Author Archives: David Reiss

What in the World Is a Lis Pendens?

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photo by Bjoertvedt

MoneyTips.com (via NBC news affiliate NewsWest 9) quoted me in Should I Worry About A Lis Pendens in A Title Report? It opens,

Is there anyone this side of a Supreme Court Justice who hasn’t signed off on a document without reading or understanding every single word and Latin phrase? When it comes to buying a house, it pays to know the phrase “lis pendens”.

A lis pendens is the Latin term for a Notice of Pendency of Action. It means that a lawsuit is pending against the title of a property. The lis pendens is a public notice letting buyers know there is a dispute over the ownership of the property. It is filed in the county clerk’s office wherever the title of the actual property is listed.

Anyone willing to purchase property under a lis pendens is subject to the outcome of the lawsuit. This is why you should be worried if you discover a lis pendens on a title report, says David Reiss, a former private practice real estate attorney who is now the Academic Program Director at the Center for Urban Business Entrepreneurship (CUBE) at Brooklyn Law School.

“Depending on the underlying action that is the subject of the lis pendens, ownership of the property might be at issue. If one of the parties of the underlying litigation wins, they may own the property,” Reiss explains. And if they own it, that means you don’t.

For buyers, a lis pendens should throw up many red flags. Lenders are usually unwilling to finance a mortgage until the lis pendens has been removed from the title. In addition, while a property can still be sold while there is a lis pendens, title companies will not insure the property, and that alone should be a deterrent to purchasing.

A lis pendens can be placed on a property for a variety of reasons. It could be due to divorce proceedings, an inheritance issue over a property held in estate, taxes owed to the IRS, or the property could be about to go into foreclosure. There could even be criminal fines owed.

“A lis pendens can be time-consuming and aggravating at best,” says Denise Supplee, a realtor and Co-Founder and Director of Operations at Spark Rental. “That being said, it is possible to move beyond these. Depending on state laws, there are steps that can be taken to have these attached lawsuits removed. However, there may be a cost of an attorney and definitely a loss of time.”

Because a lis pendens can only be about the property itself and not about the parties who have an interest in the property, there are two ways the lis pendens can be expunged, says Reiss. The first is “if the lis pendens really has nothing to do with the property and should never have been there in the first place, you can fight it,” because a lis pendens is a powerful tool that is often subject to abuse. The second is if the parties involved ultimately resolve the lawsuit.

Challenges for Modern Housing Markets

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Professor Barnes

Professor Boyack

 

 

 

 

 

 

 

 

 

I will be speaking in a free American Bar Association webinar tomorrow, Challenges for Modern Housing Markets:

Our current housing system is not sustainable in terms of the market, residential tenure, cost stability, and neighborhood inequality. Our panelists will discuss some key areas in which housing must be stabilized in order to strengthen our economy and society. Our panelists will address ways to lessen the volatility of housing prices and home mortgage lending, the importance of and ways to improve stability of residency, ways to improve the sustainability of affordable housing, and recent lawsuits that have reframed the problem of distressed and inequitable communities.

The other speakers are

The program will be moderated by Professor Wilson R. Freyermuth, University of Missouri School of Law.

My remarks will be drawn in part from my work on the Federal Housing Administration.

The webinar is free and open to all.  It will take place Tuesday, December 12, 2017 at 12:30 p.m. Eastern/11:30 a.m. Central/9:30 a.m. Pacific.

Register for the webinar at https://ambar.org/ProfessorsCorner.

The webinar is sponsored by the ABA Real Property, Trust and Estate Law Section Legal Education and Uniform Laws Group. It is part of a series of webinars that features a panel of law professors who address topics of interest to practitioners of real estate and trusts/estates.

 

Single-Family Rental Securitizations Here To Stay?

