Glen Oaks Escrow

Happy Holidays from Glen Oaks Escrow

Wishing you seasons greetings and good wishes.  Thank you for your continued readership of our blog.

May your holidays and New Year be filled with Hope, Joy, and Peace!

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All Inclusive Trust Deed and Note-The Advantages and Disadvantages

In these tough economic times, many homes have been languishing on the market, making it difficult for Sellers to move on to other homes and locations.  In order to make a sale, a Seller can offer to do a “carryback”.  A carryback loan, also known as a “seller carryback” or “seller’s second”, is a loan which is financed by the Seller of a property to help a Buyer purchase the house. Normally, this aids in the completion of the sale of the property. It could also refer to the part of the purchase price the Seller is able and willing to finance for the buyer.

For instance, the typical seller carry back situation is 10% down, 10% seller carry back and 80% first mortgage. This is a percentage of the purchase price. An example is a $1,000,000 house would have a $100,000 down payment, a $100,000 seller carry back and a $800,000 conventional first mortgage deed. Another scenario for a seller carry back is if the seller owns the property free and clear and the seller carries a first mortgage or trust deed. Sometimes there is a first trust deed which the buyer can take over and the seller carries a second mortgage.

Utilizing a seller carryback works well when the Buyer cannot come up with a big down payment or they may not fit into the “conventional” loan process because of their career or past credit history. Understanding the potential pitfalls of doing a seller carryback, but also knowing the rewards, is crucial to this type of sale.  In a seller carryback scenario, both parties need to exucute an All Inclusive Trust Deed.

An “All Inclusive Trust Deed” or AITD is a “Seller Carry” that “wraps” or includes an underlying loan or loans of record. It is usually recorded at the close of escrow with a Grant Deed conveying full to title to Buyer and Title Insurance is issued.  The AITD’s face amount includes the unpaid balance(s) on underlying encumbrances, plus the remaining unpaid balance of the Sellers equity.

Sellers remain responsible for the payment on the underlying loan(s) or until they are paid in full. The Sellers equity position in the note is always the difference between what is owed to the Seller and what the Seller owes the underlying lender.

The AITD becomes a junior trust deed, subordinate to the underlying trust deed(s).  The inputed interest rate (9% or applicable Federal securities rate, which ever is lower) is the minimum interest rate allowed for Seller financed transactions. The Documentary Transfer Tax on the grant deed is based on the purchase price LESS the liens of record.

Advantages:
The Buyer does not need to qualify for a loan with a lender and closing costs are minimal.  The Seller has advantage of installment sales income tax recording method, so long as payments are received in more than one tax year. The Seller, by agreement in writing with buyer, may prohibit prepayment of up to a 12 month period following the sale.

Because the underlying loan(s) may have a lower interest rate, or may have been paid down considerably, the Seller’s effective interest rate yield may be higher than the actual note rate.  The Seller benefits from the “Interest Override” which is the difference between the interest rate on the existing loans of record and the rate negotiated on the AITD.

Disadvantages:
Recording may alert an underlying lender to enforce the “Acceleration Clause” or “Due on Sale Clause” and require the underlying loan to paid in full.  At this time, the underlying loan would be considered in default and said lender could start foreclosure proceedings.

Paying off an AITD:

There are two types of AITD payoffs:  Equity Payoff and Full Payoff.

The AITD should not be reconveyed until such time as any equity of the seller and the existing deed(s) of trust have been paid in full. At all times the seller is responsible for the underlying loan(s) of record, since there has been no release of liability given by the existing lien holder(s). Any late payments and/or default, will reflect on the Seller’s credit accordingly.

Being able to sell a house quickly by not having to wait for a mortgage company to approve a buyer or having to rely upon an appraiser to come in with the “right” price can sometimes make this type of an arrangement attractive. However, be sure to consult a real estate attorney and professional tax advisor on the implications (or benefits) before entering into a transaction.

