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Mortgage Payments During California Shelter-in-Place

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mortgage in pandemic

Is my house at risk if I have no income due to coronavirus?

With economic activity at a dead halt due to COVID-19, California homeowners worry about next month’s mortgage payment.  And the month after that, for as far as the pandemic can see.

While it’s early days, and I fully expect broad governmental measures to protect homeownership, here’s what we know at present.

Federal protections from foreclosure

HUD has imposed a 60 day suspension of foreclosures and evictions on loans from the FHA.  Loans backed by Fannie Mae and Freddie Mac will also get a 60 day reprieve, with promises of further extensions if the circumstances require.

So, how do you know if Fannie or Freddie owns or guarantees your home loan.  There’s a tool, or rather two tools, for that.

Look up your loan.

Fannie: 

Freddie

Thus, California homeowners with existing foreclosure or eviction actions are protected for at least two months.  I fully expect that period will be extended.

Dealing with missed payments

What if  you were current when the shut-down was imposed but you can’t make next month’s payment?

What’s a loan servicer?

If  your loan is owned or guaranteed by Fannie or Freddie,  servicers have been directed to  offer flexible payments or a suspension of all payments for up to a year.

I anticipate federal regulations that will require servicers to offer loan modifications or payment extensions.  We can hope that the system has more teeth than the HAMP modifications following the Great Recession.

Not Fannie or Freddie?

It’s less clear, at this point, how lenders with loans that aren’t federally insured will proceed.

Early data suggests that lenders are prepared to be flexible.  We’ll have to wait to see if the federal government requires it some time down the road.

Check on line for the latest from your lender/servicer.

California 90 day grace period

Governor Newsom has reached agreement with 4 of the top five federally chartered banks who own or service home loans.  (Bank of America is the hold out.)

Two hundred state chartered banks and credit unions have joined the agreement

The banks agreed to waive mortgage payments for 3 month  regardless of income level.  No fees or penalties will accrue, and there will be no negative credit reporting.

Borrowers do have to document that their inability to make payments was traceable to the coronavirus.  Details on what kind of documentation is required varies among lenders.

For Californians, the most reassuring news is that California foreclosures take a long time.  While California foreclosures don’t involve the courts, the notice and cure periods mandate 4-6 months between the start of foreclosure and an actual foreclosure sale.

And the people who conduct foreclosure sales are in lock-down, too.

Write and call

For every debt that you can’t pay because of the shelter in place order, call the creditor to tell them how you are affected.  That’s what the creditors all say.

I say, follow up that call with a short letter repeating the facts of your situation.  Doesn’t have to be long or fancy.  Just get paper in the creditor’s hands.

Keep a copy for yourself.  Don’t count on the creditor to be able to file your letter and find it later.

Then you’ve made a record of your call and your situation.

Looking forward

I fully expect that we will see muscular, nationwide programs to keep people in their homes.  As a society, and an economy, no one benefits if masses of families lose their homes.

It will take time to work out just what those programs look like and how well they work.

But work it out we will.

Updated 3/30/2020

More

When you can’t pay your bills during pandemic

 

 

Home Mortgage Forbearance: Will It Save Your Home From Pandemic?

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mortgage forbearance

Mortgage forbearance for homeowners, shout the headlines.  No need to make a house payment.

Borrowers who can’t make this month’s mortgage payment were thrown a lifeline of sorts in the coronavirus rescue package.

Only it’s probably not the help you think it is.

And the lifeline may be far more fragile than you will need in the long run.

So, let’s take a tour of the CARES Act as it applies to home loans and see what the neighborhood looks like.

Not all home mortgages are covered

Only home loans that are made, owned or backed by an arm of the federal government are covered.  That’s approximately two-thirds of all home loans.

Fannie Mae and Freddie Mac handle most of the federal loans.  See whether your loan is one of the covered federally-backed loans with these look up tools.

Fannie Mae

Freddie Mac

If your loan is not federally backed, you need to look to your loan servicer or to local and state protections if you can’t make your mortgage payments.

Hardship must be virus-related

virus and moneyTo invoke the protections of the rescue package, your inability to make the mortgage payment has to be traceable to the virus or the fight against the virus.

Apparently, all that is required is a statement that your financial hardship is caused by the National Emergency.

No magic words, no sworn statements, no documentary proof.  Just blame the virus.

