Want to offer any thoughts on deficiency liability? In some states (e.g., Calif), the borrower can just abandon the house without further liability--making home ownership essentially a call option, with the debt being the strike price. In others (e.g., Ohio), the debtor remains liable for any shortfall.
" Actually, pulling out more equity can make much more sense if home prices fall. In that case, the mortgage holder is left with a mortgage that exceeds the value of the house. The homeowner can walk away turning over a house that may be worth much less than the amount of money he has borrowed. That might not be pretty, but it is what will happen in hundreds of thousands of cases across the country."
This may not work this time around, at least in California.
"Homeowners with little of their own money in their homes may think they will do what strapped homeowners in the ’90s did: turn over the keys to their lender if things get really bad and walk away.
But...financial experts warn that things may be different this time because so many people have refinanced. The difference is the recourse loan. In California, refinanced loans, second trust deeds and home equity lines of credit are generally considered recourse loans. In these cases, a lender can file suit and go after almost any of the borrower’s assets once they obtain a court judgment. "They can literally go after everything you have,"... "
Buce and Raymond do raise a very important point. In many states, the laws now hold homeowners personally responsible for their mortgage debt, if the resale of the home is not sufficient to pay it off. In these cases, just walking away and sticking the mortgage holder is not an option. (My guess is that most borrowers who live in states where the debtor is held personally liable for mortgage debt, beyond losing their home, are not aware of this fact.)
With the new bankrutpcy law in place, the collapse of the housing bubble could get really ugly.
11:41 PM
Anonymous said...
Dean, The possible consequences of a debtor default may now be so large that the politicians will smell opportunity and move to create a bailout. Since I expect it to happen, here are my suggestions for any bailout: 1) All bailout monies are taxable. 2) Bailout only after all other assets are liquidated. 3) All bailouts must be repaid. 4) If a bailout is repaid at less than market rate, the difference is taxable. ... and most important ... 5) Any bailout dollars not repaid at market rate are subtracted from the debtor's lifetime social security earnings. This will reduce the govt's future obligations to that individual.
Re deficiency liability, Raymond Nize raises an important point, but it is more complicated than that.
In Calif, there is no right to a deficiency on purchase-money real estate--i.e., the loan you take to buy the home. Refis are not purchase money so the purchase money protection does not apply.
But there's an entirely different rule that may come into play. It turns on the method of liquidation. The lender has two choices: he can go through a judicial foreclosure, or he can just hold a "private sale."
"Private sale" is cheaper and easier. The tradeoff is that if you go private sale, you lose your right to a deficiency.
Up to now, the costs of judicial foreclosure have been (relatively speaking) so formidable that nobody bothers with it: everybody goes judicial foreclosure and waives the deficiency.
Of course everything is relative. If those deficiencies start looking big enough, we might have a lot of lenders deciding that they are willing to suck it in and assume the burden of a judicial forelcosure.
Afterthought re Calif deficiency claims: the OC register says:
"They can literally go after everything you have."
Not true. Against the deficiency claim you do have a right to assert statutory exemptions. Exemptions are a complicated patchwork and in plenty of cases, they are pretty cheesy. But exemption protection for pension funds is actually pretty good.
Not all loans jump 2% in the adjustment period. Many of the jumbo 3/1 loans from that same period are susceptible to a 6% increase after 3 years.
That may change the math a bit.
2:52 PM
Anonymous said...
While they may potentially jump 6%, most of them are currently jumping to around 6.5%, and very few people got a loan below about 3.5%.
Still very painful, but fortionately rates aren't at 9.5-12% (yet).
5:34 PM
Anonymous said...
RE: CA deficiency judgments.
That OC Register article was misinformation of the 1st degree. Great story. Bad facts. I read it and cringed.
True, there is no deficiency allowed on a purchase money first trust deed in CA. The key is what constitutes a purchase money 1st trust deed. Certain refi transactions, however, do still qualify as purchase money firsts. But, that caselaw is pretty dated - and that's because the law on this in CA really isn't very active given the below.
The purchase money issue is a total red herring. There are no deficiency judgments in CA unless the lender does a judicial foreclosure. Simple as that - if the lender wants a deficiency judgment, they must do a judicial foreclosure.
But, no one - and I do mean no one - does judicial foreclosures out here. They are maybe 1 out of every 1,000 foreclosures, if that. The reasons for this are very simple:
1. Money. Judicial foreclosures are a lawsuit - which means a lawyer, retained by the hour. They will cost, at minimum, $5,000 - usually closer to $10,000. Non-judicial foreclosures are done by private trustee companies (i.e. non-lawyers), and are done for a flat fee (I think $800 in CA, depending on whose flat fee schedule you're using).
2. Time. A non-judicial foreclosure can be done in around 120 days in CA. Judicial foreclosures can take well over a year, and if contested (and, it will be), will usually run closer to two years. Remember, that's two years with the borrower making no payments, and the lender probably having to pick up such things as taxes and insurance to protect its interest in the property.
