Closings

Notary Or “Witness” Closings Won’t Be Coming To Massachusetts Yet: Attorneys Win Major Legal Victory

by Rich Vetstein on June 22, 2010

in Closings, Massachusetts Real Estate Law

In a huge victory for Massachusetts real estate closing attorneys, a unanimous First Circuit federal appeals court has overturned a controversial lower court ruling which had opened the door for non-attorneys to conduct controversial “witness” or “notary” real estate closings in Massachusetts. The lower court ruling threatened to overturn long-standing statewide practice under which attorneys conduct real estate closings, and open the door for the influx of “notary” or “witness” closings where buyers and sellers receive no legal guidance during the closing.

The First Circuit decision is found here. The lower court ruling is here.

Massachusetts Courts Have Final Say

The First Circuit ruled that the Massachusetts state Supreme Judicial Court has the final say on whether attorneys must conduct real estate closings under rules governing the unauthorized practice of law. The case will now move to the SJC, which may be more hospitable to the real estate attorneys’ position. The federal appeals court also vacated a $900,000 attorney fee award against REBA.

REBA’s Position

REBA and its members believe that non-attorney closings only hurt the consumer. In recent years, the real estate closing process has become as more complicated than ever. A myriad of Fannie Mae guidelines, disclosure requirements, and RESPA rules require the parties to review, understand and execute dozens of dense legal forms and disclosures. In an attorney conducted closing, a trained lawyer will carefully review each document with the parties and answer any questions which may arise. (Click here for our post on everything a closing attorney does). In “witness only” or “notary” closings, however, the non-attorneys who conduct the closings do nothing more than witness the execution of the closing documents, and cannot provide any legal guidance.

“The purchase of a home is the most important investment most families will ever make,” REBA President Thomas Moriarty has said. “Home buyers and sellers, as well as lenders, rely on the training, professionalism, and integrity of attorneys to ensure that their property rights are protected. The reason that only lawyers – who are those trained in the law – can give legal advice is to protect the public,” Moriarty said. “This requirement gives the buyer someone to hold accountable. These multiple levels of protection permit buyers, sellers and lenders to confidently and reliably close loans worth hundreds of thousands of dollars every day.”

The Cost Factor: Debunking The Myth

The appeals court also dismissed the closing company’s claim that requiring attorneys to conduct closings was an unconstitutional restraint on trade which would result in higher closing costs. As REBA President Tom Moriarty notes, and I can personally attest, the typical attorney’s charges in connection with a closing have steadily fallen as a result of increased efficiency and competition. This is not a situation where there is one company that controls the market. There are thousands of attorneys throughout the Commonwealth who provide conveyancing and settlement services, and the competition among them is fierce. The typical closing fees are similar or less than those charged by the closing companies.

My Take

As a real estate attorney who has worked tirelessly to build my own practice, I have a rather huge professional stake interest in this case. Despite this, I cannot see how, for the same cost, borrowers and home buyers would benefit from having a non-attorney drone sit at a closing and simply notarize the dozens of complicated legal forms and refuse to answer any legal questions which may arise.  This is especially the case where the legal landscape keeps getting more and more complex. Further, a non-attorney notary cannot resolve many last minute closing issues which often arise, such as title issues, hold-backs, and indemnifications. Closings will become more inefficient and mistake prone.

This is, after all, the largest single purchase in most people’s lives. It’s not the time for do it yourself (DIY).

For more information about the unauthorized practice of law issue, please visit the REBA website.

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Home Buyers, Don’t Go To Home Depot Before Closing! Lenders Pulling Second Credit Reports Under New Fannie Mae Loan Quality Initiative (LQI)

by Rich Vetstein on May 25, 2010

in Closings, Fannie Mae, Mortgages

Fannie Mae’s new Loan Quality Initiative (LQI) mandates become effective on June 1, 2010, and these rules are really taking the mortgage industry by surprise. The new rules could derail some closings for buyers who rack up purchases or even take out new store credit cards before their home sales have closed. The Wall Street Journal online recently wrote about it here.

The June 1 changes are part of a new effort by mortgage giant Fannie Mae to cut down on slipshod underwriting by lenders and frauds by borrowers. Fannie’s so-called “loan quality initiative” will result in lenders pulling last minute credit reports and additional verifications of borrower information. These last minute credit checks could result in a closing delay, pricing adjustment, or, worst, loan approval cancellation.

  • The last-minute credit report will be designed to find out whether a borrower has obtained — or even shopped for — new debt between the date of the loan application and the closing. If borrowers have made applications for credit of any type — for furnishings and appliances for the new house, a car, landscaping, a home equity line, a new credit card — the closing could be put on hold pending additional research by the lender. Our advice: save the trip to Home Depot, Restoration Hardware and Crate & Barrel until after the closing.
  • If you’ve taken out new loans that are sizable enough to affect the debt-to-income ratio calculations used in your original mortgage approval, the deal could fall through. The added debt load could render you ineligible for the mortgage because you suddenly appear unable to handle the payments without a strain on your household budget.
  • Many lenders already pull second credit reports right before the closing, but the Fannie Mae mandate will likely result in a markedly increased number of lenders pulling second credit reports and performing other last minute verifications.
  • Borrowers should be counseled to avoid obtaining or applying for new credit, or even increasing utilization of existing credit, before their closings. Lenders may view this added debt as a strain on a household budget sufficient enough to make a once qualified borrower now appear unable to handle the payments. If these new loans are sizable enough to affect the DTI (debt-to-income) ratio calculations used in the original mortgage approval, then the deal could fall through.
  • Under the terms of the standard purchase and sale agreement, a borrower who loses his financing  just days before the closing due to LQI issues could potentially forfeit his deposit. Buyer’s attorneys should think about how to address this in their P&S riders.
  • The mortgage and real estate industries are still trying to adjust to the dynamic changes in the economy, making it more important than ever to seek out professional, knowledgeable mortgage brokers and to seek counsel from experienced attorneys specializing in real estate law. In the end, the best advice may just be avoidance; borrowers will be best off not obtaining any additional credit in the time between the application for a mortgage and the date of closing.

Thanks to my colleague, Patrick Maddigan, Esq., for assistance with this post.

Helpful Links

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Pre-Closing Walk-Through Tips & Strategies

by Rich Vetstein on May 12, 2010

in Closings, Condominium Law, Massachusetts Real Estate Law, Purchase and Sale Agreements, Realtors

My Boston.com colleague, buyer’s agent Rona Fischman, has a great post today on walk-throughs, or pre-closing inspections. I’ve re-posted it here, along with my commentary (in italics) and my own tips.

The walk through is the last thing that the buyer does before closing. The buyers, plus the real estate agents, walk through the empty house to check that it is in the same condition as inspection day — except that the seller has moved out. I advise clients to do it immediately before closing. This gives the seller the most time to move out properly.  Rich’s Note: In the purchase and sale agreement, we always require that the seller leave the property in “broom clean” condition, free of all personal property and debris.

