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2012 Massachusetts Real Estate Market Survey

by Rich Vetstein on January 22, 2012

in Massachusetts Property Values, Real Estate Taxes, Realtors, Refinances

January in the real estate industry is typically the time for the new year market outlook. For this coming year many of us have seen the template on the macro-economic data which most impacts the real estate industry: 8.5 % unemployment in the latest report, 30 year mortgage rates at record lows at or below 4.0%, and 15 year mortgage rates at or below 3.25%.

Rather than run a standard metrics-based market forecast this year, I decided to survey a cross-section of Massachusetts real estate realtors and mortgage professionals to hear from them on the upcoming spring and the 2012 real estate market in its entirety. Overall, each of the real estate professionals I contacted were optimistic. They tend to see the low interest rates and improving economy as the drivers of a busy 2012 housing market. Thus, here is a compendium of professionals I surveyed:

“I am optimistic that interest rates will remain low at least until the presidential elections. The uncertainty that has constrained spending and lending will keep things from taking off until there is a clearer picture of what policies will be in place (intervention and regulation vs. deregulation and free markets).

The increasing debt woes of EU members creates short term demand for our mortgage bonds and treasuries which drives down interest rates. This won’t be fixed overnight.

The housing collapse hangover continues to cause problems. The economy and in particular the housing market is still too weak to suffer increased interest rates. Rates will remain low until the cash on the sidelines is invested, employment improves and housing sees some recovery. The Fed has shown that they will move to buy mortgage backed securities and treasuries if we see rates start to rise and I can’t see them sitting on their hands if rates rise and threaten to derail this slow economic recovery.

This is an incredible time to buy a home with prices low and the cost of money so low as well.”

–Loan Officer, Bank of Canton, Boston, Brookline and Route 128 suburbs

“I expect the 2012 real estate market in the greater Boston area to be stable. Overall, buyers will continue to have the upper hand but I don’t think we are going to see any precipitous drop in either sales prices or the number of sales. If interest rates remain low it continues to be a good time to get into the market knowing that you are getting in somewhere close to the bottom.”

–Realtor, Keller Williams, Cambridge,

“As we embark on the new year there are many reasons to be optimistic. Rates are expected to remain at all time lows for the next 12 months and there is plenty of inventory for home buyers. More importantly, we are starting to see better listing prices from sellers who are clearly more realistic about what to expect. Contrary to what the media would have consumers believe, there is plenty of financing available for qualified buyers – and it doesn’t always require 20% down. First time buyers are surprised to see how affordable it is to own their own home, and with programs available with as little as 3% down and no PMI I expect to see a big surge in this demographic.”

–Loan Officer, Fairway Mortgage, Route 128 Suburbs

“I see a slow start to the Spring, but a steady stream of inventory equal to purchasers. The best place to be is in a move-up, as buyers will find a greater gain on their more expensive home in spite of possibly losing a bit on the sale side. It seems that there are more foreclosures on the horizon with stable amounts of short sales, another way for a buyers to make immediate gains. Buyers will still dictate values, relative to condition and inventory. The mortgage guidelines have become stricter, so getting a pre-approval from a reputable lender is increasingly important. Sellers should request to see one immediately from a prospective buyer and buyers should be educated about the borrowing and the buying process.”

–Realtor, Realty Executives, Framingham,

“I have an above normal number of pre-approvals for January. I’m starting to see movement in the market. A lot of high-end buyers.”

–Loan Officer, Citizens Bank, Route 128 Suburbs,

“Brookline real estate should receive a spike upwards during the spring market like it always does. It looks like the economy has improved slightly which could also help the confidence of the buyers.”

–Realtor, Coldwell Banker, Brookline

“I see purchases up 40% for the year, and refinances down slightly.”

–Loan Officer, Mortgage Network, Route 128 Suburbs

“With 2011 now behind us, real estate agents and others related to the housing industry are hoping that 2012 will bring a significant improvement to the number of units sold and at least stabilization, if not an increase in the median sales price.”

2011 ended with a nice up-tick in sales according to the National Association of Realtors, however, sales remain depressed, as are several of the realtors I spoke with in the Metrowest and Central Massachusetts areas. Central Mass, in particular, seems to have borne the brunt of the home sales price reductions and sales lag. Unit sales within the Route 128 belt have held up nicely, although many homes have experienced a 5-10% appraised value drop, year over year.

Interest rates have held steady at near record lows. While this is good news for first-time home-buyers and relocating workers, as home affordability is better than at any time in recent memory, many sellers are frustrated.

As home prices continue to drop, more sellers are finding themselves with little or no equity in their homes. This not only makes them reluctant to price their home to market and sell quickly, for many of them, current rules on Loan to Value, are making them unable to take advantage of today’s low interest rates and refinance.

So what will 2012 bring? A slight improvement in unit sales, and perhaps a bottom in home prices (I hope!). Here are my reasons for this conclusion:

Job creation – Over the past several months, it appears that the job market is improving. The Massachusetts unemployment rate dropped to 6.8% in December.

Continued Low Interest Rates – While we may see an increase in 30 year fixed rates during the next couple of months, as the national economy shows signs of improvement, I do not expect a dramatic rise in rates.

Helping Underwater Homeowners –

Homebuilder Sentiment – Nationally, homebuilding company optimism is making a strong recovery. Locally, several builders I have spoken with think 2012 will be their best year ever. Prices may be down, but in many cases so are cost of materials and labor.

There are a few other reasons for optimism including an increase in household formation, as well as talk of programs to rent REO properties, which may help reduce vacant homes and stabilize prices.

–Loan Officer, Greenpark Mortgage, Metrowest and Worcester County

We have a lack of inventory in the greater Franklin area. More buyers and renters than properties on the market. A lot of sellers I talk to are waiting “until later in the year” to list. They need to get started on their preparations now because “later in the year” will be here before you know it!

–Realtor, Hallmark Sotheby’s, Franklin/495 Area

“I feel that the market will be very good for buyers and sellers this spring.

Buyer can take advantage of the great rates and prices. It’s a great time to upgrade to a bigger and better home. It’s also a great time to buy an investment property since rents are on the way up.

On the listing side we need more inventory since most of the homes on the market now are stale and overpriced. I’m a strong believer that if the home is priced well it will sell fast.”

–Realtor, Keller Williams Realty

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Marc E. Canner, Esq. is an experienced Massachusetts real estate attorney with offices in Needham and Bedford, Mass. He is a principal of TitleHub Closing Services LLC and the Law Offices of Marc E. Canner.

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Federal Judges Read Law Blogs (Including This One!)

by Rich Vetstein on January 18, 2012

in Massachusetts Real Estate Law

Judge William G. Young

I just wanted to pass along a neat story from a colleague evidencing the growing trend of judges turning to law blogs in their research of opinions. Federal Judge William Young spoke yesterday at a real estate bar association meeting about his recent and somewhat controversial opinion in Culhane v. Aurora Loan Servicers which considered the very complex maze that is Mortgage Electronic Registration System (MERS). I covered the case in this blog post.

Judge Young discussed the process by which he and his law clerks “learned the law,” and said it included tuning into “the blogs,” mentioning this blog by name. (My colleagues at Rackemann Sawyer’s Land Use Monitor should also be included). Judge Young also apparently read my post dissecting his ruling, stating that “he calls them the way he sees them,” and “everyone is entitled to their opinion.” I’m flattered that Judge Young would even consider reading this blog, and for lack of a better phrase, I think it’s pretty cool!

With blogs providing timely legal analysis so much faster than the traditional law reviews published by law schools, it’s not surprising that judges such as Judge Young are turning to them as a resource. Kevin O’Keefe of legal blog publisher LexBlog has been tracking such instances for awhile now, and it’s widespread throughout the country, with judges even citing law blogs in written opinions. Lawyers should take note of this when preparing their cases.

I’m happy to be a resource for Massachusetts real estate law. If I can contribute in the slightest way to the administration of justice and the development of our jurisprudence, I am very grateful.

~Rich

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Breaking News: SJC Concerned Over Potential Disastrous Impact On Foreclosure Titles In Eaton v. Fannie Mae

by Rich Vetstein on January 9, 2012

in Fannie Mae, Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Title Defects

Update (6/22/12): SJC Issues Final Opinion (click to read)

The Supreme Judicial Court has just issued an unusual order in the very important Eaton v. Federal National Mortgage Association case, indicating its deep concern over whether an adverse ruling against foreclosing lenders will have a disastrous impact on foreclosure titles and, if so, whether its ruling should be applied prospectively rather than retroactively. The Court is seeking supplemental briefing and friend-of-the-court briefs on these decisive issues. A final decision is expected in February or March.

As outlined in my prior post on the case, the Court is considering the controversial question of whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. This is the essence of the “produce the note” defense. In a securitized mortgage pool, in which over 60% of all U.S. mortgage are part, the note and mortgage are separated between securitized trusts, mortgage services or Mortgage Electronic Registration System (MERS).

If the SJC rules against lenders, it could render the vast majority of securitized mortgage foreclosures defective, thereby creating mass chaos in the Massachusetts land recording and title community. If you thought U.S. Bank v. Ibanez was bad, Eaton v. FNMA could be the Nuclear Option.