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Defining “Assumption” vs. “Subject To” Loans

There are many implications of loans that are either “Assumptive,” or “Subject To.” Here is a general overview of some of the definitional differences between the two and how the differences affect the escrow process.

Assumption Loans:

The term “assumption” is used when a buyer incurs personal liability for an existing deed of trust.  If the buyer were to default on their future mortgage payments, the seller would no longer have any responsibility as the buyer has “assumed” the loan.

When a buyer “assumes” a loan it is with the lender’s knowledge and approval. An assumption agreement is prepared by the existing lender of record and signed by the buyer as part of the escrow process. The seller may also be required to sign the assumption agreement and the terms may release the seller from responsibility. The lender usually requires a credit history from the buyer before approving the assumption and the payment of assumption fee(s). The loan will be brought current (if it is delinquent) and interest will be pro-rated through escrow and charged to the seller.

Subject To Loans:

In contrast to an Assumption Loan, the term “taking subject to” is when the buyer incurs no liability to repay the loan. The loan stays in the seller’s name, but the buyer gets the deed and therefore controls the property.  Although the buyer makes the mortgage payments, the seller remains responsible for the loan.

When a buyer takes title to property “Subject To” the loan of record, the lender is not notified of the transaction or asked for their approval. The Lender has not approved the transfer of title; therefore the seller is not released from responsibility. In this case, the buyer is simply making the payments instead of the seller. The seller will be asked to provide escrow with their last payment record which will be used to calculate the exact principal balance at close of escrow. The lender may have the right to accelerate their due date or call the loan all due and payable when (and if) they receive notification of a transfer of ownership.

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Understanding Probate and the Escrow Implications

A probate sale is defined as the sale of a property where the owner is deceased and the sale is being conducted by the deceased estate.  An Administrator or Executor signs on behalf of the deceased person with either full or limited authority. Sometimes the deceased has a will. Sometimes they don’t.  Although the escrow process is fairly similar for both scenarios, the time frames associated with the two situations can vary dramatically.  Understanding the core differences between the two can assist agents and clients in successfully closing a transaction.

Situation #1 – The Deceased Left a Will:

From the standpoint of escrow and most buyers, this situation is a far preferable probate sale due to the predictable time frames this situation provides.  When the deceased leaves a will, the property falls under the Independent Testamentary Act and the court designates an Administrator or Executor of with full authority over the estate.  Typically this person will be a close remaining relative.  It then becomes the responsibility of this person to decide the future of the property.  Because this person has full authority, the process from an escrow perspective is very similar to that of a standard sale.  However, there is one additional document that will be required by title in order to close the transaction.  They will need certified copy of the “Decree of Distribution of Letters of Testamentary”.  This is official paperwork issued by the court that designates the Administrator of Executor and is required by title in order to insure the transfer of the property.  Glen Oaks Escrow also will want to receive a copy of this document in order to proactively review it for potential hiccups in the transaction.

Situation #2 – The Deceased Did Not Leave a Will:

In the event that the deceased did not leave a will, the property sale will have to go through the court probate process.  The court will approve and assign an Executor or Administrator for the Estate of the Deceased.  This Executor will be an independent court representative.  The court will also issue an Order Confirming Sale which basically stating that the listing price is at fair market value and it authorizes the sale of the property.  A certified copy of this document will be required by title in order to close the transaction.

The challenge for escrows on Probate Sale listings in this situation where the deceased did not leave a will is that the time frame for the court probate process can vary from 60 days to 6 months or beyond.  This creates a challenge in negotiating escrow times.  Agents should be prepared to properly set buyer expectations about the time it can take to close a court appointed probate sale.  It is not uncommon to require an extension of escrow.  And, unfortunately, sometimes the extended escrow duration can become a deal breaker.

