Foreclosure Home Buying - 101Posted by Mitch Argon / CalNeva Realty on Sunday, June 8th, 2008 at 1:43pm.
Foreclosure Home Buying - 101
The purpose of this blog post (a long one!) is to help anyone to rapidly gain an understanding of how to approach the process of buying a foreclosure or short sale home. The information in the post is based on my research and personal client experiences helping people purchase local (Greater Reno-Tahoe area) bank distressed real estate as part of my firm's business.
WARNING - this information is based on Nevada real estate and may not apply to other states in the US. I am not an attorney and can not give legal advice - a great deal of the processes described here are legal but described in lay terms.
Also, I strongly encourage you to not be "blinded" by the hype on the bank owned properties. It is true that there are good deals to be had, however, this is not universal. Unless you are extremely knowledgeable in your local real estate market (and regularly buy and sell as an investor), you should seek counsel AND representation from a real estate professional who has a working knowledge of traditional sales AND bank related properties for sale. For example, I have personally helped clients negotiate better deals from motivated new home builders (with standing inventory) at more attractive terms than nearby bank foreclosure properties - you need to consider your requirements AND the total market. Buy Smart - these services are free to you, as a buyer.
It is important that you clearly understand the terms that are broadly used to describe these types of properties.
What is a "Short Sale"?
A property is sold as a "short sale" when the Seller, upon closing escrow, will not be able to pay off all outstanding mortgages (liens) against the property. In essence, the lender(s) will be "short" of their full payoff. Due to this shortfall, the lender(s) must approve of the sale price and terms which is why alias terms for short sale are also "subject to bank approval" or "subject to lender approval". In a short sale, the property owner owns the property but REQUIRES BANK APPROVAL as a condition of sale.
What is a "Foreclosure"?
A "foreclosure" property (also known as "Bank Owned", "Real Estate Owned", "REO") is one that is legally owned by the lender. The owner who has been "foreclosed on" is no longer the owner and is not named on the title of the property.
The foreclosure process generally takes 5 to 9 months from the time the owner stops making mortgage payments to the time of foreclosure.
During this time, the owner is served a Notice of Default (usually after falling behind for three or more mortgage payments). The Notice of Default is also filed with the county of the home's location AND published in at least one public location like a newspaper or public library. The home owner has 35 days to bring payments current or "cure the default". A home with a Notice of Default filed is often referred to as a "Pre Foreclosure".
If the home owner does not bring payments current, the lender's next step is to file a Notice of Trustee Sale with the local county. The Notice of Trustee Sale is basically an announcement of a "Bank Auction" and will include the date, time, and location for the sale as well as all outstanding liens (mortgage amounts) on the property. If the home is not sold at the auction (read below for more on this), the bank assumes title and "forecloses" on the property.
Locating Bank Distressed Properties for Sale?
Finding a short sale home is not as easy as a foreclosure home. The owner could be selling it "for sale by owner" or it could be listed with a broker. In some cases, a home could be progressing towards foreclosure and not be "for sale" - the owners simply plan to "walk away". Most commonly, these homes will be listed with a local broker and may or may not be clearly identified to the consumer that the sale is a short sale until the time an offer is submitted. The Northern Nevada Regional MLS recently added a mandatory field which requires agents to identify a short sale property, however, this information is not required to be published to consumers in advertising (print or web sites).
Buying a "Bank Auction" Home?
The minimum price or "starting" price at a bank auction will equal the total outstanding mortgage balances (all mortgages) plus other costs of sale. Is this a good deal? No. The reason these homes are being sold is the owners have zero or negative equity and are not able to make payments. If the home was worth more than the loan amounts AND the seller could realize that price, most people would sell the home, pay the bank, and get on with life. Further, after the bank forecloses on the home, they will need to have the home listed for sale at a price LOWER than the auction price if they want to sell the house.
After a bank forecloses on a property, the bank will hire a local real estate broker (either directly or through an outsourced company) to list the property for sale. Banks are not in the business of selling real estate and likely maintain mortgages over a large geography - as a result, banks do NOT sell these homes DIRECT. At that time, the home will be in the Multiple Listing Service and the listing will likely be propagated to a wide range of real estate web sites on the Internet. The Northern Nevada Regional MLS recently added a mandatory field which requires agents to identify a bank owned property, however, this information is not required to be published to consumers in advertising (print or web sites).The listing MAY or MAY NOT provide you, as a consumer, explicit information declaring the listing as a foreclosure home.
