Seller Held Private Mortages & Notes

Seller-Held Private Mortgages & Notes

By

Sam Mannino

During my 40 year career as a mortgage banker, I have been asked countless times to purchase or sell seller-held or purchase money mortgages, taken back by sellers of real estate.  Unfortunately, not all of the sellers have been happy with the results.  I often have to tell them that their seller-held mortgage can’t be sold just yet, or it if can, the amount they will receive for the debt is a small fraction of what they are owed.  Sometimes, I have to inform them that the obligation due them is virtually worthless.

Most of their disappointment could have been alleviated by the person who originally drafted the mortgage.  All too often, these legal documents are drafted by realtors or attorneys who may have not considered the final disposition of these obligations, or are unfamiliar with how a seller-held mortgage is treated in the secondary market.  A little extra care by knowledgeable counsel can make all the difference to a seller-held mortgage.

First, understand that a seller-held mortgage will, in all likelihood, be sold sometime during its lifetime. Rarely, even when the parties are family members, does the holder of a seller-held mortgage wish to hold the note the entire term.  More commonly, they want to cash out at some time in the future, which can be accomplished in a number of ways.  The mortgagor might sell the property, and the note can be paid off.  In addition, the mortgage might be subject to a call provision after a set period of time.  However, it is far more likely that the holder of the seller-held mortgage might experience a change of heart, and simply want out of the deal.  In that case, he must try to sell the mortgage.

Purchasers of seller-held mortgages, and yes, there are some, most commonly look for two points:  1) obligations that have been seasoned for a year or more, and 2) a good payment history.  Holders of these seller-held mortgagers need to be informed that good record keeping can pay off in the long run.  They need to know that mortgage buyers will want to run their own credit checks on the borrower and make inquiries as to employment.  (Keep this in mind when you are drafting the original obligation.)  Finally, they will wish to retain a higher yield than most seller-held mortgages carry.  The reason for this is that most seller-held mortgages carry a higher risk than institutionally generated mortgages.  Makers of seller-held mortgages commonly carry higher debt rations, have poor credit, or make little or no down payment.  If a seller-held mortgage carries a market interest rate, the purchaser of that note can only achieve a higher yield by discounting the purchase price below principal.

Holders of seller-held mortgages can do themselves a world of good simply by thinking like a bank at the inception of the debt.  They may wish to allow their borrowers a higher debt ration than a bank, but they should never allow more than 40 percent of a borrowers’ gross monthly income to be applied to first and second mortgage payments, taxes and insurance.  Anything more and the borrower simply can’t afford the property.  When it comes to checking the borrowers’ credit, it is imperative that you thoroughly search for any previous foreclosures.  In addition, avoid any borrowers with really bad credit within the past two years.  Finally, require some down payment.  Remember, if you do have to foreclose, that the down payment represents a real safety net.  Vacant and/or abandoned real estate does not appreciate.

Drafters of seller-held mortgages must be sure to include two key clauses. First, they must make sure the obligation can be assigned by the holder of the mortgage and note, without further permission from the borrower.  It never ceases to amaze me at how often this important language is overlooked or omitted altogether.  Second, if the note is to be marketable at all, the holder and assigns, must be able to make further inquiries regarding both the borrowers’ credit and employment in the future.  Two year old credit reports are worthless, and unfortunately, so are the mortgages which have relied upon them.

A final word of advice, experienced attorneys often receive referrals from local realtors to assist in the drafting of these seller-held mortgages.  But, more often, the interest of the realtor making the referral is not the same as the holder of the seller-held mortgage.  The realtor simply wants to close the sale.  We must keep in mind that the document that is drafted will be in place many years after the closing.  It is then that the work of a competent attorney will reveal itself. A little planning and preparation along with the advise of competent legal representation are the keys to a successful transaction… Remember, people don’t plan to fail, they just fail to plan.

Sam Mannino is the managing director of Investors First Capital and was elected as director emeritus of the Pennsylvania Financial Services Association.  He has served on many committees and advisory boards for the financial services industry.  He is a registered lobbyist for the financial services industry and a business–against-government reform group, Stop-Them.org.  He is life-long resident of State College, Pennsylvania.



