Bank of America Short Sales and Bankruptcy: What Agents Need to Know

December 24, 2012

home_vs_lender_on_judicial_scale

Bank of America can review a short sale offer while the loan is in an active bankruptcy. To complete a short sale and issue the approval letter, the bankruptcy documents must be filed and approved by the court. Any final agreement will require Bankruptcy court approval.

Homeowner(s) should consult with their Bankruptcy Counsel about how these programs could affect their mortgage and their bankruptcy case.

When a loan is in bankruptcy, there is an Automatic Stay, also known as a “hold,” of any collection activity placed on any and/or all debts to which the debtor is a party. Before the short sale specialist can discuss the short sale, Bank of America must have written authorization from the Homeowner(s’) Bankruptcy attorney on the law firm’s letterhead to discuss loss mitigation options with the borrower. This is in addition to the Bank of America Third-Party Authorization Form needed from the borrower to speak to the bankruptcy attorney and the listing agent.

If Homeowner(s) is/are currently in a bankruptcy proceeding, or have previously obtained a discharge of this debt under applicable bankruptcy law, all communication and notices are for information purposes only and is not an attempt to collect the debt, a demand for payment, or an attempt to impose personal liability for that debt. The Homeowner(s) is/are not obligated to discuss their home loan with Bank of America or enter into a short sale agreement or other loan-assistance program. Customers should consult with their bankruptcy attorney or other adviser about their legal rights and options.

For a short sale to be processed to completion for a loan in bankruptcy, Bank of America must receive one of the following releases issued by the bankruptcy court:

  • Granted Motion to Sell*
  • Granted Motion for Relief from Automatic Stay with noted short sale negotiation*
  • Dismissal
  • Discharge with Abandonment, Closing Order, Final Decree, Trustee No Asset Review

*A granted Motion differs from a requested Motion.

Note: If Homeowner(s) receive(s) a discharge under a Chapter 7 bankruptcy proceeding: discharge releases the Homeowner(s) from personal liability for certain specified types of debts. The Homeowner(s) is/are no longer legally required to pay any debts that are discharged. The discharge is a permanent order prohibiting the creditors of the Homeowner(s) from taking any form of collection action on discharged debts, including legal action and communications with the Homeowner(s), such as telephone calls, letters, and personal contacts.

Although a Homeowner is not personally liable for discharged debts, a valid lien (i.e., a charge upon specific property to secure payment of a debt) that has not been avoided (i.e., made unenforceable) in the bankruptcy case will remain after the bankruptcy case. Therefore, a secured creditor may enforce the lien to recover the property secured by the lien.

Bankruptcy Frequently Asked Questions:

What additional documents will be needed to complete this short sale?

Bank of America must have written authorization from the Homeowner’s bankruptcy attorney (on the law firm’s letterhead) to discuss loss mitigation options with the Homeowner. The customer and the attorney may determine that they do not want to give this authorization and the short sale can be negotiated through the attorney. This attorney authorization permitting Bank of America to speak to the Homeowner(s) is in addition to the Bank of America Third-Party Authorization Form needed from the Homeowner(s) to speak to the bankruptcy attorney and agent. Communication cannot occur with the real estate agent/Homeowner(s) until the bankruptcy attorney’s written authorization on the firm’s letterhead and the Bank of America Third-Party Authorization Form are received.

When will I receive the approval letter?

An approval letter cannot be issued until the releases, identified above from the Bankruptcy court has been received. Once the release is received, the file can be submitted for approval to the appropriate investor(s) and/or mortgage insurance company. The file will then follow the normal approval process to ensure it meets investor requirements.

Why can’t you approve a short sale file while waiting for the bankruptcy to be released?

An approval must follow the direction provided in the release by the Bankruptcy court. That is why a short sale will not be approved unless a court order permitting the sale is first received.

What fees can be paid related to the bankruptcy proceeding?