The text of the order is as follows:

ORDER :Having heard oral argument and considered the written submissions of the parties and the various amici curiae, the court hereby invites supplemental briefing on the points described below. Supplemental briefs shall not exceed fifteen pages and shall be filed on or before January 23, 2012. 1. It has been claimed that requiring a unity of the mortgage and the underlying promissory note, in order for there to be a valid foreclosure, would cloud any title that has a foreclosure in the chain of title, regardless of how long ago the foreclosure occurred. The parties are invited to address whether they believe that such a requirement would have such an effect, and if so, what legal or practical measures exist that might limit the consequences of such a requirement. 2. It also has been suggested that, if the court were to hold that unity of the mortgage and note is required under existing law, the court’s holding should be applied prospectively only. The parties are invited to indicate on what authority they believe (or do not believe) the court could make such a holding prospective only.

Reading into this order, perhaps a majority of the justices are already leaning towards ruling against the lenders and want to limit the potentially disastrous effect it could have on existing titles and pending and future foreclosures. Interestingly, lenders in the U.S. Bank v. Ibanez case asked the SJC to apply its ruling prospectively, but it declined, thereby leaving hundreds to thousands of property owners and title insurers to clean up toxic foreclosure titles.

In my opinion, an adverse ruling against lenders in Eaton could be the apocalyptic scenario, rendering open to challenge any title with a previous foreclosure in it and inserting a fatal wedge into the current securitized mortgage system. Hopefully this time around the Court is more sensitive to how its ruling will impact the real estate community. It will be interesting to see how this case continues to develop. We will continue to monitor it.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigator and attorney. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

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2011 Massachusetts Real Estate Law Year In Review

by Rich Vetstein on December 30, 2011

in Foreclosure, Homestead, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Real Estate Litigation, Title Defects, Trespass

It’s time again for our annual review of highlights in Massachusetts Real Estate Law for the past year. It’s been a very busy year. From the foreclosure fallout, to Occupy Boston, to the new homestead law, there’s been lots to report on. We’ll start in order of importance this year.

SJC Decides Controversial U.S. Bank v. Ibanez Case

2011 started off with a bang with the Supreme Judicial Court’s decision in the widely publicized foreclosure case of U.S. Bank v. Ibanez. Our coverage of the case can be read here and here. The Court’s ruling was rather elementary: you need to own the mortgage before you can foreclose. But it’s become much more complicated with the proliferation of securitized mortgages bought and sold numerous times on Wall Street. The Court held that the common industry practice of assigning a mortgage “in blank” — meaning without specifying to whom the mortgage would be assigned until after the fact — does not constitute a proper assignment, at least in Massachusetts. The ruling left many innocent homeowners and title insurance companies scrambling to deal with titles rendered defective due to the ruling. The fallout continues to this day with no resolution by lawmakers.

AG Coakley Sues Major Banks For Foreclosure Fraud

2011 was certainly the Year of Foreclosure Fallout. Earlier in December, Attorney General Martha Coakley filed a huge consumer protection lawsuit over wrongful foreclosures against the top 5 U.S. lenders, Bank of America Corp., J.P. Morgan Chase & Co., Wells Fargo & Co., Citigroup Inc. and Ally Financial. Coakley also names Mortgage Electronic Registration System, or MERS, the electronic mortgage registration system which proliferated during the securitization boom of the last decade. The lawsuit said it sought “to hold multiple banks accountable for their rampant violations of Massachusetts law and associated unfair and deceptive conduct amidst the foreclosure crisis that has gripped Massachusetts and the nation since 2007.” The case remains pending.

Massachusetts Real Estate Attorneys Win Legal Victory Ensuring Their Place At Closing Table

In the closely watched case of Real Estate Bar Association (REBA) v. National Estate Information Services (NREIS), Massachusetts real estate attorneys won a huge legal victory reaffirming their long-standing role to oversee the closing process and conduct closings in Massachusetts. The case pitted Mass. attorneys vs. out of state notary companies who were trying to conduct notary real estate closings without trained attorneys. Siding with the consumer, the court required “not only the presence but the substantive participation of an attorney on behalf of the mortgage lender.”

New Homestead Law

This year saw the passing of the long-awaited comprehensive revision to our outdated Homestead Act. Here is a summary:

All Massachusetts homeowners receive an automatic homestead exemption of $125,000 for protection against certain creditor claims on their principal residence without having to do anything.
All Mass. residents are eligible for a $500,000 “declared homestead exemption” by filing a declaration of homestead at the registry of deeds. For married couples, both spouses will now have to sign the form–which is a change from prior practice.
Homesteads are now available on 2-4 family homes, and for homes in trust.
The existing “elderly and disabled” homestead will remain available at $500,000.
If you have a homestead as a single person, and get married, the homestead automatically protects your new spouse. Homesteads now pass on to the surviving spouse and children who live in the home.
You do not have to re-file a homestead after a refinance.

More Foreclosure Fallout With Bevilacqua and Eaton Cases

The U.S. Bank v. Ibanez case was the start, but certainly not the ending of the foreclosure fallout. The case of Bevilacqua v. Rodriguez considered property owners’ rights when they are saddled with defective titles stemming from improper foreclosures. The ruling with a mix of good and bad news. The bad news was that victims of defective foreclosure titles could not seek redress through the Land Court “quiet title” procedure. The good news was that the court left open whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles.

Eaton v. Fannie Mae is the next foreclosure case awaiting final decision. As outlined in my prior post on the case, the Court is considering the very important question of whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. Using the “produce the note” defense which has been gaining steam across across the country, the borrower, Ms. Eaton, was able to obtain an injunction from the Superior Court halting her eviction by a foreclosing lender. The SJC heard arguments in the fall and is expected to issue a final ruling early in 2012. A ruling against lenders would be as big, or even bigger, than the Ibanez case.

Lastly, another case to watch for in 2012 is HSBC Bank v. Jodi Matt which will decide whether a lender holding a securitized mortgage has standing to even begin a foreclosure action in the Land Court under the Servicemembers Civil Relief Act–one of the first steps in the Massachusetts foreclosure process. The case is should be ready for oral argument in late winter, early spring 2012.

Judge Evicts Occupy Boston Protesters

What would 2011 be without a homage to the Occupy Movement! Citing property and trespass law from centuries ago, Massachusetts Superior Court Justice Frances A. McIntyre issuing a ruling clearing the way for the eviction of the Occupy Boston protest which has taken over Dewey Square in downtown Boston. Our coverage of the ruling is here.

Well, that’s it for a very busy year 2011 in Massachusetts real estate law! The year 2012 is expected to be just as busy, and of course, we’ll be on top of all the breaking news here on the Blog.

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Richard D. Vetstein, Esq. is an experienced Massachusetts real estate litigator and attorney. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

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SJC Agrees To Hear Crucial Foreclosure Standing Case In HSBC Bank v. Matt

by Rich Vetstein on December 2, 2011

in Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages

Updated (1/14/13): SJC Rules Against Lender, Holds That Ownership of Mortgage Must Be Established

Court May Decide Lenders’ Standing In All Foreclosure Cases Involving Securitized Mortgages

With all the hoopla yesterday surrounding Attorney General Martha Coakley’s monumental lawsuit against the big banks over foreclosure practices, the Supreme Judicial Court on November 29, 2011 quietly agreed to hear an appeal over whether a lender holding a securitized mortgage has standing to even begin a foreclosure action in the Land Court under the Servicemembers Civil Relief Act–one of the first steps in the Massachusetts foreclosure process.

The case is HSBC Bank v. Jodi Matt. The docket can be downloaded here.

The SJC will ostensibly decide whether lenders holding mortgages held in a securitized pool, with questions whether they in fact were validly assigned those mortgages, can start foreclosures in Massachusetts.

First Steps: The Servicemembers Civil Relief Act

The Servicemembers Civil Relief Act is one of the first steps in the foreclosure process. Lenders must file a complaint in the Land Court under the Act to ensure the borrower is not in active military service. Once the Land Court determines the borrower’s status in the military, then the lender can proceed to advertise and hold a public foreclosure auction. Historically, the Servicemembers action was rather perfunctory, but today borrowers have begun to challenge lenders’ right to start foreclosures in these initial Land Court proceedings.

Lower Court Opinion

In the lower court, Land Court Judge Keith Long (the judge in both the landmark U.S. Bank v. Ibanez and Bevilacqua cases), ruled that HSBC Bank had standing to start the foreclosure process under the Servicemembers Civil Relief Act, despite serious questions as to whether HSBC validly held the mortgage. The original mortgage was held by New Century, which was in bankruptcy when it purported to assign the mortgage to HSBC. There was no evidence the assignment was authorized by the bankruptcy trustee and whether the signatory had any office or authority to transfer New Century’s bankrupt assets to other parties. Despite these questions, Judge Long ruled that HSBC, through a securitized pooling and servicing agreement, had the contractual right to become the holder of the mortgage, thereby conferring enough standing to start the foreclosure process.

