The bank filed a foreclosure suit, won, took title, and sold the property to an independent third party. Now imagine that you are the third party purchaser – you bought a home from a bank that obtained title via foreclosure. You move into and live in the house you purchased from the bank at a foreclosure auction.  Then suddenly, the original homeowner, who owned the property before the bank foreclosed, has convinced a court that she still owns the property.  Incredibly, in light of the bank’s failure to correctly prosecute the foreclosure lawsuit, the homeowner is right –  she still owns the house.

The problem is created through a break in the chain of mortgage ownership. Until the 1980’s, most mortgages were loans between the homeowner and a bank, who lent the money directly.  More recently, the mortgage financing system transformed into an international system of securitization, with mortgage lenders packaging their loans into securities, bought and sold by investors like stocks. These transactions even split individual mortgages into sections, where each loan could have parts owned by different investment banks.

The transfer of ownership in these mortgage backed securities (MBS) was done with contracts on the balance sheets of Wall Street investment banks, such as Morgan Stanley and Goldman Sachs. The company who originally appeared to make the loan was normally a retail lending company such as Countrywide or Lending Tree, who typically acted as a sales company, and sometimes remained contracted to service the loan.

In the event that the loan goes into foreclosure at a later date, the then-current owner of the loan files the foreclosure and sells the property to a new owner, often at auction. The land records would show a deed of transfer from the investment bank to the new owner. This creates a break in the chain of ownership of the mortgage rights. In many cases, the transfer of ownership of the mortgage loan has gone from the original lender, through several owners, and then to the foreclosing bank, none of which is recorded on the property title history. Technically, the foreclosing bank has no recorded title rights to foreclose in the first place.

MERS announced it changed its procedures to require that an assignment of mortgage be filed prior to the start of any foreclosure suit. Typically, a mortgage is recorded in the public records with MERS as nominee for ABC Corporation. Invariably, when the foreclosure lawsuit is filed, it is not filed in the name of ABC Corporation it is filed in the name of Bank of America, JP Morgan Chase or some securitized trust – an entity with no relationship to ABC Corporation.

In most foreclosure cases, banks’ lawyers argue the plaintiff has standing if it is the “holder” of the Note (i.e. if it possesses the original note with a special endorsement in blank.) Many judges accept this position, no questions asked and thus, an assignment of mortgage is often viewed as irrelevant and superfluous.

Even if Bank of America, JP Morgan Chase, or the securitized trust has standing without an Assignment of Mortgage in the public record, ABC Corporation is still the mortgage holder of record. This means that even if Bank of America, JP Morgan, or whoever prevails in the foreclosure is the high bidder at the auction, acquires title, and sells the property to a third party, ABC Corporation is still the mortgage holder of record. What does that mean? Essentially, the entire foreclosure case was like a wild deed – it took place, but ABC Corporation can still institute a foreclosure lawsuit in its own name, as it would have priority over the bona fide purchaser who acquired title from the bank.

If ABC Corporation is the mortgage holder of record, and it is not named as a party in the mortgage foreclosure suit, and there is no Assignment of Mortgage, then the mortgage in favor of ABC Corporation still exists, even after the foreclosure, even after the auction, and even after the sale to the third party. The foreclosure happened, but as far as ABC Corporation is concerned, the foreclosure is irrelevant – it still has the mortgage.

To sum it all up, when purchasing your next Tampa home, especially in the case of foreclosure, it is very important to seek the advice of a real estate attorney and if possible, purchase title insurance when you purchase a property.

Foreclosures Need A Lot Of Work

Foreclosures Are BARGIN CHEAP. Foreclosures are generally cheaper than standard sales, but they are not quite the savings that most Tampa real estate discount hunters are looking for. Typically bank owned properties require appraisals.  Also, banks will have Realtors give a an opinion of value equivalent to a quick sale in the market. The price may be significantly cheaper than what the original owner paid, but not too drastic from what the current market is. Be realistic with the prices; they may be at maximum 15-25% off the market price, not 50%.

Foreclosures Are RISKY. Buying a foreclosure at an auction on the court house steps can be very risky. The chance that the home carries liens and other loans do exist. Though, typically buyers are looking for bank-owned foreclosures which are treated more like regular home sales.  Plus, the owner is the bank which means it will most likely result in a cleaner transaction.

Foreclosures Do Not Allow Inspections. Again, when you purchase a foreclosure from the court then there is a very small chance for an inspection of the home. When you purchase from the bank, they will allow inspections which enables you to determine prior to closing any major issues the property may have.  Though in almost all cases the home will be sold “as-is”, meaning the bank will not complete and/or pay for repairs prior to closing, the inspection process allows you to add repair costs into the price of the home to get a clearer picture of actual cost.

Make Low-Ball Offers. The banks are NOT that desperate to give the homes away. In fact, more often than not, the homes sell for more than the list price. A foreclosure listing is handled just like regular a Tampa real estate sale, meaning the bank will consider lowering the price after a few weeks if they feel that the price is too high for the market.

You Have To Buy Foreclosures With CASH. This would most likely be the case with a property being sold at a courthouse auction, but not with a bank owned foreclosure. The property is treated like a regular sale, and conventional loans can be obtained. Only if the foreclosure is in really bad physical shape is it possible that it may only be purchased with cash.  The reason for such a situation would be that the property does not meet the standards for loan.

It’s Easier To Buy The Foreclosure With The Bank That Owns It. If you have difficulty getting a loan from other banks because of poor credit and you think working with the existing bank is a viable option, that’s just not the case. The bank just had a bad loan and had to foreclose, and they are hardly likely to provide a low credit buyer with another risky loan. The bank would be happy to provide a new loan to a buyer, but only if they qualified like any other person would.