If you’re ever in a probate property sale transaction, understanding the process and what you must do to transfer the property can affect the success you have in closing the deal.  Your escrow officer can be an excellent resource to inform you of the paperwork and time frames that will be required to complete the transaction.  In addition, consulting your family attorney or estate planner is your best course for answering specific and legal questions in these types of transactions.

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Happy Thanksgiving from Glen Oaks Escrow!

A special greeting at this Thanksgiving from Glen Oaks Escrow to express our sincere gratitude for reading our blog and the feedback you provide.   We are thankful and would like to extend our best wishes from our family to yours.  Happy Thanksgiving!

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REO Overview: When the Bank Is the Owner, Escrow Is Impacted

Recent headlines have proclaimed that California’s foreclosure crisis is a long way from over. First time home buyers, predicted to make up 55% of the market in 2010, are looking at REO’s as an affordable way to get into the market. That makes REO or ‘Real Estate Owned’ properties the hot ticket right now. These are homes that fell into foreclosure and then didn’t sell at auction. So now, the bank or lender owns the property and wants to get it off their books ASAP.

Buying an REO property is almost the same as a regular home purchase. You still view the home and write an offer; the big difference is that you go into escrow with the bank- not a private seller. Dealing with the bank makes for a different negotiation process, and has some impact on the escrow process, as well.

In terms of negotiation, let’s say you make the bank of offer. They may sit on it for a while and mull it over. Depending on how close your number is to what they need to recoup their losses, they might agree right away, or wait for other offers to come in before they accept or decline yours. They may not counter you the way a traditional homeowner might…instead, they may just accept another offer. However, if they do accept, you will enter into an escrow agreement with the bank.

When you’re in escrow with a bank the process is different from a traditional home purchase. A REO sale has very strict time constraints and deadlines built into the escrow agreement. Banks are absolutely set on meeting those deadlines and because they are an institution not an individual, they can charge hefty fines if you fail to meet their deadlines. The upside – you can close fast. The downside – the bank can take back the offer without returning your earnest money (escrow deposit) if they feel the terms of the escrow will not be met on their timetable.

Don’t get discouraged though. People are purchasing REO properties in droves because they are saving between 10-30% on their purchase. It’s a fantastic way to get into a first home or buy investment property. So, if you’re ready to plunge in feet first, talk to your Realtor about testing the waters on an REO property. The market continues to have a high percentage of them, so your options are plentiful. Happy home buying!

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Title Binders: A Money Saving Tool If You Plan On Owning A Short Time

What is a title binder? No, it’s not the binder you take to keep your notes in concerning your title and escrow proceedings. It IS something that you should know about to save money if plan on selling your home within 2 years after its purchase. A title binder, also known as an interim binder, is not a title insurance policy, but is, instead, a commitment to issue a title policy. The key to the title binder is asking yourself, “How long do I plan to keep this property?”

The title binder is a cost saving tool for people (i.e. investors) who intend to “flip” a home or for those who are subject to frequent relocation or who just find themselves not wishing to remain in a specific home for more than two years. Every time you sell and buy a home, you incur costs to have the title searched. Title insurance protects the buyer of a property or the lender for the property against unknown defects in the title. For a one-time premium, the title insurance company, which is in the business of examining public records, preparing title abstracts, and selling title insurance, issues the insurance after doing a title search on the property.

By purchasing a title binder up front, you can save hundreds of dollars in title fees because it allows the purchaser of real property to resell the same property and have a policy of title issued to his/her buyer at fraction of the cost. For example, if an investor purchases a “fixer upper” they would purchase a title binder as soon as they bought the property, knowing they plan on fixing up the property and selling it within a year. When they go to sell the property, they use the same title company they originally used and avoid having to incur the costs of having the title searched again for the new buyer. The binder was designed for a special purpose and cannot be used in every real estate transaction. The standard term for a title binder is two years. However, some title companies do offer an extension for another year at an additional cost of another 10% of the Owners Policy Cost. It is very important to note, the same title company that issued the title binder must be used when the property is sold.

