Obviously, foreclosures are a big problem. In response, the government has expanded the Home Affordable Modification Program (HAMP) to include provisions and incentives to the lender's loan servicers that allow short sales or deeds-in-lieu as options for eligible homeowners who wish to avoid foreclosure. The new program is called Home Affordable Foreclosure Alternatives (HAFA).
Participation in HAFA cannot save the homeowner from losing his or her property, but it can eliminate the effects of a foreclosure on the homeowner’s credit. Financial incentives for participation in the program include a $1,000 servicing bonus for lenders and a $1,500 to homeowners to help with moving costs.
HAFA is designed for homeowners who have tried, without success to secure a loan modification through the HAMP program. NOTE: You must first try for a loan modification before you can qualify for a short sale under the HAFA program.
Homeowners must be considered for HAFA within 30 days if they cannot meet HAMP’s requirements or if they specifically request consideration for HAFA. However, the homeowner only has 14 days to respond to a written notice that HAFA may be available to them, giving the lender time to meet their 30-day deadline.
As with other short sales and deeds-in-lieu, the lender or loan servicer of the primary mortgage must approve of the transaction and conduct their own independent appraisal. Under HAFA, however, they must also agree to accept the proceeds from the sale of the house as payment in full, waiving their right to collect the balance of the loan from the homeowner.
It is up to the lender or servicer of the first-lien mortgage whether they or the homeowner negotiate with any subordinate lienholders. Lenders of HELOCs and other subordinate liens may be allowed to keep a limited portion of the proceeds (up to $3,000 each) of a short sale, with the first-lien lender’s approval. These funds are part of an incentive program for subordinate lienholders to waive their right to collect the balance due on their loans. The original lender may not be held responsible if any subordinate lienholders decline to participate and decide to sue the borrower for the amount of their unpaid debt.
HAFA’s Short Sale Agreement (SSA) has certain stipulations for all parties involved. Their SSA requires that the deadline for the homeowner to find a buyer and complete the transaction be not less than 120 calendar days from the date the SSA is mailed to the homeowner. The lender has the option of extending this deadline another 245 calendar days if needed. The SSA also mandates that a HAFA transaction must be ‘arms-length’, and that the end buyer must agree to hold the property for at least 90 days after closing. Finally, the SSA gives the listing real estate agent the right to a 6 percent commission at closing.
A short sale is any sale of property, usually during the foreclosure process, in which the lender(s) agrees to accept less than the balance due on the mortgage(s) or lien(s) in order to avoid the cost of foreclosure. Per HAFA requirements, the primary lender may not pursue the homeowner, but the secondary lenders do not have to agree to that provision. Assuming that they agree to the short sale in general, they can forego the financial incentive to waive collection rights and continue to pursue the homeowner for their own balances due. NOTE: This is one of the many reasons we encourage our clients to consult with a lawyer prior to signing any agreement the lender or loan servicing company provides.
Another option under HAFA is a deed-in-lieu of foreclosure. A deed-in-lieu simply allows the homeowner in default to transfer the deed to the property back to the lender in exchange for partial or full payoff of the mortgage. The vacancy date must be at least 30 days after the deed-in-lieu agreement is signed.
In either case, HAFA requires that the lender agree to suspend all foreclosure sales in good faith, pending the outcome of either transaction. In the case of a short sale, the lender also must agree to pay the administrative closing costs.
The Urban Team recommends homeowners employ a professional to negotiate their short sale with the lender or loan servicing company. There are simply too many variables and rules for most people to navigate the system successfully. We will be happy to provide you with the names of several negotiators available to homeowners in the Greater Phoenix market.
The HAFA program is set to begin on April 5, 2010. As of this writing, all HAFA agreements must be finalized and signed by December 31, 2012.