Claiming the protection

Early discussions said “call your lender”.  Well, we know how practical that is when millions are trying to get through on the phone.

Calling works, if you can connect.

Better, check out your servicer’s website for a Coronavirus hardship page.  Many allow you to sign up for help by checking a box, or sending an email through their site.

Always, when  claiming a benefit, follow up in writing with the statement of hardship and your contact info and loan number.

We have to expect screwups and delays.  As a society, we’ve never experienced a crisis this sudden, dire, and widespread. So back up your claim in writing, and keep a copy.

What is forbearance

The CARES Act offers forbearance to borrowers with federally backed loans.  Just what is forbearance.

Forbearance is a suspension of payments

In essence, the lender puts on hold its right to invoke legal consequences for failing to pay.

Contrast forbearance with deferral:  deferral adds missed payments to end of loan

Forbearance doesn’t change the amount due monthly, or change the life of the loan.

Importantly, at the end of the period of suspension, all of the suspended payments are then fully due.

Ouch!

So, take the six month forbearance provided in the law, and in month seven, those six months of payments are due. (The law allows for a request to extend the period of forbearance for another six months.  A request for a further forbearance MUST be made during the first period of forbearance.

What comes after forbearance

Here’s where the short-term nature of the remedy comes up short.  This bill just pushes the nonpayment problem down the pike.

What the feds are saying is that at the end of the forbearance period, each borrower will have to make a deal with their servicer to get current.

UPDATE:  Feds assure borrowers that their homes aren’t at risk of loss due to forbearance.  The alternatives are still to be worked out individually.

At the current time, there are no regulations or even templates about what that “deal” might look like.

But if you were involved in mortgage modifications following the Great Recession, you’ve looked into the maw of chaos.

Given the much broader path of these troubles,  the mess to follow will make 2008 look orderly.

What lenders are offering

enticing offerI’ve seen a number of offers stuffed in mortgage statements in the last month offering forbearance to borrowers, apparently without asking.

Typically, the lender offers to suspend payments for three months, with all missed payments due in month 4.  I’m fearful that borrowers will snap at that offer without understanding it, or without any real expectation of how they’ll make four months’ payment at the end of the forbearance.

Neither do I know whether these offers are going to homeowners with federally backed loans or whether they are being offered more broadly.

I suspect the offers are made in good faith and on the spur of the moment.   However, I’m fearful about the lender’s plans (or lack of plans) for what happens after forbearance.

Details to follow

Obviously, the CARES Act was cobbled together quickly in the face of emergency. It surely won’t be the last word from Congress on getting homeowners through this crisis.

Watch for the next round of remedies, and  raise your voice for a fair, enforceable, efficient process to preserve homeownership in a time of pandemic.

More on our coronavirus page

Explaining The Increase In Monthly Mortgage Payments On Long Established Loans

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mortgage payments jump

Why has my mortgage payment increased so much? That’s the question I’m getting from lots of clients recently.

Interest rates are creeping up on variable rate loans, but not dramatically.

For most of those asking, it’s because the interest-only period of their home loan has run.

Loans promised increased mortgage payments

Borrowers forgot that lots of loans written 10 years ago  promised low initial payments of interest only.

While it wasn’t a free ride,  it was cheaper than a fully amortized, 30 year loan.

Appealing, and the interest-only feature probably allowed borrowers to believe that they could afford the house they were buying.

But, time’s up on many of these loans.

And math tells us that when 10 years have passed and the remaining life of the loan is 20 years, it will take larger monthly payments to retire the amount borrowed.

Understanding your loan

The easiest way to see if the loan terms explains the payment increase is to pull out the promissory note.

Many of these notes have some description of unusual terms on the first page of the note, right under the heading “NOTE”.

It may say explicitly, “10 year interest only” or “interest fixed” or “variable interest”.  All of those are among the products peddled before the Great Recession.

The note should tell you when the “change date” on the loan is, and if variable, what index is used as a base for the interest rate calculation.

If you can’t find your note, you can ask the servicer for a copy using a Request for Information under RESPA.  Here’s a how-to for making a request.

Alternatively, you can ask your questions about loan terms directly from the servicer, again, using a Request for Information.

There’s no charge to make such a request, but the timeline for getting an answer can be as much as 30 business days.

