Patience Is Key for a Successful REO Escrow

In a previous post, the nuts-and-bolts differences between REO (Real Estate Owned) escrows and standard escrows were discussed. This post is designed to highlight a significant psychological difference that can help you and your clients successfully navigate the REO terrain: patience.

For a number of reasons, the process for an REO escrow can take longer than a standard escrow:

• The Seller of an REO is a Bank or Lending Institution who may have many properties in escrow at once. This means that what may seem like a simple response to a question can take days to be considered, much less answered.

• An accepted offer or contract may take several days to be uploaded onto the Seller’s online system where it will only then be listed as a “task” to open escrow.

• Banks must follow specific, strict procedures that can take longer than a standard escrow.

• Finally, the HUD process takes approximately five days after the Buyer has signed the loan.

Realtors: Realizing these differences and delays can help you keep your Buyer calm and confident while working through an REO escrow.

Buyers: Knowing it can take longer to work through an REO escrow can help make the process much less stressful.

When all parties understand how these differences add time to the process, they can sit tight and allow the escrow officers to focus their time on processing the transaction. Ultimately, your patience can lead to a successful (and less stressful) transaction for everyone.

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Per Diem: Two Little Words that Can Impact a Buyer in an REO Sale

Buyer’s of a “bank owned” property, or REO sale as they are often referred to, may come across some verbiage in the Banks Addendum to the Real Estate Purchase Contract that catches their eye: Per Diem Penalty. Escrow Officers are often asked, what does this mean?

Latin for “per day”, per diem has many uses. What per diem is referring to in this instance is in the event escrow does not close by the date set forth in the contract, the Seller can impose a daily penalty to the Buyer for each day beyond the initial agreed upon closing date until the day the escrow officially closes.

The amount of this penalty differs depending on terms of the contract. It can be a percentage of the purchase price or a set daily amount (ie $100 per day). It is important to note, agreements can be made between the Buyer and Seller to waive the penalty when applicable.

One way a Buyer can strive to close escrow on time and avoid penalties is to complete escrow and mortgage paperwork and provide requested documents in a timely manner. However, circumstances may still arise that are beyond the Buyer’s control. In this event, a Buyer should ask their agent to renegotiate the terms of the contract to extend the closing date or to waive the penalty with the Seller and Seller’s agent.

In REO transactions, as with any real estate transaction, it is very important to be sensitive to all time frames in order to alleviate unnecessary charges.

If you have further questions about the Per Diem Penalty, do not hesitate to contact your escrow officer for further clarification or leave us a note in the comments.

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An Explanation of Property Tax Prorations in Escrow

One of an escrow officer’s simpler jobs is calculating the amount of property tax that is payable by the buyer and the seller on any given real estate transaction. One of the agent’s tougher jobs can be explaining to the buyer why they may get an official property tax adjustment bill months after the sale is done. Let’s wade into the arithmetic and explain the situation.

Property Tax Defined

Every property gets assessed by the county assessment office every year, establishing the amount of tax due on that property. At the time of a sale, it’s a simple matter for the escrow agent to find out the property’s tax for the full year, and apportion the correct amount to the seller for the year to that date, and the right amount to the buyer for the remainder of the year.

Say, for example, the property tax of the year is $1200, and the transaction closes on May 1. The seller pays $400 for the first 4 months, and the buyer pays $800 for the last 8 months. These numbers show up on the closing statements.

Sale Triggers Assessment

The complication arises because a property sale triggers a new assessment. This assessment happens according to the schedule and timetable of the county assessment office; this means it could happen months after the transaction has closed, when the buyer has long since thought the sale over and done with.

When it eventually occurs, the property has a new assessed value – and a new tax burden – retroactive to the date of the sale. It might be more or less than what the buyer paid on the closing statement, but chances are good that it will be different. Therefore, the assessment office will issue an adjustment notice. If it’s a tax increase, the buyer needs to pay more. If it’s a decrease, each county handles the situation differently. Check with the links below for your own area’s procedures.

Escrow Works With The Numbers

The escrow officer’s job with prorating property tax is just to work with the existing numbers. They use the property tax amount provided to them by title at the time of the escrow (the current property tax amount). They take this current tax information and allocate the charges to the parties accordingly.

