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The California Association of REALTORS® (C.A.R.) announced on Wednesday that it received a letter from the California Franchise Tax Board (FTB), obtained by Board of Equalization member George Runner, clarifying that California families who have lost their home in a short sale are not subject to state income tax liability on debt forgiveness “phantom income” they never received in a short sale.

Last month, in a letter to California Senator Barbara Boxer, the Internal Revenue Service (IRS) recognized that the debt written off in a short sale does not constitute recourse debt under California law, and thus does not create so-called “cancellation of debt” income to the underwater home seller for federal income tax purposes. Following the IRS’s clarification, C.A.R. sought a similar ruling by the California FTB. With the FTB’s clarification, underwater home sellers are now assured that they are not subject to state income tax liability, rescuing tens of thousands of distressed home sellers from California tax liability for debt written off by lenders in short sales.

“We are pleased with the recent clarifications issued by the IRS and the California Franchise Tax Board, which protect distressed homeowners from debt relief income tax associated with a short sale in California,” said C.A.R. President Kevin Brown. “We would like to thank Senator Boxer and BOE member Runner for their leadership in obtaining this guidance from the IRS and FTB. Distressed California homeowners can now avoid foreclosure or bankruptcy and can opt for a short sale instead, without incurring federal and state tax liability, even after the Mortgage Forgiveness Debt Relief Act of 2007 expires at the end of this year.”

One of the major successes Congress reached in the “fiscal cliff” negotiations at the end of 2012 was the extension of the Mortgage Forgiveness Debt Relief Act for another year. The measure will continue to exempt from taxation mortgage debt that is forgiven when homeowners and their mortgage lenders negotiate a short sale, loan modification (including any principal reduction) or foreclosure.

While debt relief had been extended at the federal level, the state exemption expired at the end of 2012. In order to conform state law to the federal law that recently passed extending mortgage debt forgiveness, C.A.R. sponsored Senate Bill 30 (Calderon, D-Montebello) so California homeowners on the brink of foreclosure could get much-needed debt relief. That measure has stalled at the state level.

“Senator Boxer’s request to the IRS to provide guidance on whether mortgage debt forgiveness in a lender-approved short sale would be taxable and the subsequent rulings by the IRS and California FTB help clarify the state income tax status of distressed home sellers in California. Many have been worried about it and have contacted our association seeking clarification. We are glad the issue has been resolved,” said Carolyn Miller, president of the Silicon Valley Association of REALTORS® (SILVAR).

The latest California Association of REALTORS® Lender Satisfaction Survey report says lenders have made some progress in their short sale processes from a year ago.  Sixty-four percent of California REALTORS® said they still experienced difficulty in closing short sales, down from 77 percent in August 2011 and 70 percent in 2010. The percentage of REALTORS® who reported short sales as “extremely difficult,” dropped from 56 percent in 2011 to 34 percent in 2012.

C.A.R.’s Lender Performance Index (LPI), which measures REALTORS®’ lender satisfaction levels, rose to 23 in 2012, up from 17 in 2011 and 16 in 2010. The increase in the LPI is positive, but the index is still below the median of 50.

According to the C.A.R. report, communication issues continue to be the biggest stumbling block to the process:
* Lenders’ slow response time to a short sale package, cited by 67 percent of REALTORS® in 2012, up slightly from 66 percent last year;

* Poor communication with lender representatives, cited by 55 percent of REALTORS®, unchanged from 2011;

* Repeated requests for documentation, cited by 50 percent of REALTORS®, down from 51 percent a year ago.

* Eight percent of REALTORS® reported the lender foreclosed on the home before the short sale transaction could be completed, down from 15 percent in 2011.

However, overall satisfaction in working with lenders in short sales improved, with 59 percent expressing dissatisfaction, down from 75 percent in 2011. 

REALTORS® believe a more standardized process may be the best way to facilitate the sale of homes that qualify. “The Federal Housing Finance Agency’s decision to align Fannie Mae and Freddie Mac short sale guidelines will allow lenders and servicers to quickly and more easily qualify eligible borrowers for a short sale,” says Richard Miller, who is chief banking officer of Ratecomb and serves as affiliate chair of the Silicon Valley Association of REALTORS® (SILVAR). “We are seeing progress as all parties involved strive to maintain better communication and are proactive with solutions.”