By: Sam Mannino

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What Are the Different Kinds of Mortgages?

There are literally thousands of loan programs available in the market. Every lender tries to be as different as they can to create a special niche, which they hope will increase business. It would be impossible to provide a review of every type of loan, so in this article, we’ll just stick to the main ones. Most loan programs are variations of the loans we will cover here. First of all we will go over some terminology you should understand and then we will delve into the different mortgage programs available today.

AMORTIZATION

Amortization is the paying back of the money borrowed plus interest. The actual term, or length of the mortgage along with the amortization is what determines what the payments will be and when the loan will be paid off. It is a means of paying out a predetermined sum (the principal) plus interest over a fixed period of time, so that the principal is completely eliminated by the end of the term. This would be easy if interest weren’t involved, since one could simply divide the principal amount into a certain number of payments and be done with it. The trick is to find the right payment amount,which includes some principal and some interest. The formula of amortization uses only 12 days a year to compute the interest. The interest payment on a mortgage is calculated by multiplying 1/12th (one-twelfth) of the interest rate times the loan balance of the previous month.

On a 30-year, $150,000 mortgage with a fixed interest rate of 7.5 percent,a homeowner who keeps the loan for the full term will pay $227,575.83 in interest. The lender does not expect that person to pay all that interest in just a couple of years so the interest is spread over the full 30-year term. That keeps the monthly payment at $1,048.82.

The only way to keep the payments stable is to have the majority of each month’s payment go toward interest during the early years of the loan. Of the first month’s payment, for instance, only $111.32 goes toward principal. The other $937.50 goes toward interest. That ratio gradually improves overtime, and by the second-to-last payment, $1,035.83 of the borrower’s payment will apply to principal while just $12.99 will go toward interest.

There are four types of loans when dealing with amortization and term. They are:

1. Fixed: with conventional fixed rate mortgages, the interest rate will stay the same for the life of the loan. Consequently the mortgage payment (Principal and Interest) also stays the same. Changes in the economy or the borrower’s personal life do not affect the rate of this loan.

2. Adjustable: (ARM) also called variable rate mortgages. With this loan the interest rates can fluctuate based on the changes in the rate index the loan is tied to. Common indexes are 30 year US Treasury Bills and Libor (London Interbank Offering Rate). Interest rates on ARMs vary depending on how often the rate can change. The rate itself is determined by adding a specific percentage, called margin, to the rate index. This margin allows the lender to recover their cost and make some profit.

3. Balloon: A loan that is due and payable before it is fully amortized. Say for example that a loan of $50,000 is a 30-year loan at 10% with a five-year balloon. The payments would be calculated at 10% over 30 years, but at the end of the five years the remaining balance will be due and payable. Balloon mortgages may have a feature that would allow the balloon to convert to a fixed rate at maturity. This is a conditional offer and should not be confused with an ARM. In some cases, payments of interest only have to be made, and sometimes the entire balance is due and the loan is over. Unpaid balloon payments can lead to foreclosure and such financing is not advisable to home buyers. Balloons are used mainly in commercial financing.

4. Interest only: This type of loan is not amortized. Just like the name implies the payments are of interest only. The principal is not part of the payment and so does not decline. Interest only loans are calculated using simple interest and are available in both adjustable rate loans and fixed rate loans.

Fixed rate: The fixed rate loan is the benchmark loan against which all other loans are compared to. The most common types of fixed rates loans are the 30 year and the 15 year loans. The 30 year loan is amortized over 30 years or 360 payments while the 15 year is amortized over 180 payments. For the borrower, the 15 year loan has higher payments, since the money needs to be repaid in half the time. But because of that same feature the interest paid to the bank is much lower as well.

Even though these two are the most common terms, others are gaining in popularity, such as the 10, 20, 25, and even 40 year term loans Depending on the lender, the shorter the term, the less risk, and thus the lower the rate.

Other types of fixed rate loans:

BI-WEEKLY MORTGAGE

The bi-weekly mortgage shortens the loan term of a 30 year loans to 18 or 19 years by requiring a payment for half the monthly amount every two weeks. The biweekly payments increase the annual amount paid by about 8 percent and in effect pay 13 monthly payments (26 biweekly payments) per year. The shortened loan term decreases the total interest costs substantially.