3. One year right of redemption. A judicial foreclosure carries a one year right of redemption in CA (i.e. the borrower can redeem the debt for the amount owed at any time for up to a year, and get their house back - well, with certain limitations, but I won't go there). Non-judicial foreclosures carry no redemption period at all. During that one year redemption period the lender again gets the joy of paying property taxes, hazard insurance, HOA dues, and all those other goodies - of course, it can't sell the property until that year is up and the borrower does not redeem. Well, I suppose the lender could, but think about it practically. What's the value of a home to a buyer when the buyer could end up with air at any time prior to the 1 year redemption period expiring? Not much.
Put all that together with the fact that you'd probabl still have to hire a lawyer to actually collect on your deficiency judgment, and voila - the fact is no one does, has really ever done, and will ever do, judicial foreclosures in CA. And, without that, there will be no deficiency judgment.
Bottom line: Borrowers walked in the 1980s and 1990s out here, and will again. The overseas investors will be holding the bags.
(Note, however, this does not mean borrowers will walk from any unpaid HELOC debts remaining after the foreclosure. True 2nd Trust Deeds - yes. HELOCS - no.)
12:06 AM
Anonymous said...
In Ohio deficiency judgments are only enforceable for two year.
It's good you reveal these facts about mortgages. Very often people misunderstand make wrong expectations for future interest rates: if they think interest rates are very low and are likely to rise, thry should lock them in with a fixed rate, while if they think they are likely to fall in the future then an adjustable rate mortgages makes more sense. But people really should be very careful in this question, especially when they are choosing bad credit mortgage, which has higher interest rate and it will be more difficult to repay it.
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The Sunday Times has an article reporting that many homebuyers who took out adjustable rate mortgages 3 years ago, are now refinancing to avoid higher mortgage rates. The article (actually the accompanying chart) also adds that many are refinancing with negative amortization loans, under which the outstanding principle increases through time. The chart tells readers that this could make sense, as long as house prices continue to rise.Okay, let's check the numbers here. Three years ago, homeowners were taking out adjustable rate mortgages at rates in the neighborhood of 4.5 percent. Many are now resetting at rates that are 2.0 percentage points higher, or close to 6.5 percent. The article reports that the national average for adjustable rate mortgages is now 6.28 percent. Throw in fees of 0.5 to 1.0 percent and it's hard to find the savings. In other words, simply exchanging adjustable rate mortgages will not in general save homeowners any money.Now, the point may be that homeowners are pulling more equity out of their home, taking advantage of the strong appreciation in many areas over the last three years. While, contrary to claims in the article, this doesn't save anything in terms of monthly payments (the payment on a larger mortgage will be higher, not lower), the additional cash can postpone a day of reckoning. However, the risk in this case is really the exact opposite of what the article claims. The article reports that this strategy may make sense if home prices continue to climb. Actually, pulling out more equity can make much more sense if home prices fall. In that case, the mortgage holder is left with a mortgage that exceeds the value of the house. The homeowner can walk away turning over a house that may be worth much less than the amount of money he has borrowed. That might not be pretty, but it is what will happen in hundreds of thousands of cases across the country.
"Bad Advice on Mortgages from the NYT"
36 Comments -
Want to offer any thoughts on deficiency liability? In some states (e.g., Calif), the borrower can just abandon the house without further liability--making home ownership essentially a call option, with the debt being the strike price. In others (e.g., Ohio), the debtor remains liable for any shortfall.
8:49 PM
" Actually, pulling out more equity can make much more sense if home prices fall. In that case, the mortgage holder is left with a mortgage that exceeds the value of the house. The homeowner can walk away turning over a house that may be worth much less than the amount of money he has borrowed. That might not be pretty, but it is what will happen in hundreds of thousands of cases across the country."
This may not work this time around, at least in California.
According to the Orange County Register:
"Homeowners with little of their own money in their homes may think they will do what strapped homeowners in the ’90s did: turn over the keys to their lender if things get really bad and walk away.
But...financial experts warn that things may be different this time because so many people have refinanced. The difference is the recourse loan. In California, refinanced loans, second trust deeds and home equity lines of credit are generally considered recourse loans. In these cases, a lender can file suit and go after almost any of the borrower’s assets once they obtain a court judgment. "They can literally go after everything you have,"...
"
9:39 PM
Buce and Raymond do raise a very important point. In many states, the laws now hold homeowners personally responsible for their mortgage debt, if the resale of the home is not sufficient to pay it off. In these cases, just walking away and sticking the mortgage holder is not an option. (My guess is that most borrowers who live in states where the debtor is held personally liable for mortgage debt, beyond losing their home, are not aware of this fact.)
With the new bankrutpcy law in place, the collapse of the housing bubble could get really ugly.
11:41 PM
Dean,
The possible consequences of a debtor default may now be so large that the politicians will smell opportunity and move to create a bailout. Since I expect it to happen, here are my suggestions for any bailout:
1) All bailout monies are taxable.