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photo by David McBee

Kroll Bond Rating Agency has released Single-Borrower SFR: Comprehensive Surveillance Report. It has lots of interesting tidbits about this new real estate finance sector (it has only been four years since its first securitization):

  • Six single-family rental operators own nearly 180,000 homes. (3)
  • Of the 33 SFR securitizations issued to date ($19.2 billion), nine deals ($4.6 billion) have been repaid in full without any interest shortfalls or principal losses. (4)
  • the Federal Housing Finance Agency (FHFA), which regulates Freddie Mac and Fannie Mae, announced that it had authorized Freddie Mac to enter the single-family rental sector on a limited basis to provide up to $1.0 billion of financing or loan guarantees. Freddie Mac reportedly is expected to focus on small-scale and midsize landlords that invest in SFR properties that the GSE considers to be affordable rental housing, not institutional issuers such as Invitation Homes, which owns and manages nearly 50,000 SFR properties. (5)
  • The largest five exposures account for 39.4% of the properties and include Atlanta (11,822 homes; 13.0%), which represents the CBSA with the greatest number of properties, followed by Tampa (6,374; 7.0%), Dallas (6,199; 6.8%), Phoenix (5,780; 6.3%), and Charlotte (5,733; 6.3%). (6)
  • The highest home price appreciation since issuance was observed in CAH 2014-1, at 30.7%. On average, collateral homes included in the outstanding transactions issued during 2014, 2015, 2016 and 2017 have appreciated in value by 25.0%, 18.0%, 8.7% and 3.2%, respectively. It is worth noting that the rate of the home price appreciation on a national basis and in the regions where the underlying homes are located has slowed in recent years. (7)
  • Since issuance, the underlying collateral has generally exhibited positive operating performance with the exception of expenses. Contractual rental rates have continued to increase, vacancy and tenant retention rates have remained relatively stable, and delinquency rates have remained low. Servicer reported operating expenses, however, continue to be higher than the issuer underwritten figures at securitization. (7)

Analysts did not believe that single-family rentals could be done at scale before the financial crisis. But investors were able to sweep up tens of thousands of homes on the cheap during the foreclosure crisis and the finances made a lot of sense. It will be interesting to see how this industry matures with home prices appreciating and expenses rising. I am not making any predictions, but I wonder when it will stop making sense for SFR operators to keep buying new homes.

Preparing for the Next Housing Tsunami

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Greg Kaplan et al. posted The Housing Boom and Bust: Model Meets Evidence to SSRN. The abstract reads,

We build a model of the U.S. economy with multiple aggregate shocks (income, housing finance conditions, and beliefs about future housing demand) that generate fluctuations in equilibrium house prices. Through a series of counterfactual experiments, we study the housing boom and bust around the Great Recession and obtain three main results. First, we find that the main driver of movements in house prices and rents was a shift in beliefs. Shifts in credit conditions do not move house prices but are important for the dynamics of home ownership, leverage, and foreclosures. The role of housing rental markets and long-term mortgages in alleviating credit constraints is central to these findings. Second, our model suggests that the boom-bust in house prices explains half of the corresponding swings in non-durable expenditures and that the transmission mechanism is a wealth effect through household balance sheets. Third, we find that a large-scale debt forgiveness program would have done little to temper the collapse of house prices and expenditures, but would have dramatically reduced foreclosures and induced a small, but persistent, increase in consumption during the recovery.

I think the last sentence is worth pondering a bit:  “a large-scale debt forgiveness program would have done little to temper the collapse of house prices and expenditures, but would have dramatically reduced foreclosures and induced a small, but persistent, increase in consumption during the recovery.” During the Great Depression, the federal government took steps that relieved the debt burden of over a million households by extending the terms of their mortgages and lowering the interest rates on them.

While this was no panacea, it did let millions stay in their homes during a period of great financial stress. The steps taken to help struggling homeowners during the recent Great Recession were much more timid than those taken during the Great Depression. This paper adds to a body of literature that suggests we should not be so timid the next time we are hit by an economic tsunami.