The interest costs for the biweekly mortgage are decreased even farther, however, by the application of each payment to the principal upon which the interest is calculated every 14 days. By nibbling away at the principal faster, the homeowner saves additional interest. The ability to qualify for this type of loan is based on a 30-year term, and most lenders who offer this mortgage will allow the home buyer to convert to a more traditional 30-year loan without penalty.

GRADUATED PAYMENT MORTGAGE (GPM)

This loan is a good idea for buyers who expect their income to rise in the future. A GPM will start these borrowers off at a much lower than market interest rate. This allows them to qualify for a larger loan than they would otherwise. The risk is that they assume they will have enough income to pay increased payments in the future. This is similar to an ARM but the rate increases at a set rate, not like the ARM where the rate is based on the market. For example, a GPM for 30 years might start out with an interest rate of 5% for the first 6 months, adjust to 7% for the next year, and adjust upwards .5% every 6 months thereafter.

GROWING EQUITY MORTGAGE (GEMS)

For as long as mortgages have been around conventional fixed loans have been the standard against which creative financing has been measured. In the early 1980s the GEM was developed as a new alternative to creative financing. The GEM loan, while amortized like a conventional loan, uses a unique repayment method to save interest expense by 50% or more. Instead of paying a set amount each month, GEM loans have a graduated payment increase that can be calculated by increasing the monthly payment 2, 3, 4, or 5 percent annually during the loan. Or the monthly payments can be set to increase based on the performance of a specific market index.

So far it is sounds like a graduated payment mortgage but there is a difference. As monthly payments rise, all additional money paid by borrowers is used to reduce the principle balance. This results in a loan paid off in less than 15 years.

REVERSE MORTGAGES

While a reverse mortgage is not exactly a fixed rate mortgage (it is more of an annuity), I have included it here because the payments made to the home buyers are fixed. Reverse mortgages are designed especially for elderly people with equity in their homes but limited cash. They allow individuals to retain home ownership while providing needed cash flow. In a traditional mortgage, the homeowners repay the amount borrowed over a specified period of time. With a reverse mortgage the homeowner receives a specified amount every month.

To illustrate, say Mr. and Mrs. Smith are 70 and 65 years old respectively and retired. Their home is free from all encumbrances and worth $135,000. They would like to get the money out of their house to enjoy it, but instead of receiving it in one lump sum by refinancing it, they want to receive a little bit every month. Their lender arranges for a $100,000 reverse mortgage. They will get $500 a month from their equity and the lender will earn 9% interest.

Unlike other mortgages where the same $100,000 represents only the principle amount, with a reverse mortgage $100,000 is equal to the combined total of all principal and interest. On this particular loan, at the end of 10 years and 3 months, the Smiths will owe $100,000. The breakdown being $61,500 principle and $38,500 in interest. At this time the loan will end. So the Smiths will only receive $61,500, and they now owe the bank $100,000.

ADJUSTABLE RATE MORTGAGES

An ARM is a type of loan amortization where the most prevalent feature is that the interest rate adjusts during the course of the loan. Thanks to the adjustable rate feature, banks and lenders are better protected in case interest rates fluctuate wildly like in the 1970s when banks were lending at 8% fixed and then rates went as high as 18%. This left the banks holding loans that were losing money every month since the banks had to pay money to depositors at higher rates then they were making on their investments.

Important Tip: ARM interest rates are usually lower than fixed rates.There are multiple types of ARM loans in the market today. They all This makes it easier for borrowers to qualify for a larger loan amount with an ARM. differ from each other in minor but important ways. There are four main criteria to look at when dealing with an ARM loan: the Index used, the Margin, the Cap, and the Adjustment Frequency.

INDEX

The interest rates of an ARM loan are based on an Index, which is a published rate. The most common used indexes are:

COFI – The Cost of Funds Index. This index is related with the 11th District Federal Home Loan Bank Board in California. This index is also the most stable of all the common indexes.

The Treasury Series – This is a series of maturity lengths for Treasury Bills. These bills are used as investments by millions and are actively traded every day and so the rate varies daily.

