What is Buy and Bail?
 Buy and Bail is a version of strategic default. The owner of a severely underwater house or condo buys a new house.  After they close on the new house, they either try to short sell the old home or stop making payments on it and strategically default on the old house.

What is the advantage of Buy and Bail?
 If a homeowner sells a home in a short sale or stops paying and loses the home to foreclosure in a strategic default, the owner will be unable to buy a new house for between 2 and 5 years.  The hit to the owner’s credit will stop them from qualifying for a new mortgage. Buy and Bail allows you to own your new house at today’s low prices and avoid renting.

Is Buy and Bail illegal or unethical or both?
 Go ahead and google “Buy and Bail” and you will see many blog posts that say it is fraud to buy a new house with the intention of dumping the old one. I disagree with that. It is loan fraud to lie on a loan application. But most loan applications just ask for your financial data and don’t require any statement concerning your current home. I have seen mortgage lenders ask the buyer for a statement explaining why they are buying a new house in the same area as their current home. Most clients explain that they have a growing family and want to take advantage of the low prices to buy a bigger house. As long as you qualify for the new loan and don’t misstate  anything on the application, there is no fraud involved in my opinion. It is total loan fraud to do a fake lease on your current property. Don’t do that, please. The rental income probably won’t help you qualify for the loan anyway (see below). I will leave the discussion of whether Buy and Bail is unethical to greater minds than mine. That is up to you to decide. Blog comments on Buy and Bail  range from “everyone who does it should be shot” to “the banks caused all this and they deserve it.”

Do I have to qualify for both mortgages?
 Yes, you pretty much have to have a high enough income that you qualify for the old mortgage and the new mortgage. Take your gross monthly income times 28% and your mortgage payments on both places cannot be more than that amount. You have to have a pretty good income to qualify. Many people apply for an FHA loan, which is only 3.5% down as the new mortgage. You can get an FHA mortgage as long as the mortgage on your old home is not FHA. They only allow one at a time. Some get Homepath financing, which requires only 3% down, has no PMI and is offered on the sales of many FNMA foreclosures.

Will my mortgage lender let me count rent I receive as income?
 Probably not. Fannie Mae and Freddie Mac cracked down on Buy and Bail a few years ago and they only allow rental payments to be considered as income if you have 30% down or more in your “old” house. Most people have little to no equity in their current house, so they can’t count the rental income.

Will my new mortgage lender call my loan due if I stop paying on my old house?
 No, the two loans are totally independent of each other. If you decide to Buy and Bail your credit will drop to the low to mid 500s and will stay there for several years. This explains how quickly credit recovers after a foreclosure or short sale.

Will my old mortgage lender try to take my new house from me? 

Buy and Bail is really a strategic default. This post explains the risks in a strategic default and the same applies to Buy and Bail. If you have a second mortgage, it is not wise to Buy and Bail because the second mortgage company likely will try to sue you separately from the foreclosure.

I recently ran across a new Cook County case and, while the case is interesting, I hesitate to even bring it up because everyone will think that it’s open season now for deficiency judgments in Illinois.

Trust me, it’s not. Deficiency judgments are still nonexistent to rare in Illinois.

The case is Metrobank v. Cannatello, 2012 Ill App 1st 110529. Here’s what happened: Cannatello borrowed almost $200k for a multi-family property in the south side of Chicago from Chicago Community Bank (Metrobank took over Chicago Community Bank along the way). A foreclosure was filed against him and the lender asked for a deficiency judgment of about $50k after the sheriff’s sale.

When the foreclosure started, a member of Mr. Cannatello’s family was served with the summons at his house. He lived elsewhere, not in the property being foreclosed. This is called “abobe” or “substitute” service. Any person over age 13 who answers the door at the defendant’s house can be served on the theory that  the person receving the summons will tell the defendant (and hopefully will not just throw it in the garbage). This applies to all civil cases, not just foreclosures.

To make a long story short, the court said that it was allowable to enter a deficiency judgment after abode service and that personal service on the defendant was not necessary. This is not really a surprising result.

What does this case mean? The case just makes it clear that a deficiency judgment can be entered if a member of your family accepts the summons.

Are lenders starting to get deficiency judgments? No. They are still very rare. This was a loan on a multi-family investment property from a small bank. I have said before that mortgages given by small, local lenders hold a much higher rise of deficiency judgments than your garden variety single-family home mortgage from Wells Fargo or Chase.
Should I answer the door if I am being served with a summons in a foreclosure? That is up to you.  The lender cannot get a deficiency judgment unless there is personal service (the summons is handed to you) or substitute service (summons is give to someone over age 13 at your house).  Deficiency judgments are still extremely rare, so if you are served with the summons it’s not the end of the world because it’s unlikely that a deficiency will ever be entered. But people are touchy about this and, to be honest, it seems like most of them do dodge service. I have talked to people during the period when the process server is trying to serve them and they are, shall be say, a tad jumpy about it, because it’s an unfamiliar situation, and they feel like quasi-criminals because someone is pursuing them. Some accept the summons because they literally can’t take the pressure for the two weeks that the process server attempts service.

