strict pooling and servicing agreement (PSA) guidelines not being followed, and on and on.

In the worst-case scenario, the attorney is able to delay the foreclosure 1-2 years while the homeowner or investor does not make a single mortgage payment during that time. This allows an individual the time needed to get back on their feet and regroup prior to the foreclosure occurring.  In the best scenario, the attorney is able to delay the foreclosure process 1-2 years and settle with the lender for a reduction in principle, lower interest rate and in many cases a brand new loan. There are even cases where the bank has not been able to produce the original note and the case goes into extended limbo or even the note is forgiven since the is no legal proof that the owner owes that money.

Is Foreclosure Defense Ethical?

Everything being performed here in legal, but is it ethical?  First of all, banks don’t make decisions based on emotions; the words in the contract are all their attorneys stand by.  In the majority of cases, investors and homeowners did not take out mortgages in order to defraud an institution.  Most individuals approached their banks looking for a forbearance, a loan modification, or a short sale once they realized the trouble they were in.  The problem is that the majority of the requests were denied or ignored according to the statistics.  Foreclosure defense is a viable and effective way to force the banks to actually take notice of your case and work with you.

Foreclosure Defense Costs

According to Adam Ackerman, one of the managing partners at www.foreclosuredefense.com, the initial forensic audit of the mortgage documents costs approximately $750 per property.  Then after that, there is a monthly $750 retainer fee that is charged per property.  So given these costs, this option isn’t for everyone.  If your a homeowner or investor with a monthly mortgage in this range to start with, it may be better to just save all your money and ride out the process until the property is sold at auction.  But for the many homeowners out there with much larger mortgages, in many cases a $750 monthly retainer would be more than a 50% reduction in the monthly payment while the attorneys fight on your behalf.

Applications for Real Estate Investors

During the interview, Ackerman detailed several examples of how real estate investors struggling with under performing rental properties asked the banks for help in the form of a loan modification or a short sale and were turned down or ignored.  Now these investors are using foreclosure defense techniques to force the banks to negotiate with them.

Banks are not set-up to deal with aggressive countersuits when they foreclosure on someone.  Foreclosure attorneys working for the banks earn a flat fee based on the minimum work required to process a foreclosure.  So when requests for detailed information, proof of documentation and countersuits start coming in, most of the time the banks don’t want to deal with this kind of headache and magically become receptive to the investor’s request for a loan modification or a short sale.

In one case, an investor with a two multi-unit buildings purchased during the boom was struggling to pay his mortgage due to the reduced rents from his struggling tenants.  The bank refused to work with him and in turn he hired a foreclosure defense attorney to represent him.  Even after paying $1500 per month (2 properties) for the defense, this investor is still taking home $3500 per month in rents. Even if the foreclosure defense fails, after two years of delaying the foreclosure process, the investor will have collected $84000 in rents.

Short Sale Investors

Foreclosure defense can also be a good tool for those real estate investors working with homeowners to either buy or flip their property after the banks approves a short sale.  Deals with large profit margins may be well worth saving using foreclosure defense techniques in order to buy the added leverage needed to help the bank change its mind.

Special thanks goes to Adam Ackerman at www.foreclosuredefense.com for contributing to the information in this article.  Their network of attorneys work with investors and homeowners across the country in all 50 states.  Please feel free to contact them for more information and a free consult.

Flippers and Rehabbers Caught in the Crash

Many real estate investors, flippers, and rehabbers were caught with their pants down when the real estate market crashed in mid 2007.  Rehabbing and flipping foreclosures was the craze at the time, as depicted on the many popular TV shows such as Flip This House and Property Ladder.  As long as the money was flowing loosely from the banks to the investors and homeowners, flipping a rehabbed home was relatively easy.  Almost anyone could arrange 100% financing for their end-buyers back then.

Bankruptcy & Real Estate Investors

But when the money dried up and banks stopped lending almost over night, many investors were left holding fully rehabbed homes with no buyers to be found.  Many of the flippers at that time had no intention of ever being a landlord and therefore were determined to sell their property rather than rent it out.  The problem is that the real estate markets only got worse.  For several different reasons, the REO’s being flipped for quick cash were not good rental property candidates.  They were either too expensive or in too rough of a neighborhood to find quality tenants to occupy them.

Bankruptcy – What Does it Accomplish for the Real Estate Investor?

Many investors spent their entire savings and even their retirement savings (ouch) in an effort to keep their under performing rentals afloat when selling them didn’t work.  Stuck with maxed out credit cards and uncooperative lenders, many investor have filed for bankruptcy to get out of this mess.