LIBOR – The London Inter Bank Offered Rate is the rate the central bank in England uses to lend money to its banks.

Prime – This rate is the rate that banks in the US use to lend money to their best clients. This number is published daily in US newspapers, but it is important to know that each bank can set it’s own Prime rate.

CDs – This index is from the rate paid to purchased of 6 month Certificates of Deposits.

MARGIN

Margin is defined as the amount added to the index rate to determine the current rate charged on the ARM. Once you add the margin to the index rate you arrive at what is called the Fully Indexed Rate (FIR). This rate is the true rate which the borrower will pay. The interest rate quoted to a borrower at closing might be lower then the FIR.

LOAN CAPS

The Cap is a very important number because it is the maximum that a rate can change. So even if the index rises 10% in one period, the FIR will not do so if there the rate cap is reached. There are two types of caps to worry about when discussing an ARM. The Rate Adjustment Cap which is the maximum the rate can change from one period to another. And the Life of the Loan Cap which is the maximum rate that can be charged during the loan. To figure out how the rate will change, you have to know the index, the margin, the rate, and the cap. Add the index and the margin to determine the FIR. Then take the rate and add it to the cap. Whichever is the smaller change is what the new interest rate will be.

ADJUSTMENT FREQUENCY

This is how often the rate changes. Initially when the loan is closed the rate will be fixed for a certain amount of time, then it will start changing. How often it changes is the Adjustment Frequency. So you can have a 7/1 Arm which means the rate will be fixed for 7 years, and then adjust every year after. Or you can have a 3/1 ARM. Fixed for 3 years. The more frequent the adjustment and the sooner it starts, the lower the initial interest rate. So a 3/1 ARM will have a lower rate then a 10/5 will. And that is because the 10/5 has more risk for the lender. The 10/5rate will be much closer to a fixed rate loan.

When a borrower considers an ARM, it is usually because the rate is lower then the fixed rate loan. And thus it is easier to qualify for. But the borrower is then betting against the bank. The ARM loan might turn out to be more expensive then the fixed rate loan in the long run, if rate rise during the term of the loan.

You must have an idea of how long you are going to live in the house you are borrowing to buy. If you are going to stay there long-term, a fixed-rate may make more sense. ARM’s are better for military and other people who buy and sell within shorter time periods.

CONVENTIONAL MORTGAGE

A conventional mortgage is a non-government loan financed with a value less than or equal to a specific amount established each year by major secondary lenders. As of 2008, financing for less than $417,000 was regarded as conventional financing. A conventional loan is the most popular loan today, as so it has become the benchmark against all the other mortgages. It has 4 special features:

1. Set monthly payments

2. Set interest rates

3. Fixed loan term

4. Self amortization

A conventional loan is one that is secured by government sponsored entities such as Fannie Mae and Freddie Mac. Since they are secured, the lender is assured that they can easily sell the loan on the secondary market.

And because of that assurance, these loans have the lowest rates.

In order to qualify as a conventional loan, the home and borrowers must fall into the guidelines set by the secondary lenders.

HOME EQUITY LOANS

Real estate has traditionally been considered a non-liquid asset. Property can be converted to cash only by either selling or refinancing. Both are very expensive and time-consuming ways to raise money. Today’s borrowers can convert their house to cash immediately by using the equity in their home.

These loans take much less time to approve and fund then regular home loans. And the fees are generally less than a normal loan as well. But home equity loans are usually placed in a second lien position after the original mortgage, at a higher interest rate. If the borrower does not pay, the house could be foreclosed upon.

The Equity Loan is an open ended mortgage similar to a credit card. Borrowers can take the money out, use it, and pay back the money when they choose. Recently, home equity loans have brought about new government regulations in some states since people were getting these loans without really understanding the consequences and thus being taken advantage of by less than honest lenders.

SECOND MORTGAGES

A second mortgage is a loan against a property in second or “junior” position. In case of foreclosure, the creditor in first position gets first dibs on any monies. In many cases, there is not enough equity in a house to pay off both the first and second mortgage. So the second mortgage holder can get nothing. Therefore, being in second position can be a very risky place to be.