SILVAR President Suzanne Yost adds, “Whether a struggling homeowner chooses the path of foreclosure or a short sale, the experience is both financially and emotionally difficult. We hope lenders will continue to make improvements so the process is both easier and quicker for homeowners.”

The Federal Housing Finance Agency (FHFA) announced on Tuesday that it will align guidelines for Fannie Mae and Freddie Mac short sales and allow lenders and servicers to quickly and more easily qualify borrowers for a short sale. 

The new guidelines issued by Fannie Mae and Freddie Mac to their mortgage servicers will offer a more streamlined approach to the short sale process by consolidating existing short sales programs into one standard short sale program. The program rules will expand eligibility criteria of borrowers, so homeowners who are current on their mortgage payments, yet suffer from specific hardships, will be able to qualify more quickly for a short sale.

Effective Nov. 1, homeowners with a Fannie Mae or Freddie Mac mortgage will be allowed to sell their home in a short sale even if they are currenton their mortgage, if they have an eligible hardship. Servicers will be able to expedite processing a short sale for borrowers with hardships such as death of a borrower or co-borrower, divorce, disability, increase in housing expenses, unemployment, disability, or relocation for a job, without any additional approval from Fannie Mae or Freddie Mac.

“We are pleased with the new guidelines. REALTORS® at the local, state and national level have long advocated for a more streamlined, standardized short sale process. Improving short sale eligibility will allow more families to avoid foreclosure and reduce the negative impact foreclosures have on families and communities,” said Suzanne Yost, president of the Silicon Valley Association of REALTORS®.

Some specific changes include:

  • Eliminates current Fannie Mae and Freddie Mac short sale programs and creates a single standard short sale process for both entities (Fannie and Freddie HAFA programs will expire at the end of the year).
  • Enables servicers to quickly and easily qualify certain borrowers who are current on their mortgages for short sales without waiting for an approval from Fannie Mae or Freddie Mac
  • Offers special treatment for military personnel with Permanent Change of Station (PCS) orders.
  • Standardizes and clarifies foreclosure suspensions on a property with an approved short sale.
  • May pay borrowers up to $3,000 in relocation assistance.
  • Fannie Mae and Freddie Mac will offer up to $6,000 to subordinate lien holders to expedite a short sale.

Additionally, FHFA clarified that a borrower experiencing a hardship must wait at least two years before becoming eligible for a Fannie Mae or Freddie Mac loan. These changes follow FHFA’s announcement in June that established strict timelines for servicers to respond to short sales within 30 days of receipt of a short sale offer, provide weekly status updates to the borrower, and communicate a final decision to the borrower within 60 days of receipt of the offer.

On April 17, the Federal Housing Finance Agency (FHFA) announced a new directive as part of FHFA’s continued servicing alignment initiative that directs Fannie Mae and Freddie Mac to align their guidelines for servicing delinquent mortgages they own or guarantee.

The new directive requires that servicers of Fannie and Freddie loans:
• Review and respond to borrower requests for short sales within 30 days after receipt of a short sale offer and a complete borrower request.
• If the review is still under way after 30 days, give the borrower weekly status updates. (This allows more time where necessary, such as where subordinate lenders and/or mortgage insurance is involved.)
• Advise the borrower of the final decision within 60 days after receipt of a short sale offer and a complete borrower request.

The new timelines apply both to HAFA loans and to other short sales approved by Fannie Mae and Freddie Mac. Additional enhancements are planned by the end of 2012 addressing borrower eligibility, simplifying documentation, valuing property, payments to subordinate lien holders, and mortgage insurance.

REALTOR® officials at the national, state and local level applaud the move by FHFA to streamline the short sale process. Faster response times will help thousands of distressed homeowners, according to Suzanne Yost, president of the Silicon Valley Association of REALTORS®.

“Short sale transactions are more complicated than regular transactions and they have taken so much time that many prospective buyers have walked away from short sales,” said Yost. “The FHFA’s move to streamline the short sale process is a critical step toward a full housing market recovery.”

FHFA Announcement
Freddie Mac Bulletin

In another move to protect struggling California homeowners, the California Association of REALTORS® (C.A.R.) is sponsoring a bill so homeowners who face losing their home and have negotiated a short sale in good faith with their lender or servicer are not forced to go through foreclosure.

