Archive for July, 2011

Is the 14th Amendment a Way Out for Obama?

Saturday, July 30th, 2011

As we race closer and closer to crashing the debt ceiling like Willy Wonka in the Chocolate Factory skyrocketing in his glass elevator, many concerned Americans are urging President Obama take matters into his own hands by invoking the 14th Amendment.

The critical portion of the 14th Amendment to this crisis is Section 4, which reads in pertinent part:

“The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.”

Former President Bill Clinton and House Minority Whip Steny Hoyer have both come out publicly in favor of the President using this power. It would seem a bit odd for Congress to pass budgets and bills which create contractual obligations to then renege on such legally valid claims. These claims include pensions and wages to our soldiers and retirees, interest on the debt, as well as claims to third party venders who protect our shores and manufacture our tanks and aircraft.

So here’s your chance to be a Constitutional scholar.

Do you think Section 4 of the 14th Amendment authorizes the President to unilaterally raise the debt ceiling without the approval of Congress?

And if it does, should the President invoke this Section and thus require the Supreme Court to be the ultimate arbiter?

Let us know what you think!

Mortgage Servicers Turn Robo Signers, Original Docs Just Don’t Exist

Friday, July 29th, 2011

Carelessness, neglect and an utter disregard for proper procedures is something Oppenheim Law has come to expect from the mortgage industry.

So it is no surprise that mortgage servicers might have turned once again to robo-signing in order to foreclose on homes, according to Reuters. This time it’s because the original documents don’t even exist!

During the housing boom, over half of all mortgages issued were pooled together and sold by lenders to investors. When the lenders sold the mortgages, they were supposed to physically sign and endorse the mortgages over to the investors. In the rush, however, lenders simply overlooked the paperwork.

One of the best examples is New Century Mortgage, the second largest subprime lender until it collapsed in 2007. There are indications that New Century didn’t endorse almost all of the mortgages it sold to investors. A sampling of 50 mortgages in Duval County revealed that not a single of them was properly endorsed. Such oversights mean that it is difficult to pin down who actually owns a mortgage and that investors potentially paid lenders billions of dollars for nothing.

The former head of the FDIC, Sheila Bair, advocated for a widespread investigation to determine the extent of this robo-signing problem. Other regulators, however, don’t want to pick at the problem because they’re scared of what they might find and the resulting damage it could cause the housing market.

The problem could be good news for the homeowners who are facing foreclosure proceedings based on one of these notes. Issues with notes can extend the time a foreclosure takes to run its course and thus give homeowners valuable time. The problem does not, however, fully absolve a homeowner. If the mortgage note was not properly transferred, then the original bank still owns the mortgage and can foreclose on the home just like it would with any other house. The problem is, of course, that the owner of the note might not exist anymore or might be in bankruptcy themselves.
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Short Sale Deficiencies Now Illegal in California. What About Florida?

Thursday, July 28th, 2011

Welcome back to the Divided States of America.

Oppenheim Law has been discussing the chasm that exists in our country between recourse and non-recourse states for years. (Check out Roy Oppenheim’s Op Ed piece in the Sun-Sentinel) It now appears that rift is widening.

In non-recourse states, like California, a lender may not pursue a deficiency following a foreclosure sale for loans that qualify as “Purchase Money Mortgages.” For a loan to qualify as a purchase money mortgage in California, the loan must be obtained at the time of purchase of the borrower’s principal residence. This can also include a second mortgage obtained at the time of purchase. Lien holders of purchase money mortgages are also unable to receive a deficiency judgement against a California homeowner who executes a short sale.

And earlier this month California passed legislation giving even more protection to underwater homeowners. California Senate Bill 458 now provides that even junior lien holders, meaning mortgages not obtained at the time of purchase, no longer have any deficiency rights against the borrower after a short sale.

Recourse states like Florida provide no such protections to underwater homeowners. Banks are able to pursue deficiency judgments against Florida borrowers who are foreclosed on, or even Florida homeowners who execute a short sale. A key aspect of Oppenheim Law’s Florida real estate practice is defending homeowners from deficiency judgments by negotiating with banks during the foreclosure and short sale processes.

Proponents of Cal. Senate Bill 458 argue the legislation brings more certainty to the short sale process and is a valuable protection of homeowners’ rights. They argue that by removing the possibility of a deficiency judgement from the negotiating process, short sales will be executed more quickly and efficiently, helping repair the real estate market.
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Foreclosures to Rentals. Obama Finally Listens to Oppenheim Law

Wednesday, July 27th, 2011

Taking a cue from Oppenheim Law, the Obama Administration is mulling over plans to reduce the number of foreclosed homes on the market by renting them out, according to the Wall Street Journal.

As the large inventory of distressed homes on the market continues to push a reduction in home prices as well as an increase in rental prices, the government is thinking about renting the homes owned by Fannie and Freddie.

The proposal has two benefits:

  1. Reducing the amount of distressed homes for sale
  2. Clearing the surplus of homes currently unoccupied.

These benefits would be the keys to a successful housing market recovery. Increasing the amount of rental properties available can also stabilize rent prices, which have been going up as foreclosed families wait before buying another home.

While the benefits of the proposal are obvious, it is still just a proposal. It’s too bad the Administration did not listen to Oppenheim Law back in 2009 when we advocated using the inventory of foreclosed homes to benefit communities, instead of just letting them sit unoccupied and cause suburban blight.

The Government could easily enact the proposal by ordering Fannie and Freddie to sell their foreclosed homes to investors who promise to rent them out. The investors could then hire management companies to look after the houses. If the Administration decides to follow through with the plan, the Government might actually make money on the deal and help the housing recovery at precisely the right time for it: before the next wave of foreclosures hit. That way, the market can be more resilient when the next hit comes and absorb more losses.


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