Debtors May Want To Take It All Off, But The Supreme Court Says Junior Liens Can’t Be Stripped

It’s not an uncommon sight, especially in light of the burst of the housing bubble in recent years: a debtor in bankruptcy has two mortgages on a property with a fair market value of less than the amount of the senior mortgage. The junior mortgage lien is then wholly underwater, so that creditor would receive nothing from the sale of the property. The question then becomes, can the debtor void those liens in a Chapter 7 bankruptcy proceeding? The Supreme Court, in an increasingly rare show of unanimity, said “No.”

Section 506 of the Bankruptcy Code says, “To the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such lien is void.”[1] In Bank of America v. Caulkett,[2] the debtors wished to use this provision to strip away the underwater junior liens on their properties. The argument is that, even though the claims from the banks holding the junior mortgage liens are “allowed,” they are no longer “secured.” The definitions under §506(a)(1) seem to bear this out, stating that an allowed claim “is a secured claim to the extent of the value of such creditor’s interest.”[3] If the lien is not supported by some sort of value in the collateral, the argument goes, then it is not actually secured.

Serious judge about to bang gavel on sounding block in the court room

Predicated on their reading of Dewsnup v. Timm,[4] the Court found otherwise, holding that the junior lien could not be stripped in the proceedings. Dewsnup foreclosed such lien stripping as in the case in Caulkett, suggesting that if an allowed lien is secured with recourse to the underlying collateral, it does not matter if the value of the collateral does not secure the full amount of the lien. Effectively, such a lien does not fall within the scope of §506(d), as it is both “allowed” and, under Dewsnup, “secured.”

Justice Thomas, writing for the majority, did take time to criticize the result in Dewsnup, suggesting that it did not adhere to tenets of standard textual construction in giving what he perceived as two different definitions in related sections of the same code. Thomas hinted strongly that the court may be willing to overrule Dewsnup, but declined to do so.

The result in this case is not surprising in light of Dewsnup¸ which most courts have relatively ignored save for the very specific circumstances at issue in that case. If a debtor in bankruptcy could strip the junior lien and ultimately keep the property, the debtor would then receive the value of any appreciation in the property, free from the junior lien. Caulkett is a clear win for lenders willing to provide junior mortgages, but a much bigger loss for those with second mortgages on underwater properties. Also, this ruling could stall loss mitigation negotiations as junior mortgage lienholders can maintain an effective veto over talks between the senior mortgage lender and the debtor. At the same time, loan modifications from senior mortgage holders can only make the debtor more solvent and better able to pay the junior lien as well. For more information about how the Caulkett decision affects lenders and property owners with second mortgages, or assistance with mortgage liens, contact the attorneys at McBrayer.

BMacGregorBrittany C. MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

[1] 11 U.S.C. §506(d)

[2] Bank of America, N.A. v. Caulkett, No. 13-1421, ___ U.S. ___ (June 1, 2015).

[3] 11 U.S.C. §506(a)(1)

[4] Dewsnup v. Timm, 502 U.S. 410 (1992).