Assembly Bill 1745 (Torres, D-Pomona) prevents lenders or servicers that have agreed to a “short sale” from foreclosing on a home. For any number of reasons (e.g., sickness, job loss, etc.), a homeowner may be unable to continue making his or her monthly mortgage payment. Rather than go through a lengthy and stressful foreclosure process, the homeowner will attempt to negotiate a “short” sale with the lender in which the lender agrees to accept less than the amount owed by the homeowner.

Foreclosures and short sales are usually handled by two different departments within banks. Unfortunately, these two departments often do not communicate with each other, which can frequently result in a homeowner being foreclosed upon, despite having previously negotiated a short sale with the same bank.

AB 1745 will likely result in banks implementing a dual tracking system to prevent foreclosing upon homeowners with whom they have already negotiated a short sale. The measure is scheduled for hearing on Monday, April 30 by the Assembly Banking and Finance Committee.

Senator Debbie Stabenow (D-MI) has introduced S. 2144, a bill that would make the mortgage debt forgiveness rules permanent. The rules that currently provide relief for homeowners on short sales, foreclosures or loan modifications expire December 31, 2012. This relief is essential to affected homeowners so they will not have to pay tax on the forgiven debt.

A companion bill in the House will be introduced soon. See additional information here.

A new California law now ensures that any lender who agrees to a short sale must accept the agreed upon short sale payment as payment in full of the outstanding balance of all loans, regardless of whether the lender is a senior or junior lien holder. The new measure, signed by California Governor Jerry Brown on July 15, goes into effect immediately.

Last October, California passed a law requiring primary mortgage lenders to accept an agreed-upon short sale payment as full payment for the outstanding balance of the loan, but the rule did not apply to junior or second lien holders. The new law extends the requirement to junior or secondary lenders and ensures that once a lender has agreed to accept a short sale payment on a residential property (one to four units), all lien holders – those in first position and in junior positions – will consider the outstanding balance as paid in full and the homeowner will not be held responsible for any additional payments on the property.

The new law is considered a victory for homeowners, according to the California Association of Realtors, which sponsored the bill, SB 458, authored by Senate Majority leader Ellen Corbett (D-San Leandro). “The signing of this bill is a victory for California homeowners who have been forced to short sell their home only to find that the lender will pursue them after the short sale closes, and demand an additional payment to subsidize the difference,” said C.A.R. President Beth L. Peerce.  

The new law does not apply if the short sale seller is a corporation, an LLC, or a limited partnership. It also prohibits a lender from requiring any “additional compensation” other than the proceeds of the sale in exchange for the lender’s approval.

REALTORS®  hope the new law will improve the short sale process for distressed sellers. “This provision also attempts to address instances when lenders have demanded additional compensation as a condition of their approval. It is now illegal for a lender to require such payments,” said Gene Lentz, president of the Silicon Valley Association of REALTORS®.  

The new law still preserves fraud and waste as exceptions to its protections, such as a lender seeking damages for a borrower’s fraud or waste. The law applies to any short sale transaction which closes on or after July 15, 2011. It does not apply to short sale transactions that closed prior to that date.

The Silicon Valley Association of REALTORS® advises short sale sellers to still consult with appropriate professionals to evaluate all issues that may impact their decision to pursue a short sale process, including adverse impact on credit and tax consequences.”

For several months the National Association of REALTORS® has been working with the Federal Trade Commission (FTC) to minimize the potential impact on real estate professionals who assist financially distressed clients obtain short sales. On July 7, NAR President Ron Phipps met with FTC Commissioner Jon Leibowitz to further highlight the importance of this issue to REALTORS®. In a statement issued today, the FTC announced it will not enforce provisions of the Mortgage Assistance Relief Services (MARS) Rule against real estate brokers and their agents who assist financially distressed consumers in obtaining short sales from their lenders or servicers. This is a substantial victory for REALTORS®.

The statement says as a result of the stay on enforcement, these real estate professionals will not have to make several disclosures required by the Rule that, in the context of assisting with short sales, could be misleading or confuse consumers. As more and more American homeowners seek short sales, it is especially important that the Rule not inadvertently discourage real estate professionals from helping consumers with these types of transactions.

The MARS Rule was issued pursuant to authority granted by Congress in 2009. The issuance of the Rule followed numerous FTC and state enforcement actions against companies that claimed to be able to obtain from consumers’ mortgage lenders or servicers a loan modification or other relief to avoid foreclosure. The Rule covers companies or individuals, among others, who assist consumers in obtaining approval of a short sale from their lender or servicer.