SJC Takes Appeal Sua Sponte

The SJC, in a rare move, took the appeal on its own initiative (sua sponte in legalese) from the Appeals Court. It has not yet released an argument schedule. We’ll be following the case here, so stay tuned.

Notably, foreclosure defense attorney Glenn Russell, Esq., the attorney who prevailed before the SJC in the Ibanez case, is representing the home owner in this case.

The Land Court’s ruling is embedded below.

HSBC Bank v. Jodi Matt

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Massachusetts Superior Court Again Endorses “Produce The Note” Foreclosure Defense

by Rich Vetstein on November 8, 2011

in Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages

Final Say Will Come Soon At SJC In Eaton v. FNMA

In Adamson v. MERS (embedded below), Superior Court Judge Raymond Brassard became the second Massachusetts trial judge to endorse the so-called “produce the note” defense in a foreclosure defense case. The question of whether a foreclosing lender must hold both the promissory note and the mortgage at the same time is now before the Supreme Judicial Court in the eagerly awaited case of Eaton v. Fannie Mae.

In Adamson, Mortgage Electronic Registration System (MERS) claimed to be the holder of the mortgage at the behest of Deutsche Bank. America’s Servicing acted as the servicer. This was a classic sub-prime mortgage with $440,000 in principal at 8.5% interest, with a balloon payment of $370,000 at the end of 30 years. (No wonder the borrower couldn’t keep up with the payments).

The kicker in this case was when America’s Servicing sent the borrower a denial letter for a loan modification stating that it would not foreclose in the next 30 days under the federal HAMP program to give the borrower a chance to explore other modification option. It foreclosed the next day. Ouch.

Unification Theory

Relying on the Judge McIntyre’s earlier decision in the Eaton case, Judge Brassard was persuaded that Massachusetts still holds on to the unification theory where a foreclosing lender must hold both the note and the mortgage at the time of foreclosure. Judge Brassard expressed concern that separating the mortgage from the note could lead to double liability for the borrower (first, a foreclosure, then an attempt to collect the note).

In a ruling which will make foreclosure defense attorneys salivate, Judge Brassard found merit to the borrower’s claim that the lender and the servicer violated the Massachusetts Consumer Protection Act, Chapter 93A, for foreclosing the day after the denial letter was issued, in violation of the 30 day safe harbor period.

Impact & What’s Next?

With two Superior Court judges endorsing this theory and several bankruptcy court judges rejecting it, all eyes are now on the Supreme Judicial Court’s decision in the Eaton v. Fannie Mae case which will be the final say in the matter. If the SJC accepts the unification theory, it will be a bigger bombshell than the U.S. Bank v. Ibanez case last year.

Until the SJC decides the Eaton case, this ruling will continue to slow down the pace of foreclosures in Massachusetts. This will, in turn, keep the inventory of REO properties high, causing further drag on the troubled housing market.

Thank you to the blogging attorneys at the Massachusetts Land Use Monitor for bringing this case to my attention.

Adamson v. MERS Decision

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What Now? Bevilacqua v. Rodriguez Leaves Toxic Foreclosure Titles Unclear

by Rich Vetstein on October 18, 2011

in Deeds, Foreclosure, Liens, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages, Real Estate Litigation, Title Defects, Title Insurance

No Easy Fix For Defective Foreclosure Titles After U.S. Bank v. Ibanez Ruling

The Massachusetts Supreme Judicial Court issued its opinion today in the much anticipated Bevilacqua v. Rodriguez case considering property owners’ rights when they are saddled with defective titles stemming from improper foreclosures in the aftermath of the landmark U.S. Bank v. Ibanez ruling last January. (Text of case is embedded below). Where Ibanez consider the validity of foreclosures plagued by late-recorded or missing mortgage assignments, Bevilacqua is the next step, considering what happens when lenders sell defective foreclosure titles to third party purchasers. Previously, I discussed the oral argument in the case here and detailed background of the case here.

The final ruling is mix of bad and good news, with the bad outweighing the good as fixing defective Massachusetts foreclosure titles just got a lot harder and more expensive. But, contrary to some sensationalist headlines, the sky is not falling down as the majority of foreclosures performed in the last several years were legal and conveyed good title. Bevilacqua affects those minority percentage of foreclosures where mortgage assignments were not recorded in a timely fashion under the Ibanez case and were otherwise conducted unlawfully. Importantly, Bevilacqua does not address the robo-signing controversy, which may or may not be considered by the high court in another case.

The Bad News

First the bad news. The Court held that owners cannot bring a court action to clear their titles under the “try title” procedure in the Massachusetts Land Court. This is the headline that the major news outlets have been running with, but it was not a surprise to anyone who has been following the case. Contrary to the Daily Kos, the court did not take the property away from Bevilacqua. He never held good title it in the first place–and you can blame the banksters for that. If you don’t own a piece of property (say the Brooklyn Bridge), you cannot come into court and ask a judge to proclaim you the owner of that property, even if the true owner doesn’t show up to defend himself. It’s Property Law 101.

The Good News

Next the good news. The court left open whether owners could attempt to put their chains of title back together (like Humpty-Dumpty) and conduct new foreclosure sales to clear their titles. Unfortunately, the SJC did not provide the real estate community with any further guidance as to how best to resolve these complicated title defects.

Background: Developer Buys Defective Foreclosure Title

Frank Bevilacqua purchased property in Haverhill out of foreclosure from U.S. Bank. Apparently, Bevilacqua invested several hundred thousand dollars into the property, converting it into condominiums. The prior foreclosure, however, was bungled by U.S. Bank and rendered void under the Ibanez case. Mr. Bevilacqua (or presumably his title insurance attorney) brought an action to “try title” in the Land Court to clear up his title, arguing that he is the rightful owner of the property, despite the faulty foreclosure, inasmuch as the prior owner, Rodriguez, was nowhere to be found.

Land Court Judge Keith Long (ironically the same judge who originally decided the Ibanez case) closed the door on Mr. Bevilacqua, dismissing his case, but with compassion for his plight.

“I have great sympathy for Mr. Bevilacqua’s situation — he was not the one who conducted the invalid foreclosure, and presumably purchased from the foreclosing entity in reliance on receiving good title — but if that was the case his proper grievance and proper remedy is against that wrongfully foreclosing entity on which he relied,” Long wrote.

Given the case’s importance, the SJC took the unusual step of hearing it on direct review.

No Standing To “Try Title” Action In Land Court

The SJC agreed with Judge Long that Bevilacqua did not own the property, and therefore, lacked any standing to pursue a “try title” action in the Land Court. The faulty foreclosure was void, thereby voiding the foreclosure deed to Bevilacqua. The Court endorsed Judge Long’s “Brooklyn Bridge” analogy, which posits that if someone records a deed to the Brooklyn Bridge, then brings a lawsuit to uphold such ownership and the “owner” of the bridge doesn’t appear, title to the bridge is not conveyed magically. The claimant in a try title or quiet title case, the court ruled, must have some plausible ownership interest in the property, and Bevilacqua lacked any at this point in time.

The court also held, for many of the same reasons, that Bevilacqua lacked standing as a “bona fide good faith purchaser for value.” The record title left no question that U.S. Bank had conducted an invalid foreclosure sale, the court reasoned.

Door Left Open? Re-Foreclosure In Owner’s Name?

A remedy left open, however, was whether owners could attempt to put their chains of title back together and conduct new foreclosure sales in their name to clear their titles. The legal reasoning behind this remedy is rather complex, but essentially it says that Bevilacqua would be granted the right to foreclosure by virtue of holding an “equitable assignment” of the mortgage foreclosed upon by U.S. Bank. There are some logistical issues with the current owner conducting a new foreclosure sale and it’s expensive, but it could work.

That is if the SJC rules in the upcoming Eaton v. FNMA case that foreclosing parties do not need to hold both the promissory note and the mortgage when they foreclose. An adverse ruling in the Eaton case could throw a monkey wrench into the re-foreclosure remedy–it would also be an even bigger bombshell ruling than Ibanez, as it would throw into question the foreclosure of every securitized mortgage in Massachusetts.

In Bevilacqua’s case, he did not conduct the new foreclosure sale, so it was premature for the court to rule on that issue. Look for Bevilacqua to conduct the new foreclosure and come back to court again. The SJC left that option open.

Other Remedies & What’s Next?

The other remedy to fix an Ibanez defect, which is always available, is to track down the old owner and obtain a quitclaim deed from him. This eliminates the need for a second foreclosure sale and is often the “cleanest” way to resolve Ibanez titles.

Another option is waiting out the 3 year entry period. Foreclosure can be completed by sale or by entry which is the act of the foreclosure attorney or lender representative physically entering onto the property. Foreclosures by entry are deemed valid after 3 years have expired from the certificate of entry which should be filed with the foreclosure. It’s best to check with a real estate attorney to see if this option is available.

The last resort is to demand that the foreclosing lender re-do its foreclosure sale. The problem is that a new foreclosure could open the door for a competing bid to the property and other logistical issues, not to mention recalcitrant foreclosing lenders and their foreclosure mill attorneys.