That’s why, in an appreciating market, a buyer can get an additional tax bill, months after the sale, when they thought it had already been covered. And that is why, in a depreciating market, the potentially reduced taxes on the home cannot be determined and applied at escrow. For specific tax questions related to a particular parcel, further information can be gained by contacting your county’s tax recorders office:

• Riverside County
• Orange County
• Los Angeles County
• San Diego County

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Concurrent Closings-A Difficult Escrow Process Clarified

Concurrent closings are a common escrow situation where a client is conducting two real estate deals, and wants them both to close on the same day. It sounds like a simple, straightforward matter of timing; in reality, the request for a concurrent close can be a difficult and stressful affair for all concerned. It’s like trying to line up two flocks of ducks at the same time.

Reasons For Concurrent Closings

A client may ask for concurrent closings for several reasons. Perhaps they are buying a new house, and using the proceeds from selling their current house to pay for it. Perhaps it’s a business deal with a need for close timing. Perhaps they are involved in a 1031 exchange, and the timing of the closings has strong financial implications. For whatever reason, the less time between the closing of the two deals, the more the client benefits.

The challenge in executing a concurrent closing arises because any real estate transaction involves a multitude of agencies and stakeholders. Title agencies must work through the process of transferring title; spouses, business partners, or other parties with an interest in the property need to be consulted; lenders have approval processes that depend on other paperwork being completed in a timely manner. In short, the escrow officer works an impressive feat of organization and coordination in a concurrent close.

It May Be Out Of Escrow’s Hands

The escrow officer is the director of the two transactions. The escrow officer makes sure people have the right information and forms at the right times, follows up to ensure timely completion of the paperwork, and does whatever is necessary to keep things on track. The plain fact is, however, that a concurrent close runs across many desks besides the escrow officer.

There are ways that a buyer can streamline the process, and help bring the timing of two concurrent transactions closer together. The two biggest considerations would be to have the same title company and the same escrow agency handling both transactions. This opens the possibility for workers in the same office to coordinate their efforts, to the buyer’s benefit. Having the same lender will help, too. Keeping the sale and escrow considerations as simple as possible give the transactions a better chance of coming to a concurrent close.

These are some ways to help make two related transactions close on the same day, or close together. However, because of a real estate sale’s inherent complexity and the number of agencies involved, no timing of a concurrent closing can be totally guaranteed.  Dealing with a professional, experienced and skilled escrow company can however help to effectively manage the transaction and meet the closing goals of all involved.

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Options for How to Hold Title – The Vesting Form Explained

Demystifying the escrow process for buyers is part of our goal here at Glen Oaks Escrow. One of the ways we accomplish this is by providing buyer’s a detailed opening package. This package contains a particular form called a Vesting Form that is integral to the escrow process and to the buyer’s future interest in the property. Simply put, it requires the buyer to outline how they will hold title to their new property.

The vesting of a title should be given special consideration because it specifies who is responsible for the costs, benefits, and transferability of a property. The value of real property is significant and with a little forethought, conflict can be avoided down the road with partners, creditors, spouses and/or heirs, as well as the Internal Revenue Service.

The most common forms of holding title include:

1. Sole Ownership

   1. As a single man or woman
   2. As a Married man or woman
   3. As a registered domestic partner, man or woman.

2. Co-ownership

   1. Community property, which is the presumed form for married couples. This entitles each party to equal parts of the property.
   2. Community property with rights of survivorship, which automatically transfers the property to the survivor in the face of a death.

3. Joint Tenancy

   1. This includes equal interests with rights of survivorship, but where the partners aren’t necessarily married.

4. Tenancy in Common

   1. In this form, the parties’ interests are broken up, and the costs and benefits are then divided as such.

It’s important to remember that the form of title that you choose has inheritance and/or tax implications. Your escrow officer at Glen Oaks Escrow is more than happy to explain the differences between the various manners in which title can be held. However, it is beyond our scope to actually recommend what would be best for a buyer. For that, the buyer should consult an attorney, CPA or estate planner who is more familiar with the buyer’s specific situation. Research and clear communication with one of these resources will help make the transaction a smooth success.

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Tighter RESPA Rules To Take Effect in 2010

To help consumers more easily understand settlement costs and prevent big price discrepancies between the preliminary Good Faith Estimate and the HUD-1 settlement statement, the U.S. Department of Housing and Urban Development (HUD) has created stricter Real Estate Settlement Procedures Act (RESPA) regulations are scheduled to take effect by April, 2010. (The regulations originally were to take full effect on January 1, but HUD provided a four month respite for compliance to the industry.)