Seller Financing After Dodd-Frank

The provisions of Dodd-Frank have been in place just under a year and a half, having come into effect on January 10, 2014, and the provisions of the law that concern seller financing of real estate made significant changes as to how investors use seller financing in these transactions. Now that the rules have been in place for a while and the dust has settled, basic rules concerning private loans from sellers warrant a brief review. At the outset, it is worth noting that these regulations apply to sales only to owner occupants, not sales of commercial or investment properties. The new regulations treat anyone who performs the activities related to the origination of a residential mortgage loan as a “mortgage originator” by default. What this means is that sellers who finance their real estate transactions must be a licensed mortgage originator or include a licensed mortgage originator in the transaction. Financing sellers can be exempt from these rules, however, if certain criteria are met. First, the seller must provide financing for the sale of three or fewer properties in a 12-month period, and the property must have been owned by the seller and used as security for the loan. Second, the seller must not have constructed the residence or acted as a contractor in the construction as part of the ordinary course of their business. Finally, the loan must be fully paid off after a set duration (no balloon payments) and have a fixed interest rate or an adjustable rate that remains fixed for at least five years, and the seller must determine in good faith that the borrower will be able to pay the loan. If the rate does adjust, it must be tied to a widely-available index such as LIBOR or U.S. Treasury securities. Under these rules, a person, trust or business entity can act as a financing seller. Homeownership 2If the seller only finances one property in a year and is a natural person, an estate or a trust, the seller does not have to determine and document the borrower’s ability to pay, although the loan requirements remain the same. If the seller finances more than three properties, the mortgage originator provisions apply, as well as the specific limitations on the loan. Another important distinction to note is that, while the ability-to-pay provisions of Regulation Z[1] apply only to “creditors” as defined by that regulation – those who finance more than five “transactions secured by a dwelling”[2] in a year, Dodd-Frank applies the same provisions to those who finance three or more transactions to owner-occupants in a year. In other words, financing sellers who conduct only four transactions a year are exempt from the ability-to-pay portions of Regulation Z, but not from Dodd-Frank. Negotiating any seller-financing deal is tricky, but the provisions of Dodd-Frank add a new layer of complexity to the process. Let the attorneys of McBrayer, McGinnis, Leslie & Kirkland, PLLC make the process less difficult by providing guidance and assistance in the transaction. CRichardsonChristopher A. Richardson is an associate at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Louisville, KY office. Mr. Richardson concentrates primarily in real estate, where he is experienced in residential and commercial closing transactions, landlord/tenant relations, and mortgage lien enforcement/foreclosure. Mr. Richardson has closed innumerable secondary market and portfolio residential real estate transactions and his commercial practice ranges from short-term collateralized financing and construction lending to development revolving lines of credit. He can be reached at 502-327-5400 or crichardson@mmlk.com. This article is intended as a summary of  federal and state law and does not constitute legal advice. [1] 12 C.F.R. § 1026.43 [2] 12 C.F.R. § 1026.2 (a)(17)(v)

Is An Interest-Only Mortgage Right For You?

There are a number of financing options to consider when purchasing a home, one of which is the interest-only mortgage. This type of mortgage requires a homeowner to pay only the interest that accrues on the loan each month. None of the principal is paid off until the interest-only period expires. The length of the interest-only periods can vary, but payments are relatively low during this time. After expiration of the interest-only term, the buyer is then required to make monthly payments for the principal.

Traditionally, interest-only mortgages were used when home prices were so high that a conventional mortgage payment was out of a borrower’s range. They gave homeowners more bang…or, specifically more house…for their buck. Many saw interest-only loans as one of the many contributing factors to the foreclosure crisis. Freddie Mac stopped backing the loans in 2010; as a result, fewer lenders now offer interest-only mortgages and those that do utilize strict qualifying standards.

This kind of mortgage still presents some advantages. The extra cash that an interest-only mortgage payment leaves a homebuyer with can be used for other purposes, such as to pay off school loans or to upgrade the home. The key, as I see it, is to invest the saved money wisely or put it into other appreciating assets. Ideal candidates for this type of mortgage are those who are certain that they will sell the house before the interest-only period ends or individuals who may have unpredictable income or earnings with a large variable component. For example, brokers who work on a commission structure and whose incomes can fluctuate dramatically can certainly benefit from the flexibility, if they commit to paying the principal when the income is available.

Perhaps the most significant disadvantage to interest-only mortgages is the potential for “payment shock” at the conclusion of the interest-only period. This can be a devastating situation for borrowers who fail to plan properly. There is always the risk that the value of the home will fall during the interest-only period, leaving a homeowner owing more on the home than it is worth.

Borrowers using this particular financing plan should assess their abilities to stay within a financial plan and determine upfront how the cost savings will be used. An interest-only mortgage is not for everybody, but for some, it can be a helpful tool in an ever-changing financial landscape. If you have questions about buying a home, contact the real estate attorneys at McBrayer today.

CRichardson

Christopher A. Richardson is an associate at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Louisville, KY office. Mr. Richardson concentrates primarily in real estate, where he is experienced in residential and commercial closing transactions, landlord/tenant relations, and mortgage lien enforcement/foreclosure. Mr. Richardson has closed innumerable secondary market and portfolio residential real estate transactions and his commercial practice ranges from short-term collateralized financing and construction lending to development revolving lines of credit. He can be reached at 502-327-5400 or crichardson@mmlk.com.

This article is intended as a summary of  federal and state law and does not constitute legal advice

LBAR Launches App, Just As Industry Giants Merge & New Concerns Arise

Zillow and Trulia, the two largest sites in the home listings game, are merging. These sites enable buyers to navigate an online map to find a home’s value, look at available listings, and connect with local real estate agents. And while the companies, nearly a decade old, have somewhat helped to streamline the home buying and selling process, real estate deals remain a transaction that largely require professional assistance – from agents, to bankers, to attorneys. Even with online assistance from sites like Zillow and Trulia, most homebuyers prefer one-on-one guidance and advice from a trusted professional.