Taking Down Barriers to Homeownership

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Laurie Goodman and her colleagues at the Urban Institute’s Housing Finance Policy Center have released a report, Barriers to Accessing Homeownership Down Payment, Credit, and Affordability. The Executive Summary states that

Saving for a down payment is a considerable barrier to homeownership. With rising home prices, rising interest rates, and tight lending standards, the path to homeownership has become more challenging, especially for low-to-median-income borrowers and first-time homebuyers. Yet most potential homebuyers are largely unaware that there are low–down payment and no–down payment assistance programs available at the local, state, and federal levels to help eligible borrowers secure an appropriate down payment. This report provides charts and commentary to articulate the challenges families face saving for down payments as well as the options available to help them. This report is accompanied by an interactive map.

Barrier 1. Down Payments

• Consumers often think they need to put more down than lenders actually require. Survey results show that 53 percent of renters cite saving for a down payment as an obstacle to homeownership. Eighty percent of consumers either are unaware of how much lenders require for a down payment or believe all lenders require a down payment above 5 percent. Fifteen percent believe lenders require a 20 percent down payment, and 30 percent believe lenders expect a 20 percent down payment.

• Contrary to consumer perceptions, borrowers are not actually putting down 20 percent. The national median loan-to-value (LTV) ratio is 93 percent. The Federal Housing Administration (FHA) and US Department of Veterans Affairs (VA) typically offer lower down payment options than the government-sponsored enterprises (GSEs), from 0 to 3.5 percent. As the share of FHA and VA lending has increased considerably in the post-crisis period (since 2008), the median LTV ratio has increased as well.

*    *    *

Barrier 2. The Credit Box

• Access to homeownership is not limited by down payments alone. Credit access is tight by historical standards. Accordingly, the median credit score of new purchase mortgage originations has increased considerably in the post-crisis period. The median credit score for purchase mortgages is 779, compared with the pre-crisis median of 692. Credit scores of FHA borrowers have historically been lower; the current median credit score is 671.

*    *    *

Barrier 3. Affordability

• Because of home price appreciation in the past five years, national home price affordability has declined. Low interest rates have aided affordability. If interest rates reach 4.75 percent, national affordability will return to historical average affordability.

*    *    *

Access to Down Payment Assistance

• Low–down payment mortgages and other down payment assistance programs provide grants or loans to potential homeowners all over the country. There are 2,144 active programs across the country, and 1,295 agencies and housing finance agencies offering them at the local, state, and national levels. One of the major challenges of the offerings in each state is that they are not standard, eligibility requirements vary, and not all lenders offer the programs. Pricing for the programs also vary, so counseling and consumer education about the programs is necessary to ensure consumers understand how the program works and any additional costs that may be incurred.

*    *    *

• Eligibility for down payment assistance programs is determined by such factors as loan amount, homebuyer status, borrower income, and family size. Assistance is available for many loan types including conventional, FHA, VA, and US Department of Agriculture (USDA) loans. The share of people eligible for assistance in select MSAs ranges from 30 to 52 percent, and the eligible borrowers could qualify for 3 to 12 programs with down payment assistance ranging from $2,000 to more than $30,000.

Because of the tight credit environment, many borrowers have been shut out of the market and have not been able to take advantage of low interest rates and affordable home prices. As the credit box opens, educating consumers about low–down payment mortgages and down payment assistance is critical to ensuring homeownership is available to more families. (V-VI, emphasis removed)

Buying after Bankruptcy

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Realtor.com quoted me in Buying a House After Bankruptcy? How Long to Wait and What to Do. It opens,

Buying a house after bankruptcy may sound like an impossible feat. Blame it on all those Monopoly games, but bankruptcy has a very bad rap, painting the filer as someone who should never be loaned money. The reality is that of the 800,000 Americans who file for bankruptcy every year, most are well-intentioned, responsible people to whom life threw a curveball that made them struggle to pay off past debts.

Sometimes filing for bankruptcy is the only way out of a crushing financial situation, and taking this step can really help these cash-strapped individuals get back on their feet. And yes, many go on to eventually buy a home. Only how?

Being aware of what a lender expects post-bankruptcy will help you navigate the mortgage application process efficiently and effectively. Here are the steps on buying a house after bankruptcy, and the top things you need to know.