Title insurance companies who have insured Ibanez afflicted titles have been steadily resolving these titles since the original Ibanez decision in 2009. I’m not sure how many defective foreclosure titles remain out there right now. There certainly could be a fair amount lurking in titles unknown to those purchasers who bought REO properties from lenders such as U.S. Bank, Deutsche Bank, etc. If you bought such a property, I recommend you have an attorney check the back title and find your owner’s title insurance policy. Those without title insurance, of course, have and will continue to bear the brunt of this mess.

More Coverage:

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney who’s handled numerous foreclosure title defect matters & cases in Land Court and Superior Court. Please contact him if you are dealing with a Massachusetts foreclosure title dispute.

Bevilacqua v. Rodriguez; Massachusetts Supreme Judicial Court October 18, 2011

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SJC To Hear Oral Arguments In Eaton v. FNMA On Monday

by Rich Vetstein on September 30, 2011

in Fannie Mae, Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages

Updated: Click Here For Our Oral Argument Recap

Just a reminder to those following the important SJC case of Eaton v. Federal National Mortgage Ass’n — oral arguments will be held on Monday, October 3rd, starting at 9am. You can view the oral argument live via webcast through the SJC Website. You can read the briefs in the case here. Interestingly, one of the foremost commentators on the mortgage meltdown, Adam Levitin of Georgetown Law, has filed his own friend of the court brief.

As outlined in my prior post on the case, the Court will consider the “produce the note” defense in foreclosure cases — whether a foreclosing lender must possess both the promissory note and the mortgage in order to foreclose. Based on arguments asserted by the lender, the court may also consider the circumstances by which a mortgage granted to Mortgage Electronic Registration System (MERS) can be effectively foreclosed in Massachusetts.

Look for a new blog post on Tuesday after I watch the arguments.

~Rich

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Richard D. Vetstein, Esq. is an experienced real estate litigation attorney. He has handles many foreclosure defense and title defect cases in Land Court and Superior Court. Please contact him if you are dealing with a Massachusetts foreclosure and title dispute.

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Stopping Foreclosure: Bankruptcy’s Automatic Stay Is A Valuable Last Resort (Guest Post by Matthew Trask, Esq.)

by Rich Vetstein on September 16, 2011

in Bankruptcy, Foreclosure, Massachusetts Real Estate Law

During this Great Recession, we’ve been closely covering the foreclosure crisis from a real estate law perspective. I am not a bankruptcy attorney, and don’t claim to be. So I thought: why don’t we have an experienced bankruptcy attorney guest blog about the interplay between foreclosure and bankruptcy? Attorney Matthew P. Trask, a partner with Kelsey & Trask, P.C. in Natick, MA, was kind enough to do just that. Matt writes an awesome bankruptcy law blog, Don’t Go Alone. Welcome, Attorney Trask!

The Bankruptcy Automatic Stay, A Valuable Last Resort

Thanks Rich. It’s great to be here.

On September 13, 2011, CNBC reported that foreclosures owned by Bank of America surged more than 200%. “August traditionally is a high month for foreclosure actions, so part of the increase might be seasonal,” says RealtyTrac’s Rick Sharga. “[The increase is attributable to] any number of reasons – but with 3.5 million delinquent loans, this had to happen sooner or later.”

Continuing economic troubles coupled with high unemployment means that many homeowners are more than 90 days past due on their mortgage payments, setting the stage for the lender to take back title to the property, a legal process known as foreclosure. Oftentimes, consumers aren’t just behind on mortgage payments but other consumer debts, such as credit cards, medical bills, and even taxes. In addition to foreclosure, consumers who have fallen behind on debt may also face lawsuits, wage garnishments or asset seizures as creditors move to seek payment.

If you are between a rock and a financial hard place, bankruptcy may be an option to eliminate or catch up on past-due debt, and give you time to reorganize your finances. Additionally, bankruptcy law protects debtors as soon as a case is filed. Immediately upon filing bankruptcy, the U.S. Bankruptcy Code, 11 U.S.C. § 362(a), dictates that no creditor may take any judicial or non-judicial collection efforts against the debtor or the debtor’s property. This is called the Automatic Stay.

The Automatic Stay means that a pending foreclosure of your home, collection calls, wage garnishments, asset seizure or lawsuits must immediately cease until either the bankruptcy is completed, or the creditor obtains specific permission from the bankruptcy court. The benefit of the automatic stay is that it creates additional time for the debtor to deal with logistical issues associated with the bankruptcy, housing, cash flow or simply gives a debtor “breathing room” to work with their bankruptcy and real estate attorneys to protect their assets, eliminate debt, without the risk of losing property or assets during that time. Any creditor who ignores the automatic stay is subject to significant penalties by the bankruptcy court.

In the case of a debtor who wishes to keep his or her home, but has fallen behind on payments and facing an imminent foreclosure, the Automatic Stay, coupled with a Chapter 13 Bankruptcy can stop the foreclosure in many cases. Filing a Chapter 13 Bankruptcy petition creates the opportunity for repayment of the arrears over a period of between three and five years, and, in certain instances, completely discharges a home equity line or second mortgage if the value of the property is less than the balance on the primary mortgage.

Even if a debtor has previously modified their mortgage, and the terms of the modification appear to waive the debtor’s automatic stay protections, Emergency Standing Order 10-2 effectively voids any provision of any loan modification or forbearance agreement which states that upon default of the lender, the benefits of the automatic stay are waived. Prior to Emergency Standing Order 10-2, if a modification included such a waiver, the bank or mortgage lender could proceed with a foreclosure or other collection actions despite the filing of a Chapter 7 or Chapter 13 bankruptcy.

In summary, the automatic stay is a powerful tool available to individuals seeking bankruptcy protection, and is often key to any financial reorganization. If you have questions about how the bankruptcy code, including the automatic stay, may help brighten your financial future, speak to an attorney. Bankruptcy is a complex and technical process, but, if done correctly, can protect your assets and give you a fresh financial start.

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Attorney Matthew P. Trask is a partner with Kelsey & Trask, P.C., and represents business and consumer debtors and creditors before the United States Bankruptcy Court, District of Massachusetts. Kelsey & Trask, P.C. is a debt relief agency, helping clients file for relief under the U.S. Bankruptcy Code.

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Oh Fudge! Audit Shows Large Percentage Of Essex County Mortgage Assignments Are “Invalid”

by Rich Vetstein on June 29, 2011

in Foreclosure, Massachusetts Real Estate Law, Mortgage Crisis, Title Defects

Ironically on the same day Bank of American is about to sign a historic $8.5 Billion settlement agreement over bad mortgages, somebody finally went through a registry of deeds to look at the effect of the U.S. Bank v. Ibanez decision and the validity of mortgage assignments in Massachusetts. This just came in off the Housing Wire and is scorching through the real estate newswires.

Audit Shows 75% of Mortgage Assignment Are Invalid In Mass. County

According to an audit performed by McDonnell Property Analytics, in the Salem, Mass. Registry of Deeds, 75% of mortgage assignments are “invalid.” About 27% of invalid assignments are fraudulent, McDonnell said, while 35% are robo-signed and 10% violate the Massachusetts Mortgage Fraud Statute.

McDonnell said it could only determine the financial institution that owned the mortgage in 60% of the cases reviewed. There are 683 missing assignments for the 287 traced mortgages, representing about $180,000 in lost recording fees.

“What this means is that the degradation in standards of commerce by which the banks originated, sold and securitized these mortgages are so fatally flawed that the institutions, including many pension funds, that purchased these mortgages don’t actually own them,” according to analysts at McDonnell. “The assignments of mortgage were never prepared, executed and delivered to them in the normal course of business at the time of the transaction.”

John O’Brien, register of deeds for Essex County in the northeastern corner of Massachusetts, urged state attorneys general for a third time to cease settlement talks with the nation’s largest servicers. In May, O’Brien sent a letter to Iowa Attorney General Tom Miller for this same purpose.

“My registry is a crime scene as evidenced by this forensic examination,” said O’Brien. “This evidence has made it clear to me that the only way we can ever determine the total economic loss and the amount damage done to the taxpayers is by conducting a full forensic audit of all registry of deeds in Massachusetts.”

Is This Audit Flawed Though?

Now, a few observations about this “audit.”

First, McDonnell Property Analytics is a company engaged in the business of stopping or delaying foreclosures and performing related audits. The company makes money when consumers hire them to perform audits of the mortgage paperwork when they are facing foreclosure. The owner of the company is on a crusade against the mortgage industry to expose the paperwork and robo-signing mess, not that that’s a bad thing. But there’s some built in bias here on this purported audit.

Second, there’s no indication of the methodology to determine whether a mortgage assignment is “invalid” or “fraudulent.” What does that mean exactly? What are the audit’s definitions of “invalid” and “fraudulent.” Same for “robo-signed.” Who is determined to be a “robo-signer,” and how is that determination made? I’d like to see the underlying assumptions here.

Based on what I’ve read so far on this “audit,” I’m not sure it would hold up in a court of law. The 75% invalid rate seems very high and questionable, in my opinion. But certainly, these are good questions to ask and analyze and bring to the forefront. It’s clear that Essex Registrar of Deeds John O’Brien wants to recoup all the millions in recording fees he’s lost to the securitization industry and MERS, and he’s the most outspoken of all the registrars of deeds on this problem. (Hmmm, I wonder if Mr. O’Brien has higher political aspirations?).