The merger, which will result in the two companies becoming by far the biggest online portal in the industry, has caused concern throughout the residential brokerage business. Some are worried that the merger will result in the company having too much power over listings, possibly raising associated fees. There has even been talk that the company might now break into the brokerage business itself, something that the separate companies have not done to date.

The National Association of Realtors (NAR) has its own consumer website, realtor.com, which is operated by Move Inc. and ranks third behind Zillow and Trulia in terms of popularity. In July, a new NAR marketing campaign emphasized the accuracy of realtor.com listings and the role of realtors in buying and selling homes. The long-standing critique of both Zillow and Trulia has been the accuracy of their services’ listing information. Realtor.com, on the other hand, gets listings directly from most of the nation’s more than 800 multiple listing services (MLSs).

Local MLS associations should not worry about the merger too much, as there is still very much a need for professionals in the world of real estate transactions. Associations, should, however note that they must make more of an effort to reach consumers in the online environment and offer value-added services that the industry behemoths do not – such as proving local expertise or always having the latest listings.

Taking a page from this playbook, the Lexington-Bluegrass Association of Realtors (LBAR) just announced the launch of their mobile app, LBAR Homes, which allows users to view all homes for sale or rent in the Bluegrass Region. Users can search by address, city, or zip code to see property details for all homes for sale or rent in a specified area, including price, square footage, estimated mortgage, taxes, features, maps, pictures, and more. A contact feature allows users to connect with respective listing agents by phone or email. The free app can be downloaded from an app store or at app.lbar.com, or by texting LBAR to 87778.

Once you find your home, you’ll want to contact a closing attorney to assist in the legal aspect of the purchasing process. Contact McBrayer’s real estate group if you’re ready for this exciting step in the process!

BMacGregor

  Brittany C. MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

Mortgage Prequalification versus Preapproval

First time home-buyers are often under the impression that mortgage prequalification and preapproval are interchangeable terms, but they are actually two separate steps in the financial process and it is important to understand the difference between them.

Prequalification is a lender’s estimate of how much you could be eligible to borrow based on information you supply. In a prequalification, a credit report is not pulled, which means that the lender is depending on incomplete (and sometimes inaccurate) information. Prequalification does not mean a loan will be given, but is meant to serve only as an estimate for the mortgage process. Prequalifications help sellers determine a potential buyer’s general creditworthiness and give buyers a better understanding of their future financial responsibilities, but are not binding in any way.

Preapproval, however, is more concrete and does involve a credit report check. Lenders will contact employer, banks and others to verify a potential loan recipient’s income, assets, debts and credit history in this step. A preapproval from a lender will say how much you are eligible for, how long the approval is valid, and may contain some additional conditions for the loan. Note that a lender may not require the payment of any fees, except the cost of a credit report, at the time of a preapproval. Just because one obtains a preapproval does not mean that the loan is final – the funding will only be given when the property appraisal, title search, and other verifications have been confirmed.

There is no harm in getting prequalified, but to seal the deal preapproval is necessary. Buying a home is a complex process – make sure you know the industry lingo before getting involved in buying and selling negotiations to ensure that all parties are on the same page.

J. Markham

Joshua J. Markham is a member at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Lexington, KY office. Mr. Markham practices in virtually every aspect of real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, lease negotiation and preparation, and any and all other needs related to residential and commercial real estate matters.He can be reached at jmarkham@mmlk.com or (859) 231-8780, ext. 149.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

Lenders Take Note: CFPB Issues Guide to Forms

Big changes are in store for real estate closings in 2015 (we first wrote about it here). Now, lenders have some guidance from the Consumer Financial Protection Bureau (“CFPB”) as to how complete forms that will become mandatory in August 2015.

For over thirty years, federal law has required lenders to provide two different disclosure forms (the Truth in Lending Statement and Good Faith Estimate) to consumers applying for a mortgage. The law also has generally required two different forms (a final Truth in Lending Statement and a HUD-1 settlement statement) at or shortly before closing on the loan. The forms were developed separately by two different federal agencies, pursuant to two separate acts: the Truth in Lending Act (“TILA”) and the Real Estate Settlement Procedures Act of 1974 (“RESPA”).