If you can’t make the increased payment

If the increased payment is unmanageable, consider seeking a loan modification from the existing lender.

An alternative is to see what your options are to refinance the loan with a new lender, a new loan, and another 30 years to pay.

Be proactive.  The further behind you get on the existing loan, the less attractive you are as a borrower on a new loan.

More

Critical questions about your home loan

Mortgage payments during the pandemic

Find a free HUD housing counselor

Don’t Fall For Your Mortgage Lender’s Insurance

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lender home insurance

If the mortgage company provides your property insurance, you are not in good hands.

No matter how much time it saves you.

Your lender is not a good neighbor when it comes to insurance.

When your insurance lapses

Somehow my client let her homeowners insurance lapse.  She wasn’t worried about it, she told me, because the mortgage lender had gotten insurance on her home.

She was content, she said, to let the lender take care of that complication in her life.

Only the complication wasn’t being “taken care of” because the lender’s force-placed insurance didn’t protect my client or her interest in her home.

Lender protects only themselves

Normally, you pick out an insurance carrier to insure your home and to protect yourself against the risks that property owners have.

Your mortgage requires that you insure the property and name the lender as an additional insured.  That way, if the house, which is part of the collateral for the loan, burns down, the lender gets all or part of the insurance proceeds to make up for the loss of the structure.

Your mortgage also provides that if you don’t get insurance to protect the lender, they can get it for you, and you’ll have to pay for it.

But here’s the catch: force placed insurance  protects only the lender up to the amount of its loan.

Your equity in the property is not covered, nor are you insured against personal injury claims related to the  property.

Not to mention the fact that force-placed insurance is very expensive.

So, my client who thought she’d off-loaded the job of providing insurance, had no protection from the lender’s insurance.  All she had was the bill for three times what she was paying before, for half the coverage.

Homeowners exposed to injury liability

Homeowner’s insurance usually protects far more than the house on the lot.  It protects you from claims by visitors to your property for injuries they suffer on your property.

And other, quite unexpected stuff.

Early in my legal career, I found that my client’s homeowner’s policy covered the damages his son caused spinning wheelies in his dad’s car on the high school football field in the dark of night.

Our legal system assigns liability to property owners for injuries that occur on the property, often without regard to fault,.  For that reason,  I advise that people walking away from homes or investment property continue to pay for liability insurance even if they aren’t paying the mortgage and are indifferent if the property burns down.

Take insurance matters into your own hands and be genuinely protected.

More

Little known step that’s critical before listing house for sale

Your house needs an annual check up

How California homesteads work

Your home provides a poor retirement

Image courtesy of Artotem 

7 Keys To Keeping Your House: Chapter 13 After You File

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keep the house

Filing Chapter 13 bankruptcy stops the foreclosure.  You’ve protected your home, for the moment.

Bankruptcy gets you a sheltered legal environment to address the problems with your mortgage.

You heave a sigh of relief.

But the fight to keep your house isn’t over, just because there’s a stay.  You’ve just gotten through the first round.

You need to stay on your toes for the balance of the match to emerge with your house safe at the end of your bankruptcy.

Here’s what you need to know.

Mortgage lenders get special consideration

In the bankruptcy context,  the mortgage lender gets privileged treatment.

Anglo Saxon law, from which US law is drawn, has long given particular protection to the claims of property owners.  After all, it was those who owned property who wrote the laws.

The mortgage lender gets that special treatment because the lender’s lien is a property interest in your home.

That lien entitles the lender to regular payments;  if payments aren’t made, the lender can ask for relief from stay to foreclose.

The exception is if the value of the collateral is less than the total of the liens ahead of the lien in question.  Think:  underwater second mortgage.

Follow these 7 keys for keeping your house AND getting a discharge in Chapter 13.

1.  Regular mortgage payments required

Most Chapter 13 plans provide that the trustee pays the arrears on your mortgage, while you make the payments that come due after filing.

Make the payments- that means property taxes and insurance as well.

Too often, homeowners get fixated on paying the arrearages on their mortgage that they overlook, or struggle, with the ongoing payments.

Court are intolerant of borrowers who want the protection of the bankruptcy stay, but don’t take seriously their obligation to pay the monthly payments that come due after filing.

That intolerance spills over into dismissal of  Chapter 13 cases without a discharge when debtors fail to make current payments.