What can go wrong?

Planning: Sellers often underestimate the time and energy required to get everything out of the house. Then, as the deadline arrives, they get sloppy. The result is that the seller leaves a mess behind. Commonly it’s something like a pile of debris left in the basement, or some piece of furniture falls down the stairs and makes a hole in the plaster.

Here are some unusual ones:

1. A seller who was a landscaper had some plants that she was fond of. She was entitled to dig them up. But, she was in such a hurry that she left the yard looking like a crazed raccoon had attacked it. We brought pictures to closing. She came back and made it nice for the buyers.
2. A seller who coached a hockey team left the team equipment in a window seat. Although it was heavy, we hauled it to closing.
3. A seller who was cleaning up put his wallet in the kitchen cabinet. We found it on walk through and brought it to closing (the listing agent was not at walk through.)  Rich’s Note: The more serious situations are when sellers leave hazardous materials behind, such as old paint cans, chemicals, asbestos covered materials, or old insulation–often without the buyer even knowing they were in existence. This is often not discovered until after closing, and the best protection is to draft a contract provision where the seller represents and warrants there are no such materials, so the buyer can pursue the seller later.

Sometimes the problem involves the way the house was working. Here are a few examples:

1. Easy: Old-style washing machine spigots often drip. A homeowner just doesn’t know it until they disconnect the machines.
2. Hard: Once, I went to a walk through where there was a washing machine in the kitchen. The kitchen sink had no water at walk through. We found out why: if we turned on the sink, the laundry hook up ran (they had no shut-off and were on the line with the sink.)
3. Easy: Sometimes drip-leaks start under sinks or downspouts fall off outside.
4. Hard: sometimes a gutter tears off the house or a tree comes down shortly before closing.
5. Only once have I seen heating that failed at walk through. It was a condo that had just gotten a new boiler. It was on warranty. The company that installed it fixed it that afternoon.

What is the remedy for a problem at walk through? Whether it is easy or hard, there is usually a solution that money can buy. Frequently, the attorneys write out a quick agreement to hold some of the seller’s money to pay for correcting whatever the problem is. Rich’s Note: This is called a “hold-back agreement” where a portion of the seller’s proceeds are held in escrow until the problem is fixed. Sometimes the seller than fixes it and gets the funds released. Sometimes the buyer fixes it and gives the seller the bill and any remaining money. It depends on what it is and who it is.

Rich’s walk-through tips:

  • Do not waive the walk-through! You snooze, you lose, if there are subsequent problems.
  • Always go with your agent.
  • Bring your camera, Iphone, etc. to document any issues
  • Turn on/off all major appliances to see if they are working properly
  • Check under decks–sellers often leave nasty stuff behind
  • Scour the basement, check for water seepage and stuff left behind
  • Check repairs if the sellers agreed to make any
  • Turn on and off every light fixture
  • Run water & look under sinks for leaks
  • Check garage door openers
  • Have broker test alarm system
  • Open and close all doors
  • Flush toilets
  • Inspect ceilings, wall and floors
  • Run garbage disposal and exhaust fans
  • Test heating and air conditioning (even if off season)

After The Walk-Through

When the buyer arrives at the closing, the first thing I always ask is how did the walk-through go? I can usually tell how it went by whether the buyers (and their agents) are smiling or frowning when entering the closing room. The good thing is that no matter how poorly it went, the attorneys are almost always able to draft a hold-back agreement or some other solution to enable the transaction to close as scheduled. This is just another reasons why buyers and sellers should have experienced real estate counsel at the closing.

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Do Buyers Need A Signed Offer Or Purchase And Sale Agreement For The April 30th Tax Credit Deadline?

by Rich Vetstein on April 26, 2010

in Closings, Massachusetts Real Estate Law, Offer To Purchase, Purchase and Sale Agreements, Tax Credit

As we head towards a major deadline for the popular $8,000 home buyer tax credit, we’ve been asked a number of times by real estate agents and mortgage professionals whether buyers need a signed offer to purchase or signed purchase and sale agreement by the upcoming April 30th tax credit deadline. We’re advising that buyers need a signed purchase and sale agreement by the deadline, as explained below.

In order to qualify for the $8,000 federal home buyer tax credit, the IRS states that buyers need to sign a “binding contract” for the sale by April 30, 2010.

In Massachusetts, there is a two-part system for real estate contracts. The parties first sign an Offer To Purchase, then about 2 weeks later, they sign a more comprehensive Purchase and Sale Agreement. Under the Massachusetts case of McCarthy v. Tobin, a signed standard form Greater Boston Real Estate Board Offer To Purchase may be considered a valid and binding contract even though a purchase and sale agreement must be signed at a later date. However each transaction/offer is unique and may have contingencies or future considerations which take it out of this case law rule. And remember, most of these types of cases are litigated in the courts, so it’s really fact-specific.

Under IRS rules, to claim the $8,000 credit, the buyer will have to attach to their tax return a copy of the “binding contract” showing an execution date on or before April 30, 2010. We just don’t know whether the IRS will interpret a signed Offer To Purchase as a “binding contract.” There is no question a signed Purchase and Sale Agreement is sufficient. However, there’s a risk that the IRS could reject reliance on a signed Offer to Purchase or it could delay qualification for the credit. This is a new rule so we just don’t know how the IRS will interpret it, and that raises a risk.

Accordingly, the prudent approach is to have all buyers claiming the credit sign a purchase and sale agreement by April 30th.  That is what we are advising our buyers, their Realtors and loan officers. We are also now inserting a special tax credit provision in purchase and sale agreements protecting the buyer’s eligibility for the credit.

Of course, our office is well-equipped to get a Purchase and Sale Agreement completed and signed by the Friday deadline. We’ll be working around the clock this week for our buyers and sellers! Contact us at 508-620-5352 or by email.

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TitleHub Has Arrived: Stay Informed And Stay Connected To Your Real Estate Transaction

by Rich Vetstein on March 28, 2010

in Blogging, Closings, Electronic Closings, Massachusetts Real Estate Law, Realtors

After months in the making, I am very pleased to announce the roll-out of TitleHub Closing Services, LLC, a cutting-edge closing settlement service that uniquely provides a full platform of legal and technology-based services. TitleHub’s mission is to transform the convoluted real estate closing process into an easy, customer-focused and technologically enhanced experience. In collaboration with my colleague Marc Canner, Esq., we have created a company that we believe will serve as the model for the next generation of residential real estate title and closing services.