Any fees that are directly associated with the bankruptcy would be subject to further review and approval. For example, if Bank of America incurs fees to file a pleading to approve the short sale in the Bankruptcy court, Bank of America may seek permission from the Bankruptcy court to allow such attorney and filing fees.

Can a homeowner qualify for a Home Affordable Foreclosure Alternative (HAFA) incentive while in bankruptcy?

Yes. However, any funds going to the Homeowner(s) through state incentives or other incentive programs must be properly disclosed and handled in accordance with bankruptcy legislation and local rules.

Are additional documents required for a short sale when the homeowner is in active bankruptcy?

Yes. Two additional documents are needed for a short sale that is in active bankruptcy:

  • An attorney authorization letter from the Bankruptcy attorney providing permission to speak with the Homeowner(s) is required. This is separate and in addition to the required Bank of America Third-Party Authorization Form signed by the Homeowner(s) permitting Bank of America to speak with the bankruptcy attorney and the real estate agent.
  • Bank of America must receive a release issued by the Bankruptcy court (listed above).

If you have questions, first contact your short sale specialist (or closing officer) through Equator messaging. If there’s no response after two days, escalate to the team lead.

For urgent needs (such as a foreclosure postponement) or for escalation beyond the team lead, contact Short Sale Customer/Agent Care at 1.866.880.1232.

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Bank of America Short Sale Agent Update

December 4, 2012

short sale house

Understanding Short Sale Agent Commissions

Bank of America pays commissions to licensed real estate professionals who close acceptable short sale transactions.

Commissions are:

  • Allocated from the sale’s proceeds to qualifying real estate agents or attorneys at closing
  • Calculated as a percentage based on the total/gross sales price of the property
  • Usually divided between the buyer and seller agents, as per mutual agreement

The maximum commission for all acceptable transactions is as follows and is paid when the short sale reflects positive mitigation:

max commission

Flexibility is allowed in the commission structure when the short sale does not reflect positive mitigation* or if the minimum acceptable net proceed** is not met. In these circumstances, the real estate agent may choose to reduce his/her commission to meet minimum mitigation requirements.

Exceptions:

  • Dual agents unrelated to either party will receive a 4% commission
  • In some situations, commission is limited per investor guidelines/investor approval and may vary

 Acceptable and Unacceptable Short Sale Transactions

In an acceptable transaction, commissions will always be paid within the following guidelines:

acceptable and unacceptable boa short sales

* Positive mitigation is the amount of loss Bank of America will mitigate by accepting the short sale as opposed to foreclosure.

** Minimum acceptable net proceed is the amount the investor requires to complete the short sale transaction.

An eligible short sale transaction is made on an arm’s-length basis, meaning the buyer and the seller have no personal, familial or professional (business associate, business interest) relationship and the property is listed for sale on the open market at fair market value. There may not be any actual or implied conflicts of interest.

If you have questions, first contact your short sale specialist (or closing officer) through Equator messaging. If there’s no response after two days, escalate to the team lead.

For urgent needs (such as a foreclosure postponement) or for escalation beyond the team lead, contact Short Sale Customer/Agent Care at 1.866.880.1232 between 8 a.m. – 10 p.m. (EST), Mon- Fri,  and 9 a.m. – 5:30 p.m. (EST), Sat.


Details on HUD Emergency Homeowners Loan Program

October 14, 2010


On October 5, 2010, HUD released details about the $1 Billion Emergency Homeowners Loan Program (EHLP) authorized by the Dodd-Frank Wall Street Reform and Consumer Protection Act.

EHLP will offer declining balance, deferred payment “bridge loan” (non-recourse, subordinate loans with 0% interest rate) for up to $50,000 to assist eligible homeowners with payments of arrearages, including delinquent taxes and insurance plus up to 24 months of monthly payments on their mortgage principal, interest, mortgage insurance premiums, taxes, and hazard insurance.