2.  Look for other liens

Chapter 13 isn’t limited to fixing problems with mortgage liens.  Your plan can either avoid altogether or reduce the amount of tax or judgment liens,

Make sure that you check the public record to see if any avoidable liens have attached, unnoticed, to your home.

If you find liens, your plan can cut them down to size.

3.  Pursue modification

Your best bet may be to agree with the lender on a modification of your mortgage.  Nothing in Chapter 13 stops the parties from considering modification.

Northern California bankruptcy judges have decreed that negotiations for a modification do not violate the automatic stay

Frequently, the modified mortgage either folds the arrears into the loan balance, to be paid over the life of the loan. Or, modification designates a portion of the amount owed as not bearing interest, but payable at loan-end or sale.

A modification that cures the arrears may eliminate the mortgage arrears portion of a Chapter 13 monthly payment, thereby increasing the chances of success.

4.  Review the lender’s claim

In order to be paid in a Chapter 13, a creditor must file a proof of claim.  For mortgages secured by the debtor’s principal residence, a detailed attachment is required.

The mortgage attachment must account for payments and charges to the loan from the date of the first, uncured default.

The POC also contains an analysis of any escrowed taxes and insurance, and the adequacy of the monthly payment to pay those expenses.

Dig into these numbers and see if they match your payment records and whether they are otherwise complete.

There’s lots of data there, some of it correct and some woefully wrong.

5.  Keep records of  your payments

Too many mortgage servicers fail the fundamental task of accepting your payments and crediting them properly.

The method of accounting changes with bankruptcy:  payments made after filing are supposed to be credited to a separate accounting for your loan, while the pre bankruptcy record stands alone

Servicers don’t always do that.  Payments sometimes sit for months on someone’s desk, undeposited.

I tell clients to pay with paper checks on their accounts and send the payment by a method that gets you a receipt upon delivery to the servicer.

It’s a hassle, I know, but you end up with a record from your bank that the check was cashed, and you have proof that it was delivered.  The added expense is nothing to the cost of your attorney having to track down the facts showing you paid.

6.  Read payment change notices

If your monthly mortgage payment changes after you file bankruptcy, the servicer must send you a Notice Of Payment Change.

The change may be driven by an interest rate change or a change in the cost of escrowed taxes or insurance.

Even though it comes on a court form, and looks dense, you’ve got to read it and adjust your post filing payments on your mortgage accordingly.

If you’re uncertain, ask your lawyer.

7.  Exploit case-end rules

When you’ve made your last payment to the trustee, bankruptcy rules require a notice to the mortgage servicer about the state of your loan balance.

If the lender claims that either the pre-bankruptcy claim hasn’t been paid in full, OR, that there are unpaid amounts arising after you filed, they must file a reply.

This call-and-response procedure flushes out any difficulties that show in the lender’s books, and provides a mechanism and a judge to sort things out.

The goal is to exit bankruptcy knowing exactly where you stand on the home loan.

Make sure this happens in your case.

If you change your mind

Things change over time.  If you find that keeping the house no longer fits with your financial future, tell your lawyer immediately.

The confirmed Chapter 13 plan obligates you to make the payments you promised as well as obligating your creditors to stand down.

There’s nothing wrong with changing your mind, so long as you change your Chapter 13 plan to match.

Far too many debtors recently get to the end of the case and get their cases dismissed, without a discharge, because they stopped paying on the mortgage and didn’t alert their lawyer.

More

Make sure you don’t lose house and discharge

Monitoring your mortgage loan 

Before you list your house for sale

 

The Foreclosure That Was Longer Than War & Peace

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Foreclosure is coming.  Whether by choice or circumstances, you know the bank will take the house.

Should you start packing immediately?

The way banks are currently operating, the answer is:  not yet, not soon, not for a long time.

For one of my clients, the answer to how long was well more than 735 days.  And they did nothing to delay the inevitable.

Here’s the foreclosure timeline for this California couple.

A year of missed payments

When they filed bankruptcy in June, 2013, they were 13 months behind on their mortgage.  That’s 390 days without paying.

The house was waaaaay underwater and they decided upfront to let it go.  And said so in the Chapter 13 plan.

From bankruptcy filing to relief from stay

It took 477 days from the commencement of the bankruptcy case for the lender to request and get an order from the bankruptcy court permitting them to foreclose.