Buyers, sellers, realtor and lenders will “stay informed” and “stay connected” to their transactions through:

  • Our innovative, content-packed website (www.titlehub.com) which serves as a great informational resource.
  • Our “E-Closings” system. This is a secure on-line document management system that allows borrowers and real estate professionals unlimited real-time access to obtain status updates of their deals and the ability to upload and download key transactional documents (recorded condominium documents, executed Purchase and Sale Agreement, Good Faith Estimate, HUD-1 Settlement Statement, etc). Click here for more information.
  • Exclusive partnership with the Massachusetts Real Estate Law Blog.
  • Social media interaction. Check us out on Facebook, Twitter, Linked In and Active Rain.
  • Seminar Series; We offer topical seminars to realtors and lenders to help them stay current with the complicated real estate legal landscape as well as seminars to learn new marketing, blogging, and social media techniques.
  • Paperless Solutions. We do have the ability to electronically record deeds and mortgages at registry of deeds which offer the service. In the future, we hope to be at the forefront of true e-closing paperless transactions, once there is broader lender and regulatory acceptance.

If you are a realtor or mortgage professional interested in TitleHub’s platform, please contact us at [email protected], and we’ll give you a demonstration.

The TitleHub Leadership Team
Marc E. Canner, Esq., President/CEO
Richard D. Vetstein, Esq., Vice President and Director of Marketing
Patrick T. Maddigan, Esq., Director of Operations & Business Development

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What Does A Massachusetts Real Estate Closing Attorney Do Exactly?

by Rich Vetstein on March 3, 2010

in Closings, Massachusetts Real Estate Law, Purchase and Sale Agreements, RESPA

Signing or not signing?A lot more than you might think. Plus, Massachusetts law now requires attorneys to preside over residential real estate closings.

Many buyers and sellers often wonder what a real estate closing attorney does other than conduct the closing. Well, quite a bit of work actually.

The closing attorney acts as the “quarterback” of the closing process, performing many time consuming tasks preparing a transaction from intake to closing. Important note: many borrowers don’t realize that they may request to select their own closing attorney instead of the bank attorney. The new RESPA rules which went into effect on January 1 encourage lenders to allow borrowers to select from a list of attorneys or their own personal attorney. This will most often save you several hundred dollars because you won’t have to hire a separate attorney to review/negotiate the purchase and sale agreement.

Intake/Title Examination

When the title order arrives from the lender, the closing attorney first orders a municipal lien certificate, which verifies the real estate taxes and other municipal charges on the property. Insurance binders and payoffs of mortgages are also ordered.

The closing attorney is responsible for examining the title to the property. For purchases, the title is researched going back 50 years. The closing attorney carefully reviews the title examination to ensure there are no title defects; if there are any issues, the attorney will work with all parties to resolve them. Some title defects are extremely difficult to resolve. (By law, the closing attorney must provide new home buyers with a certification of title).

Title Insurance

The closing attorney also coordinates the issuance of title insurance to the lender and the new home buyer. I always recommend that buyers obtain their own title insurance policies because even with the most accurate title examination, there can be hidden title defects that could derail a later sale or refinance. Look no further than the Land Court Ibanez foreclosure mess for what can happen when you don’t get an owner’s title policy.

The Closing

As the closing day approaches, the closing attorney will coordinate with the lender for the preparation and delivery of numerous documents to be signed at closing, including the mortgage, promissory note, truth in lender disclosures, and most importantly, the HUD-1 Settlement Statement. The closing attorney will also coordinate with the seller to receive the deed to the property, final utility bills, smoke detector/CO2 certificates and condominium 6(d) certificates. As outlined in the Settlement Statement, the closing attorney is responsible for handling a number of issues at closing:

  • Payoff and discharge of mortgages
  • Payment and allocation of real estate taxes and utilities (water, oil, etc.)
  • Payment of realtor commissions
  • Disclosure and payment of lender fees and closing costs
  • Funding of mortgage escrow account
  • Payment of transfer taxes and recording fees
  • Payment of pre-paid interest
  • Distribution of sale proceeds
  • Title V septic certification and condominium 6(d) certification

The closing attorney then conducts the closing. He will explain the numerous loan and closing documents signed by buyer and seller, collect and distribute all funds, and otherwise ensure that the closing is properly conducted.

Post Closing

After the closing, the attorney processes the loan funding, performs a title rundown to ensure there are no changes in the title, then records the deed, mortgage and other recordable instruments. The attorney will also ensure that all paid off mortgages and liens are discharged. Title insurance policies are issues several weeks after the closing.

Seller Attorney Responsibilities

Customarily, a seller’s attorney in Massachusetts has the following responsibilities:

  • Generate the first draft of the purchase and sale agreement
  • Order mortgage payoff statements
  • Assistance with any title clearing efforts such as obtaining old mortgage discharges, death certificates
  • Draft the quitclaim deed and power of attorney
  • Prepare trustee’s certificate
  • Obtain condominium 6d certificate, smoke detector certification, final water/sewer readings (Realtor typically will obtain these as well)
  • Representation of seller at closing

We are experienced Massachusetts real estate closing attorneys. Please contact us if you need legal assistance with your purchase, sale or refinance transaction.

 

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The New Good Faith Estimate (GFE): Some Glaring Omissions

by Rich Vetstein on February 2, 2010

in Closings, HUD, Massachusetts Real Estate Law, Mortgages, RESPA

Lenders have been using the new Good Faith Estimate for a little over one month now. Gauging from the vociferous complaining in the lender blogosphere, it is an understatement to say that many lenders believe HUD really blew it with this new form. One would think that the new 3 page GFE would provide everything a borrower needs to know about what she’ll pay at closing, yet the new GFE inexplicably fails to provide at least 5 critical pieces of information for home buyers:

  • the total monthly mortgage payment (including escrows, taxes and insurance)
  • total cash needed to close
  • escrow amounts for real estate taxes, hazard insurance, and PMI
  • seller paid closing costs
  • Loan-to-value ratio/down payment

The GFE’s failure to provide this essential data about the loan is why one mortgage lender called the new GFE “the single worst government form dumped on the real estate industry.”

Surely, every borrower wants to know their total monthly mortgage payment month and how much cash they’ll need to bring at closing. Borrowers also want to know ahead of time how much the tax and insurance escrows will be since they have to pay several months in advance at the closing. Since the new GFE doesn’t provide this important information, lenders are filling in the gaps with their own custom made loan worksheets.

Some have complained that these worksheets are a work-around the new rules, but lenders have an obligation to provide borrowers with the full financial picture of the loan. The criticism is unfair, in my opinion, if the intent is to fill in the informational gap of what the GFE fails to provide.

The new GFE may be an overall improvement to the hodge-podge of good faith estimates previously used by lenders, but it’s certainly not the Messiah that HUD billed it out to be.