Bankruptcy Accomplishes the Following for a Real Estate Investor:

1. It eliminates the right of the lender to collect a deficiency judgment from the investor when the property sells for less than its loan amount.
2. It relieves the investor from the obligation to repay the note on the property.
3. It eliminates the need to pay the real estate taxes, since the bank cannot come after the investor anymore.  The bank will be stuck paying the taxes for you, in order to avoid the property being sold at a tax sale.

Bankruptcy Does Not Accomplish the Following for a Real estate Investor.

1. Bankruptcy itself does not relinquish ownership of the property. The real estate investor still legally owns the investment property after a bankruptcy is filed.  The bank has to legally foreclosure on the investor in order to take back the property.  This means the investor could keep collecting any rents received until the property is sold at auction assuming the bank does not assume the rents as they are entitled to.
2. Bankruptcy does not eliminate the landlord’s liability for what happens at the property.  Since ownership still belongs to the investor, the investor can still be sued by a tenant, the city, or issued violations that will have to be dealt with.
3. Bankruptcy does not eliminate the landlord’s responsibility to the tenant as dictated by a lease or local tenant-landlord laws.

Your Real Estate Investing Career is Not Over

Remember, bankruptcy stays on your credit report for 7 – 10 years so make sure its your only way out.  But if that’s your last resort, don’t be pressured into doing anything that’s not required of you.  Being eligible to file for bankruptcy usually means you’re in pretty bad shape financially, so understand the law and do what’s necessary to get yourself back on your feet as fast as possible and investing once again.

Bankruptcy does not mean your real estate investing career is over.  There are still many options out there for the creative investors.  Private lenders, hard money, transactional funding, and owner financing can all be used to continue investing in real estate even with bad credit.

Upside Down Investor Mortgages

Did you get way in over your head during the housing boom? Are you now drowning in debt trying to keep up with the payments on your upside down investment properties? Did you cash out refi every penny of equity you could squeeze your mortgage broker to find for you? Do you have tenants that constantly miss payments and there’s nothing you can do about it because you have run out of money to evict them? Unfortunately, there are many real estate investors that can answer yes to these questions.

Upside Down Mortgage Options

First of all, don’t panic. The worst thing that can happen to you is that your credit score will be ruined for some time, maybe a long time.  But remember, this is NOT a life or death situation and there is no debtor’s jail. Do not let financial worries lead you into depression and health problems; it’s just not worth it.

Investor Loan Modification

This is the first option to consider. Investment property loan modifications are possible and are happening quite frequently today. First of all, you will not get a loan modification approved if you are current on your mortgage, period. You must also be able to show hardship, which in most cases is not that difficult for many people. Monthly mortgage payments can be reduced 20 – 60% depending on your situation and the bank.

Investment Property Loan Modification Denied? Try a Short Sale

If your loan modification is denied, you can try performing a short sale. A short sale is selling for less than you owe on the property with the banks permission. The problem is that most investment properties are upside down on their mortgages today and the markets are only moving for severely deeply discounted properties. There’s a good chance you won’t be able to sell your property at all. So now what?

Deed in Lieu

A deed in lieu (DIL) is typically only considered by the bank after an unsuccessful short sale attempt. This is where the bank agrees to take back the  property as-is with no recourse to the investor; basically just hand your keys over. Only do this with a guarantee in writing that they will not come after you for a deficiency judgment. Deficiency judgments aren’t that common right now, but they still are occurring depending on the bank and part of country you live in.

How to Deal with Banks Unwilling to Deal with Investors Looking for Help

We don’t advocate this option, but it is an option if you don’t have many assets left and bankruptcy is an option for you.

Some investors have decided to screw the banks if they won’t work with them! There are many stories of banks not willing to work with investors looking for solutions to their problem. So here is what we have seen others do. Plan to file for bankruptcy and collect as many rents as you can in the mean time. The morals of this are a completely different story.

Foreclosures are taking over a year to complete in many hard hit areas across the country. Stop trying to make payments on your bad investment(s) and collect as much rent as you can until the property or properties are sold at the sheriff’s auction. This can add up to tens of thousands of dollars depending on how many properties you have left that are still paying the rent. Now this money can’t be spent on purchasing new assets, so consult a bankruptcy attorney on the details of this process.

A good bankruptcy attorney will help you understand the details of the timing of when you should file for bankruptcy and how the rents collected can be spent.  All deficiency judgments will be wiped out through the bankruptcy, but the landlord’s responsibility to the tenant will not be. Filing for bankruptcy does not remove an owner from title on the property. So if a tenant hurts themselves or sues you after the bankruptcy, you are still liable as the owner of the property until the day the property is sold back to the bank at auction.

Good luck and consult a bankruptcy attorney for more details on your specific situation.