Court order til foreclosure

It took another 180 days to actually conduct a  sale.  At that point, the lender owned the house, but the couple was still living there.

Sale to eviction

Then, remarkably, another 271 days went by before the bank took steps to evict the former owners from the house that it had owned for more than 8 months.  And the bank paid the former owners some cash to move out voluntarily.

Your mileage may vary

The experience of this couple doesn’t assure you of a mortgage servicer with a similarly lackadaisical approach.  But it is consistent with the data on California foreclosure.

The takeaway is:  don’t move out until you absolutely have to.

Living rent free til the foreclosure allows you to build up a kitty to finance the move.  Or feed your retirement fund.  Or start saving for a new house.

More:

Get paid to surrender possession

Your rights while you’re in foreclosure

Buying a house after foreclosure

Basics of California foreclosure

Make Sure Your Mortgage Is Current At Bankruptcy’s End

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What do you really owe on your home mortgage when you get to the end of your Chapter 13 case?

For years, homeowners couldn’t tell where they were or how to get answers.

But with the recent changes to bankruptcy rules, you don’t have to wonder where you stand with your mortgage lender.

  • Are you really, fully current with the mortgage?
  • Are there fees and charges that you don’t know about?
  • Are you ready to emerge from bankruptcy 100% paid up?
  • Is the lender really poised to start foreclosure?

Starting December 1, 2016, your Chapter 13 trustee is required to flush out any surprises that lurk in your home loan servicer’s accounts.

And a federal judge stands by to sort it out.

When my client’s Chapter 13 case was through,  she was $62,000 better off, because of the rule.

Let’s hear it for Bankruptcy Rule 3002.1.

Why we needed this rule

Rule 3002.1 addresses the lack of transparency that used to exist about your home loan during a Chapter 13.

The Chapter 13 runs 3 to 5 years, and the automatic stay limits the lender’s ability to let you know what’s happening with the loan.  (This assumes that the lender ever really wanted to let you know what’s happening, but that’s another rant, another day.)

Lots can happen during those years. Too often, before the rule, debtors would get their Chapter 13 discharge and a foreclosure notice practically in the same day’s mail.

It might be late fees, forced placed insurance, or just plain accounting mistakes.  Whatever the reason, the consequences were horrific.

What the rule does

If your Chapter 13 plan provides for payment on your home mortgage, your lender (or the servicer for the lender) must give certain notices to you, the court, and the trustee during the case.

First, they must file a notice if the payment amount changes during the case.  The notice must be given at least 21 days before the change takes place.

Second, they must file a notice of any fees, expenses or charges added to the loan balance that were incurred after the case was filed.  The notice must be given within 180 days of the time when the charge was incurred.

If you dispute that the charge is allowable, you have a year from the filing of the notice to file a motion and schedule a hearing before the court about the charge.

Current at case end

When you’ve made the last payment to your Chapter 13 plan, the trustee must file a notice of final cure payment and send the notice to you, your attorney, and the creditor.

The notice says that the trustee believes you to have cured any pre bankruptcy default and alleges that you are fully current with payments and fees that came due after you filed.

The mortgage lender must file a responsive pleading within 21 days.  If the lender claims that there are unpaid amounts, they must itemize the fees and expenses that they claim are still outstanding in a payment history.

Bingo:  you have visibility.  And you have a right to file a motion before the court to determine if you’ve cured the default and paid everything that is required of you afterwards.

If the lender screwed up

Chances are pretty high that the servicer has screwed up.  Often that takes the form of failure to have given you timely notice of fees added to the loan.  Remember, notice must be given within 180 days of when the fees were incurred.

If the lender has failed to give proper notice, the judge can bar the lender from offering evidence in the hearing to determine if you’re current and can award you your attorneys fees caused by the failure.

The rule in action

A lender’s failure to follow the rule in the case of one of my clients resulted in the lender having to forgive some $62,000 in post filing fees and taxes they’d paid without telling my client.  In addition, they paid my fees for getting the charges  wiped out.

You can read the court’s opinion with the details of each blunder the bank made.

I believe that such results are just the tip of the iceberg in this field.

Get through the maze

The beauty of Rule 3002.1 is that it gets to the heart of your dealings with your home mortgage lender while you still have access to a bankruptcy judge to make things right.