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FHA Tightens Mortgage Requirements: Lending Costs To Rise

by Rich Vetstein on January 26, 2010

in Closings, FHA, HUD, Massachusetts Real Estate Law, Mortgages

I’m happy to welcome guest blogger, Patrick Maddigan, Esq.,the Director of Operations and Business Development at our new entity, TitleHub Closing Services. Pat is writing today on the new FHA lending changes.

On January 20th, the Federal Housing Administration (FHA) announced it would tighten certain lending requirements and guidelines with the purpose of reducing risk and improving its weakening financial health. The changes include:

  • Borrowers must pay an increased upfront mortgage insurance premium (MIP) of  2.25% of the loan amount (increased by 50 basis points from 1.75%). FHA has also requested legislative authority to increase the maximum annual MIP so it can reduce upfront costs for prospective home buyers.
  • For borrowers with poor credit (credit score of below 580), they must make a minimum down payment of 10% (up from 3.5%).
  • Seller credits for closing costs are cut by 50% and cannot exceed 3% of the purchase price.
  • FHA will continue to increase enforcement on FHA-approved lenders, and will publicly report lender performance rankings to improve transparency and accountability.

The formal Mortgagee Letter released by FHA can be found here. FHA has not announced a firm date on which the proposed changes will be effective, though they are expected to go into effect in either spring or summer.

The Rising Tide Of FHA Loans

With the current recessionary economic state, constricting mortgage availability, and general credit crunch, FHA loans have become extremely popular. FHA loans, which feature low down payments, competitive interest rates, and more forgiving credit requirements, have proven the loan of choice for many first time home buyers and those with marginal credit scores. In 2009, approximately $290 billion in FHA loans were issued, up nearly 500% from 2007. Despite the housing downturn and credit crunch, FHA mortgages have continued to grow, thanks in part to incentives like the First Time Home-Buyers Credit. In anticipation of the continued increase in interest and demand for FHA mortgages, HUD is requesting $400 Billion for the expected flood of FHA loan applications in 2010. The dramatic rise in FHA backed loans, however, has caused the steady depletion of FHA reserves, putting the agency at greater risk of financial distress and even collapse. Regulators proposed the changes outlined here as  to ensure its long-term financial integrity while positively impacting the ailing housing market.

Two of the recently announced changes in FHA loans will have a clear effect upon buyers in the more immediate future- the rise in upfront mortgage insurance premiums (UFMIPs) and the FICO/minimum down payment adjustments.

Up-Front Mortgage Insurance Premiums Increased To 2.25%

The first change that will immediately impact borrowers is the FHA’s increase of the required up-front mortgage insurance premium by 50 basis points to 2.25% of the base loan amount. This change is effective beginning April 5, 2010.

FHA requires two types of mortgage insurance premiums (known in the industry as a MIP): an up-front and an annual. The MIP is similar to private mortgage insurance, or PMI, for borrowers investing less than a 20% down payment. The MIP amount is based on a percentage of the remaining debt on the FHA loan, so as the mortgage is paid down, the MIP will decrease. Unlike private mortgage insurance, FHA borrowers are able to finance the MIP into the loan, thereby spreading the cost over many years. The “annual” MIP is termed annual but paid monthly as part of the loan payment.

For a $300,000 loan, the increase in the MIP fee would add approximately $1,447 to the loan amount, not a huge amount, but nothing to sneeze about when financed over a 30 year loan term. 

Minimum FICO Credit Score/10% Down Payment for New Borrowers

New borrowers will now be required to have a minimum FICO credit score of 580 to qualify for FHA’s 3.5% down payment program. Borrowers with a credit score below 580, while still able to qualify for a FHA loan, must now put down at least 10% of the purchase price–an amount that may be prohibitive for many borrowers with poor credit.

Until now, there has been no minimum FICO score requirement imposed by FHA, however some lenders who fund FHA loans have previously imposed their own requirements (often lenders would not work with credit scores under a 620), so the net effect of this change may not be that significant. While this will preclude some of the underserved community the FHA is seeking to help, it will better balance the FHA’s risk levels and still continue to allow borrowers who have historically performed well to access the benefits of an FHA loan.

Patrick Maddigan, Esq.

Impact Of The Changes

The FHA is making an effort to lower its overall risk and improve the financial soundness of its insured loans, which in turn allows for the continued support of home buying in the United States. In doing so the FHA must find a way to keep their insurance fund’s capital ratio returns above the Congressionally mandated 2%, while continuing on their overall mission of aiding borrowers in underserved communities and facilitating the recovery of the housing market

These changes, along with the other FHA reforms (including a reduction in allowable seller concessions and significant changes and oversight for lenders) will have varying effects on borrowers interested in a FHA loan. For borrowers with low credit scores, some of these changes, such as the higher down payment percentage, will significantly affect their ability to buy a home. In the short term, the changes may motivate borrowers to lock into the old FHA guidelines before the new changes become effective.

If you are interested in an FHA loan, click here to Find An FHA Approved Lender In Your Area.

Thanks for the great information Pat! We’ll be seeing more of you around here hopefully.

If you wish to speak with a very knowledgeable mortgage lender about an FHA loan, we recommend that you contact David Gaffin at Greenpark Mortgage.

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Lenders React To Loan Worksheet Controversy, Express Frustrations With New GFE And RESPA Rules

by Rich Vetstein on January 24, 2010

in Closings, HUD, Massachusetts Real Estate Law, Mortgages, RESPA

My post on lenders using loan cost worksheets and estimates was the featured post on ActiveRain yesterday, spawning over 140 comments by last count. It turned into quite a lively discussion by mortgage lenders about how frustrated they are with the new Good Faith Estimate and RESPA rules. After digesting all the comments, I have to say that I completely understand mortgage lenders’ frustration, and that worksheets are a necessary evil, if you will, due to HUD’s failure to get the new GFE right.

As my mortgage lender friends point out, the new GFE inexplicably fails to provide some of the most important information for homebuyers: (1) the total monthly mortgage payment (including escrows, taxes and insurance), (2) total cash needed to close, and (3) seller paid closing costs. Every borrower wants to know how much they are paying a month and how much they’ll need to bring at closing. Since the new GFE doesn’t provide this important information, lenders are filling in the gaps with loan worksheets. This why one mortgage lender called the new GFE “the single worst government form dumped on the real estate industry.”

Here are a few of the comments from mortgage lenders:

Ted Canto of Academy Mortgage writes:

Hi Richard,

Timely and important post. Thank you!

We are a company that does provide a worksheet/ summary of the costs but that is before the triggers take effect (Quoting stage).  Our worksheet is actually based off all the costs that we input into the file and we are in compliance to the new rules. Once the triggers are set we immediately send them the new GFE.

The problem with the new GFE is that it doesn’t provide any uniformity to the quoting stage of the conversation between lender and client.  This causes almost all lenders to create their own idea of what constitutes a quote or a GFE.  I have seen a bunch of them and I can say that many of them are deceitful as they do not come close to disclosing the actual costs that the client, ultimately, will have to pay.