Well, this problem is big enough that BofA just threw $8.5 Billion to make it go away, and bank stocks are still anemic. So we’ll see how this ultimately plays out.

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U.S. Supreme Court To Hear Title Insurance Kickback Class Action Case

by Rich Vetstein on June 25, 2011

in Massachusetts Real Estate Law, RESPA, Title Insurance

L to R, bottom: Clarence Thomas, Antonin Scalia, John Roberts, Anthony Kennedy, Ruth Ginsberg; top: Sonya Sotomayor, Steven Breyer, Samuel Alito, Elana Kagan

U.S. Supreme Court To Hear Edwards v. First American Title
In a case closely watched by the title insurance and real estate settlement services industry, the United States Supreme Court has agreed to hear a class action which will decide whether consumers can sue under the Real Estate Settlement Practices Act (RESPA) over a title insurance referral arrangement that allegedly violated RESPA’s anti-kickback provisions. The case’s outcome could shield title insurers, banks and other lenders from litigation under RESPA and a wide range of federal and state laws. If First American wins this case, we could see title insurance companies in Mass. taking a much more active role in the operations of their favorite and most profitable agents.

The case is Edwards v. First American Title Co. For more coverage of the case, read the SCOTUS Blog summary here.

No Kickbacks

Class action attorneys file hundreds of cases each year on behalf of borrowers alleging violations of RESPA, which prohibits “any fee, kickback or thing of value,” in exchange for a business referral. RESPA also forbids that a “portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service” be paid for services that are not actually rendered to the customer. If a violation of the statute is proven, a court can award a plaintiff treble damages, or triple the amount, for any charge paid.

In a lawsuit filed in 2007, Denise Edwards claimed her title insurer, Tower City Title Agency LLC of Highland Heights, Ohio, entered into a “captive insurance agreement” with First American Title that was illegal under RESPA. The lawsuit said that because First American paid $2 million for a 17.5% minority interest in Tower City in 1998, it received the majority of the local agent’s referral business which violated RESPA. The suit sought class action status on behalf of all consumers who purchased title insurance through a title agency that was subject to an exclusive referral agreement with First American, and damages of up to $150 million.

The case went up to the 8th Circuit Court of Appeals which sided with Edwards that “the damages provision in RESPA gives rise to a statutory cause of action whether or not an overcharge occurred.”

Supreme Court Review

The Supreme Court will review the constitutional issue of whether consumers must prove they were actually injured under RESPA and other truth in lending laws. A favorable ruling for First American could mean a significant dent in costly class action suits under RESPA and TILA. Oral argument is expected in the Fall term, in October.

Massachusetts Impact: Cozier Agent Relationships?

Beyond curtailing or expanding consumers’ ability to bring all sorts of claims under RESPA and Truth in Lending (TILA), a favorable result for First American could enable title companies to get into much cozier relationships with attorney agents in Massachusetts.

Massachusetts is a so-called attorney agency state, where attorneys issue title insurance policies. Title insurance companies in Massachusetts cannot (yet) legally invest in or own law firms (although this rule is being challenged nationally). So we don’t have a “captive insurance agreements” or the like. Certainly, some attorney agents prefer to give their business to one or two particular title insurance companies, but to my knowledge, there’s no formal agreement among insurers and agents here in Mass.

If First American wins this case, we could see title insurance companies in Mass. considering captive insurance agreements and taking a much more active role in the operations of their favorite and most profitable agents. We will see….

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REBA v. NREIS Ruling: Massachusetts Real Estate Attorneys Required To Conduct Closings; Notaries Shut Out

by Rich Vetstein on April 25, 2011

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

Ruling Mandates That Attorneys Take “Substantive Participation” In All Massachusetts Residential Transactions

The long awaited ruling from the Massachusetts Supreme Judicial Court in case of Real Estate Bar Association (REBA) v. National Estate Information Services (NREIS) has just come down. The ruling can be read below. The net effect of the Court’s ruling is to reaffirm Massachusetts attorneys’ long-standing role to oversee the closing process and conduct closings. For more background, please read my prior post, Battle Between Massachusetts Closing Attorneys vs. Settlement Service Providers Argued Before SJC.

This case pits Massachusetts real estate closing attorneys vs. out of state non-attorney settlement service providers which are attempting to perform “witness or notary” closings here in Massachusetts. At stake is the billion dollar Massachusetts real estate closing industry.

Quick Analysis

Massachusetts attorneys must be present for closings and take active role in transaction both before and after the closing. The substantive ruling from the court was a huge victory for Massachusetts real estate closing attorneys and their continued, long standing involvement in the residential real estate industry. The court requires “not only the presence but the substantive participation of an attorney on behalf of the mortgage lender.” This is what Massachusetts real estate attorneys have been fighting about for consumers in the face of out of state settlement companies who have tried to conduct closings with “robo-attorneys” and notaries who cannot explain complex legal documents to parties at the closing table. The court stated:

The closing is where all parties in a real property conveyancing transaction come together to transfer their interests, and where the legal documents prepared for the conveyance are executed, often including but not limited to the deed, the mortgage and the promissory note. The closing is thus a critical step in the transfer of title and the creation of significant legal and real property rights. Because this is so, we believe that a lawyer is a necessary participant at the closing to direct the proper transfer of title and consideration and to document the transaction, thereby protecting the private legal interests at stake as well as the public interest in the continued integrity and reliability of the real property recording and registration systems.

Applies to Both Purchases and Refinances. The court made no distinction between purchase and refinance transactions. The same essential functions of the attorney — examining and ensuring marketable title, handling the mortgage proceeds under the “good funds” law, and ensuring that the mortgage is properly recorded and the prior mortgage is discharged — are the same in both a purchase and refinance. Accordingly, in my opinion, the ruling applies to both purchase and refinance transactions.
No “Robo-Attorneys” Allowed. NREIS’ business model is to hire part-time, contract attorneys on an as-needed basis to conduct closings. Basically, these are kids right out of law school who get a call to drive to a closing they know nothing about for $100 or less a pop. Although they are licensed attorneys, these lawyers are really no different than the “robo-signers” in the foreclosure industry because they did not participate in the transaction from the start, they did not examine the title, or do anything to manage the transaction. Here’s what the court said about this practice:

Implicit in what we have just stated is our belief that the closing attorney must play a meaningful role in connection with the conveyancing transaction that the closing is intended to finalize. If the attorney’s only function is to be present at the closing, to hand legal documents that the attorney may never have seen before to the parties for signature, and to witness the signatures, there would be little need for the attorney to be at the closing at all. We do not consider this to be an appropriate course to follow. Rather, precisely because important, substantive legal rights and interests are at issue in a closing, we consider a closing attorney’s professional and ethical responsibilities to require actions not only at the closing but before and after it as well.

Analyzing title and rendering an opinion of clear and marketable title must be conducted by attorneys. Certifying good, clear and marketable title is the fundamental function of the real estate attorney in Massachusetts, and required by law for purchase transactions under Chapter 90, section 70. NREIS was attempting to out-source this function to out of state companies and non-lawyers, in avoidance of Mass. law.
Attorneys are required to draft deeds. The court held “because deeds pertaining to real property directly affect significant legal rights and obligations, the drafting for others of deeds to real property constitutes the practice of law in Massachusetts.”
Attorneys must effectuate the transaction. The court also ruled that only licensed attorneys have duty to effectuate a valid transfer of the interests being conveyed at the closing. This includes ensuring that the deed and mortgage are properly recorded; that the exchange of funds is properly made and that prior mortgages and liens are properly paid off and discharged.
Title abstracts, title insurance and other administrative functions are properly delegated to non-attorneys. The court also correctly recognized, consistent with modern practice, that many functions in the real estate transaction don’t have to be performed by an attorney. Included in this exempted list of functions are the preparation of title abstracts by title examiners at the registries of deeds, the issuance of title insurance policies, and the preparation of closing documents & the HUD Settlement Statement. Real estate attorneys typically use title examiners and paralegals at lower costs to perform these functions.

The case will move back to federal court where it started for more fact-finding unless it can be settled. There were several unanswered questions because the record was not adequately established. It remains to be seen whether NREIS and its ink can adopt their business model to the SJC’s holding. It’s possible it can be done, but they will have to hire a group of attorneys to manage the system.

More Coverage: Court Weighs In On Lawyers and Closings, Boston Business Journal (argues that this is a blow to attorneys–completely disagree).

State Court Rules Attorneys Must Participate In Home Closings, Boston Globe (yours truly quoted)

REBA v. NREIS Decision

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Spring Forward, Change Your Smoke/CO2 Detector Batteries & Upgrade To Photoelectric Technology

by Rich Vetstein on March 13, 2011

in Safety

Daylight Savings Time has started which is always a great reminder to change the batteries on your smoke and carbon monoxide detectors.