Types of bankruptcy: The best and the worst

There are two ways to file for bankruptcy: Chapter 7 and Chapter 13. With Chapter 7, filers are typically released from their obligation to pay back unsecured debt—think credit cards, medical bills, or loans extended without collateral. Chapter 13 filers have to pay back their debt, only it’s reorganized to come up with a new repayment schedule that makes monthly payments more affordable.

Since Chapter 13 filers are still paying back their debts, mortgage lenders generally look more favorably on these consumers than those who file for Chapter 7, says David Carey, vice president and residential lending manager at New York’s Tompkins Mahopac Bank.

How long after bankruptcy should you wait before buying a house?

Most people applying for a loan will need to wait two years after bankruptcy before lenders will consider their application. That said, it could be up to a four-year ban, depending on the individual and type of loan. This is because lenders have different “seasoning” requirements, which is a specified amount of time that needs to pass.

Fannie Mae, for example, has a minimum two-year ban on borrowers who have filed for bankruptcy, says David Reiss, professor of law and academic programs director at the Center for Urban Business Entrepreneurship at Brooklyn Law School. The FHA, on the other hand, has a minimum one-year ban in place after a bankruptcy. The time is measured starting from the date of discharge or dismissal of the bankruptcy action. Generally the more time that passes, the less risky a once-bankrupt borrower looks in the eyes of a lender.

Net Losses in FHA’s Annual Management Report

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The Federal Housing Administration released its Annual Management Report for Fiscal Year 2017. As always, it is good to review what the FHA has accomplished and the challenges it faces:

FHA is the largest provider of mortgage insurance in the world. Since its inception, FHA has insured over 47.5 million single family homes and 48 thousand multifamily and healthcare project mortgages. Through its insurance programs, FHA supports the homeownership goals of qualified individuals and families, and enables multifamily and hospital production that meets the needs of communities across the country. Over the course of its history, FHA has been a critical player in the U.S. housing market, including serving millions of first-time and low-to-moderate income homebuyers; stepping in as a countercyclical backstop during times of economic stress; and providing relief to borrowers affected by disasters. In addition, through housing counseling programs, FHA also offers assistance to individuals and families to help them make independent financial decisions that can lead to greater long-term financial success. (5)

Some of the data highlights from the report include the following:

  • The FHA has over $1.38 trillion in insurance-in-force
  • In fiscal year 2017, FHA endorsed 1,246,440 single family forward mortgages totaling $251 billion.
  • 82.2 percent of FHA purchase-loan endorsements were for first-time homebuyers.
  • 33.7 percent of all borrowers (both home purchase and refinance) were minority borrowers.
  • The number of FHA forward mortgage borrowers in fiscal year 2017 classified as low or moderate-income households represented 56.4 percent of all such households purchasing or refinancing their homes nationwide.
  • Home Equity Conversion Mortgage (also known as reverse mortgage) endorsements increased from 48,868 to 55,291.

I was confused by the following passage and would love to hear from FHA nerds who can explain it to me:

In fiscal year 2017, FHA reported a net loss. The most important facet of FHA’s cost and revenue activity is the treatment of loan guarantee subsidy cost. Loan guarantee subsidy cost is the estimated long-term cost to FHA of a loan guarantee calculated on a net present value basis, excluding administrative costs. The cost of a loan guarantee is the net present value of the estimated cash flows paid by FHA to cover claims, interest subsidies, and other requirements as well as payments made to FHA, including premiums, penalties, and recoveries also included in the calculation.

FHA had a net program loss in fiscal year 2017. Single Family and HECM Gross Costs with the Public increased by $17,845 million and $22,213 million, respectively. The program cost difference is primarily due to the increases in the re-estimates and interest expenses relating to Single Family and HECM. Re-estimates are the recalculation of subsidy costs and are performed annually. The increases in re-estimate and interest expenses were the primary drivers for the over-all program cost increase in fiscal year 2017, compared to fiscal year 2016. (49)

I am not sure how serious of a problem this is and have not heard about it from any news outlets. If any readers can shed some light on it, it would be much appreciated.