For a review of what RESPA is, see our prior blog post.

New RESPA Rules

The upcoming Real Estate Settlement Procedures Act (RESPA) Reform requirements aim to provide customers with the essential information and adequate time to understand their home purchase and refinance options. HUD is requiring that loan originators provide borrowers with a standardized Good Faith Estimate (GFE) which clearly discloses key loan terms and closing costs.

The loan industry, in an effort to dissuade consumers from shopping for a loan, created separate Good Faith Estimates for each company, so that consumers could not equally compare costs. With the new standardized GFE, consumers now will have a chance to compare “apples to apples” when looking at competitive loan products.

In a busy year of reforming the mortgage industry, there are new federal governmental regulations called the Mortgage Disclosure Improvement Act (MDIA) (see below) which went into effect in July of this year. To clarify why RESPA and MDIA are related, if a lender is out of compliance with the MDIA, they are subject to a RESPA violation. The new standardized GFE, the MDIA, and stricter RESPA laws will all assist consumers in understanding the complexities of the mortgage process.

While HUD requires the RESPA Reform regulations to take effect in 2010, many lenders have begun implementing the required changes early. We, at Glen Oaks Escrow, have experienced that interpretations of the RESPA Reform requirements vary from lender to lender and as a result have caused delays in closing. Below is information about the MDIA from an attorney that specializes in RESPA law to help clarify the new requirements which will assist in closing transactions on time.

Compliance with Mortgage Disclosure Improvement Act/RESPA Requirements:

1.The 3/7/3 Rule requires a seven business day waiting period once the initial disclosure is provided before closing a home loan (business days are everyday except Sundays and Holidays). This means that before a borrower can close on a transaction the borrower must receive the initial Good Faith Estimate (GFE) and initial Truth in Lending (TIL) statement disclosing the final Annual Percentage Rate (APR) seven days prior to closing.

2. If the final annual percentage rate is off by more than .125% for a fixed rate loan or .25% for an ARM loan, from the initial GFE disclosure, then the lender must re-disclose and wait yet another three business days before closing on the transaction. Note: If the rate fluctuates EITHER WAY, up or down, more than .125% on a fixed or .25% on an ARM, the re-disclosure takes effect.

3. Lenders are forbidden from collecting money for appraisals, loan applications, etc. prior to the delivery of the truth in lending statement. Lenders can only collect the credit report fees from the borrower at the time of prior delivery of the final TIL. No other fees are permitted to be collected at the time of the application. If the TIL is sent by mail, additional charges can occur after the 3rd business day after the borrower receives the TIL in the mail.

4. The following language must be clearly written on the initial and final TIL: “You are not required to complete this agreement merely because you have received these disclosures or signed a loan application.”

5. Any Lender or Settlement Service Provider found in violation of the new RESPA regulations will have 30 days after the close of escrow to correct any errors and compensate the consumer for any overage.

What do these new MDIA/RESPA regulations mean to a Realtor?

Plenty. These rules help the buyer make sure that their lender does not say one thing and then do another. Here is how Realtors can help their clients:

* Make sure to check the initial Good Faith Estimate and Truth In Lending form for a buyer and look for discrepancies in charges. The new rules were put in place to protect consumers from being low balled one figure by a loan officer only to find out at the closing table that the fees charged were much higher. The new MDIA rules will absolutely delay closings if these steps are not followed carefully.

* Buyers, sellers, and real estate professionals should not schedule a closing until the borrower has completed the seven day waiting period as required in the initial Truth In Lending statement.

* Contact your Escrow Officer for an Estimated Settlement Statement as soon as the Good Faith Estimate is available. Many lenders do not contact escrow for fees and/or recurring closing costs.

To learn more, go here for the new RESPA rule FAQ’s and here for the RESPA final rule.

Go here to learn more about the 120-day delay in the RESPA regulation enactment.

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Escrow Terminology Explained, Part 2

This is the second article (see the first one here) in our series on the specific terms and phrases you can encounter during a real estate transaction. The language of escrow and the real estate transaction doesn’t need to be a stumbling block; once you know the terms, these words become what they are meant to be – valuable tools to help smooth the road to a successful transaction.

