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By Bradley Gill | Broker in 95120
  • Important new laws affecting real estate in 2011

    Posted Under: Home Buying in San Jose, Home Selling in San Jose, Foreclosure in San Jose  |  March 14, 2011 4:30 PM  |  1,231 views  |  1 comment

    There are many new laws recently passed that have gone or will be going into effect this year. These laws vary as to their impact on the real estate industry, from stopping lenders from seeking deficiency judgments after short sales to requiring an operational carbon monoxide detector in each home at time of sale, so to help you get a quick feel for these important new laws here is a quick summary:



    No Short Sale Deficiencies Allowed for 1st Trust Deed Holders


    Probably the most exciting law effective this year requires that a seller's first trust deed lender cannot obtain a deficiency judgment against the seller after a short sale. 


    Starting January 1, 2011, providing written consent to a short sale shall obligate the first trust deed lender to accept the sales proceeds as full payment and discharge of the remaining amount owed on the loan.  This law applies to first trust deeds secured by one-to-four residential units, but if the owner commits either fraud with respect to the short sale, or waste with respect to the secured real property, then the lender may seek damages and use existing rights and remedies against the owner or any third party for fraud or waste.


    Note that this law doesn't apply if the trustor or mortgagor is a corporation or political sudivision of the state, and junior lien holders are not subject to this law.



    New tax filing requirements for property managers and landlords


    Starting Jan. 1, 2011, any person who receives rental income must provide a Form 1099 for all payments of $600 or more made to service providers such as plumbers, carpenters, yard services and repair people. As part of the recently passed Small Business legislation (HR 5297), this new revenue provision will create additional burdens for anyone who receives rental income from either residential or commercial property.


    Basically, ANY person who receives rental income (no longer limited to property managers) will be required to report all expenditures of more than $600 to anyone (or to any business) from whom they purchased services. Thus, “mom and pop” investors and those who invest in real estate for their personal portfolios are now subject to the new reporting requirement. But, only aggregate annual payments of $600 or more for services (but not goods) will be required to be reported.


    This means that if you own investment property and are renting it out without the help of a licensed property manager, then for any services purchased for the maintenance of the property (such as services provided by plumbers, carpenters, yard or garden workers, electricians or any other service providers), you will be required to file an IRS Form 1099 any time the total expenditures/payments to a particular vendor in one year exceed $600.

    For more information please see the IRS website: http://www.irs.gov/



    The Carbon Monoxide Poisoning Prevention Act of 2010


    By July 1, 2011 every owner of a “dwelling unit intended for human occupancy” must install an approved carbon monoxide device in each existing dwelling unit having a fossil fuel burning heater or appliance, fireplace, or an attached garage. Regarding rental properties, the law gives a landlord authority to enter the dwelling unit for the purpose of installing, repairing, testing, and maintaining carbon monoxide devices “pursuant to the authority and requirements of Section 1954 of the Civil Code [entry by landlord].” And a carbon monoxide device must be operable at the time that a tenant or buyer takes possession of the property. 


    Under the law, a carbon monoxide device is “designed to detect carbon monoxide and produce a distinct audible alarm.”  It can be battery powered, a plug-in device with battery backup, or a device installed as recommended by Standard 720 of the National Fire Protection Association that is either wired into the alternating current power line of the dwelling unit with a secondary battery backup or connected to a system via a panel.

    This new law requires the owner to install the devices in a manner consistent with building standards applicable to new construction for the relevant type of occupancy or with the manufacturer’s instructions, if it is technically feasible to do so. CA State specific building code states that a device shall be “installed outside of each separate sleeping area in the immediate vicinity of the bedroom(s) in dwelling units and on every level including basements within which fuel-fired appliances are installed and in dwelling units that have attached garages.”



    Energy Audit in Home Inspection Report


    In California, new homes must be built to comply with the latest Building Energy Efficiency Standards (Standards) and since a majority of our existing homes were built before the first Standards were established in 1978 with limited energy efficiency measures, beginning January 1, 2011, a new state law requires the home seller or broker to inform the buyer about the existence of California Home Energy Rating Program by delivering a Home Energy Rating System (HERS) booklet.