A short sale occurs when a home is sold for an amount less than the balance owed on the mortgage loan, and the lender or servicer agrees to accept the proceeds of the sale instead of pursuing foreclosure. Short sales can benefit consumers by allowing them to escape from a mortgage that they cannot afford, while avoiding foreclosure. Many real estate professionals assist distressed homeowners by providing both traditional services associated with selling their homes (e.g., listing the property) and working to seek lender or servicer approval of a short sale.

The MARS Rule requires companies offering mortgage assistance relief services to disclose certain information to consumers about the services they provide, bans collection of advance fees, and prohibits false or misleading claims. After the Rule went into effect, a number of real estate professionals who help consumers with short sales raised concerns about complying with the Rule. These professionals pointed out that some of the required disclosures could confuse consumers or could be inaccurate in this context.

At this time, the Commission has announced that it will not enforce most of the provisions of the MARS Rule against real estate professionals who are engaged in obtaining short sales for consumers. The stay applies only to real estate professionals who: 1) are licensed and in good standing under state licensing requirements; 2) comply with state laws governing the practices of real estate professionals; and 3) assist or attempt to assist consumers in obtaining short sales in the course of securing the sales of their homes. The stay exempts real estate professionals who meet these requirements from the obligation to make disclosures and from the ban on collecting advance fees. These professionals, however, remain subject to the Rule’s ban on misrepresentations.

The Commission stated that the stay does not apply to real estate professionals who provide other types of mortgage assistance relief, such as loan modifications. In addition, the FTC will continue to enforce the Rule and Section 5 of the FTC Act, which prohibits unfair and deceptive practices, against all other providers of mortgage assistance relief services.

The Commission vote approving the MARS Rule enforcement policy was 5-0. It can be found on the FTC’s website and as a link to this press release. More information about the Rule can be found here, and information about consumers’ mortgage rights can be found here.

For additional information on the MARS Rule you can visit http://www.realtor.org/topics/mars

This week REALTORS® from across the nation convened in our nation’s capitol for the National Association of REALTORS® Mid-year Business meetings and visits with members of Congress. SILVAR members joined their fellow REALTORS® in Washington, D.C. to take part in NAR business meetings and personally meet with their representatives in Congress.

Along with members from the San Mateo, Santa Clara, Santa Cruz County Associations of REALTORS®, SILVAR members met with both U.S. Representatives Anna Eshoo and Mike Honda during the meetings. The SILVAR delegation included SILVAR President Gene Lentz, President-elect Suzanne Yost, Region 13 Caucus Chair Jim Hamilton, NAR Directors David Barca, Jeff Barnett, Judy Ellis, Susan Tilling, C.A.R. Directors John Tripp, Aaron Wheeler, and Federal Political Coordinator and SILVAR PAC Trustee Carole Feldstein. 

In meetings with members of Congress, REALTORS® focused on five core issues important to homeowners and the housing industry. Below are the issues that were brought to the attention of our legislators.

The Future of the Secondary Mortgage Market
The GSEs, though they have been in conservatorship for almost three years, remain critical to ensuring mortgage market liquidity. Currently, estimates of GSE loan volume range as high as two-thirds of mortgage loans. There is currently a push in Congress to eliminate the GSEs. Without a viable replacement for their secondary mortgage market mission, it will mean severely restricted mortgage capital and higher costs for qualified, creditworthy borrowers. The reduction in mortgage liquidity will exacerbate downward pressure on home prices ultimately reducing the home values for existing homeowners.

REALTORS® urged that the federal government must have a continued key role in the secondary mortgage market in order to ensure that there is capital for mortgage lending in all mortgage markets under all market conditions. California’s jumbo market over the last four years has demonstrated that a purely private market is incapable of meeting all the needs of home buyers and supplying a stable flow of capital. Reform of the secondary mortgage market, in particular Fannie Mae and Freddie Mac, should be comprehensive and undertaken methodically.

Access to Affordable Mortgage Products
The current loan limits for high-cost areas are set to expire on September 30, 2011. Reverting to the statutory limits will create a decline in liquidity and hurt our nation’s economic recovery. Many argue that the loan limit increases help only higher cost areas, but this is not the case. Reverting to the statutory limits will reduce limits in 619 counties and 41 states and the District of Columbia. The average decline in loan limits will be more than $58,000.