In an effort to simplify the closing process and help consumers become more informed of their options and obligations, the Consumer Financial Protection Bureau has launched the “Know Before You Owe” campaign – an initiative aimed at reforming the mortgage market. Beginning in August 2015, the two sets of forms issued to consumers will be reduced and replaced with a Loan Estimate Form and Closing Disclosure. These new forms use clear language and are designed to make it easier for the consumer to understand key information, such as the interest rate, monthly payments, and closing costs of the loan.

CFPB’s recently-issued Guide to Forms (available here) provides originators with step-by-step instructions for completing the Loan Estimate and the Closing Disclosure and addresses situations that are expected to arise frequently. The 96-page guide should be reviewed by anyone who routinely participates in the mortgage closing process. The guide specifically states that it may be helpful for settlement service providers, software providers, secondary market participants, and other firms that serve as business partners to creditors.

The Know Before You Owe rules bring about numerous technical and substantive changes to the mortgage closing process. Now is the time for lenders to prepare for the new era of closings by participating in training, reviewing their internal processes, and speaking with an attorney about their new compliance responsibilities.

J. Markham

Joshua J. Markham is a member at McBrayer, McGinnis, Leslie & Kirkland, PLLC in the Lexington, KY office. Mr. Markham practices in virtually every aspect of real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, lease negotiation and preparation, and any and all other needs related to residential and commercial real estate matters.He can be reached at jmarkham@mmlk.com or (859) 231-8780, ext. 149.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.

 

Considerations before Co-Signing

When I was looking for my first apartment, I was a student, had little money and was far from an ideal tenant. Luckily, my parents co-signed on the lease and I was handed the keys to my new place. At the time, I had no idea what risks my parents were taking by putting their signature next to mine on that lease agreement. Now, as a real estate attorney, I often see people co-signing on mortgages – generally a much bigger financial obligation than an apartment – and I wonder if they have considered the hazards associated with signing their name on the dotted line. Not every co-signing situation ends badly, and some work out with no problems at all, but there are times when a co-signor bites off more than they can chew and, as a result, are left with a very bad taste in their mouth from the whole closing process. If you are thinking about serving as a co-signor, I urge you to consider the following:

1)      It will affect your credit report.

If someone has asked you to co-sign on a mortgage it is generally because you have good (or at least sufficient) credit. A co-signed mortgage, like any other loan, will be factored into your credit report, even if you are not making payments. It becomes part of the equation in your debt-to-income ratio. If you apply for a personal loan in the future, it is possible that you could be denied the loan based on the mortgage’s outstanding debt.

2)      You are 100%, not half, liable.

Just because there are two names on the mortgage does not mean that you are only signing up for 50% of the loan liability. If the mortgagor fails to make his or her payments, the lender can look to you for the entire outstanding loan amount. If the lender only sues you for the outstanding amount (which is legally permissible) and you want the mortgagor to also be responsible for the debt, then you will have to sue him or her in order to bring them into the lawsuit.

3)      It is difficult to undo

Co-signing for a loan can be undone, but will require effort from both parties to the mortgage. The only ways to have your name removed as a co-signor are to refinance the mortgage or sell the property. If the mortgagor falls on hard times or your relationship with them sours, it is less likely they will agree to refinance the loan to remove you from the mortgage, or that the bank will permit a refinance to remove you as co-signor in light of the other parties’ financial situation.

Co-signing for a mortgage can be risky and it is important to make an informed decision. For many, when faced with the request from a loved one, saying no can be difficult. If you find yourself in this hard spot, consider contacting a McBrayer real estate attorney about your options. In some cases, there might be other ways to help the individual obtain the loan, such as gifting a part of the down payment on the property. We can work with all parties to achieve the best possible outcome.

BMacGregor

Brittany C. MacGregor is an associate attorney practicing in the Lexington office of McBrayer, McGinnis, Leslie & Kirkland, PLLC. She is a graduate of Transylvania University and the University of Kentucky College of Law. Ms. MacGregor’s practice focuses on real estate law, including title examination, title insurance, clearing title issues, deeds, settlement statements, preparation of loan documentation, contract negotiation and preparation, and lease negotiation and preparation. She may be reached at bmacgregor@mmlk.com or at (859) 231-8780.

This article is intended as a summary of federal and state law activities and does not constitute legal advice.