As very few probably know, including myself until recently, the House of Representatives has passed an early holiday gift for taxpayers concerning real estate. It is also expected that the Senate and President will follow suit in the near future. Ironically; however, it is too little, too late.
Last month, Nevada’s governor signed into law a bill that is supposed to make it easier for banks to foreclose on delinquent loans.
The Nevada bill changed a key provision in a 2011 law, which had forced banks to prove they could legally foreclose on a home by requiring bank employees to sign an affidavit saying they have personal knowledge of the property’s document history. If they didn’t they could face felony charges for making false representations.
Under the newly passed law, a bank’s affidavit can be based solely on a review of internal lending records and either title work or filings with the local county recorder.
Nevada law has unintended consequences
Why the change of heart? Well, it appears the Nevada bill passed in 2011 had some unintended consequences in that many lenders were pulling back on foreclosures leaving a dearth of inventory.
In a recent article, “Foreclosure squeeze crimps Las Vegas real-estate market,” reporter Nick Timiraos details how the 2011 law “backfired” and that instead of foreclosures working their way through the system and coming onto the market, the demand has pushed up prices making it harder for potential buyers to re-enter the market. With so few existing homes on the market, many builders are re-entering the market, but jacking up prices and making it difficult for many to buy.
Consequently, the only thing the Nevada law accomplished was to delay the recovery of the housing market.
Florida’s law mirrors Nevada
Why is this relevant to Florida? The Nevada law is just another example of how laws meant to resolve the foreclosure crisis are doing just the opposite. In the case of HB 87, there is a “show cause” provision that shifts the burden of proof from the lender who must show why they are entitled to foreclose, to the homeowner, who must now prove why the bank is not entitled to foreclose.
This would result in yet another unintended consequence by inviting further bank fraud and creating more problems by denying Florida homeowners their right to due process.
The Florida law also is riddled with numerous other potential constitutional issues such as illegal takings claims and allowing retired senior judges to continue to hear foreclosure cases without facing re-election or re-appointment.
While Florida’s law is still in its infancy, Nevada’s two-year-old law only goes to show that efforts to push foreclosures through the system rapidly instead might do little more than slow an already fragile recovery.
From The Trenches
Real estate attorney and foreclosure defense attorney, Roy Oppenheim left Wall Street for Main Street, founding Oppenheim Law along with his wife Ellen in 1989 in Fort Lauderdale, Florida, and is vice president of Weston Title and creator of the South Florida Law Blog, named the best business and technology blog by the South Florida Sun-Sentinel. Follow Roy on Twitter at @OpLaw or like Oppenheim Law on Facebook.
Jun 17, 2013 “Share your voice on Yahoo! websites.”
Problems associated with foreclosures and short sales continue to mount as new ones continue to pop up.
The latest example: A glitch in the credit reporting system (Metro2) that can keep those who exit their homes through a short sale from qualifying to purchase a new home for much longer than they anticipated could suppress the real estate market.
The problem lies with the software program used by the credit reporting system. We have heard from clients, and have independently confirmed through research, that the system does not have a separate code that recognizes the difference between a short sale and a foreclosure in the real estate market. The coding system is used by the three major credit-reporting organizations TransUnion, Experian and Equifax.
To understand why this is a problem, it’s important to understand the differences between a short sale and a foreclosure.
In a short sale, the bank must approve the sale of a house to a new buyer at a price that is acceptable to it, the buyer and the seller. Any unpaid loan balance that isn’t covered by the proceeds from the sale can either be partially or fully forgiven. The bank plays an active role throughout the process and can negotiate with the new buyer for a higher price and higher repayment of principal from the original borrower. Banks have begun approving short sales more than in the past because they are cheaper and are less of a problem than foreclosures.