That is why second mortgages come with higher rates then first mortgages. Second mortgages come in two main forms – a fixed mortgage and a home equity mortgage. The fixed mortgage follows the same format as a regular fixed loan. The equity mortgage is based on equity in the home.

Second mortgages are used by loan officers to either help the borrower avoid paying PMI, or to avoid a jumbo loan. A jumbo loan would be a non-conforming loan and thus would have a higher rate for the entire loan. If a borrower wanted to avoid this, he could get a first mortgage at the max conventional loans allow, and a second for the balance. The rate on the second would be high, but blended together, the rate would be less than on the jumbo.

GOVERNMENT LOANS

There are two governmental agencies that guarantee loans: The Department of Veterans Affairs (VA), and the Federal Housing Administration (FHA).

VA LOANS

VA loans are one of two types of government loans and are guaranteed by The Department of Veterans Affairs under the Serviceman’s Readjustment Act. Lenders rely on this guarantee to reduce their risk. The best thing about VA loans is that for veterans is allows them to get into a house with zero or very little down. The amount of down payment required depends on the entitlement and the amount of the loan. Military service requirements vary. These loans are available to active-duty as well as separated military veterans and their spouses.

These loans are self-amortizing if held for the complete term of the loan, yet it may be paid off without penalty. These loans are only available through approved lenders. The amount of entitlement a veteran has is reported in a Certificate of Eligibility which must be obtained from the VA office in your area.

Veterans who had a VA loan before may still have “remaining entitlement” to use for another VA loan. The current amount of entitlement was much lower previously and has been increased by changes in the law. For example, a veteran who obtained a $25,000 loan in 1974 would have used$12,500 guaranty entitlement, the maximum then available. Even if that loan is not paid off, the veteran could use the difference between the $12,500 entitlement originally used and the current maximum to buy another home with VA financing.

Most lenders require that a combination of the guaranty entitlement and any cash down payment must equal at least 25 percent of the reasonable value or sales price of the property- whichever is less. Thus, in the example, the veteran’s $23,500 remaining entitlement would meet a lender’s minimum guaranty requirement for a no down payment loan to buy a property valued at and selling for $94,000. The veteran could also combine a down payment with the remaining entitlement for a larger loan amount.

FHA LOANS

The Federal Housing Administration is one of the oldest and largest sources of mortgage assistance available to the general public. The Department of Housing and Urban Development (HUD) run this program.

FHA backed mortgages are the other type of government loans and are an outgrowth of policy in the interest of the public, with the view that the government should stimulate the economy in general and the housing industry in particular. FHA loans like VA loans can only be obtained through approved lenders.

Why are FHA loans so popular? Because they have liberal qualifying standards, low or even no down payments and even closing costs can be financed and added to the loan. There is no prepayment penalty. FHA loans made prior to February 4, 1988 are freely assumable by a new buyer when the house is sold. Loans made after December 15, 1989 may only be assumed by qualified owner-occupants and cannot be assumed by investors.

FHA loans have limits too. Recent housing appreciation has pushed up the limits on this year’s loan program by nearly 16 percent in the continental U.S.

If you want to find out what the loan limit is where you live you can call the consumer hotline for the Housing and Urban Development Department . Their toll-free number is available on their site. The FHA is a division of HUD.

As always, consult a mortgage professional. A Certified Mortgage Planner will work with your own financial planner, Realtor, CPA and other advisers to find a mortgage loan product that is right for you.

By: James Hussher

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Can You Handle The Perfect Financial Storm?

Do you remember a couple of years ago, when you got caught up in the real estate frenzy? You watched your starter home go from “affordable” to “I couldn’t qualify to buy my own house anymore”. We all took money out of our homes to pay off our credit card debt or buy that new car, a swimming pool or pay for a vacation we could never have taken before. Some of us even moved up to that brand new development. It was great. Well, in order to afford the payments, most of us got into a short term fixed rate loan (hybrid). These loans are a great way to traverse a period of time when we know the future will be brighter. Well everyone, the future is now. I want to know if your future is brighter. If it is, great! But if it isn’t, what’s your plan? Well let me tell you something… hope is not a strategy.