2) Bailout only after all other assets are liquidated.
3) All bailouts must be repaid.
4) If a bailout is repaid at less than market rate, the difference is taxable.
... and most important ...
5) Any bailout dollars not repaid at market rate are subtracted from the debtor's lifetime social security earnings. This will reduce the govt's future obligations to that individual.
9:57 AM
Re deficiency liability, Raymond Nize raises an important point, but it is more complicated than that.
In Calif, there is no right to a deficiency on purchase-money real estate--i.e., the loan you take to buy the home. Refis are not purchase money so the purchase money protection does not apply.
But there's an entirely different rule that may come into play. It turns on the method of liquidation. The lender has two choices: he can go through a judicial foreclosure, or he can just hold a "private sale."
"Private sale" is cheaper and easier. The tradeoff is that if you go private sale, you lose your right to a deficiency.
Up to now, the costs of judicial foreclosure have been (relatively speaking) so formidable that nobody bothers with it: everybody goes judicial foreclosure and waives the deficiency.
Of course everything is relative. If those deficiencies start looking big enough, we might have a lot of lenders deciding that they are willing to suck it in and assume the burden of a judicial forelcosure.
12:34 PM
Afterthought re Calif deficiency claims: the OC register says:
"They can literally go after everything you have."
Not true. Against the deficiency claim you do have a right to assert statutory exemptions. Exemptions are a complicated patchwork and in plenty of cases, they are pretty cheesy. But exemption protection for pension funds is actually pretty good.
12:37 PM
Not all loans jump 2% in the adjustment period. Many of the jumbo 3/1 loans from that same period are susceptible to a 6% increase after 3 years.
That may change the math a bit.
2:52 PM
While they may potentially jump 6%, most of them are currently jumping to around 6.5%, and very few people got a loan below about 3.5%.
Still very painful, but fortionately rates aren't at 9.5-12% (yet).
5:34 PM
RE: CA deficiency judgments.
That OC Register article was misinformation of the 1st degree. Great story. Bad facts. I read it and cringed.
True, there is no deficiency allowed on a purchase money first trust deed in CA. The key is what constitutes a purchase money 1st trust deed. Certain refi transactions, however, do still qualify as purchase money firsts. But, that caselaw is pretty dated - and that's because the law on this in CA really isn't very active given the below.
The purchase money issue is a total red herring. There are no deficiency judgments in CA unless the lender does a judicial foreclosure. Simple as that - if the lender wants a deficiency judgment, they must do a judicial foreclosure.
But, no one - and I do mean no one - does judicial foreclosures out here. They are maybe 1 out of every 1,000 foreclosures, if that. The reasons for this are very simple:
1. Money. Judicial foreclosures are a lawsuit - which means a lawyer, retained by the hour. They will cost, at minimum, $5,000 - usually closer to $10,000. Non-judicial foreclosures are done by private trustee companies (i.e. non-lawyers), and are done for a flat fee (I think $800 in CA, depending on whose flat fee schedule you're using).
2. Time. A non-judicial foreclosure can be done in around 120 days in CA. Judicial foreclosures can take well over a year, and if contested (and, it will be), will usually run closer to two years. Remember, that's two years with the borrower making no payments, and the lender probably having to pick up such things as taxes and insurance to protect its interest in the property.
3. One year right of redemption. A judicial foreclosure carries a one year right of redemption in CA (i.e. the borrower can redeem the debt for the amount owed at any time for up to a year, and get their house back - well, with certain limitations, but I won't go there). Non-judicial foreclosures carry no redemption period at all. During that one year redemption period the lender again gets the joy of paying property taxes, hazard insurance, HOA dues, and all those other goodies - of course, it can't sell the property until that year is up and the borrower does not redeem. Well, I suppose the lender could, but think about it practically. What's the value of a home to a buyer when the buyer could end up with air at any time prior to the 1 year redemption period expiring? Not much.
Put all that together with the fact that you'd probabl still have to hire a lawyer to actually collect on your deficiency judgment, and voila - the fact is no one does, has really ever done, and will ever do, judicial foreclosures in CA. And, without that, there will be no deficiency judgment.
Bottom line: Borrowers walked in the 1980s and 1990s out here, and will again. The overseas investors will be holding the bags.
(Note, however, this does not mean borrowers will walk from any unpaid HELOC debts remaining after the foreclosure. True 2nd Trust Deeds - yes. HELOCS - no.)
12:06 AM
In Ohio deficiency judgments are only enforceable for two year.
11:04 AM
It's good you reveal these facts about mortgages. Very often people misunderstand make wrong expectations for future interest rates: if they think interest rates are very low and are likely to rise, thry should lock them in with a fixed rate, while if they think they are likely to fall in the future then an adjustable rate mortgages makes more sense. But people really should be very careful in this question, especially when they are choosing bad credit mortgage, which has higher interest rate and it will be more difficult to repay it.
9:34 AM
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