Borrowers living in the following jurisdictions are eligible to receive funds through the EHLP:

TX Texas $ 135,418,959
NY New York $ 111,649,112
PA Pennsylvania $ 105,804,905
MA Massachusetts $  61,036,001
WA Washington $  56,272,599
MN Minnesota $  55,848,137
WI Wisconsin $   51,540,638
MO Missouri $   49,001,729
VA Virginia $   46,627,889
CO Colorado $   41,286,747
MD Maryland $   39,962,270
CT Connecticut $   32,946,864
KS Kansas $   17,748,782
AR Arkansas $   17,736,991
IA Iowa $   17,379,343
LA Louisiana $   16,691,558
UT Utah $   16,577,582
OK Oklahoma $   15,575,381
PR Puerto Rico $   14,714,668
ID Idaho $   13,284,075
NH New Hampshire $   12,655,243
NM New Mexico $   10,725,515
ME Maine $   10,379,657
WV West Virginia $     8,339,884
NE Nebraska $     8,304,512
HI Hawaii $     6,292,250
DE Delaware $     6,048,577
MT Montana $     5,710,580
VT Vermont $     4,830,215
AK Alaska $     3,890,898
WY Wyoming $     2,346,329
SD South Dakota $     2,051,563
ND North Dakota $     1,320,547
Total: $ 1,000,000,000

Program Administration

Delegated Approach: Borrowers who are listed in one of the above 32 states or Puerto Rico will meet with non-profit housing counselors who are part of the National Foreclosure Mitigation Counseling Program administered by NeighborWorks® America to receive funding.

The non-profit housing counselors will provide intake and outreach services including:

  • (i) developing and disseminating program marketing materials, (ii) providing an overview of the program and eligibility requirements, (iii) conducting initial eligibility screening (including verifying income), (iv) counseling  potential applicants, providing information concerning available employment and training resources,  (v) collecting and assembling homeowner documentation, (vi) submitting homeowner application, and (vii) providing transition counseling to explore with the homeowner other loss mitigation options, including loan modification, short sale, deed-in-lieu of foreclosure, or traditional sale of home.
  • The counselors shall also be encouraged to conduct outreach to entities in local communities to provide information on assistance available to unemployed homeowners through this program and shall publicize the list of entities approved to assist potential applicants with applying to the program

State Law Approach: Borrowers or state HFAs that operate loan assistance programs that are determined by HUD to be substantially similar to the EHRF program will receive allocations to fund emergency loans for borrowers in the states below:

Alabama $60,672,471
California $476,257,070
Florida $238,864,755
Georgia $126,650,987
Illinois $166,352,726
Indiana $82,762,859
Kentucky $55,588,050
Michigan $128,461,559
Mississippi $38,036,950
Nevada $34,056,581
New Jersey $112,200,638
North Carolina $120,874,221
Ohio $148,728,864
Oregon $49,294,215
Rhode Island $13,570,770
South Carolina $58,772,347
Tennessee $81,128,260
Washington, DC $7,726,678

Allocation of Program Funds

Recipient Geography: HUD will assist borrowers living in Puerto Rico and the 32 states otherwise not funded by Treasury’s Innovation Fund for Hardest Hit Housing Markets (Hardest Hit Fund) program.

Allocation Amount: The total amount reserved will be based on the state’s approximate share of unemployed homeowners with a mortgage relative to all unemployed homeowners with a mortgage

Targeting Funds to Local Geographies: HUD will provide information that identifies pockets within each of the designated states that have suffered the most from recent spikes in unemployment and/or mortgage delinquencies.  HUD will encourage the use of program dollars in these hardest-hit areas.

Homeowner Eligibility and Program Operation

Income Thresholds: Has a total pre-event household income equal to, or less than, 120% of the Area Median Income (AMI), which includes wage, salary, and self-employed earnings and income.

Significant Income Reduction: Has a current gross income (income before taxes) that is at least 15% lower than the pre-event income.

