by Tanta on 3/23/2008 10:07:00 AM

Since it's Easter Sunday, and you don't have anything better to do than munch on Peeps and read about relitter perfidy, another in our continuing series on real estate fraud.

Via Mish, this story of renters in a bind:

When the Hays found their rental home last June they were pleased. Not only could they move in right away, the landlord asked them what they could afford for a deposit. There was even the chance to buy the home at some point in the future.

But that would all change in less than seven months. There's no forgetting the day Jennifer and Travis learned something wasn't right with their rental home. Their landlord called January 15, a memorable day. It was the same day Jennifer was headed into surgery.

"She called to tell me I should start looking for another place, that she could sell me a house," Jennifer explains. "And that's when I figured out that not only am I going through a miscarriage, but I was also going to lose my house."

You really want to read the whole thing, including the unbelievable text messages the relitter-landlord sent to the renters, trying to get them to pay February rent (after the bank took the house at the foreclosure sale in the end of January).

What I don't think is necessarily clear in the story as reported is the timeline. A "perfect" foreclosure in Nevada--that is, one without unusual delays, that uses basically standard servicer approaches for when to start FC proceedings--takes around 270 days from the last payment made. Nevada has a 90-day reinstatement period in the statutes, meaning that once the initial Notice of Default is filed, the borrower has the next 90 days to bring the loan current and avoid FC. After the 90 days, if the loan isn't reinstated, the notice of sale must be published three times over three consecutive weeks. Including time for processing the original FC referral (before the NOD is filed), it takes about 120 days to get through the process to the sale of the property. If the servicer does not initiate the FC process until the 120th day of delinquency (the 150th day since a payment was made), the whole thing is 270 days.

In our case at hand, that means that the owner of the property probably made her last mortgage payment on May 1, or possibly June 1 if the servicer started FC after the 90th day of delinquency. (This is assuming she ever made a payment; the article doesn't tell us when she bought the property.) She rented the place to the Hays in June. In other words, we don't have a case here of a landlord who gets into financial difficulties at some point in time after renting the place to tenants. We have someone who appears to have intended from the start to "skim off" rents without paying the mortgage.

I really don't know how the Hays could have spotted this up front; there are no public records that will tell you if your landlord is delinquent the day you sign your lease, or is going to be delinquent thereafter. Tenants can check public records to see if a landlord is in foreclosure--if that Notice of Default or whatever it is in a specific state has been filed--but there's nothing to see until that document is filed. In the case at hand, it appears that nasty letters from the servicer were actually coming to the property address, but these tenants were apparently unwilling to open mail not addressed to them, and fell for the landlord's "explanation" of what that flurry of certified mail was all about. I'm sure it never occurred to the Hays that while some legitimate landlords will have servicer mail directed to the property address, that can also be a good indication that the property was obtained under occupancy fraud (that is, that the landlord claimed to the lender that the property would be the landlord's principal residence). Sadly, there's no sure-fire way for people who rent single-family homes from an individual to really verify whether or not they're getting caught up in a rent-skimming scam.

There is also no sure-fire way for servicers to know that this is going on, although there are steps that can be taken. A while ago we were confronted with a rant from our favorite Gretchen Morgenson, railing about servicers hitting delinquent borrowers with "unnecessary" property inspection fees. I have no way of knowing if the servicer in the Hays' case did inspections at all, if the inspector saw signs of occupancy and assumed the occupants were the owners, or if the inspector did catch on and the FC was actually accelerated because the servicer feared that rent-skimming was, indeed, transpiring. I do always fear, when the delinquent owner is a member of the local RE establishment, that the "inspector" might have eyes wide shut. I do actually claim to know that this is why delinquent borrowers find themselves with a bill for periodic inspections.

I make no claims that scams like the one perpetrated against the Hays--and it is a scam to enter a rental agreement with someone while not disclosing that you're about to lose the property to FC, that's kind of a material fact--are common or usual or an "epidemic." I am, however, convinced that a lot of "speculators" are suddenly trying to convert themselves into "landlords," and that the results aren't going to be good for anyone--not for the tenants, and not for the lenders. There's a problem with market-comparable rents not being high enough to satisfy the mortgage payment, and then there's the problem that it may not be anyone's intention to satisfy the mortgage payment anyway.

Nonetheless, I've seen some people lately encouraging renters to "take advantage" of the ability to rent nice big houses on the cheap from an amateur landlord these days, given the distress in the RE market. I'm merely observing that there is some room for caution, yet again, when the deal sounds "too good to be true." I am also observing that folks who have no experience with being landlords, and who are tempted to buy properties "on the cheap" in a foreclosure or short sale and rent them out, might want to stop and consider that they might have to "compete" with "distressed" landlords who can offer prospective tenants a "better deal"--no or minimal deposit, short-term or flexible lease terms, low rent--since they have no intention of making mortgage payments. In the current environment, you had better make sure you can carry the PITI and maintenance on a rental property you buy with a very high "vacancy factor." Any "RE guru" who is telling you different may well have, shall we say, ulterior motives.

by Tanta on 3/22/2008 10:02:00 AM

I recommend this story in this morning's Washington Post, "My House. My Dream. It Was All an Illusion," by Brigid Schulte. It's a good article, although I'm going to offer some criticism. I know; you're all shocked.