    Recently released by the California Energy Commission, the booklet is designed to educate homeowners, home buyers, and home sellers about Whole-House Home Energy Rating services and their benefits, opportunity to invest in energy efficiency improvements at the time-of-sale, and available financing options. Additionally, a home inspection and inspection report may, upon a client's request, include an audit of the energy efficiency of a home, according to the standards of the Home Energy Rating Systems (HERS). 


    More can be found at http://www.energy.ca.gov/HERS/index.html



    Lead-Based Paint Renovation Rule


    The Lead-Based Paint Renovation Rule (Lead Renovation Rule), which implements the Toxic Substances Control Act (TSCA found at15 U.S.C. 2601 et seq.), is a rule affecting construction contractors, residential landlords, property managers and others who perform renovation for compensation in housing that may contain lead-based paint--housing built before 1978.  Renovation includes most repair, remodeling and maintenance activities that disturb painted surfaces.

    No more than 60 days prior to commencing the renovation, renovators must give to the owner or occupant of the dwelling the EPA pamphlet, "Renovate Right: Important Lead Hazard Information for Families, Child Care Providers and Schools," found at http://www.epa.gov/lead/pubs/renovaterightbrochure.pdf.  The renovator must obtain written acknowledgment that the owner or occupant has received the pamphlet


    The rule also establishes requirements for training renovators, other renovation workers, and dust sampling technicians; for certifying renovators (and others); for accrediting providers of renovation training; for renovation work practices; and for recordkeeping.


    The term renovation includes (but is not limited to): the removal, modification or repair of painted surfaces or painted components--such as sanding or scraping doors, window frames, walls, ceilings, etc. 


    The term "renovation: does not include minor repair and maintenance activities.  Minor repair and maintenance activities include minor heating, ventilation or air conditioning work, electrical work, and plumbing, that disrupt 6 square feet or less of painted surface per room for interior activities or 20 square feet or less of painted surface for exterior activities where none of the work practices prohibited or restricted by Section 745.85(a)(3) are used and where the work does not involve window replacement or demolition of painted surface areas.


    For additional information, go to EPA Web page on Renovation, Repair and Painting (RRP) at http://www.epa.gov/lead/pubs/renovation.htm. 

  • Keep Your Home California, New Mortgage Assistance Offered to Struggling Homeowners

    Posted Under: Financing in San Jose, Foreclosure in San Jose  |  January 21, 2011 10:36 AM  |  841 views  |  No comments

    Last week, on January 10, 2011, the State of California launched the “Keep Your Home California” campaign with the rollout of the Unemployment Mortgage Assistance Program (UMA). The UMA program is expected to assist as many as 60,000 eligible homeowners by providing a mortgage payment subsidy of up to $3,000 for a maximum of six months.


    Eligible unemployed homeowners facing imminent foreclosure should call for the chance to apply for the state funded mortgage assistance program. Phone lines are now open 888-954-KEEP (5337) and the agency has already received over 1200 calls over the first two days.


    Supported by $2 billion in recent federal funding by the US Treasury, Keep Your Home California is a compilation of four unique programs that will become available over the next few months to eligible California families who are struggling to pay their mortgages.


    The campaign is designed to address different aspects of the current housing crisis by offering the following programs:

    1. Unemployment Mortgage Assistance Program (UMA) – up to $3,000 a month in mortgage payments for up to six months for mortgagors actively collecting unemployment benefits.
    2. Mortgage Reinstatement Assistance Program (MRAP) – up to $15,000 for reinstatement of arrearages.
    3. Principal Reduction Program (PRP) – up to $50,000 contribution toward principal balance reduction.
    4. Transition Assistance Program (TAP) – up to $5,000 in transition assistance for short sales and deeds-in-lieu of foreclosure.

    The programs are designed to assist those homeowners who have experienced a change in household circumstance such as death, illness or disability, or are subject to a recent or upcoming increase in their monthly mortgage payment and are at risk of default because of this economic hardship when coupled with a severe decline in their home's value.

    But these programs are only available to homeowners whose mortgage servicing company agrees to the terms and conditions governing the use of these funds. So far participating lenders, loan servicers and agencies include Wells Fargo, Chase, Bank of America, GMAC, CalHFA, and the Department of Veterans Affairs, as well as the government-sponsored Fannie Mae and Freddie Mac.

    If your servicer is not currently participating in Keep Your Home California, you may want to call them and encourage them to do so. For more information and the most recent list of services participating please visit: http://www.keepyourhomecalifornia.org/

  • Foreclosures Freeze Across the Nation…Or Are They?