The one thing that always happens in times like these is that people wait too long to make a decision. Some of you reading this article have already seen your payments increase. How’s that working for you? Not great I’m sure. For the rest of you, what do you intend to do when the reaper comes calling? Do you have a plan? If not, listen up because you may only have a few weeks to get things in order.

As an example of what might be in store for you let me introduce you to some people I know. I will call them Jane and John Doe so that we can all relate. Jane and John moved into a home in San Ramon, California back in 2003. They had decent credit and a small down payment so they were able to secure a reasonable loan that would allow them to scrape by for a couple of years until things got better. After all, John was climbing the ladder at his job and Jane had been at the same company for almost 6 years now.

Everything was going along fine; they even added a new member to the family. John got his raise and Jane took a little extra time off for the baby. Then one day Jane was looking through their paperwork from when they bought the house. She remembered that the loan they got would adjust at some time in the future and then she saw it. In less than 1 month, their rate was going to change but how much? John and Jane both knew that rates had gone up but they had no idea how this would impact them. With the expense of the new baby and daycare how could they afford this radical change? That’s when I entered the picture.

John and I were introduced at a recent business mixer. He had my card and called me the next day. After reviewing his note, I explained that his interest rate was about to adjust upward by 3%, but that’s not all. His rate would go up an additional 1% every 6 months thereafter for another 2 years unless we saw a dramatic reduction in interest rates. John and Jane had to refinance but now was not exactly the best time. So we devised a plan for them that looked beyond just today and on to the future.

There are estimates in the industry that say $330 Billion worth of these types of loans will adjust upward this year alone. This included John and Jane. It’s a common problem right now and one that can be avoided. Even if you are in a tight spot, this is the time to seek out professional advice about your specific situation. Mortgage defaults are on the rise because people are unprepared for what is happening. The days of harvesting our equity to consolidate the debt we just ran up over the previous years is coming to a grinding halt. Property values are flattening out and homes are on the market now for 3-6 months before they get sold. Times are different and we must change with them or we will be run over.

Here are a few steps you should take to get a handle on your situation.

1) Read your home loan paperwork. Specifically, you want to read your “Note” and your “Adjustable Rate Rider”. These two items should be about 3-10 pages in length.

2) Call your lender and ask them how your loan works. The customer service number on your statement should direct you to a “knowledgeable” person who can tell you your new payment after your rate changes, when that change will occur and what options you have if any.

3) Get some referrals to a mortgage lender in your local area. Call your Realtor, ask your friends at work, check the local paper for people who write articles and or are featured in some way, not just the advertisers.

4) Call an Expert in Mortgage Lending and get their advice. This is more difficult than you may think. The industry is full of unqualified hacks who do mortgage loans in their spare time. Go onto www.Narlo.com and www.Cambweb.org to search for the person who was referred to you in their member directory. If you can’t locate them in either of these two sites, then go on to the next name on your list. If you can’t find anyone on your list who is a member of either of these organizations, well then you have a bad list of lenders and I would choose a different lender off the NARLO site, who is in your area.

5) Decide what the best course of action is. It defies logic to bury your head in the sand and think this situation will resolve itself. You must act on the information you have or the inevitable will happen to you. There is a lion waiting in the tall grass for you to meander along and he will pounce on you when your time is up.

We have corrections in the real estate industry all the time. This particular time looks a little different than before. In ‘97 we had the Dot Bomb to help us. In ‘94 the Fed called the economy “impressive”. Today we have the makings of the perfect storm. These loans didn’t exist in ‘94 or ‘97 for that matter. This year, rising mortgage payments are coming at a time when homeowners are getting slammed by rising energy costs, gas prices at over $3/gallon and credit card payments at double the rate they were just 1 year ago. The stage is set for a real jolt to our financial lives. Without preparation, we could be diving head first into the perfect storm. It is time to prepare ourselves to ride out this storm and the first place you should look is right at your mortgage.

Your biggest expense can also be one of your biggest allies. Make your next loan a financial instrument to help you get to where you want to be. That may mean debt consolidation or taking money out to buy a passive income producing investment. Whatever it means, you must match your plan with the multitude of opportunities that exist in the lending industry now. Once you have done this, you can sit back and appreciate the fruits of your labor without the worry of financial devastation.

By: Ed Jeffry

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