The other 60% of the current market are regular real estate sales. So how do they manage to sell their home?   They can sell quickly at today’s market price, and move on to the next property at a great value.  In most cases the properties do not have giant loans or the owners have had the property for many years (over 5).  They can afford to sell their Tampa real estate and are flexible enough to get it done.

If you fall into a situation where you need to move, but can’t sell (either because you’re not willing to take a loss or do not want to harm your credit), then leasing your home to a renter is a very viable option.

In an article provided by MSN, June Walbert of USAA explains some things homeowners should be aware of when renting a property.  This is great advice for any owner considering renting out their Tampa real estate.  “First replace your homeowners insurance policy with rental-home insurance. It covers the building and provides liability protection but doesn’t cover possessions, so it tends to cost about 20% less than a regular homeowners policy.” She also recommends including “a section in the lease requiring your tenants to buy renters insurance, which will cover their liability and belongings.”  In addition, she recommends that homeowners be aware of how reting will affect them at tax time.  “When you file your tax return, you’ll generally report rental income and expenses on Schedule E. You’ll be able to deduct your mortgage interest on the rental property, as well as insurance premiums, real estate taxes, advertising costs to rent the house, rental management fees, utilities you pay, travel to and from the property and legal and accounting costs.”

Smith & Associates Real Estate can assist with listing your Tampa real estate for rent and finding a tenant. We specialize in quickly locating qualified rental clients. Our experts will provide you with rental services that will allow for maximum exposure of your property. The steps would include having a property orientation, preparing the property offering, meeting and evaluating prospective tenants, preparing lease agreements prepared by a Florida eviction attorney ($50.00 fee), advertising, and processing of applications and credit checks. Please inquire with us about our fees. Smith & Associates Real Estate complies with all fair housing laws with applicants.

Short sales constitute a good percentage of current Tampa real estate listings. Anyone who has ever been involved in a short sale knows that the short sale request process is like entering the wild west –  the rules change day by day and you never know what to expect. There has been a public outcry for regulation in regards to short sales since the Tampa real estate market (and the rest of the country’s) bubble burst.

In response, the federal government has released the Home Affordable Foreclosure Alternative (HAFA) Program which will take effect on April 5, 2010. HAFA is different from last year’s Home Affordable Modification Program (HAMP), in that HAMP was intended to help people retain their homes, while HAFA is intended to help people short sale their homes. HAFA offers guidelines by which homeowners can sell their homes for less than what is owed on the existing mortgage(s).  The program is supposed to streamline the short sale request process by using standard processes, documents and timeframes. In order to attract participation from lenders, lending institutions are offered financial incentives to follow HAFA’s guidance and use its standard forms. Nevertheless, the program is strictly voluntary and lenders do not have to follow the US Treasury Department’s promulgated guidelines. It is important to know that HAFA is not a law.

In order to be eligible for the HAFA program, borrowers must have applied for the HAMP program and their application was either denied or they were unable to keep up on the modified mortgage. The HAFA program utilizes documents that were already collected as part of the mortgage modification program and permits homeowners to get pre-approval for short sales. This is an improvement to the standard short sale because typically, lenders will only consider a short sale request if there is a buyer for the property. The HAFA program is limited to loans that were originated prior to January 1, 2009 on the borrower’s primary residence, which do not exceed $729,750 and which causes a financial hardship because the monthly payment exceed 31% of the borrower’s gross income.

Whether this new government program will help to move short sale homes in Tampa and thereby improve the Tampa real estate market remains to be seen.

Sarasota witnessed a 17.7 percent drop in foreclosures between August 2008 and last month with 849 filings representing one in every 260 homes, according to a new report from RealtyTrac. Pinellas had a 5.7 percent drop year-over-year with its 1,944 filings representing one in 257 homes in some form of foreclosure.

The country as a whole was not as fortunate. Foreclosure rates were up nearly 18 percent nationwide with one in every 357 homes experiencing some level of foreclosure either from a default notice, scheduled auction or bank repossession.

“The August report demonstrates that there is still an ample supply of properties filing the foreclosure pipeline even when the outflow of bank-owned REO properties onto the resale market is being more carefully regulated,” said James J. Saccacio, RealtyTrac’s chief executive officer, in a release. “After hitting a high for the year in July, REOs dropped 13 percent in August, but we also saw a record high number of properties either entering default or being scheduled for a public foreclosure auction for the first time.”

Polk County had the biggest jump in foreclosures, rising more than 40 percent to 1,892 filings, or one in every 147 houses. Hillsborough County foreclosures rose 23.5 percent with 2,341 filings representing one in every 220 homes while Hernando County was up 22 percent with 515 filings, representing one in every 156 homes.

Pasco County had a 9.8 percent rise in foreclosures with 1,010 filings, or one in every 216 homes. Manatee County’s rate was up just under 3 percent with 942 filings representing one in every 180 homes.

Florida had the second highest foreclosure rate in the nation behind only Nevada with one in every 140 homes receiving some sort of foreclosure filing, according to RealtyTrac. Florida was one of six states — joining California, Michigan, Nevada, Arizona and Illinois — that accounted for more than 60 percent of the nation’s total foreclosures.

Among metropolitan areas, the top foreclosure-ridden regions were dominated by California and topped with Las Vegas. Only two Florida metros were in the top 10 — Orlando-Kissimmee at No. 8 with one in every 87 houses in some form of foreclosure and Cape Coral-Fort Myers at No. 9 where one in every 88 homes received a foreclosure filing.

Looking for foreclosure properties in Tampa Bay?  Take a look at Smith & Associates Real Estate’s ‘Best Values’ properties here.

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Foreclosure drops in two Tampa Bay counties, but U.S. up 18%