Sometimes, the listing agent for the former buyer (now the seller) was not aware of the title binder purchased at the time the property was purchased. Under normal circumstances in California, the seller of real property pays for the buyer’s title insurance. The interim binder provides a method to avoid duplicative costs. An Interim Binder gives its holder the option to obtain coverage during the period set forth in the Interim Binder, sell the property, and provide a title insurance policy for the new buyer, all at the cost of a single owner’s policy plus a “binder fee”, usually 10% of the premium for the owner’s policy. Accordingly, where a buyer or developer intends to resell the property within a defined time period (usually two years), an interim binder may constitute a useful and cost effective alternative. It is important to repeat, however, that an interim binder is not insurance, it is a commitment to issue an insurance policy.

However, if a claim arises during the interim binder period, the person to whom the interim binder was issued may convert the interim binder to an owner’s policy of title insurance naming him as insured and tender that claim pursuant to the policy. Title binders are only for buyers, not lenders and are issued in lieu of an Owner’s Policy. More information about the legalities of title binders can be found here.

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What Day Is Best To Negotiate Close of Escrow?

What day should you negotiate to close escrow in order to meet the needs of the buyer and seller?  When negotiating a contract, the actual day of the week that the close is on is not often considered.  More typically, contracts call for 30 or 45 or “x” day escrows.  But, considering that:

1. Most buyers prefer to move into their new home on the weekend, and
2. Most sellers want to get their funds as soon as their sale closes,

we at Glen Oaks Escrow suggest taking a look at the specific day that you are projecting to close with your “x” day escrow, and attempt to avoid a Friday close.  Thursday or earlier is often best.  This is because you allow for a day from the recording of the sale for a seller to receive their money and a day of wiggle room for the buyer in case any part of the process encounters a snag.  In the case that a hiccup with any part of the closing process does occur, this leaves at least an extra business day to close before the weekend.

Other considerations:

Should we close at the end of the month?

Some people are concerned with closing at the end of the month. The benefit of closing at the end of the month is that the buyer does not have to come in with as much money to pay for outstanding interest that may be due. Closing at the end of the month is generally not a problem if all the documents are turned in on time. However, buyers and sellers should be aware that generally the county recorder’s office has more volume on the last day of the month.  Confirmations of recording tend to come later in the day as a result, and the risk of delays in proceed disbursements can increase as a result.  Of more common concern to most buyers and sellers is to avoid closing on a Friday and perhaps facing a delay that would force the buyer and seller to wait until after the weekend to close.

Holidays

Be sure to take holidays into account when negotiating a closing date as well.  The county recorders office, banks, and often escrow are closed for all public holidays and this can impact your closing date.  If for example, you plan to close on a Thursday, but the next day is a holiday, you might prefer to target a Wednesday close in order to best plan for the property closing before the long holiday weekend.

The escrow agent will present all the details of your closing to you and explain the process step by step. Keeping in mind the best day to close however will help your escrow go more seamlessly.

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$8000 Federal Tax Credit Is NOT “Given Back” At Escrow

The Federal Government, in an effort to stimulate the economy, enacted a first time home buyer tax credit earlier this year that would give homebuyers up to $8,000 to help offset the costs of purchasing a home. Many REALTORS and homebuyers alike, have asked for the refund to be “given back” during the close of escrow. Since the program is a “tax credit” the money comes back from the government when the new homeowner files their income tax return as opposed to receiving the money at the close of escrow. Escrow officers want their clients to know this ahead of time to help avoid frustration when a buyer thinks they will receive an additional $8000 to help them close their escrow.

To help avoid confusion, here is more information about the tax credit and the form that needs to be filled out in order to apply for the tax credit.