  • “Pre-event income”: the income prior to the onset of unemployment, underemployment, or medical emergency
  • “Current income”: the income at the time of program application, as well as income during the period that the homeowner continues to receive assistance from the fund

Employment type: Both wage and salary workers and self-employed individuals are eligible.

Delinquency and Likelihood of Foreclosure: Must be at least 3 months delinquent on payments and have received notification of an intention to foreclose.  This requirement can be documented by any written communication from the mortgagee to the homeowner indicating at least 3 months of missed payments and the mortgagee’s intent to foreclose.  In addition, the homeowner can self-certify that there is a likelihood of initiation of foreclosure on the part of their mortgagee due to the homeowner being at least 3 months delinquent in their monthly payment.

Ability to Resume Repayment: Has a reasonable likelihood of being able to resume repayment of the first mortgage obligations within 2 years, and meet other housing expenses and debt obligations when the household regains full employment, as determined by:

Back-end DTI ratio:

Total Monthly Debt Expenses ÷ Total Gross Monthly Income

  • Total monthly debt expenses = mortgage principal, interest, taxes, insurance, & revolving and fixed installment debt

***Note: For this calculation, gross income will be measured at the “pre-event” level***

Principal Residence: Must reside in the mortgaged property and be your  principal residence.  The mortgaged property must also be a single family residence (1 – 4 unit structure or condominium unit).

Creation of HUD Note:  After the first assistance payment is made on behalf of the homeowner, the fiscal agent will create an open-ended “HUD note” and a mortgage to be  in the name of the Secretary HUD of sufficient size to accommodate the expected amount of assistance to be provided to homeowner.

Ongoing Qualification of Homeowner

Termination of Monthly Assistance: Assistance is terminated and the homeowner resumes full responsibility for meeting the first lien mortgage payments in the event of any of the following circumstances:

  • The maximum loan ($50,000) amount has been reached;
  • The homeowner fails to report changes in unemployment status or income;
  • The homeowner’s income regains 85% or more of its pre-event level;
  • The homeowner no longer resides in, sells, or refinances the debt on the mortgaged property; or
  • The homeowner defaults on their portion of the current first lien mortgage loan payments

Income re-evaluation: After initial income verification at application intake, the homeowner shall be required to notify the fiscal agent of any changes in the household income and/or employment status at any point throughout the entire period of assistance

Forms of Assistance

Use of Funds for Arrearages: On behalf of the homeowner, the fiscal agent shall use loan funds to pay 100% of arrears (mortgage principal, interest, mortgage insurance premiums, taxes, hazard insurance, and ground rent, if any)

Homeowner Payments: Homeowner contribution to monthly payment on first mortgage will be set at 31% of gross income at the time of application, but in no instance will it be less than $25 per month

Use of Funds for Continuing Mortgage Assistance: The fiscal agent will make monthly mortgage payments to the servicer of the first lien mortgage in excess of the payments made by the homeowner

Duration of Assistance: If at any time the household’s gross income increases to 85% or more of its pre-event level, assistance will be phased out by the fiscal agent over a 2 month period.  In any event, assistance with monthly payments may not continue beyond 24 months

Repayment Terms

Transition Counseling:   The designated counseling agent shall contact each homeowner that is approaching the last months of program eligibility and remains un/underemployed (3-6 months before the assistance ends) and require the homeowner  to meet with a HUD approved counseling agent to explore other loss mitigation options, including loan modification, short sales, deed-in-lieu of foreclosure, or traditional sale of home

Repayment of HUD Note: Following the last payment on behalf of the homeowner, the fiscal agent will process the homeowner’s “HUD Note” and record a mortgage with a specific loan balance.  The note and mortgage will be in the form of a 5 year declining balance, 0% interest, non-recourse loan, and the mortgage shall be in the form of a secured junior lien on the property