(Note: The MDFA expired at the end of 2013. This is an old post that and it was not extended through 2014-sorry folks. TS)

It looks like there is a proposal in the 2013 budget package to extend the Mortgage Debt Forgiveness Act (MDFA) through 2014.

The MDFA is an important law that allows homeowners to avoid being taxed on foreclosures and short sales for their primary residences. It was supposed to expire at the end of 2012.

This is not passed yet, but at least it’s in the works

*Thanks to sharp-eyed Chris D.  for pointing this out. 

Condo foreclosures are tricky little devils to handle.

There is a high potential for lawsuits, in addition to the main lawsuit, which is the foreclosure. That’s because condo associations want the dues to be paid during the foreclosure and will file a lawsuit if the owner doesn’t pay.  Also, if contents insurance is cancelled during a foreclosure and there is a leak or water problem that affects another unit,  then your neighbor or the association may file suit against you for the water damage.  Without insurance coverage, you can get dinged for the  damage to your neighbor’s place.

I always recommend that clients continue to pay the association dues until the end of the foreclosure. The association may try to charge you a foreclosure monitoring fee, but it’s usually only $200 or so and you are better off paying that, than refusing to pay it. Refusing to pay it will just mean that the amount will balloon from $200 to $1200 after costs and attorney’s fees are added. It’s just not worth fighting.

Utilities have to be paid until the end of a condo foreclosure. Clients who walk away from condos get really mad when they call the village to shut off the water and are told that it can’t be turned off until the property is transferred to the new owner.  The same is true of water and gas service. The utility companies will not take service out of your name until a new owner takes over.

There is precious little information online concerning sheriff’s sale, but generally the owner is mailed notice of the sheriff’s sale, so he or she know when  it happens.  Clients often expect that they will be mailed a copy of the sheriff’s sale deed that puts the lender in title, but it is not sent to the owner. The best way to check if  the sheriff’s sale has happened is to check for a completed sale on one of these sites or to wait until you get the motion to confirm the sheriff’s sale and use that as evidence that it actually happened.  (Note: A certificate of sale is issued at the sheriff’s sale, but the sheriff’s deed is issued after the sheriff’s sale is confirmed in court about 30 days later.)  Most associations and utility companies will not distinguish between the sheriff’s sale date and the confirmation of the sale in court. Technically, the title doesn’t transfer until the sale is confirmed in court.  I’ll leave that fine point up to you:)

After the sheriff’s sale you should do the following:

1. Write a letter to the utilities telling them the date of the sheriff’s sale.  Tell them to take the utilities out of your name and to close the account.

2. Write a letter to your association telling them the sheriff’s  sale occurred. Sure you can try to prorate the dues and pay through the actual date of the sheriff’s sale, but let’s not be Mr. Precision here.  It’s best to pay through the confirmation of the sheriff’s sale to avoid problems.

3. Cancel contents insurance. Call your agent and cancel the contents insurance.

4. Arrange a cash for keys. If you are still living in the unit, contact the lender’s attorney and ask for the name of the real estate agent handling your case and politely ask for relocation assistance and you may get $1,000 to $2,000 to help set up your new place.

Last year, I did a lot of phone consultations with clients about their underwater homes and condos.  About 80% of those I talk with have already decided to strategically default. They could continue to pay the mortgage, but choose not to,  because the property is $80k to $100k underwater.  Usually, they are   completely  freaked out that the lender will immediately seize their assets or garnish their wages.  Fear of the mythic deficiency judgment is deep and wide.

The reality of it is that deficiency judgments in Illinois are almost nonexistent, the lender will not take any of your assets ( unless you have a second mortgage), and frequently you will be paid the leave the property in a cash for keys arrangement at the end of the foreclosure.

Foreclosure is terribly confusing  and clients have a lot of questions through the process,  so I began offering to monitor the foreclosures of clients who wanted explanation and guidance through the case. I charge a fee of $50 per month billed to the client’s credit card. At the start of every month, I check the case status and email the client. If the client wants me to review court documents, I do that too. The client can cancel at any time.  This has worked out pretty well and it seems to ease the anxiety of those going through foreclosure.

Monitoring is most popular with clients who are trying to stay in the property until the end of the case. In Cook County, most lenders are waiting about 6 months from the first missed mortgage payment to file a foreclosure. After the case if filed,  the actual foreclosure case takes about  12 to 14 months, so it’s a long process.   Those that move out of the property early in the foreclosure process usually are not interested in having the case monitored.

In Cook County, the  status of court cases is listed on the clerk’s website under “Chancery.” You just type in your name and the case status pops up. But it’s hard to interpret what’s going on in the case, so the raw data is of little use to most people. Lake County has no usable website and the other collar counties have sketchy websites  at best.

When the foreclosure is close to the end, the sheriff’s sale is scheduled. The problem is that the court websites don’t give any information on the sheriff’s sale. There are two mega-foreclosure law firms in Illinois that handle most of the foreclosures. Both of them are pretty responsive and will answer questions and will respond to calls or emails. One has a site that gives great, up- to-date information on the sheriff’s sale, but the other large firm has no website with sheriff’s sale information. Copies of motions and other court documents are always mailed to the homeowner in all foreclosures cases, so there is no lack of communication.  It’s figuring out what the motion or hearing means that’s important.