Northern Nevada Bank Distressed Homes
I publish Notices of Default and Notices of Sale for Washoe (Reno, Sparks, Incline Village), Lyon (Fernley, Dayton), Carson City, and Douglas (Minden, Gardnerville, Genoa, Stateline, Zephyr Cove, Glenbrook) counties on my site on a frequent basis. In addition, I publish a list of foreclosure homes by city monthly. If your needs are more immediate, you can subscribe to my Reno-Tahoe Foreclosure Email Alert System for a list of new/changed foreclosure and short sale listings on a daily basis.
Summary of Key Differences
The table below will highlight the key differences among the three types of transactions reviewed. If there is no mention to a specific area of the transaction, you should assume it would be handled as in a typical real estate transaction. Below the table is a further explanation for each row in the table.
|Is price negotiable?||yes||yes||yes|
|Seller response time?||1-2 days||3-4 months+||1-5 days|
|Seller Real Property Disclosure?||yes||yes||no|
|Seller right to terminate?||no||?||yes|
|Delay in closing penalties?||no||?||yes|
How Negotiable is the Price?
The lending institutions are in business to make profits (or minimize loss). These businesses are not "pushovers" who take any price to get a property sold. They are motivated sellers, however, and will often price the homes below the market. Based on this below market pricing, they offer less room for negotiation. You can review statistics on sold homes for more detail.
Why do Short Sale Approvals Take So Long?
Uncertainty. Negotiation. Volume. The cross section of these three terms does not foster speed in any situation. In a short sale scenario, the home owner must provide extensive documentation (pay stubs, tax returns, current bills (current and delinquent), savings account balances, retirement account balances - more information than was provided to get the loan in the first place!) to the lender to convince the lender that they can not meet their loan obligations. Not all short sales are approved by the lender because the home owner may not meet all of the lender's conditions (unemployed or underemployed, exhausted savings balances, sold cars with car payments, etc.).
- UNCERTAINTY - The lender(s) must be certain that the home owner is not casually walking away (many people are trying this in today's market) from the loan obligations.
- NEGOTIATION - In most short sale scenarios, there is either two lenders (a first and second mortgage holder) OR a lender and a private mortgage insurance (PMI) carrier. These two organizations need to negotiate how the loss will be shared between them. If you have ever participated in negotiations between two corporations, you will know this is not typically done quickly.
- VOLUME - We are seeing record numbers of people falling behind on payments due to sub-prime lending practices. When this volume level is added to the equation, an inherently slow process becomes unpredictably slow.
If you are an investor or have a very flexible time schedule (and great patience), you may want to pursue buying short sale properties. If you have any type of time constraint (starting a new job, getting kids in school, coordinating a move, etc.), you would likely be better served by avoiding these listings in the current market environment.
What is a Real Property Disclosure?
In Nevada, a home seller must complete a form called a Sellers Real Property Disclosure (SRPD) when selling any property (this includes 'for sale by owners'; new home construction is exempt as a result of state required warranty obligations by the builder). The form (4 pages) is designed to protect a home buyer and requires the Seller to document (by checking boxes and elaborating as needed) all known problems and conditions with the property. On a foreclosure home sale, the bank will require the Buyer to provide notarized consent of the bank's obligation to provide a SRPD. In other transactions, the Buyer's have the right to review this information and, if not deemed satisfactory, cancel the purchase contract.
Can I cancel if something is wrong?
You are entitled to have the home professionally inspected within a negotiated number of days from contract acceptance. If the inspection results are not satisfactory to the Buyer, the contract can be canceled.
What does "As Is" Mean?
"As-Is" means the Seller will not make any repairs to the property. A standard contract will typically allow for a pre-negotiated (in dollars) amount of repairs to be made by the Seller subject to the property inspection. Do not expect a bank to do anything to the property. In limited occasions, the bank may be required to make certain repairs if the repair work is a condition of the Buyer's lender funding the loan - this condition would be more typical with FHA or VA backed loans.
What is a Seller Right to Terminate?
Most banks require the Buyer to agree to a provision which gives the bank the right to terminate the agreement at any time and for any reason up to the time of close of escrow, without any penalties. I have not seen one terminate an agreement (remember, they want to sell the house), but I have also seen banks refuse to change this language and "lose a sale" over it. This can create some anxiety for some home buyers but should be manageable.
What are Buyer Closing Delay Penalties?
When a contract is signed, there will be a scheduled date for close of escrow. Banks commonly impose a penalty to the home buyer (on a daily basis), if this date is extended for any reason.
As mentioned above, we publish related information on a regular basis on this blog site. Feel free to subscribe to our services (market reports or foreclosure alerts) or check back often! If you have questions/comments or would like further service, please call me up at 775-315-4424 or send me a note using the site request feature.
Broker - CalNeva Realty