It’s up to you and your attorney to see that the trustee gives the required notice.  If the trustee doesn’t, the debtor can.

Then you need analyze the response of the lender and challenge behavior that isn’t compliant with the law.

Don’t miss out on getting all the relief that Chapter 13 entitles you to.

More

RESPA to the rescue:  send information

Mortgage statements after bankruptcy

What’s discharged in a bankruptcy

 

No Foreclosure If Loan Modification In Process

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foreclosure roofline 650 taberandrew

The cruelest trick played on homeowners trying to modify their mortgage was dual tracking.

One side of the bank assured the borrower that their loan modification application was being considered and they didn’t need to worry.

All the while, the other side of the bank was conducting a foreclosure sale.

The borrower wakes up to find that they are no longer homeowners.

No more.

New federal rules prohibit dual tracking

Mortgage lenders are now prohibited by federal law from conducting a foreclosure while a mortgage modification application is under consideration.

Regulation X – Real Estate Settlement Procedures Act

Before a foreclosure is begun, the lender or their servicer must take steps to let the borrower know what options exist to keep the house.  The mandated timeline creates a four month interval between delinquency and starting the foreclosure in which alternatives can be explored.

Live contact with borrower

Mortgage servicers must attempt to make live contact with borrowers who become delinquent within 36 days of the delinquency.  A voicemail message doesn’t cut it.  Reg. X §1024.39

The servicer must describe the kinds of loss mitigation options that are available and they must establish a single point of contact for the borrower with the servicer.  Reg. X § 1024.40

No foreclosure can be instituted until 120 days have passed from the first delinquency.  More importantly, if a complete loan modification application has been submitted to the the servicer by the 120 day point, no foreclosure can be begun.  Reg. X §1024.41

Last minute help

If the borrower misses the 120 day deadline for submitting a loan modification application, there’s still protection in the new rules.

If a loan mod application is made more than 37 days before the foreclosure sale, the servicer cannot conduct a foreclosure sale until it issues a decision on the application.

The new rules deal with a myriad of variations on these timelines.  The theme in the rules is consistent:  federal law requires a decision on a loan modification application before the foreclosure train chugs down that track.

If the servicer breaks the rules

The new rules have teeth.

Borrowers who believe their servicer has failed to follow the rules can sue the servicer.  If you can prove your case, you can collect your actual damages as a result of the violation; your costs of suit; and your attorneys’ fees.

These regulations implement provisions of the Dodd Frank legislation; they became effective January 10, 2014.

Another arrow in homeowner’s quiver

These rules do not preempt other rights that homeowner’s have in this arena that give them greater rights.

Like any new law, we will have to see how they work over time.

While the rules don’t require servicers to modify loans, they do require servicers to refrain from foreclosing while a loan modification application is pending.

Image courtesy flickr and taberandrew.

Is Home Equity A Substitute For Retirement Savings

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My house is my retirement plan.

If I had a dollar for every time a client said that, I could retire today.

But that approach to funding your old age only works if….

Sell your house to retire

The value in your house makes your balance sheet strong, but doesn’t put food on the table or gas in the car.

That home equity is illiquid.  You can’t write a check against it for the other necessities of life.

To get at that equity, you need to sell the house, or  borrow against it.

A traditional loan requires that you have cash to cover the monthly loan payments.  But hey, you’re not working.  Where does that money come from?

Reverse mortgage

The reverse mortgage was invented to allow seniors who can’t make monthly payments on a conventional loan to access the equity in their home.

But the fact that a reverse mortgage has no monthly payments does not mean that it’s cost free.

No, the interest on the money borrowed accumulates over the life of the borrower.  And the unpaid interest itself earns interest.  The cost is steep.

Dangers in reverse mortgages

Reverse mortgages top list of older consumer complaints

And a condition of a reverse mortgage is that you keep up insurance and property taxes.

Real property has carrying costs

Whether encumbered or owned free and clear, real property has its own set of expenses.

  • Hazard insurance,
  • property taxes,
  • repair and upkeep.

Gotta have cash for those things.  The average Social Security check is about $1300.

Where do you live if you sell

If you’ve benefited from rising home values over your lifetime as a homeowner, the cost to replace the house you’re selling has risen as well.

And buying less house in your community still has the carrying costs we talked about above.