You should also consider replacing old detectors with the new photoelectric smoke detectors for the kitchen and bathroom areas which are now required by law in new homes under the Massachusetts smoke detector regulations which went into effect last year. Photoelectric smoke detectors are not as prone to false alarms as older ionization based detectors especially in steam filled areas like kitchens and bathrooms.

The new smoke detector law specifically requires photoelectric detectors covering the area within 20 feet of a kitchen or bathroom containing a bathtub or shower. The older ionization detectors are prohibited in these places due to their tendency to be set off by steam.

Home Depot sells a Kidde brand combination photoelectric/ionization smoke detector for $22.97.

Here’s a great Guide to the smoke detector law put out by the Department of Fire Services. Click here for my prior post about these changes.

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Are The Lowest Mortgage Rates In History Now History?

by Rich Vetstein on February 12, 2011

in Fannie Mae, FHA, HUD, Mortgages, USDA loans

A guest post by David Gaffin, Senior Mortgage Lender, from Greenpark Mortgage.

David Gaffin, Greenpark Mortgage

Since Nov. 3rd when the Federal Reserve Bank released details of QEII (Quantitative Easing II), we have seen a very rapid rise in mortgage rates. On a national basis, the Freddie Mac 30 year fixed rate has moved from 4.20% to 5.05% this week. The 10 year Treasury has risen above 3.70% and Inflation seems to be the word of this month.

Last year at this time the 10 year was at 3.73% and it hit 4.00% on April 5th. It then started a fairly rapid descent all spring and summer to its low of 2.38% on October 8th. There were several economic events that brought this about, but the question in every mortgage company’s and consumer’s mind is “Will history repeat itself this year”?

Wishful thinkers will say YES. Many think the stock market is overbought. The Mid-East and Egypt situation is still very unstable. Inflation remains low according to the FED. Unemployment is stubbornly high and the housing market is continues to be very sluggish. Until these issues are resolved, rates cannot rise too far or consumer demand will fall and economic growth will not be sustained.

HOWEVER, there are a few wrinkles that have nothing to do with Macroeconomics that will be in play in the coming months and years.

Changes In Loan Officer Compensation

As part of the Dodd-Frank Bill, loan officers’ compensation is about to undergo a dramatic change. Loan officers will no longer be paid based on certain loan characteristics such as interest rate. The intention is to have consumers with like profiles receive the same interest rate when quoted from one loan officer to another within the same company. One the surface this makes sense. In practice, the policy is very unfriendly to the consumer, limits consumer choice, and is uncompetitive for the marketplace. Loan officers already have a fiduciary responsibility to their clients to put them in the best loan for them, while compensation to the loan officer is not a major factor. This is a higher standard than the financial planning or brokerage environment which must merely come up with a suitable product, not the best product for their clients.

The anticipated effect of this change, coupled with the reduced volume of loan transactions due to rising rates, will further increase the profit pressures on lending institutions, thereby requiring them to make their loans more profitable. This may be done through reduction of expenses and overhead (read layoffs) or higher rates to the consumer, and will eventually lead to fewer choices to the consumer as companies go out of business. The large lending institutions will then be free to control the market even more so.

Fannie/Freddie (GSE) Reform

A bigger factor is the Fannie/Freddie GSE reform now being detailed by the Treasury. This plan, which may take affect over several years, will reduce/eliminate the government’s backing of the mortgage market, except perhaps through FHA, VA and USDA loans. When the government moves to a private secondary market, those investors are going to want a greater return on their investments and rates will almost certainly rise and may do so dramatically. Less than 10 years ago 7.25% was considered a great rate!

Current programs such as a 30 year fixed rate may vanish in favor of the adjustable rate mortgages which move with the interest rate market and would be more profitable for investors. Additionally, for those programs that are somewhat or fully guaranteed by the government, I would expect the fees associated with these programs to rise substantially.

The GSE reform options include reducing the Agency Jumbo Limit to $625,000, down from $729,000 in the highest cost areas. In Massachusetts those high cost areas are Martha’s Vineyard and Nantucket Islands off Cape Cod. The highest max loan amount in other counties is $523,750. Will this reduction of loan size have a big impact? I don’t think so. Current rates may be .250% to .500% higher with portfolio lenders that offer loans over these limits, but these jumbos have come way down in rate compared to the depths of the financial crisis. Most of the risk is relieved through very strict underwriting guidelines.

I have Portfolio lenders offering under 4% on ARM rates on loans to $1MM at 5 year interest only for the right borrower! While ARMs may not be the right product for everyone, they are for certain individuals and these folks are saving tremendous sums compared to where rates were just a couple of years ago.

A big concern for for future homeowners with GSE reform will be the minimum down payment requirements. There is talk that borrower’s may be required to put down 10 or 20% to qualify. Some major lenders have suggested 30%. Yeah, that’ll work…not. If that becomes the requirement you can kiss home ownership goodbye for the next generation or so, and rents will rise very rapidly.

I certainly recognize the need for GSE reform. Taxpayers have been getting killed by the losses from the mortgage giants, and the bleeding will not stop anytime soon. The plan as outlined by the Obama administration will gradually make changes to the GSEs over 5-7 years. But hopefully the market will understand what will be happening well in advance of the changes occuring.

Interest Rate Predictions For 2011 and Beyond

So what do I think? I think (unfortunately) rates will:

increase to 5.875%-6.125% for a 30 year fixed rate by the end of 2011;
increase to 6.50% by end of 2012; and
level out at closer to 7% by 2013.

By that time hopefully there will be a more clear path to GSE reform.

I want low rates. It’s good for my business, helps pay for my mortgage, and keeps the house heated.

All of this rate speculation, however, could be meaningless if Congress decides to finally act on the deficit. If they do, then rates could stay low for a very long period. One thing is for sure, my 3 kids are going to see a very different economic and housing landscape when they are ready to buy a home.

To see the the full report on Reforming America’s Housing Finance Market, click here .

I welcome comments and your point of view. I also welcome subscribers to my blog, The Massachusetts Mortgage Blog. Also check out my new Facebook page, Mortgagemania. I can be reached via email by clicking here.

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Massachusetts Real Estate Law Year In Review & Outlook For 2011

by Rich Vetstein on December 27, 2010

in Condominium Law, Fannie Mae, FHA, Foreclosure, HUD, Massachusetts Real Estate Law, Purchase and Sale Agreements, RESPA, Short Sales

It’s that time again for our annual review of hot topics and top posts for the last year, 2010.

#5. The Great Flood of 2010. Ah, who can forget the flooding in the spring of 2010. I sure remember bailing out my flooded basement every 30 minutes through the night, into exhaustion. Good times… FEMA declared a “major disaster” and the IRS granted taxpayers in 7 counties an extension to file their taxes.

#4. The Obama HAFA Short Sale Program. The Obama short sale program, announced at the end of 2009, was aimed 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 (HAFA) 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. By all accounts, however, the HAFA program has been a dismal failure.

#3. On Jan. 1, new RESPA rules went into effect, significantly changing the way lenders disclose settlement services, in particular closing attorneys’ fees, and title insurance. Read more: New RESPA Rules 2010: Disclosure of Settlement Services, Closing Attorneys’ Fees, And Title Insurance .

#2. Our popular primers on the Massachusetts Offer to Purchase and the standard form Purchase and Sale Agreement, checked in with over 16,000 reads. Great to see posts about buying a new home ranking so highly. An indicator of the recovery of the Massachusetts real estate market perhaps?

Read More:

#1–Fannie Mae & FHA Condominium Regulations: Our series on the Fannie Mae and FHA strict new condominium lending rules were incredibly popular, combining for over 25,000 reads during 2010. The new guidelines had condominium developers and associations, buyers and sellers in a tizzy, as Fannie and FHA imposed much tougher pre-sale requirements, condominium financial guidelines and the imposition of unit owner HO-6 insurance policies, among other requirements.

Read More:

Honorable Mention: With Old Man Winter upon us, our post on the changes in Massachusetts snow removal law is very popular: Massachusetts Property Owners Now Have Legal Responsibility To Shovel Snow & Ice.

What To Expect In 2011

Final Ruling In the Ibanez Foreclosure Case

Early 2011 should bring the final word from the Mass. Supreme Judicial Court on the very controversial foreclosure case of U.S. Bank v. Ibanez which invalidated foreclosures across the state for sloppy paperwork. Thousands of property owners and their ownership rights to their homes hang in the balance. Click Here For Our Entire Series Of Post On the Ibanez Case.

Fate Of Real Estate Attorneys

Year 2011 should also bring the final word in the The Real Estate Bar Association of Massachusetts, Inc. (REBA) v. National Real Estate Information Services, Inc. (NREIS) case. This case pits Massachusetts real estate closing attorneys versus out of state non-attorney settlement service providers which are attempting to perform “witness or notary” closings here in Massachusetts. At stake is merely the billion dollar Massachusetts real estate closing industry.

What are your predictions for 2011?

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Daylight Savings Time Ends: Upgrade to Photoelectric Smoke & Carbon Monoxide Detectors

by Rich Vetstein on November 6, 2010

in Safety

Daylight Savings Time ends tonight, so don’t forget to set your clocks back 1 hour. Changing the clocks is always a good reminder to change the batteries on all smoke and carbon monoxide detectors.