Chris Richter, Chicago Mortgage Loan writes:

Richard, Nice post.  I can’t figure out if I 100% agree or disagree with you.

I 100% agree with your position against the homemade comparison charts.  I saw a mock excel worksheet yesterday from one of the two big bailout recipient banks yesterday.  It had costs that did not pass through on the =sum() function and the rates were .5% higher than market.  It was deceptive at best.

I am not going to contend that the new rules are not without fault.  I agree that, if it was issued, the new GFE would be a fantastic apples-to-apples comparison. As a lawyer, if XYZ Bank was your client, would you advise them to issue a GFE when they don’t have to and can’t reasonably measure their exposure?

Personally, I think they missed an opportunity to create a standardized preliminary document.  I think the best part of the GFE is that it won’t vary in form or function between lenders.  Yet the preliminary estimate sheets will vary infinitely and that defeats the entire spirit of the changes.

As for the complaints about cash-to-close and monthly payment, that is simply not the purpose of the document.  I’d argue that information should not be on the GFE.  It is a GFE “of settlement costs” not “of everything you’d want estimated all rolled up onto one page.”

An overpriced lender can no longer redirect the consumer’s attention by talking about the monthly payment or cash-to-close. I don’t see how that is bad.

Gerard Ladalardo, Bank of America

I agree with most of the comments about the new GFE. While the intentions were good and warranted, it does fall short of simplifying all the fees to the borrowers. It seems like it’s even more confusing for borrowers, lenders and realtors. I had lunch with a very experienced, extremely intelligent broker friend of mine last week and he said that some lenders aren’t even allowing them to send out GFE’s because they are completely confused on the correct way to have them completed correctly and they are also afraid of the potential liability.

At Bank of America our Closing Cost Worksheet (CCW) DOES DISCLOSE the total closing costs broken down individually, the seller credit (if any), the cash to close and the total PITI mortgage payment. This is what we send to the borrowers when they are qualified to buy a home prior to the disclosures being mailed out by our processing staff. You can be completely confident that working with a B of A loan officer that your client will get a great loan! We have low rates, we never, ever charge origination fees, low lender fees and we can’t get overage/rebate at all. (you can’t selll the borrower a higher rate and get paid on this overage/rebate- if there’s any at all, it goes back to the borrower to pay closing costs).

And to sum up, as Mark Aalto of First Pacific Mortgage so succinctly does:

It does no one any good to just gripe about the new form.  It’s here in it’s present form and the best policy is to do what we can to live with it and to understand what it is and what it isn’t all about.

Lenders, what are your thoughts about the new GFE? How has it changed the manner in which you assist borrowers with pre-approvals, if at all? What should HUD fix next go-around with the new forms?

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In Search Of A “Good Faith Accurate,” Not Just A Good Faith Estimate: A Senior Loan Officer’s Review Of The New 2010 RESPA Rules

by Rich Vetstein on January 6, 2010

in Closings, HUD, Massachusetts Real Estate Law, Mortgages, RESPA, Title Insurance

David Gaffin, Greenpark Mortgage

I’m pleased to welcome another guest blogger, David M. Gaffin, a licensed Loan Officer with Greenpark Mortgage Corp. of Needham MA. Dave is licensed to originate in MA, NH and FL. You can visit him at Greenpark Mortgage or through his LinkedIn profile.

The new 2010 RESPA rules are all the rage right now. So I’m especially pleased to have a mortgage industry veteran like Dave to offer his views on the new rules, especially the new Good Faith Estimate (GFE).

So, you thought getting a home loan for purchase or refinance before was confusing? Well, I’ve got GREAT NEWS for you. Your government has heard you and has come to help! (Insert Sarcastic Mental Voice.)  The federal Housing and Urban Development agency (HUD) has dismantled the previous 1 page Good Faith Estimate that itemized most of the settlement charges for your loan and created a new 3 page “simplified” GFE to “help borrowers understand and compare the costs associated with obtaining a mortgage.”

In my opinion, HUD is trying to do at least 2 things for consumers:

1. Protect the consumer from dealing with shady mortgage companies that will disclose certain fees on the GFE, and then charge higher or additional fees at the closing table and

2. Encourage consumers to use the GFE as a shopping tool to ensure a fair deal.

An informed consumer will typically make better choices than an ill-informed one, so the premise behind the changes to the new GFE is a worthwhile one. However, there are several areas where a consumer may not be able to compare the costs of loan programs on an equal basis and thus make the most appropriate loan choice.

Page 1 of the new GFE groups together all of the “Adjusted Origination Charges” (e.g. processing and underwriting fees, points, doc prep, etc.) as one figure and the Charges for All Other Settlement Services (e.g. closing attorney fees, title insurance, recording fees, etc.) associated with closing your loan as another figure and adds them together to come up with the Total Estimate Settlement Charges.

The new GFE also spells out your loan amount, loan term, interest rate and the initial monthly payment for principal interest and any mortgage insurance.

However the new GFE does not include expected expenses for monthly real estate taxes, homeowners insurance, or home owner’s association dues. Nor does it inform the borrower about expected funds needed to close the loan. Because all the origination charges are lumped together, the new GFE is not specific in disclosing the number of points required to close the loan. It also does not include the Annual Percentage Rate, or APR.

Escrow funding for reserves of real estate taxes, home owner’s insurance and mortgage insurance are included on page 1.

However, despite the fact that this total sum should be uniform across lenders, the new GFE allows the lender to quote whatever number of months of reserves they choose, resulting in a variance of hundreds or thousands of dollars when comparing GFEs. This is not a borrower savings from lender to lender. At settlement these charges will be the same for all lenders.  This could result in the borrower unexpectedly bringing additional funds to the closing.  Some mortgage companies will try to gain a competitive advantage by initially disclosing lower escrow totals.  This would be an unfair and deceptive trade practice to the consumer.

Page 2 breaks into sections the charges for All Other Settlement Services which will include such newly disclosed charges as Owner’s Title Insurance, (which is an optional, but recommended purchase) and Transfer Taxes.  In many states, the Transfer Taxes are disclosed as a borrower–related cost, even though the borrower may not be responsible for this cost, thereby inflating the Total Charge Estimate.

Page 3 gives the consumer information about which expense items on the GFE cannot increase at settlement, which one’s can have a total increase of a 10% increase and which ones can change without limit. The origination charges cannot change at settlement.

Lenders who allow borrowers to choose settlement service providers will receive a Page 4 to the new GFE which will list those providers.

Analysis:  Does the new GFE Help Consumers Or Is It Just Another Complicated Form?