Contingency

This is a clause in the sales contract that says something must happen before the sale goes through. The sale is contingent on this event, in other words. Common contingencies are the arrangement of financing, a successful home inspection or wood pest inspection, or a roofing or sewer report. Negotiate contingencies carefully, as they can cause the failure of a deal.

FIRPTA

The Foreign Investment in Real Property Tax Act of 1980 is important if you are buying a property from a person or corporation that is not US-resident. It is up to you to find out if the seller is a foreigner. FIRPTA rules state that the buyer must withhold 10% of the realized sale price for tax purposes. A common exception is if you are buying a personal residence for under $300,000. Talk to your broker or escrow officer, who will know all the details.

Cal-FIRPTA

The California version of FIRPTA, this legislation requires the withholding of a percentage of the sales price for most California real estate transactions. Talk to your realtor or escrow officer to get a full explanation of how this law affects your transaction.

Easement

An easement is an allowance, written into the property’s title, for another person or company to have access to a portion of the land for some purpose. Often an easement allows access to power lines or utilities running through the property. A registered easement gives the other party legal access, and restricts what the owner can do on that piece of the property.

Encroachment

An encroachment is any structure or physical thing that intrudes on somebody else’s space. This could be a neighbor’s building or fence encroaching on your land, your building or other structure encroaching on your neighbor, or your structure encroaching on city or state property. Encroachments must be agreed upon before building, resolved if discovered, or removed if objected to.

Watch for more terminology posts in the months ahead.

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What is RESPA And What Affect Does It Have On The Real Estate Transaction?

How would you react if you had a limited amount of funds in the bank to pay for closing costs and then were hit with hundreds of dollars in extra “unexpected” closing costs? This is a problem that the Real Estate Settlement Procedures Act (RESPA) was enacted to eliminate. The goal of RESPA is stop hidden fees and charges by settlement service providers and to stop kickbacks to ensure the integrity of the real estate transaction for the consumer.

In 1974, RESPA was enacted by Congress. Its intent was consumer protection by regulating the disclosure of all costs and business arrangements in a real estate transaction settlement process.

Enforced by the U.S. Department of Housing and Urban Development (HUD), RESPA requires that consumers receive disclosures at various times in the transaction and outlaws “kickbacks” that increase the cost of settlement services.

Specifically, Section 8 of RESPA prohibits a person from giving or accepting a referral fee, kickback, or anything of value in exchange for the referral of settlement-service business.

An example of an illegal “kickback” was when title companies would pay for rounds of golf, provide free administrative services, or sponsor educational classes for Realtors and lenders to encourage referral business.

A common RESPA violation, with direct impediment to consumers, occurred with lenders during the housing boom. Consumers would apply for a loan, receive a Good Faith Estimate providing the cost to obtain that loan, and then, they would go search for a new home. After making an offer on the home, they would get the final loan documents to sign at close of escrow. When they sat down to sign the final loan documents (HUD 1 settlement statement), they were oftentimes surprised to find extra and ambiguous closing costs and fees that had come up during the escrow process, sometimes along with higher interest rates. These fees were added by lenders who lured consumers with promises of low cost loans.

RESPA has done away with many of these types of unsavory business practices, as well as leveled the playing field between lenders and others in the real estate industry.

To help consumers more easily understand settlement costs and prevent big price discrepancies between the preliminary Good Faith Estimate and the HUD-1 settlement statement, HUD has created stricter RESPA laws, which take effect in January 2010. HUD has published a Frequently Asked Questions about RESPA which is a good resource for further information.

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Escrow Terminology Explained, Part 1

Real estate transactions, and the escrow processes that make them happen, sometimes have a level of industry jargon that can be confusing or intimidating to buyers and sellers who aren’t familiar with the meaning behind the words.

This is a definitional post designed to better inform buyers and sellers about the escrow process and the terminology used during the course of a transaction.

Escrow

The escrow procedure, at its core, is where a neutral, trusted third party holds onto an item for sale until something happens, usually until the buyer pays the seller. As real estate transactions have grown in complexity, so has the business of escrow. Now an escrow agent watches over all the details of the sales agreement, facilitates the transaction paperwork, and coordinates the interests of many different parties with an interest in the sale. They also make sure that the seller gets their proceeds, and the buyer gets their title, when all is said and done. For a detailed explanation of escrow, see this earlier post.