This year, please consider purchasing a new photoelectric smoke detectors for the kitchen and bathroom areas which are required in new homes by the Massachusetts smoke detector regulations which went into effect on April 5, 2010. The new regulations require that new construction be equipped with the latest photoelectric smoke detectors which are not as prone to false alarms as older ionization based detectors. Click here for my prior post about these changes.

The law specifically requires photoelectric detectors covering the area within 20 feet of a kitchen or bathroom containing a bathtub or shower. The older ionization detector is prohibited in these places due to their tendency to be set off by steam.

The new regulations only apply to single family homes sold on or after January 1, 2010. But why run the risk? The safety of your family and children should be paramount.

Here’s a great Guide to the smoke detector law put out by the Department of Fire Services.

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Battle Between Massachusetts Closing Attorneys vs. Settlement Service Providers Argued Before SJC

by Rich Vetstein on November 2, 2010

in Closings, Massachusetts Real Estate Law, Title Defects

Breaking: SJC Rules In Favor Of Real Estate Attorneys

Billion Dollar Mass. Closing Industry At Stake

Today, the Massachusetts Supreme Judicial Court heard arguments in the closely watched case of The Real Estate Bar Association of Massachusetts, Inc. (REBA) v. National Real Estate Information Services, Inc. (NREIS). This case pits Massachusetts real estate closing attorneys versus out of state non-attorney settlement service providers which are attempting to perform “witness or notary” closings here in Massachusetts. At stake is the billion dollar Massachusetts real estate closing industry.

Unauthorized Practice of Law?

I wrote previously about the case in this post. Massachusetts’ long standing practice is for licensed attorneys to oversee and conduct the residential real estate closing process. NREIS’s business model is to outsource the vast majority of those functions to back office workers who aren’t trained attorneys. REBA argues that this practice violates Massachusetts common law and consumer protection statutes requiring that attorneys perform the most vital functions of a real estate closing transaction, such as certifying and analyzing title, preparing the deed, handling the transfer of good funds, where necessary, and conducting the closing.

The case was originally brought in federal court, where NREIS won and obtained a $1Million attorney fee award. But the federal appeals court overturned that ruling, and asked the Massachusetts Supreme Judicial Court to answer the question of whether and to what extent a residential real estate transaction and closing is the “practice of law” required to be performed only by a licensed attorney.

Questions From the Bench & Analysis

A favorable decision also upholds the notion that attorneys are vital to the conveyancing system, protect consumers, and cannot simply be outsourced to a non-trained drone. We’ve seen disastrous results when untrained folks try to perform legal tasks with the foreclosure robo-signing scandal. And the SJC may be sensitive to this having just heard the Ibanez foreclosure case.
Several of the justices weren’t buying NREIS’s argument that its non-attorney back office processors never make legal judgments, but instead simply “flag issues.” Justice Cowen raised several examples of situations requiring an attorney’s trained eye, such as analyzing a title examination, analyzing title defects, and ensuring that loan documents, the deed and mortgage are in the correct form.
Justice Cowen said that NREIS couldn’t delegate everything to a paralegal. At some point an attorney had to make the final call. And I think that is where the Court will end up on this case–hopefully!
Justice Gants and Spina both showed their studying of the conveyancing process in asking whether NREIS needed to have attorneys certify title (they do under state statute) and analyze a title rundown (yes, again).
Don’t bet against the SJC ruling against real estate attorneys in this case. After all, the justices are attorneys themselves. And they are humans. Whether they admit it or not, they are naturally inclined to favor their brethren of the bar.

Why This Case Is Important To Mass. Consumers

The purchase of a home is usually the most important investment most families will ever make. 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 can give legal advice is to protect the public. It gives the buyer and lender someone to hold accountable if there are mistakes. These multiple levels of protection permit buyers, sellers and lenders to confidently and reliably close loans worth hundreds of thousands of dollars every day. Non-attorney closings only hurt the consumer. In recent years, the real estate closing process has become as more complicated than ever. In “witness only” or “notary” closings, the non-attorneys who conduct the closings do nothing more than witness the execution of the closing documents, and cannot provide any legal guidance. What happens if an issue arises at closing requiring legal analysis? The closing attorney has the training to resolve it. The non-attorney closer will just sit there and can do nothing. Lastly, due to increased competition, there is no difference in cost between non-attorney closing companies and real estate attorneys.

In addition to the parties’ briefs, the SJC has received nearly 20 friend of the court briefs, virtually all of which support REBA’s position that NREIS is engaged in the unauthorized practice of law. SJC briefs can be found here. The webcast is found at the Suffolk Law School website.

The SJC should issue a final ruling in several months.

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Massachusetts Mortgage Loan Programs

by Rich Vetstein on October 2, 2010

Today, mortgage options are virtually endless, and often, confusing. We do business with a select group of highly knowledgeable and qualified mortgage professionals who can guide you through the mortgage maze. Please contact us if you need a referral to a great mortgage lender.

We have put together a summary of the most popular mortgage programs below.

30 Year Fixed-Rate Mortgage

This was once the gold standard of mortgages, paid off in 30 years. There’s a clear advantage to knowing what your payments will be and you can usually refinance if rates drop significantly. This is a long-term prospect; if intend to stay in your home for over 10 years, it’s a smartest and safest way to go, especially now with historically low mortgage rates. If you know you will be moving in 5 years or less, you may want to consider an adjustable rate mortgage.

For the remainder of 2010, the conforming loan limits will remain at $523,750 for single families and condos the Boston area. A loan over $523,750 is subject to Jumbo rates and terms.

Jumbo Loans

The loan amount for a Jumbo loan is above Freddie Mac and Fannie Mae conforming guidelines of $523,750 in the Boston area for the remainder of 2010. When the market is very strong, jumbo loans can make a purchase possible; however they often come with higher down payments and higher interest rates.

Adjustable-Rate Mortgage (ARM)

This type of mortgage loan typically has an initial interest rate lower than a 30 year fixed, but is subject to changes in interest rate after a set period. There are 1 year, 3 year, 5 year, 7 year and even 10 year ARMs. The interest rate fluctuates with an indexed rate plus a set margin and the adjustment intervals are predetermined. Minimum and maximum rate caps limit the size of the adjustment. ARMs are popular with those who aren’t expecting to stay in a home for long, or in a hot market where houses appreciate quickly, or for those expecting to refinance. Typically, you can qualify for a higher loan amount with an ARM (due to the lower initial interest rate). Always assume that the rates will increase after the adjustment period on an ARM. You are betting that you’ll save enough initially to offset the future rate increase. Check the payments at the upper limit of your cap (your rate can increase by as much as 6 percent!), you can get burned if you can’t afford the highest possible rate.

Federal Housing Administration (FHA) Loan

This is a very popular government-subsidized loan program with low down payment (i.e., as little as 3.5% for those with qualifying credit scores) and closing fees included. A popular loan for first-time home buyers. FHA loans provide low rates for those who can’t come up with the down payment or have less-than-perfect credit. However, if you can afford 10% or more as a down payment, you might find better rates with conventional loans. Lenders are getting paid a 2 % service fee by the government, so your points should reflect a discount when compared to similar rate loans. There have been a number of recent changes to these types of loans; read more on those changes here.

United States Department of Agriculture (USDA) Loan

As FHA loans became mainstream, many believe it is the only alternative to the traditional Fannie/Freddie loan. However, a lesser known loan program from the USDA may be available in your area of Massachusetts and beyond. Known as the Guaranteed Rural Development Housing Section 502 Loans, these programs are designed for low to moderate income individuals or households purchasing a property in a “rural” community. The definition of rural can be quite surprising; here is an interactive map of the eligible Massachusetts communities.

There are many clear advantages to borrowers under these types of loans, including the benefits of no down-payments, no monthly mortgage insurance and unlimited seller contributions as well as the ability to repair certain aspects of the property and build in those costs into the total loan. With the upcoming FHA changes, the USDA loan requires less out of pocket, a lower guaranty fee and greater flexibility in managing the closing costs associated with the transaction. However, to be eligible to purchase a home with a Rural Housing loan, borrowers will need to earn a higher income to qualify for the same house with USDA than FHA. For more information about these loans visiting the USDA program page and see our blog post here.

1-yr. Treasury ARM

The rate is fixed for one year, after that the loan becomes adjustable every year. The new rate is determined by the treasury average index plus the loan margin (usually 2.25-2.5%). 30-yr. term. Since these have lower rates than a fixed mortgage, when rates go down, you benefit. Watch the margin, however, as it is added to the index to come up with a new rate after the adjustment period. When rates are going up, you could end up paying more interest than with a fixed.

Intermediate ARM

With an intermediate or hybrid ARM, the rate is fixed for a period of time, then adjusts on a predetermined schedule. This is shown by the number of years the loan is fixed, and the adjustment interval. The new rate is determined by an economic index (usually treasury or treasury average index) plus the loan margin (usually 2.25-2.5%). 30-yr. term. When rates are going up, you could end up paying more interest than a fixed-rate mortgage after the initial period. If you aren’t planning to keep your house for long this might work for you as you will receive lower rates initially. Be sure to check the rate caps so you know exactly how high your payments can go. Fluctuating interest rates can mean higher payments over time.