I have been in the mortgage industry for many years and have advanced educational degrees. I have passed my required national and state licensing exams and even I find this form to be confusing and not very helpful when comparing loans. My job as a loan consultant is to inform and educate my clients so that we arrive at the best loan program for them with the least costs based on their needs. I use different tools to compare programs, including cost/benefit analysis, total interest paid comparisons, length of loan term reviews, etc., but, with the new GFE rules, I must disclose 1 loan program within 3 business days of collecting 6 points of entry for an application. If I fail to do so, even if the borrower and I have not determined the best program for them yet, I am in violation of the law. I do not see how this helps the borrower determine the best loan program.

I will give HUD credit for trying, and as this is now the law of the land it is what we must all work with, however, given the vast departure from the look and feel of the previous form, it is going to take a lot of education on the part of loan officers, realtors and attorneys to establish a comfort level with the borrower’s understanding of the form.

When a borrower chooses a lender, they should be referred by someone they trust, should check out the lender’s and loan officer’s reputation by reviewing its website or other public information and feel comfortable that the loan officer is knowledgeable, understands their needs and has the borrower’s best interests in mind.  Then a GFE received from that company can be viewed as a Good Faith Accurate, and not just a Good Faith Estimate.

Dave, thanks so much for your insightful analysis! This is a great post and a boon for our readers. This underscores why borrowers must have an experienced and knowledgeable loan officer such as David Gaffin on their team.

I have certainly spend a fair amount of time digesting the new changes, but perhaps that is because I am so used to the old forms. The irony may well be that many consumers will be seeing the new GFE for the first time and may not be as confused as some of us industry veterans. Adjusting to major changes to long standing practices is always difficult.

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New RESPA Rules 2010: Disclosure of Settlement Services, Closing Attorneys’ Fees, And Title Insurance

by Rich Vetstein on January 3, 2010

in Closings, HUD, Massachusetts Real Estate Law, Mortgages, RESPA, Title Insurance

In this post, I’ll discuss a very important issue to lenders, closing attorneys and borrowers alike: how the new RESPA rules handle the disclosure of closing attorney fees/costs and title insurance.

The new RESPA rules significantly change the way lenders must disclose settlement services, in particular closing attorneys’ fees, and title insurance. Generally, under the new rules, closing costs are divided into one of three “buckets”:

(1) those that cannot change from initial Good Faith Estimate (GFE) disclosure

(2) those subject to a 10% tolerance–that is, those which cannot increase by more than 10% from the GFE to the closing, and

(3) those that can change, i.e., increase without limitation.

Here is how the GFE (page 3) shows the 3 buckets:

For closing attorney fees (which HUD now calls “title services”) and title insurance, bucket #1 does not apply, and whether the cost belongs in bucket #2 or #3 will depend on whether the lender recommended the service provider on a written list of preferred providers. If the borrower selects a provider from the list, such as a closing attorney, their charges cannot increase by more than 10% from the GFE to the closing.

Thus, lenders have an incentive to recommend trusted providers whose charges are standard and predictable. If the borrower wants a particular attorney or title insurance provider not on the preferred list, he/she is free to select one, but their charges are not subject to the 10% tolerance and can go up (or down) by any amount.

Also remember that lender’s title insurance is universally required by every public mortgage lender, and in Massachusetts the borrower pays that premium at closing (except for no closing cost loans). A lender’s title insurance policy, however, does not protect the homeowner. As HUD and I always advise, borrowers should always get their own owner’s title insurance policy. (See HUD’s Shopping For Your Home Loan Booklet and my post, Title Insurance Demystified for some horror stories about what happens when you don’t purchase an owner’s title insurance policy).

Here is how the new GFE (page 2) discloses closing attorney fees/title services and title insurance:

Note that lines 3 and 4 represent a huge change from prior practice for closing attorneys. Now closing attorney fees must be disclosed as a single, lump sum charge, plus the cost of the required lender’s title insurance policy. The old GFE itemized such closing costs as courier fees, discharge tracking fees, and the like, but the new GFE is intended to simplify the disclosure of attorney closing costs in favor of one standard charge that consumers can compare across the board.

From the GFE, these fees and costs are ultimately carried over on the new HUD-1 Settlement Statement, with reference to the new GFE lines:

At the closing, the borrower can now simply compare the GFE with the new HUD to ensure that the quoted charges have carried over to the closing table. Remember though that selected costs from a “preferred provider” may deviate up to 10% under the tolerance rules. Also, for the first time the new HUD mandates disclosure of the closing attorney’s share, or split, of the title insurance premium.

This is my second post in a series on the new Real Estate Settlement Practices Act (RESPA) rules which went into effect on January 1. My first post was Are You Ready For Some RESPA Reform? An Overview Of The New Regulations. Click here for a listing of the entire RESPA series.

As always, please contact Attorney Richard Vetstein with any questions.

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Massachusetts Real Estate Law Year In Review: Top Posts Of 2009 And Predictions For 2010

by Rich Vetstein on December 28, 2009

in Closings, Condominium Law, Electronic Closings, Fannie Mae, FHA, Foreclosure, HUD, Massachusetts Property Values, Massachusetts Real Estate Law, Mortgage Crisis, Purchase and Sale Agreements, Realtors, RESPA, Short Sales, Technology

In the spirit of the New Year, let’s look back at the top legal issues of the past year and peer into the crystal ball for a glimpse at 2010.

Top 5 Posts For 2009

#1.  The Catch-22 Impact of New Fannie Mae Condominium Regulations. In January, Fannie Mae was the first government agency to drop a big bucket of cold water on condominium lending underwriting practices which some say contributed to the condominium market meltdown. FHA and others would follow later in the year. The new guidelines had condominium developers and associations, buyers and sellers in a tizzy, as Fannie Mae imposed much tougher pre-sale requirements, condominium financial guidelines and the imposition of unit owner HO-6 insurance policies, among other requirements.

#2.  New FHA Condominium Lending Guidelines Sure To Slow Financing and Chill Sales. The Federal Housing Administration (FHA) followed Fannie’s lead in tightening condominium lending requirements. Originally proposed over the summer, FHA delayed implementation of the new guidelines until earlier in the month and watered down some of the most stringent requirements, after major lenders and community association groups complained.

#3.  There’s Nothing Standard About The Massachusetts Standard Purchase and Sale Agreement. Great to see a post about buying a new home ranking so highly. An indicator of the recovery of the Massachusetts real estate market perhaps? Check out this post for the ins and outs of the very seller friendly standard form P&S and how to level the playing field if you are a buyer.

#4.  Massachusetts Land Court Reaffirms Controversial Ibanez Decision Invalidating Thousands of Foreclosures. If you were following the foreclosure mess, you couldn’t have missed this judicial bomb dropped by Massachusetts Land Court Judge Keith Long. The so-called Ibanez ruling invalidated thousands of foreclosures across the state because the lenders did not record their paperwork up to date at the registries of deeds. Lenders have appealed the ruling, but hundreds of foreclosure titles remain unmarketable in the wake of this controversial decision. More to come in 2010.