Or you rent.  So housing still has a cost.

Or you move out of the community you live in to somewhere where your sale proceeds go further.

You move away from friends and support systems.  Or maybe you move back to somewhere where you have a support system.  It can work both ways.

Taxes shrink your equity

Capital gain taxes are triggered if you sell your home.  Current tax law excludes from taxable income $250,000 in gain for a single person and $500,000 for a married couple. (Watch for changes, here).

So taxation will deplete your sales proceeds only if you have experienced a lot of appreciation over your lifetime.

But if you’re sitting on lots and lots of equity, count on it shrinking if you sell.

Don’t hide behind your house

There are no easy or universal answers here.  Our lives are longer and our preparation for old age is woefully incomplete.

For too many people I meet, the “home is my retirement account” is an excuse for overpaying for housing at the expense of retirement savings.  It provides cover for failure to set aside any money now.

Diversification of your retirement assets is clearly best.  Have cash and home equity as you age.

But however you are situated, give some clear thought as to how you fund those decades of life when you aren’t working.

More

Do California seniors need bankruptcy

What it costs to retire here

California homestead and senior debt

Image © Fotolia

Bankruptcy Debtors Entitled To Monthly Mortgage Statements

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monthly mortgage statement

Years of uncertainty and indifference, rooted in the automatic stay and a homeowner’s ongoing obligation on their mortgage after bankruptcy, has ended with a new rule.

Mortgage servicers must now send monthly statements to borrowers in bankruptcy under a new CFPB rule effective April, 2018.   

The earlier version of the rule, adopted in 2014, allowed servicers to send no statements to consumers who had discharged their personal liability in bankruptcy or who had a pending bankruptcy case.

Now the rule creates a duty to render a monthly statement unless

  • the consumer requests the servicer stop sending statements
  • the consumer’s Chapter 13 plan provides for surrender, avoidance of the lien, or doesn’t provide for ongoing payments
  • a court order avoids the mortgage lien
  • a Chapter 7 statement of intentions indicates surrender AND no payment has been made since bankruptcy was filed

Even if an exemption to the duty applies, the consumer can opt in to receiving monthly statements by making a written request.  The request can be made by any borrower on the loan or by their agent, such as their bankruptcy attorney.

And just like RESPA Requests for Information, the servicer can designate an exclusive address to which the request must be made.

Statements tailored for Chapter 13

When a borrower is in Chapter 13, the servicer must modify the monthly statement to show the amount due as only the post petition amount.

The monthly statement must also account for the pre bankruptcy arrearages in a new category on the statement.  Required information on the arrears includes

  • amount received on the prepetition arrearage since the last statement
  • the total of all payments received since the bankruptcy was filed
  • the current balance of the prepetition arrearage

Boon to borrowers

This rule is a huge step forward for borrowers in bankruptcy.  Until this rule, there was a terrible disconnect between the borrower’s intention to continue paying on the mortgage and the servicer’s ability to avoid providing information about what is due.

FRBP 3002.1 spoke to part of the problem when it required servicers to file and serve notices of changes.  But that still left the homeowner without the monthly cue on where and how much to pay on the home loan. 

When mortgage lender changes their tune, it’s war.

The new rule goes a step further in that it requires the monthly statement to show both the state of the loan payments since bankruptcy, but also the progress toward curing any pre bankruptcy default.

Challenge to servicers

For the last 25 years of my bankruptcy practice, servicers have routinely botched the problem of accounting for payments made on mortgage loans in Chapter 13.  They have struggled to impliment a system that properly credits and accounts for payments received after filing on the continuing mortgage along side payments received on the pre bankruptcy arrears.

Even before this rule, servicers can seldom file papers with the bankruptcy court with numbers that are consistent as to the amount the debtor owes.  I’ve seen cases where a proof of claim, an objection to confirmation, and a motion for relief from stay from a lender each states a different number.

The chances for the servicer to screw up have just increased with the implementation of this rule.

I recognize that Chapter 13 presents a challenge, but servicers are in the business of accounting for money.  They need to get it right.  And if compliance makes their job more expensive, they can negotiate an increase in price for their services.

It can no longer be OK to keep borrowers who want to pay in the dark.

Thank you, CFPB.

More for borrowers

The new, improved Request for Information

Decoding your mortgage statement

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