The credit:

* Applies to purchases that close after April 8, 2008, and before Dec. 1, 2009. (The Senate is on the verge of extending the deadline as of today)
* Applies only to homes used as a taxpayer’s principal residence.
* Reduces a taxpayer’s tax bill or increases his or her refund, dollar for dollar.
* Is fully refundable, meaning the credit will be paid out to eligible taxpayers, even if they owe no tax or the credit is more than the tax owed.
* The credit is claimed using Form 5405.

This year, qualifying taxpayers who buy a home before Dec. 1, 2009, can claim the credit on either their 2008 or 2009 tax returns. They do not have to repay the credit, provided the home remains their main home for 36 months after the purchase date. They can claim 10 percent of the purchase price up to $8,000, or $4,000 for married individuals filing separately.

The amount of the credit begins to phase out for taxpayers whose adjusted gross income is more than $75,000 or $150,000 for joint filers.

For purposes of the credit, you are considered to be a first-time homebuyer if you, and your spouse if you are married, did not own any other main home during the three-year period ending on the date of purchase.

The IRS has a YouTube video, “The $8000 Tax Credit Explained” and other resources that provide details about the tax credit.

This is not intended as legal or tax advice. To fully understand the tax credit and apply successfully for the refund, please consult a tax professional.

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Domestic Partners in California-Register To Avoid Escrow Delays

Across California, as we process escrows for same-sex buyers and non-married couples over the age of 62 who are buying permanent residences or vacation homes, the topic of registered domestic partnerships arises. It’s important when choosing how to hold title to know how California law defines a Domestic Partnership, as outlined below. Buyers who meet these qualifications must register with the State of California to receive their Rights of Survivorship. Any other domestic partnership registration or out-of-state same-sex marriage will not be accepted by the State and can delay the escrow process.

California law states that in order to hold title as community property with or without  Rights of Survivorship you must be either husband and wife or registered domestic partners. Why are buyers interested in Rights of Survivorship? Rights of Survivorship defines co-owners as having equal possession and interest in the property, so if, for example, one of the partners were to pass away, the property simply transfers to the surviving partner.

Sometimes, same-sex couples, as well as opposite-sex couples, who are not married and over 62, will begin the escrow process assuming that because they’re registered as domestic partners in their home state (or perhaps were married in Canada) that they qualify as domestic partners in California. This is false and can result in the buyers having to vest title as single persons.  It may be an option for the buyers to go through the process of registering as domestic partners with the State during escrow in order to hold title as community property, but this can run the risk of delaying escrow as there is time and hassle associated with appearing in court to file the appropriate papers, etc.  If buyers are aware of the facts surrounding domestic partnership ahead of time, they can register on their own time and save everyone involved stress and delays in order to take title as community property.

By clarifying California’s domestic partnership rules and regulations to your buyers, you will help them create a lasting financial arrangement that properly and legally reflects their relationship.

To be registered domestic partners in California, both persons must:

• Have a common residence;
• Agree to be responsible for each other’s basic living expenses;
• Neither be married, nor a member of another domestic partnership;
• Not be related by blood;
• Be at least 18;
• a: Be members of the same sex, or
  b: If at least one is over age 62, be of opposite genders;
• File a Declaration of Domestic Partnership with the California Secretary of State wherein each partner must consent to California court jurisdiction if the couple seeks a dissolution or nullity of their relationship.

It’s also important to consider certain clarifications to these stipulations:

• Legislators limited domestic partnership for opposite-sex couples to only those where one partner is over aged 62 in order to protect benefits like Social Security.
• To be eligible for the rights and responsibilities of domestic partnership, under California law you must be registered with California’s statewide registry. The state of California does not recognize same-sex marriages performed in Canada or domestic partnerships registered in other states in the U.S., nor does it offer the benefits to couples registered as domestic partners by cities within California.

It is important to keep in mind that there are potential tax and other legal implications to how you take title in the purchase of property.  The implications are generally unique to the specific situation at hand and we at Glen Oaks Escrow advise buyers and sellers to consult with their CPA and/or attorney for advice pertinent to their specific situation.

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