Chapter 9 Real Estate Finance: The Laws and Contracts Real Estate FIN 331 Fall 2013 Dr. David P. Echevarria All Rights Reserved 1 General Characteristics of Real Estate Contracts A. Most real estate transactions involve debt financing B. Most businesses prefer to have their cash in the bank rather than tied up in real estate C. Most investors leverage their investments in order to increase their returns on equity D. Mortgage debt financing is a major aspect of real estate decisions E. Mortgage lending is a major industry in United States and many other countries F. A mortgage loan creates documents: a note and a mortgage or deed of trust G. Debt financing also has tax advantages Dr. David P. Echevarria All Rights Reserved 2 The Note A. Interest rates - Interest charges 1. Interest rates may be fixed or variable 2. Mortgages are amortized a. b. c. Payments consist of principal and interest The principal portion increases over time The interest portion decreases over time Dr. David P. Echevarria All Rights Reserved 3 The Note B. Adjustable Rate Mortgages 1. Adjustable-rate mortgages generally use an index 2. The index might be U.S. Treasury constant maturity rates (10-year) or the LIBOR 3. As the index changes the adjustable rates change 4. All adjustable-rate mortgages have floors and caps a. b. A floor is the lowest rates can go A cap Is the highest rates can go 5. Margin is the lenders markup above the index rate 6. Teaser rates: a reduced interest rate for a short period of time Dr. David P. Echevarria All Rights Reserved 4 Interest Rate Volatility Libor vs. 10-Yr Treasuries Frequency: Weekly, Ending Wednesday 12.00 10.00 10-Year Treasury Libor 8.00 6.00 4.00 2.00 0.00 Dr. David P. Echevarria All Rights Reserved 5 Disclaimer from BBA Ltd For your information, and for historic reference purposes only, a link to the previous BBA LIBOR website (pre-regulation) can be found here (http://www.bbalibor.com/). Please note that all information contained within the previous website shall from 2 April 2013 be considered to be for historic reference purposes only and BBA, BBA Enterprises Ltd and BBA LIBOR Ltd accept no responsibility for any reliance placed on any such information from such point in time. To the extent permitted by applicable law, BBA, BBA Enterprises Ltd and BBA LIBOR Ltd expressly disclaim all liability howsoever arising whether in contract, tort or otherwise (including, but not limited to, liability for any negligent act or omissions) to any person in respect of any claims or losses of any nature, arising directly or indirectly from: (i) anything done or the consequences of anything done or omitted to be done wholly or partly in reliance upon the whole or any part of the contents of this website; and (ii) the use of any data or materials on this website or unauthorized access to this website or otherwise. Information on this website is not offered as advice on any particular matter and must not be treated as a substitute for specific advice. In particular, information on this website does not constitute professional, financial or investment advice and must not be used as a basis for making investment decisions and is in no way intended, directly or indirectly, as an invitation or offer to buy, sell, hold, lend, subscribe for, or otherwise deal in any legal or beneficial interest in any financial instrument. Dr. David P. Echevarria All Rights Reserved 6 The Note A. Payments 1. 2. 3. 4. 5. Payments are made at the end of the month Loans may be fully or partially amortized Loans may also have a balloon payment Some loans may be interest only Some loans may involve negative amortization in the early years 6. Terms may be shortened by adding additional principal to each payment a. b. All “conforming” and FHA/VA loans Home equity credit lines Dr. David P. Echevarria All Rights Reserved 7 The Note 1. Loans with restricted right of prepayment a. b. c. d. Subprime home loans “Jumbo” home loans Most income property mortgage loans Lender may impose prepayment penalties D. Other Terms 1. Nonrecourse loan: No personal liability a. b. 2. 3. Exculpatory clause: relieves one party if damages caused during execution of the contract Lender prohibited from charging back unpaid claims due to borrower’s inability to pay. Demand clause: Right of lender to require prepayment Inclusion of mortgage clauses by reference Dr. David P. Echevarria All Rights Reserved 8 The Mortgage vs. Deed of trust A. Mortgagor: Borrower B. Mortgagee: Lender (holds deed to property) C. Deed of Trust: Deed help by Trustee (not bank) D. Title vs. lien theory 1. Title theory: Mortgage a temporary transfer of title 2. Lien theory: Mortgage is a lien 3. Historic difference was lender’s claim to rents and possession in case of default Dr. David P. Echevarria All Rights Reserved 9 The Mortgage (Deed of trust) D. Some Important Mortgage (DOT) Clauses 1. 2. 3. 4. 5. 6. 7. Description of the property Insurance clause Escrow clause Acceleration clause Due-on-sale clause Hazardous substances clause Preservation and maintenance clause Dr. David P. Echevarria All Rights Reserved 10 Default A. Failure to meet requirements of the note or mortgage 1. 2. Technical default: Any violation of terms Substantive default: Three missed payments (90 days) 1. 