    Posted Under: Market Conditions in San Jose, Foreclosure in San Jose  |  October 14, 2010 11:41 AM  |  702 views  |  1 comment

    I’m sure that almost everyone by now has heard that a number of major banks have decided to freeze, or temporarily stop all active foreclosures in select states across the US. But the message is still unclear about how this latest foreclosure fiasco might impact homeowners in California.

    So far the recent halting of foreclosures is just a voluntary action by these lenders and has not yet been mandated by either the states or the federal government. This action comes as a response to findings that questioned whether lenders have followed correct foreclosure procedures in the 23 states that require a judicial foreclosure process, or court confirmation prior to foreclosure. Findings have revealed that there may have been fraudulent paperwork filed, or media dubbed “robo-signed” documents, by these banks during the foreclosure process.


    In reaction to these highly publicized findings, last week Federal agencies, including the Office of the Comptroller of the Currency, the Federal Housing Administration, and the conservator of Fannie Mae and Freddie Mac, asked lenders and servicers to postpone their active foreclosures while they review their foreclosure processes in all states, not just the ones directly affected. Following their request, only JP Morgan Chase, GMAC and Bank of America have decided to temporarily suspend their foreclosure process while they internally audit their files. But other banks such as PNC Mortgage and Wells Fargo have yet to stop any of their foreclosure activity although they are internally reviewing their foreclosure process.


    While the banks claim that these recent problems with their foreclosure documents are merely technical and that homeowners in default will continue to be foreclosed upon, teams of lawyers representing the homeowners are trying to claim that filing any flawed foreclosure documents with the court is fraud. If it is ultimately determined that some of these foreclosures were in fact wrongful due to the inaccuracy of any court filed documents, then some previous buyers of foreclosed homes in the 23 states affected could face title claims by the previous owners who may have been wrongfully evicted.


    In CA, the foreclosure process is dominated by non-judicial procedures (also known as Trustee's Sales) but there are still legal requirements that must be met by these lenders before they have the right to foreclose. Which is why, due to the recent publicized findings, the attorney's general offices in all 50 states are simultaneously launching an investigations into whether or not these corner-cutting banks have in fact broken the law as they pushed countless delinquent homeowners from their homes. But so far, only Bank of America has temporarily suspended its foreclosures in CA, while all other lenders are continuing their foreclosures.


    Nonetheless, REALTORS in CA have already begun to report the immediate impact of even one bank's moratorium on foreclosures. We are seeing delays in escrows in transactions that involve properties that have been foreclosed by Bank of America, as well as the total removal of their listed foreclosures from the housing market. And due to these temporary actions by Bank of America, Buyers are extremely cautious about making offers on any bank owned listings, no matter which bank owns the property.


    But REALTORS in CA remain optimistic that this recent media storm will be short-lived since there isn’t any indication yet whether other lenders will follow suit, and for the moment it seems safe to assume that this one bank is merely reacting in a knee-jerk manner. This also means that all other CA homeowners will probably not see any direct affect from the “foreclosure freeze” other than it creating an additional speed bump in an already prolonged recovery. Assuming that Bank of America’s moratorium will be lifted in the next month, the flow of REOs to the market should resume, but the uncertainty created by their moratorium has already caused hesitation on the part of homebuyers.

  • Can a Short Sale help you Avoid Foreclosure?

    Posted Under: Foreclosure in San Jose  |  August 24, 2010 2:50 PM  |  492 views  |  No comments

    The first thing to remember is that a short sale

    should be a last alternative to foreclosure, allowing you to sell your home if you owe more than your home’s value, but still ends in a similar outcome – losing your home.  A short sale can definitely provide a benefit to the underwater homeowner looking to avoid a foreclosure on their record by selling their home before the bank forecloses, but before you rush down that path it is important to understand that other options may exist that could help you keep your home.



    Are there other options available to me that may help me keep my home?

    Absolutely, and this is the most important thing that anyone considering a short sale must understand. There are more foreclosure alternatives available today to distressed homeowner’s than ever before. If you have any interest in keeping your home then you should look into all of the following before making a final decision to sell:

    ·   Refinance Programs – Most refinancing programs will require homeowners to be current on their mortgage payments; be able to prove valid employment and adequate incomes; and have enough equity remaining in their homes to qualify. There are some government sponsored refinancing programs being offered (through Making Home Affordable – see “Homeowner Resources” section at end of Guide) that can assist even those who do not meet all of these requirements.