As is so often the case, I find these stories hard to read. For one thing, there's that habit reporters have of just not recapitulating a complex narrative in order. This story isn't as bad as some in that regard, but there's still this habit of breaking off the narrative to get a quoted generalization from an expert or just generalizations provided by the reporter that break the narrative flow. On a story this complicated, it would help to try to avoid that.

The other problem is that I end up not being sure the reporter is using terminology terribly accurately. Is this nitpicky? Not if the idea of these stories is to help people spot similar scams in the future, should they be so unfortunate as to run into one. For instance, part of this scam seems to involve a homebuyer convinced she was making a "down payment" when it appears she was only covering (excessive) closing costs. It doesn't help much for the reporter to perpetuate the confusion by continuing to refer to a "down payment." I think most consumers believe that a "down payment" translates into "equity." If all you are doing is paying closing costs, you are starting out with zero equity (100% financing). We need to be making this clearer, not falling into the trap.

But there is also one ringing silence in this story--it's something I see in 99% of these kinds of news stories, and frankly I'm getting tired of it. Let me do my usual re-cap of the narrative, and see if you all can hear the dog that didn't bark.

In 2005 Glenda Ortiz fell afoul of a fast-talking door-to-door salesperson, Salgado, who besides being a Mary Kay peddler was also a "sales assistant" for a relitter, Aguilar. In this context "sales assistant" means the person Aguilar was paying illegal "referral fees" for reeling in marks. Salgado is not a licensed relitter and both Virginia RE regulations and HUD rules prohibit this kind of "kickback."

Someone--Salgado or Aguilar, it isn't clear--showed Ortiz one house and only one house, a "run-down one story duplex" listed for $425,000. Ortiz ended up signing a contract for $430,000. (In this context, "duplex" appears to mean a single-unit structure that is attached to another single-unit structure with a shared firewall and a lot line running down the middle of the house, not a two-unit structure on a single parcel of real estate.)

Ortiz didn't have the money "for a down payment," and did not have a good credit record, but Salgado offered to lend her "half" of what is said to be an $11,000 down payment and be a joint applicant on the loan (presumably to "bump up" the qualifying FICO by using Salgado's). (Unmentioned in the story: half of $11,000 would be very nearly the amount of the sales price in excess of the list price, no?) The "deal" Ortiz was presented with is that in "a year," when the house had appreciated by 20% or so, Ortiz would refinance, extract $70,000, and pay half of that to Salgado "for her share of the down payment and for allowing Ortiz to use her credit." Lend someone $5,500, get back $35,000 in a year? Nice work if you can get it.

When Ortiz, whose spoken English appears minimal and who cannot read English, got to the closing in August 2005, she found that Salgado wasn't her "co-buyer," Salgado's brother Hernandez was. Ortiz ended up signing documents that made her the buyer of the home--her name was on the deed along with Hernandez'--but not a borrower on the loan: only Hernandez was actually on the note. (Presumably because only Hernandez "qualified" for the loan.) Ortiz was induced to sign a statement that she was Hernandez' wife, although she seems to have met him for the first time at closing and she's already married to someone else.

Salgado says her own credit wasn't good enough to help Ortiz--there's a surprise--and that she was just "helping out a friend." It appears that "the woman handling the loan" (I don't know if that means the mortgage broker or the title company settlement agent, in context) was the wife of Aguilar, the licensed relitter for whom Salgado worked. Ortiz was told that Hernandez would be taken off the title in one year and she would own the home outright.

The Post got an unrelated mortgage broker to look at the documents on the loan, and he found "junk fees and an overpriced appraisal," with "'excessive' closing costs . . . upward of $10,000." I suspect the appraisal was "overpriced" because someone had to be bribed to bring the value up to the sales price. In any event, this is why I'm a bit befuddled by the reference to the "down payment." It sounds to me like Ortiz paid closing costs of $11,000 or thereabouts, with half of it from Selgado or Hernandez, resulting in a 100% LTV loan.

The reporter says she got a "high interest" loan with a payment of "more than $3,000 a month" that was 70% of Ortiz's (and her real husband's) gross monthly income. I really wish reporters would stop doing things like that--if the point here is to help readers understand what a "high interest" loan is, it would be useful to know what rate it was and for what kind of loan, and whether that "payment" is P&I or PITI (that is, whether it includes taxes and insurance as well as principal and interest). I assume it's P&I only, and using $3,000 as the payment and $430,000 as the loan amount and a 30-year term, I get an interest rate of just under 7.50%. Quite honestly, for a 100% purchase on a nonconforming loan that's not such a bad rate. This frustrates me to no end, as I complain regularly about borrowers who do not understand a rate that is "too good to be true." No doubt it was an ARM and Ortiz didn't know that; possibly it was a 40-year term. But it hardly matters: she couldn't afford the start rate. She could never have been anywhere close to affording the true "risk-based pricing" she'd have gotten if the scumballs hadn't substituted a "straw borrower" in her place. But I don't think we're helping people by giving them the impression that 7.50% or so is a "high rate" for the terms of this deal.