Flexible Payment Option ARM

The borrower chooses from an assortment of payment methods every month. There is a “change cap” limiting how much payments can vary in a year. These can free up cash when you need it. Can be good for buyers with variable incomes (for instance salespeople who work on commission). But some options won’t even cover your interest so with lower payments, your balance will increase each month, and eventually your payments will increase substantially. This could lead to negative amortization. Eventually you will be required to pay down the principal and your payments will increase drastically. If you can’t make them, you lose the house. Many experts will tell you to stay away from these.

Interest-only ARM

These work by allow you to pay only interest for a period of time without paying down the principal. If you don’t plan to stay in a home long, you can buy something you ordinarily couldn’t afford. If you are in a hot market, or a hot neighborhood, you’ll have low payments while your house appreciates in value. You can always pay more on the principal while enjoying the low payments. The day will come when you need to pay down the principal. If your home value has fallen, or your income decreased, two things very common in today’s economy, you could have trouble making the new payments. There’s no surprise many of these loans are now in trouble given the falling housing values and job market. Really, if you can’t pay interest and principal at the same time, chances are you can’t afford the house.

Convertible ARM

A Convertible ARM can be converted to fixed rate after a period of time. You will have a higher rate for the fixed with a convertible loan. You cannot look around for a better deal, which you can with a refinance. Saving the cost of the loan and the hassle of shopping loans are a plus, but you might be crying if the refinance rates are lower than your new fixed. Experts say, “Just refinance.”

Veteran Administration (VA) Loans

A zero-down loan offered to veterans only, the VA guarantees the loan for lenders. These are obtainable with nothing down and no mortgage insurance; also the loan is assumable. It’s possible for the rate to be more than conventional loans or FHA loans, so shop around first. Lenders are getting paid a 2 percent service fee by the government, so your points should reflect a discount when compared to similar rate loans.

Reverse Mortgage

A reverse mortgage is a loan given to older homeowners who need to borrow against the equity of their home while they are still living in it. The debt does not need to be repaid until the house changes hands. Interest is commonly one-year treasury rate, plus a margin and a cap on a rate change. The beauty of these mortgages is that they allow people 62 or older to stay in their homes as they age with no repayments. You must maintain your house, pay property tax, and insurance. Also you cannot take out a second mortgage, rent your home, or use it for business. The loans are complex, so make sure you understand what you are getting. AARP has good consumer-oriented explanations for seniors. We suggest choosing a lender who is member of the National Reverse Mortgage Lenders Association.

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The Impact Of The Mortgage Reform & Anti-Predatory Lending Act On The Conventional Residential Lending Industry

by Rich Vetstein on August 25, 2010

in Disclosures, Massachusetts Real Estate Law, Mortgage Crisis, Mortgages

The new Mortgage Reform and Anti-Predatory Lending Act, buried in the fine print of the much publicized Dodd-Frank Wall Street Reform and Consumer Protection Act contains strict new rules aimed at preventing another sub-prime mortgage collapse.

Overview: What Is The Impact To Mortgage Lenders and Originators?

The Mortgage Reform and Anti-Predatory Lending Act certainly changes the regulatory landscape for mortgage originators who focused on high-risk, sub-prime lending, setting tougher new standards and creating new federal remedies for consumers victimized by deceptive and predatory lending. Stripped down, the Act puts the onus on mortgage lenders and originators to ensure, based on verified and documentation information, that borrowers can afford to repay the loans for which they have applied. Pretty novel idea, huh?

The new law essentially codifies good underwriting practices by requiring consideration of a borrower’s “credit history, current income, expected income the consumer is reasonably assured of receiving, current obligations, debt-to-income ratio or the residential income the consumer will have after paying non-mortgage debt and mortgage-related obligations, employment status, and other financial resources other than the consumer’s equity in the dwelling or real property that secures repayment of the loan.”

I don’t see anything in these rules that a financially prudent lender wouldn’t have already implemented in its underwriting processes. Lenders should not be placing borrowers into loans they are doomed to fail.

I’m sure these new rules will result in a few more disclosures and forms, but I don’t see this making a major impact on the conventional residential lending industry. If mortgage professionals think otherwise, I’d love to here from you. Well, onto the details:

New Minimum Mortgage Affordability Standards

The new law essentially outlaws many of the characteristics of the classic sub-prime, predatory mortgage loan, by requiring that:

The mortgage provides that regular periodic payments do not result in an increase of the principal balance of the loan or allow the consumer to defer repayment of principal.
The mortgage does not result in a balloon payment (a scheduled payment that is more than twice as large as the average of earlier scheduled payments).
The income and financial resources relied upon by the lender have been verified and documented.
The underwriting process for a fixed loan is based on a payment schedule that fully amortizes the loan over the loan term, taking into account all applicable costs.
The underwriting process for an adjustable rate loan is based on the maximum rate permitted under the loan for the first five years and a payment schedule that fully amortizes the loan over the loan term, taking into account all applicable costs.
The mortgage complies with guidelines and regulations related to ratios of total monthly debt to total monthly income or alternative measures of a borrower’s ability to pay.
The mortgage has total points and fees amounting to no more than 3 percent of the total loan amount.
The term of the loan does not exceed 30 years.

It would appear that this new law would prohibit so-called “no doc” “no income verification” loans.

The new law also imposes on lenders a duty to verify amounts of income or assets that the lender relies upon to determine the consumer’s ability to repay the loan. Again, a novel idea…In order to “safeguard against fraudulent reporting,” lenders are now required to use IRS transcripts of tax returns.

New Loan Origination Standards

The new law requires that lenders be qualified and registered as mortgage originators under the applicable federal and state laws. The significance of this registration procedure is that all loan documents will require the inclusion of the mortgage originator’s unique identifier, which is to be provided by the National Mortgage Licensing System and Registry. This will enable tracking of the bad guys.

“Steering Incentives” Prohibited

The Dodd-Frank Act will prohibit lenders from “steering” borrowers into more costly loans. It will prohibit mortgage originators from mischaracterizing the credit history of a consumer or the residential loans available to the consumer for purposes of making the loan. Mortgage originators are also prohibited from discouraging consumers from seeking a residential mortgage loan from another lender when the former is unable to suggest, offer, or recommend a loan that is not more expensive.

Predatory Loans Banned

Mortgage originators are prohibited from steering consumers to residential mortgage loans that have “predatory characteristics or effects.” “Predatory characteristics,” include equity stripping, excessive fees, or abusive terms.

Yield-Spread Premium Bonuses Outlawed

The Dodd-Frank Act also imposes new compensation limitations by prohibiting yield-spread premium bonuses, a practice, regulators argue, tends to increase the total cost of the loan to the borrower. Yield spread premiums (YSPs) are fees paid by a lender to a mortgage originator for placing a loan in a certain loan program.

Additional Liability for Mortgage Originators

The Act imposes liability on mortgage originators who fail to comply with these new minimum standards. It provides the penalty of triple damages plus the costs of suit and reasonable attorneys’ fees. Watch out for class actions here!

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The Hyper-Local Real Estate Blog: Become THE Local Expert For Your Market Area

by Rich Vetstein on August 11, 2010

in Blogging, Real Estate Marketing

This is another post in our ongoing series on Social Media For Real Estate Professionals. We are now providing Social Media Solutions for real estate agents, mortgage brokers and other real estate professionals through our affiliated company, HubConnected LLC. Please contact us for more info.

A hyper-local real estate blog is a blog targeted at a single town, city, neighborhood, or even a subdivision/gated community. By focusing on, and providing content for, one (and only one) geographic area, a hyper local real estate blog can outperform a more broadly targeted website/blog for lead generation and Search Engine Optimization (SEO).

Why Hyper-Local Blogs Work For Real Estate

The real estate market is extremely saturated with agents who all have static websites and blogs which appeal more to the masses. Using a hyperlocal strategy can help set an agent apart from the sea of agents that are just blogging generally and don’t have a focused SEO strategy.

Today, consumers using search engines are increasingly searching for hyper-local, specific search terms, such as “Brookline, MA places to eat shop” or “Needham MA tennis courts”. A hyper-local blog, if properly managed, can rank high for these hyper-local search terms, even above the restaurants, stores or tennis facilities the consumer was originally searching for. If the consumer clicks on your hyper-local blog, and a trust relationship is created, BINGO, you’re in business and have created a relationship that may result in a lead or referral.

Finally, hyper-local blogging helps build relationships with not only potential buyers and sellers, but other members of the local business community that might provide referrals and other business opportunities. A hyper-local blogger can write restaurant reviews, promote referral partners, the schools, road construction, you name it. A hyper-local real estate blogger can quickly become THE local expert about their community–and that’s exactly where a real estate agent wants to be.

If you are interested in learning more about hyper local blogging, a good place to get started is at HyperLocalBlogger.com.

Here is an example of a hyper local blog for Glendale, CA. The Realtor, Kendyl Young, does an innovative series called 365 Things To Do in Glendale, CA where she posts something every day of the year.

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Changes In Loan Officer Compensation

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