Deed of Trust

In many states, including California, this document takes the place of a mortgage. The Deed of Trust places a property’s title in the hands of a Trustee, usually a title company, along with the specifics of the buyer’s loan and repayment provisions. If the owner defaults on the loan, the Trustee has the legal right to foreclose, and give the lender the proceeds. When the loan is paid off, the Trustee reconveys the title to the owner.

Lien

This is a legal claim on a property by someone the owner owes money to. In real estate transactions, the lender will attach a lien to the property title, saying any money from sale of the property will first be used to pay off the loan.

Prorations

In a real estate deal, the escrow agent will need to figure out the buyer’s and seller’s portions of expenses that get paid according to a certain date – eg taxes, interest or utility bills. The agent will pro-rate the expense, doing the arithmetic based on the transaction’s closing date.

Grant Deed

This is the actual document of the real estate sale. It states that the seller, or Grantor, is selling the property to the buyer, or Grantee. It states the specifics of the property, and that the seller has revealed any liens or encumbrances. The Grant Deed is usually notarized and recorded.

HUD-1 Statement

This is the Department of Housing and Urban Development’s official settlement form, used in most real estate transactions to detail exactly what settlement costs occur in the sale, and whether the buyer or the seller is paying them. You get this form at or shortly before the closing. It represents a complete accounting of every cost of the transaction.

Title Insurance

This is an insurance policy for buyers that protects them against unanticipated defects in the property title. These could be anything from hidden liens, ex-spouses, unrevealed heirs, or recording errors, to forgery. Title insurance policies carry different specifics and exceptions, so examine yours carefully.

Additional terminology will be defined in future posts. If you have a term you would like clarified or defined, leave us a note in the comments section of this post.

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Choosing A Notary When It’s Time to Sign Your Escrow Documents

The typical real estate escrow requires the buyer to sign 70 – 120 pages of documents, several of which require notarization.  The seller also will have to notarize, at the minimum, the grant deed.  Notarization, or the act of an uninvolved witness (the Notary) verifying that the signor (the buyer or seller) is indeed who they say they are, is an essential part of the escrow process.  And, if notarization is not properly done, it can cause delays which can impact the closing of the escrow.  When it comes to notarizing documents during escrow, clients can choose to go to the escrow office or hire an outside notary.

Option 1:  Notarize and sign at the escrow office

Escrow offices all have a notary on staff.  Therefore, a common option for notarizing documents is to have the parties go to the escrow office to sign documents.  With customer satisfaction as our highest priority, at GOE Escrow we prefer that our clients physically come to our office to sign closing documents. This not only ensures that buyers and sellers feel they are receiving the highest level of service, but also we can personally correct any errors that may have been overlooked by the many parties involved in the transaction as well as answer any questions that may arise.

However, circumstances do not always allow for clients to sign at the escrow office (for example, in the case of an out of town buyer).  When this occurs, working with an outside notary is the alternate solution.

Option 2.  Notarize and sign with an outside notary

If you are to hire an outside notary, you have two options:  A Certified Document Signor or a Mobile Notary.

Both Certified Document Signors and Mobile Notaries are certified by the State of California to verify signatures.  However, a Certified Document Signor also undergoes regular continuing education training specific to real estate transactions.  They are familiar with the documents that are signed in the transaction.  Mobile Notaries are not required to have this specific training and as a result, are not always familiar with the documents that are being signed.

A Certified Document Signor will cost more, but clients should be aware that our most common reason for the delay of a transaction is due to the incorrect signing of closing documents. With the amount of paperwork that needs to be signed and notarized, it is easy to see how someone without the proper training could overlook a detail here or there.  As a result, Certified Document Signors are our preferred option if the client is not able to sign in person at the escrow office.  That said, it is possible to have an accurate and successful closing with a mobile notary.  The choice is really up to the client and will be impacted by many factors specific to the transaction.

So when choosing, ask yourself what is more valuable in a real estate transaction, your time or your money?  If time is not of paramount concern, a mobile notary may be a great choice for you.  If it is imperative you close on time, your risk of signing issues will decrease by going with a certified document signor.  And, if you have the ability to sign at your escrow office, you will run the lowest risk of delays.

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