Inevitably, Ortiz couldn't keep up the payments, after having sold belongings, gotten behind on other bills, and borrowed more money to make payments as long as possible. Salgado didn't come through with the promised refi, of course, and when Ortiz tried to work something out with the bank, she only then learned that she wasn't on the note, was not the legal borrower, and hence had no "standing" to work anything out with the lender. When she asked Hernandez to help, "he told her to leave the home."

Ortiz ended up deeding the house over to Hernandez, in an agreement that "prohibit[s] Ortiz from suing Salgado and Hernandez for fraud." She received nothing for having made mortgage payments and paid half the closing costs. Hernandez "sold the home in December [of 2007] for $380,000." There is no mention of who the sucker (or co-conspirator, you never know) was who paid that much for this home. Or who financed it. We talk a lot about short sales and current owners getting out, and we never seem to worry much about who is getting in.

The money quote is from Aguilar the relitter:

Aguilar said he saw nothing amiss in the transaction. Ortiz wanted a house, and Hernandez wanted an investment.

"Everybody was fine. Everybody was happy. But now that the market's gone down, everybody's got a problem and wants to blame it on the realtor, saying we guided them to bad loans," he said. "Everybody's blaming everybody else. But everyone contributed to the housing bubble, the banks, the real estate agents, the appraisers. Everyone's to blame."

Too funny, Mr. Scumbucket. Ortiz wasn't in a bad loan. Ortiz never got a loan. Ortiz got suckered into making someone else's mortgage payments.

So what is this missing detail that is driving me crazy? Where's the seller? Who was the seller? Who listed a run-down property for the outrageous sum of $425,000, and then accepted a bid of $430,000 from a buyer whose ability to understand the transaction was pretty clearly dubious and who wasn't represented by an attorney at closing? Why did the relitter (or the "sales assistant") make a beeline for that house, and show Ortiz only that house?

I seriously wonder about this, I guess because I assume (possibly quite incorrectly) that if the original seller had been in cahoots with (or an alternative identity of) the RE agent, we'd have heard about it in the article. I fear that the seller was truly an unrelated party--who may or may not have kicked the $5,000 in excess price to Salgado in order for her to "pay half" the "down payment." I fear this because there is this idea floating around in the world that that makes the seller "innocent."

What's so "innocent" about taking advantage of a naive, uninformed, and unrepresented buyer to profiteer off real estate? We have the word "profiteer" in English, as well as the word "profit," because we have long recognized that there is a difference between simply selling an asset that has appreciated in value, on the one hand, and taking advantage of the desperate on the other. But that distinction simply disappeared during the boom: everybody got behind the idea that it was perfectly "respectable" to screw the next guy in line and not look too closely into the identity or capability of the prospective buyer. It is, of course, not illegal to sign a sales contract with a counterparty whom you know nothing about, and whose capacity to perform under the contract ought to be dubious to anyone with one or two good brain cells. That's just how the free market is, ya know?

We just looked the other day at a case of outright journalistic malpractice in the New York Times, where some hustler who advocates "illegal assumptions" of upside down loans was given credibility by a reporter. I'm not including the Post reporter in that league, by any means. The Post story is a good one, on the whole.

But it still leaves me with a lot of questions, particularly given our recent brush-up with a shady RE broker who advocates that buyers talk desperate sellers into "assumptions" that work only if the lender is defrauded by not being informed. But is this scam really being directed at "desperate sellers"? Or is there some RE agent who owns a bunch of upside-down homes, who is trying to recruit "smart" buyers who will make payments on a stupid loan that isn't even in their name and let the upside-down owner "walk away" from the mess?

I'm asking you journalists who write about this stuff to keep digging, because the reality of the situation is that we're kind of past the historical moment for the kind of scam Gloria Ortiz got sucked into. The lenders are going bankrupt, and the ones left aren't making these loans any longer. But that means we are very, very much in the historical moment for massive seller fraud. There are way too many operators out there who own these upside-down properties, want out, and are looking for marks again.

Surely, many of the "desperate sellers" these days were themselves victims of fraud, and it's not inappropriate to have some sympathy for them. But all the stories I've been reading about "short sales" and "preforeclosure sales" and this "subject to sale" thing have simply assumed that the seller is the victim and that it's a good financial move for the buyer to take this "discounted" property. Well, I've got my doubts that whoever took the property from Hernandez in the Post story for $380,000 got a deal.

Nobody wants to have to report on "foreclosure avoidance scams" or "subject to" ripoffs after the fact, like we're only now reporting on predatory lending and predatory RE sales practices after the fact. Please, please. Let's get ahead of the curve on this one. Literally, we might prevent a few of them from happening, which is so much more satisfying than reporting on them after the fact.

There is predatory lending. There is predatory real estate selling. Let us not focus on the former to the exclusion of the latter.