2. 3. 4. 5. Counseling and consumer debt reorganization Temporary reduction of payments Assisted sale Short sale Deed in lieu of foreclosure B. Non-Foreclosure Responses to Default a. b. Advantages: quick, quiet, cheap Disadvantages: other liens remain; Dr. David P. Echevarria All Rights Reserved 11 Default C. Foreclosure 1. Legal process of terminating all claims of ownership and all liens inferior to foreclosing lien 2. Negatives a. b. c. d. Risk of failing to notify a claimant Presence of superior liens Costly and time consuming Distressed sale 3. Importance of lien priority Dr. David P. Echevarria All Rights Reserved 12 Default 4. Recourses of the defaulted mortgagor a. b. Equity of redemption Statutory right of redemption 5. Deficiency judgment: Judgment against mortgagor for unrecovered balance Example: a. Net foreclosure auction price: b. Remaining loan balance: c. Deficiency : $100,000 $120,000 $20,000 6. Judicial foreclosure vs. power of sale a. b. Judicial foreclosure: Court-administered public auction Power of sale: Public auction conducted by trustee or mortgagee (preferred by lenders) Dr. David P. Echevarria All Rights Reserved 13 Bankruptcy Statistics BankruptcyAction.com There were 937,000 personal bankruptcies filed in the year ended December 31, 2014. So that means that 937,000 people filed bankruptcy. Right? Wrong! The statistics include joint filings, for example for husband and wife. In accordance with a study reported in September, 2001, Young, Old, and in Between: Who Files for Bankruptcy? By Dr. Teresa Sullivan, Dr. Deborah Thorne and Professor Elizabeth Warren 31.9 % of the filings for the year ended December 31, 2001 were joint filings of husband and wife. To approximate the number of people filing bankruptcy we must increase the filings by 31.9% to get 1,236,000 people who filed bankruptcy in the year ended December 31, 2014. Dr. David P. Echevarria All Rights Reserved 14 Bankruptcy Stats http://www.bankruptcyaction.com/USbankstats.htm A. Bankruptcy Profiles 1. 2. 3. 4. 5. 6. 7. 8. 9. Average age: 38; 44% of filers are couples; 30% are women filing alone; 26% are men filing alone; Slightly better educated than the general population; Two out of three have lost a job; Half have experienced a serious health problem; Fewer than 9% have not suffered a job loss, medical event or divorce; Highest bankruptcy rates: Tennessee, Utah, Georgia, Alabama. Dr. David P. Echevarria All Rights Reserved 15 Bankruptcy A. Three forms of bankruptcy 1. Chapter 7: 2. Chapter 11: 3. Chapter 13: Liquidation Court supervised “workout” Wage-earner’s proceeding B. No form of bankruptcy can set aside a mortgage lien C. Chapters 11 and 13 can result in delays Dr. David P. Echevarria All Rights Reserved 16 Bankruptcy Act Important Changes to 2005 Rev. A. law passed in 2005 prohibits some filers with higher incomes from using Chapter 7 bankruptcy (liquidation) vs. Chapter 13 (repayment) B. Before you can file for bankruptcy under either Chapter 7 or Chapter 13, you must complete credit counseling with an agency approved by the United States Trustee's office: www.usdoj.gov/ust Bankruptcy Act Important Changes to 2005 Rev. C. How property is valued: at replacement cost instead of at auction value, which means more debtors are at risk of having their property taken and sold by the trustee. D. How long a filer must live in a state to use that state's bankruptcy exemption laws E. Chapter 13: repayment from disposal income under numbers provided by IRS rather than bankrupt’s budget info. Bankruptcy F. Out-of-Court Remedies; 1. Necessary conditions; a. Debtor is good moral risk. b. Debtor must show ability to make a recovery. c. General economic conditions must be favorable. 2. Extension; postpone due date. 3. Composition; creditors agree to take less. 4. Assignment; Requires agreement as to liquidation values, and priority. North Carolina Bankruptcy Exemptions NC Bankruptcy Exemptions Dr. David P. Echevarria All Rights Reserved 20 Regulation of Home Mortgage Lending A. Equal Credit Opportunity Act: no discrimination (protected classes) B. Federal Truth-in-Lending Act (TILA): full disclosure C. Real Estate Settlement Procedures Act (RESPA): Standard HUD forms/requirements D. Other laws 1. Home Ownership and Equity Protection Act 2. Home Mortgage Disclosure Act 3. Community Reinvestment Act Dr. David P. Echevarria All Rights Reserved 21 Regulation of Home mortgage Lending A. Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 1. Given oversight and enforcement power for: a. b. c. d. e. f. All federal consumer financial protection laws Anti-discrimination laws in consumer finance To restrict unfair, deceptive or abusive practices Receive consumer complaints Promote financial education Power to monitor emerging consumer financial risks 2. Centralizes a multitude of regulators within one agency for home mortgage lending Dr. David P. Echevarria All Rights Reserved 22 Homework Assignment A. Key terms: Adjustable-Rate Mortgage, Balloon Loan, Contract For Deed, Deed Of Trust, Default, Foreclosure, Libor, Negative Amortization, Nonrecourse Loans, Recourse Loans, Short Sale, Term To Maturity, LIBOR B. Study Questions: 1, 4, 6 - parts a, b, c, d Dr. David P. Echevarria All Rights Reserved 23