#5.  Short Sales Get Boost From New Obama Treasury Guidelines. On December 1, the Obama administration set long-awaited guidance on a plan for mortgage companies to speed up short sales of homes and other loan modification alternatives to stem the rising tide of foreclosures. The Home Affordable Foreclosure Alternatives Program provides financial incentives and simplifies the procedures for completing short sales, a growing practice in which a lender agrees to accept the sale price of a home to pay off a mortgage even if the price falls short of the amount owed.

Honorable Mention. I would be remiss if I didn’t mention the new RESPA guidelines and the new Good Faith Estimate and HUD-1 Settlement Statement which go into effect Jan. 1, 2010.

2010 — The Year We Rebound

The Massachusetts Real Estate and Mortgage Market

All signs are pointing to a real estate rebound for the Bay State in 2010, with home and condominium sales surging over 50% from last year in November. I have definitely seen an uptick in new purchases on my end and we are preparing for a busy 2010. Along with good news from the real estate market, however, comes higher interest rates as the bond market reacts to positive news. My friend mortgage consultant Brian Cavanaugh at SmarterBorrowing.com does a good weekly mortgage market update and is presently advising borrowers to lock into current rates as he predicts rates will rise in 2010 to close to 6% for a 30 year fixed. Of course, when rates go up, buying power goes down, thereby cooling the market a bit.

Regulatory

Hopefully we’ve seen the end of increased regulation of the condominium market from the government giants. Let’s toast that they can let the market take its course with the new guidelines in effect.

Stimulus/Home Buyer Credit

As the economy continues to recover, you can probably bet that the Obama administration is going to let up on the stimulus/credit throttle for 2010. So take advantage of all the credits available now, because this is probably the last you will see of them for awhile.

Housing

On the housing front, Massachusetts builders are reportedly foregoing McMansions in favor of  the more affordable middle market of homes in the $400,000 to $600,000 price range. Finally!

Technology

Lastly, technology, the internet and social media will play an even bigger role in how realtors, lenders and real estate attorneys do business. The National Association of Realtors says that 87% of home buyers use the Internet to search for homes. I tell all my Realtor friends they must have a strong Internet presence and to take advantage of blogging, social media and Active Rain to boost their online presence.

For attorneys, in 2009 we saw the tip of the iceberg for electronic recordings and closings as well as online transaction management. Our office just set up an online transaction management system where buyers, sellers, loan officers and realtors can view the status of the loan whenever they want through a secure online portal. It’s a fantastic tool. While electronic closings are a way’s away from gaining the necessary critical mass of lender acceptance, many Massachusetts registries of deeds are now e-recording, and that will continue to rise. The next decade will certainly bring electronic closings and paperless transactions into the norm.

Well, let’s clink our glasses to a very happy, healthy and fruitful New Year!

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Are You Ready For Some RESPA Reform? Part I, An Overview Of The New Regulations

by Rich Vetstein on November 17, 2009

in Closings, Condominium Law, Electronic Closings, Fannie Mae, FHA, HUD, Massachusetts Real Estate Law, RESPA, Title Insurance

New, sweeping changes regulating how lenders, closing attorneys and title companies disclose loan and closing costs are set to go into effect January 1, 2010. The new regulations are part of a long awaited reform to the 30 year old Real Estate Settlement Practices Act known as RESPA aimed at providing greater transparency and fostering better consumer choice in loan and closing costs. The changes are so significant that HUD recently took the unusual step of giving lenders a 120 day reprieve in enforcing the new regulations.

The major components of the new RESPA reform are the new and substantially revised Good Faith Estimate (GFE), in which lenders disclose loan and closing costs to borrowers, and the HUD-1 Settlement Statement, which is a detailed financial breakdown of the entire real estate transaction signed at closing.

Highlights of the new changes include:

  • Borrowers must receive a standard GFE disclosing key loan terms, including the loan’s terms; whether the interest rate is fixed or otherwise; any prepayment penalties and/or balloon payments; and total closing costs.
  • Lenders must provide borrowers with a standard origination charge for the loan which must include all points, appraisal, credit, and application fees, administrative, lender inspection, wire, and document preparation fees
  • Lenders have the option of providing borrowers with a list of approved service providers such as closing attorneys and title insurance companies.
  • A tolerance range has been specified for various categories of loan/closing costs to prevent unnecessary escalation of promised vs. actual charges.
    • Fees quoted for lender origination charge cannot change.
    • Fees for title and closing costs where the lender selects the provider or where the borrower selects the provider from the lender’s approved list cannot change by more than 10%.
    • Fees that borrowers can shop for themselves can increase (or decrease) by any amount.
  • The final page of the GFE contains worksheet-like charges to compare different loans and terms that the borrower can use to shop pricing.
  • Controversial lender payments to mortgage brokers, known as yield-spread premiums, must be disclosed in a standard manner.
  • The charges quoted on the GFE are then carried over to the HUD-1 Settlement Statement to ensure that the prescribed tolerances are met.

Here is a link to the new Good Faith Estimate (GFE) form and a link to the new HUD-1 Settlement Statement form.  The most recent FAQ from HUD (last updated 1.28.10) can be found here.

I think that overall the changes will provide consumers with greater disclosure and transparency of the myriad loan closing fees and costs in a typical real estate purchase.  It also creates an incentive for lenders to assemble a competitively priced team of preferred settlement service providers, so it can guarantee to its customers that the price of the preferred vendors’ settlement services will never increase by more than 10% at closing.  If borrowers aren’t happy with that, they are free to shop and find a better deal themselves.

I plan to do a series of upcoming posts on this important RESPA reform, highlighting the salient sections of the new GFE and HUD-1. As always, contact Richard Vetstein with any questions.

Please read my second post in this series, New RESPA Rules 2010: Disclosure of Settlement Services, Attorneys Fees and Title Insurance.

For all the posts in the RESPA series, click here.

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HUD Announces Delay In Enforcement Of New RESPA Rules For 120 Days

by Rich Vetstein on November 14, 2009

in Closings, HUD, Massachusetts Real Estate Law, Mortgages, RESPA, Title Insurance

For my entire series on the new 2010 RESPA rules, look to the right under “Spotlight On: RESPA Reform” or click here.

The U.S. Department of Housing and Urban Development (HUD) announced on Friday that it will not enforce for a 120 day period new, sweeping regulatory changes to the Real Estate Settlement Procedures Act (RESPA) set to go into effect January 1, 2010. The new regulations will still go into effect on January 1, 2010, but the board overseeing enforcement of these new rules will “exercise restraint in enforcing” them. HUD wants all lenders to make a good faith effort to comply with the new regulations beginning on January 1.