Terms for Declining Balance Feature:  No payment is due on the note during the 5 year term so long as the assisted household maintains the property as principal residence and remains current in his or her monthly payments on the first mortgage loan.  If the homeowner meets these two conditions, the balance due shall decline by 20% annually, until the note is extinguished and the junior loan is terminated

Events Triggering Note Repayment: The homeowner will be responsible for repayment of the applicable balance of the HUD note to the fiscal agent or its successor,  if, at any time during the 5 year repayment period, any of the following events occur:

  • The homeowner no longer resides in the mortgaged property as a principal residence, but maintains ownership;
  • The homeowner defaults on its portion of  the current mortgage; or
  • The homeowner receives net proceeds from selling or refinancing debt on the home.

***Note: Net proceeds — after paying outstanding applicable brokers fees, first balances (and second lien balances, as applicable), and an allowance of $2,000 to the homeowner for relocation expenses when the home is sold — will go towards paying down the HUD note.  In the event that proceeds of a sale or loan refinance are not sufficient to repay the entire HUD note, the remaining applicable balance of the HUD note shall be considered to have been met, and the lien against the property shall be released***

Provisions for Underwater Homeowners: At all stages of the program, “underwater” homeowners will be encouraged to explore participation in short sale or short refinancing programs offered by their servicer and/or the federal government (i.e. Home Affordable Foreclosure Alternatives), which will not trigger repayment of the HUD note

  • Underwater homeowners = homeowners with mortgage debt in excess of the market value of their home

Program Start Date

HUD intends for EHLP to begin taking applications by the end of 2010


Revised Version of BPO Standards and Guidelines Released

October 4, 2010

The National Association of Broker Price Opinion Professionals (NABPOP) and eMortgage Logic released Version 4.0 of Broker Price Opinion Standards and Guidelines (BPOSG) effective September 16, 2010.

BPOSG is a compilation of standards and best practices for BPO practitioners – real estate agents and brokers. A Broker Price Opinion (BPO) is a report that is prepared by a real estate agent or broker that details the probable selling price of a house or property. The standards and guidelines contained in BPOSG are utilized in determining the probable selling price of residential real estate properties. BPOSG can be thought of as set of quality control measures that adhere to the fundamentals, techniques, procedures, and best practices for real estate price evaluations.

The standards portion dictates what a BPO practitioner must do such as ethics and conduct, disclosures, proper application of techniques, etc. Guidelines are best practices and/or procedures that are widely accepted, yet allow for flexibility in application. The guidelines contained in BPOSG allow for flexibility in order to meet a diversity of requirements that are needed throughout the valuation industry.

BPOSG has been well received within the industry since its first edition and the latest version serves to bring the guidelines up-to-date and make sure they are still relevant.

eMortgage Logic supports the education and training that NABPOP provides and encourages their partners to adhere to the BPOSG and become NABPOP certified.

President and CEO of the Scottsdale, Arizona-based NABPOP Ralph Sells said of the release, “The BPOSG has grown to be a collaborative effort by many industry professionals and has expanded in scope and recognition.”

Sells continued, “We feel the BPOSG is important and imperative to the success of our partners in the field as well as our employees reviewing BPOs. The BPOSG is quickly becoming the industry Gold Standard for real estate and mortgage professionals. I’m pleased with its wide use and acceptance and we look forward to new changes and ideas from the community since the BPO Standards and Guidelines are a dynamic document meant to grow and evolve.”


Bank of America Short Sale Process Presentation

April 19, 2010

 

 On April 8, 2010, Bank of America (BOA) executives held a webinar presentation for over 10,000 Realtors to discuss BOA’s short sale process.