The Dodd-Frank Act requires mortgage securitizers to retain 5 percent of the risk unless the mortgage is a qualified residential mortgage (QRM). The proposed rule issued by six federal regulators would require families to make a 20 percent down payment and meet other stringent requirements. The QRM definition is extraordinarily important because it will determine the types of mortgages that will generally be available for borrowers for the foreseeable future. Weak underwriting and toxic mortgages are the main cause of mortgage defaults, not well-underwritten mortgages with affordable down payments.

REALTORS® urged their members of Congress to oppose any decrease to FHA and GSE loan limits. Maintaining the conforming loan limit calculation and caps in high-cost areas would allow the local economic climate of each high-cost state to dictate the necessity of an increase in its conforming loan limit. Maintaining the current conforming loan limits in high-cost areas would also give everyone equal access to the secondary market.

REALTORS® also asked that members of Congress submit comments to the six regulators during the comment period and voice concern that the proposed Qualified Residential Mortgage (QRM) rule would deny otherwise creditworthy Americans affordable financing while further concentrating the lending industry in the mega-banks that are already “too big to fail.”

Preserving Home Ownership Tax Benefits
In December 2010, the President’s National Commission on Fiscal Responsibility and Reform (best known as the Deficit Commission) issued a report identifying tax and spending changes designed to significantly reduce the deficit over the next decade. That Commission recommended different tax options. At least three different approaches were included:

  • Eliminate all “tax expenditures” (deductions, exclusions, credits).
  • Eliminate the mortgage interest deduction (MID) for second homes and reduce the amount of allowable mortgage debt from $1 million to $500,000.
  • Convert the deduction to a 12 percent tax credit.

Since the report was issued, REALTORS® have aggressively reminded Congress that any change to the tax rules that apply to home ownership would disrupt the market and cause home values to further decline. Both Rep. Eshoo and Rep. Honda were thanked for co-sponsoring H.Res. 25, which supports the existing the mortgage interest deduction.

REALTORS® expressed any change to the MID or other home ownership provisions will slow the housing recovery. Tax rates have a way of creeping up over time. Since 1986, when the rate was 28 percent, the top rate has been as high as 39.6 percent and is presently 35 percent. Reducing, eliminating or otherwise changing the value of the mortgage interest deduction will cause the value of housing to drop even more, perhaps by as much as 15 percent in some markets. This decline would be in addition to the 30 percent decline that some markets have experienced.

Short Sales
Too often, short sales are still a story of delay and unrealistic lender views of current home values, resulting in the potential buyer canceling the contract and the property going into foreclosure. Even if successful, the process usually takes many months and countless hours and often requires re-marketing because buyers lose patience and terminate the contract. Streamlining short sales will reduce the amount of time it takes to sell the property, improve the likelihood the transaction will close, and reduce the number of foreclosures. This will benefit lenders, sellers, buyers, and communities.

REALTORS® support H.R. 1498 to require servicers to decide whether to approve a short sale within 45 days of completion of the short sale request. A hearing on H.R.1498 will shine a light on the short sales issue and identify ways to make short sales work better. Delays in approving requests for a short sale remain a significant impediment to this foreclosure avoidance option. Banks are losing more than they have to because they lose much more when selling homes after foreclosure than they would if they approved reasonable short sales.

Affordable and Available Property Insurance
Floods claimed more lives and property than any other natural disaster in the U.S. over the last century. Unable to ignore the rising cost to taxpayers of disaster payments for uninsured properties or the lack of a private market for flood insurance, Congress created the NFIP in 1968. Today, 5.6 million property owners rely on the program in 21,000 communities where flood insurance is required for federally related mortgages. Since September 2008, Congress has approved nine NFIP extensions and allowed five lapses. During the June 2010 lapse, 47,000 home sales were delayed or cancelled, according to NAR survey data. Real estate markets require certainty to make the long-term investments that are vital to the U.S. economic recovery.

REALTORS® urged Congress to reauthorize the National Flood Insurance Program (NFIP) for at least five years and end the uncertainty of extensions and shutdowns. NAR supports provisions of H.R.1300 (Biggert, R-IL) to reauthorize NFIP through 2016 but oppose its privatization pilot program which would reduce the program’s risk pool and long-term viability. NAR opposed H.R. 435 (Miller, R-MI) to sunset the NFIP by 2013 and authorize interstate compacts.

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