The major components of the new RESPA reform are the new and substantially revised HUD-1 Settlement Statement and Good Faith Estimate (GFE) of closing costs issued by lenders, settlement agents, and closing attorneys. HUD will require that lenders and mortgage brokers provide consumers with a newly revised Good Faith Estimate (GFE) that clearly discloses key loan terms and closing costs. Closing agents will also be required to provide borrowers a new HUD-1 Settlement Statement that clearly compares consumers’ final and estimated costs.

The new RESPA rule became effective on January 16, 2009, but provided a one-year transition period for the mortgage industry to incorporate these changes. HUD will continue to work with the mortgage industry during this period, including providing a comprehensive set of frequently asked questions (FAQs) on its website.

This is very good news for lenders and closing attorneys so they can take advantage of some well needed additional time to digest the new forms and procedures. I recently attended a seminar on the new RESPA changes, and they are quite a substantial change to the current GFE and HUD-1. Lenders must provide borrowers with a firm “origination charge” which must include all the various loan origination fees now separately itemized on the HUD-1 Settlement Statement, including points, appraisal, credit, and application fees, administrative, lender inspection, wire, and document preparation fees. This origination fee cannot increase. Lenders also have to provide borrowers with a “firm” quote for typical closings costs, including attorneys’ fees, title insurance and recording fees, and select up to 1 preferred provider for such services. The firm quote cannot increase by more than 10% at closing. If the lender allows, borrowers can use their own providers who will not be subject at all to the firm quote requirement. The new changes will require quite a bit of coordination between lenders and closing attorneys.

Most lenders who I have spoken to are not ready for these changes. The likely impact is that for the first 4 months of 2010, borrowers could see either the current or the revised GFE and HUD-1 form, depending on whether the lender/closing attorney has implemented the changes.

For a more comprehensive review of the new GFE and HUD-1, please read my posts, Are You Ready For Some RESPA Reform?  Part I, An Overview of the New Regulations, and New RESPA Rules 2010: Disclosure of Settlement Services, Attorneys Fees and Title Insurance.

As always, contact me, Richard Vetstein with any questions.

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Proposed Legislation To Enhance Massachusetts Homestead Law Protection

by Rich Vetstein on October 21, 2009

in Closings, Homestead, Massachusetts Real Estate Law

There’s a bill (House Bill No. 1584) currently pending this legislative session to update the Massachusetts Homestead Law which would provide additional financial protections to homeowners and consumers in Massachusetts.homestead-stamp

A Massachusetts homestead declaration is a simple and inexpensive tool enabling homeowners to protect up to $500,000 of equity in their principal residence from the majority of creditors. The mechanism is relatively simple. All that is required is the preparation and recording of a Declaration of Homestead with the applicable Registry of Deeds and the payment of a state mandated recording fee. The total cost is typically around $100 to prepare and record the instrument.

The Homestead Exemption provides protection and security to homeowners, eliminating the threat that the equity in their principal residence could be exposed to satisfy common unsecured debts or obligations.

Many feel that the Homestead Law (M.G.L. c. 188 §1, et seq.) is greatly in need of modernization. If ultimately passed, this homestead bill will have a significant impact in favor of Massachusetts consumers and  homeowners who run into financial difficulty.

Here’s a summary of the changes:

  • There will be automatic homestead protection, without the need for recording a declaration, of up to $125,000 in equity, which amount corresponds to some of the limitations on homestead exemptions enacted in 2005 in the Federal Bankruptcy Code as part of the Bankruptcy Abuse Prevention and Consumer Protection Act of 2005 (“BAPCPA”). Individuals and families with more equity in their homes will still have a significant incentive to record a standard declaration to protect up to $500,000 of their equity (the amount of the declared exemption under current law).
  • Beneficiaries of trusts are entitled to homestead protection
  • Mortgages cannot terminate previously filed homesteads – instead, any provision in a mortgage that purports to terminate a homestead is deemed merely to subordinate the homestead to such mortgage
  • Proceeds from the sale of a home, or insurance proceeds, are entitled to homestead protection (for up to a year for sale proceeds, and two years for insurance proceeds)
  • Transfers among family members will not terminate a previously declared homestead – even if the homestead isn’t reserved in the deed
  • Manufactured homes are eligible for protection under all provisions of the statute

We always highly recommend that our buyer clients record a homestead on their principal residence if they have not done so already. The new law will protect those who don’t (up to $125,000), but will provide even more incentive for those who do.

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Electronic Real Estate Closings (E-Closings): The Future Of The Real Estate Closing Industry

by Rich Vetstein on September 25, 2009

in Closings, Electronic Closings, Massachusetts Real Estate Law, Mortgages, Technology, Title Insurance

images-13An excited young couple about to close on their first home walk into into the closing attorney’s office. The day before they received via secure email all of the loan documents to review and approve with their personal attorney. The closing attorney arrives without any paper, armed only with a laptop attached to a digital signature pad. The sellers are not present as they have already signed the deed and other documents electronically the day before over the secure electronic closing system. The couple quickly review the closing documents on the attorneys’ laptop, clicking an “I Agree” button acknowledging receipt and review of each document. The couple sign the digital signature pad, and the captured signatures are automatically applied to all of the signature blocks of the documents. The closing attorney electronically notarizes all documents requiring witnessing or notarization. The closing is over in 15 minutes, and the couple walks out with a CD-ROM containing all the signed closing documents and the keys to their new home. The closing attorney then electronically records the deed and mortgage with the registry of deeds, funds the loan, and makes all of the disbursements. The executed loan documents are then electronically transmitted to the lender and digitally archived.

This is not an imaginary scenario. Electronic closings (e-closings) are happening now, and they are the future of real estate conveyancing. I believe that electronic closings will change the way lenders, title companies and closing attorneys do business.

The advantages of an e-closing system are numerous and include:

  • More convenient and efficient closing process for home buyers and sellers.
  • Automated delivery of electronically signed loan documents directly to post closing – eliminating costs and time. Fund the loans faster, in as little as 48 hours.
  • Drastically improve the efficiency of real estate transactions with reduced contract-to-closing times.
  • The Green Factor: Eliminates thousands of paper documents. Buyers receive the entire signed closing package on CD.
  • Reduce shipping and closing costs.

Electronic closings are very slowly moving into Massachusetts. (Attorneys, who must conduct most real estate closings in Massachusetts, are notorious late adopters of new technology). Since July, without much fanfare, the Middlesex Registry of Deeds in Cambridge, Hampden County Registry in Springfield, and Plymouth Registry of Deeds have adopted electronic recording capabilities. Hopefully, the other registries follow suit.

TitleHub Closing Services LLC, in Massachusetts, is on the cutting edge of e-closing technology.

Electronic closings are a great selling point to customers mortgage lenders, banks and credit unions. Here is a recent article about a credit union in Michigan successfully offering electronic closings.

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