Tip: Refer to the Equator Agent/Homeowner Guide for step-by-step instructions 

Summary

10 Tips to Avoid Delays in Processing Time

  1. Review all documents and images for accuracy prior to uploading in Equator
  2. Ensure that property is listed in the MLS
  3. Negotiate external party fees prior to submission of HUD-1
  4. Supply HUD-1 that is valid for at least 60 days
  5. Ensure that agent and customer tasks are completed as timely as possible in Equator (i.e. accepting short sale assignment, submitting short sale offer, and uploading offer documents within 7 days)
  6. Only submit fully executed purchase offers with all appropriate addendums signed by both buyer and homeowner
  7. Work to get purchase offer representing the best possible fair market value and highest net proceeds for the lender
  8. Set appropriate expectations with buyers/sellers so they understand the complexity and resulting length of time a short sale can take
  9. Work to get a release on outside liens as early as possible
  10. The following situations will cause delays: (1) Change in buyer or agent at any time during the process; (2) Customer files bankruptcy; (3) Deal change after the approval letter is issued

Steps Already Taken to Improve the Short Sale Process

  • Increased staffing and updated training
  • Dedicated Short Sale Call Center:  1-866-880-1232
  • Hours of Operation: 8 AM – 9PM (EST), Monday -Friday
  • Extended Saturday hours – Coming Soon!
  • Equator – primary tool for initiating the short sale
  • Changed procedures to improve associate responsiveness
  • Enhanced the procedure to proactively provide loan status

Steps Underway to Enhance Programs

Home Affordable Foreclosure Alternatives (HAFA):

  • Implemented on April 5, 2010 and are following the HAFA guidelines 
  • HAFA is first in short sale waterfall of options for a homeowner
  • Remember: Some investors (Fannie Mae and Freddie Mac) are not participating; offering a cooperative or traditional short sale
  • Proactive outreach to homeowners
  • Offering a pre-approved short sale solicitation 
  • After offer is submitted, approval within 14 days
  • Promissory Note – Not required with HAFA 
  • Homeowner required to clear second liens
  • Homeowner leaves the home – no deficiency and no contribution

Cooperative Short Sales:

  • Similar in approach to HAFA but wider in scope
  • Includes homeowners who are not eligible for HAFA – non-owner occupied, jumbo loans, Fannie, Freddie
  • Currently in pilot stages with rollout expected 2nd Quarter of 2010

Steps Underway to Educate Agents

Education Materials:

  • Overview of the process so agents can lead process
  • Step-by-Step Guidelines for working through the system as an agent and homeowner
  • Tips to avoid common problems

Outreach Events to Distribute Materials

  • Large Realtor Events
  • Webinars
  • Participation with Short Sale Certification Programs

Want Agents’ Input

  • Developing mechanisms for on-going feedback on process, systems, materials
  • Will act on feedback with continuous improvements

Introduction to Equator

  • 24/7 access to the short sale system
  • Status tracking
  • Direct communication with the Short Sale Negotiator
  • Documents are uploaded directly to Equator instead of faxing
  • Streamlined approval process
  • Historical view of offers and counter offers

Coming Soon in Equator:

  • There are a few specific loan investor types (i.e., FHA/VA) that are not on the Equator system and will be added at a later date
  • Agent feedback, homeowner feedback, and internal data is being leveraged to identify system and/or enhancements for future process rollouts and educational material improvements

Agent Communication within Equator

  • Throughout the process you will receive notifications of the status of the short sale. The system automatically tracks the agent, customer, and bank tasks and will alert you after key milestones have been achieved and to let you know the next steps.
  • For specific questions/concerns you have, the negotiator assigned to the short sale is your primary contact.
  • Please ensure when sending a message in Equator you only select “Negotiator”.
  • We request that you only send messages via Equator and not directly through email. This enables our associates to effectively manage the case load and respond to agent inquires in a timely manner.
  • If you have submitted a request to the Negotiator via Equator AND there has been no response after 2 business days: You should escalate to a “Team Lead” by selecting this role in your message drop down menu.
  • In the event of an urgent issue, such as, a foreclosure sale date within 48 hours: You should immediately escalate to the “Team Lead” and “Manager”; and also call the Short Sale support team at 1-866-880-1232. 

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