    ·   Loan Modification Programs – If refinancing is out of the question due to a financial hardship (such as loss of employment), or if you find that you have already fallen behind on your mortgage payments, then a loan modification or re-payment plan would be the next alternative to look into. Many lenders are more than willing to modify their borrower’s home mortgages as long as they would reasonably benefit from lowered payments or even principal reductions. But then again, not all lenders will offer their borrowers such programs, and not all distressed homeowners can qualify.


    ·   Loan Forbearance – Often time’s lenders can offer borrowers a limited amount of time to stop making payments in the hopes that the borrower will be able to get back on their feet and resume payments at the end of the forbearance period


    ·   Rent the Property – If the mortgage payments are low enough and the rental market is strong enough, then it could make sense to move out of the property and then rent it to a tenant. But property management comes with additional expenses and liabilities that should be discussed with competent real estate professionals.


    ·   Bankruptcy – Often misperceived as the “fix-all” solution for financial hardships, bankruptcy may or may not allow you to keep your home. If the homeowner has non-mortgage debts that cause a shortfall of paying their mortgage payments and a personal bankruptcy will eliminate these debts, this may be a viable solution. But, if you don’t have any equity remaining in your property and you cannot make the mortgage payments or reinstate your mortgage, then a bankruptcy will not save your home, it may delay the foreclosure process by weeks or even months, but it will not stop the process (it will also ruin your credit and can only be declared once every 7 years).



    When do you know you’re ready for a Short Sale?

    If all other options fail and keeping your home is not an option then maybe it’s time that you looked into a short sale as an alternative to foreclosure. You can bet on one thing during the foreclosure process, your lender will NOT continue to stall the foreclosure process once started, and if you are not working with them on one of the options above, or if your lender has already turned you down for these options, then it may be time to seek assistance from a local real estate professional knowledgeable in short sale transactions.


    While not always the case, underwater sellers who have listed their homes for short sale may have missed mortgage payments and may not be able to financially afford their home any longer.  Perhaps an interest rate adjustment has made the mortgage payment too expensive or their interest-only adjustable-rate-mortgage (ARM) has now begun to incorporate additional payments of principal. Or perhaps the homeowner has lost a substantial source of income, suffered a financial crisis, or other circumstance that has created difficulty for the homeowner to repay their mortgage.


    Whatever the case may be, homeowners must be able to prove to their mortgage lenders that they are currently suffering from or will inevitably suffer from a viable financial hardship…and the homeowner’s lenders must see evidence of such hardship. Without a hardship it may be improbable that a lender will allow a short sale over a foreclosure, although it is always up to the lender to decide, and lenders usually do what’s financially in their own best interests.


    It may take more paperwork to get out of your mortgage than it did when you got into your mortgage!  A short sale requires much paperwork, preparation and patience on behalf of both the seller (borrower) as well as the buyer. Typically, before applying for a short sale, the seller must have all their paper work prepared and ready to present to their lender along with a valid purchase agreement with a fully able buyer. The buyer of a short sale must also be prepared to wait patiently for the seller to receive such required lender approval and, once approved, be ready to act in a protracted time period to conclude the purchase of the property.



    Are there downsides to a Short Sale?

    In short, a short sale is an alternative to foreclosure and nothing more than negotiating with lien holders a payoff for less than what they are owed, or rather a sale of a debt, generally on a piece of real estate, short of the full debt amount. A short sale does not extinguish the remaining balance unless settlement by the seller’s lender(s) has been clearly indicated on the acceptance of the short payoff. And, although the lender may consider the loan satisfied through a short sale, the IRS may look upon any such forgiven debt as income (by issuance of a 1099-C) and the seller could be responsible for paying income taxes (both Federal and State) on any such forgiven debt (homeowners should seek professional tax guidance from certified professionals).


    At least with short sales, there is usually always a little room for negotiation. Although different from foreclosure, in which there is no negotiation of terms available, short sales offer the seller the chance to negotiate the terms of how a lender may handle any deficiency balances as well as how the short sale may be reported on their credit report. These negotiations may come at an additional cost to the homeowner, in the form of cash contributions from the seller at closing or even requiring a promissory, whatever the case may be, the short sale process allows the seller options that a foreclosure will not provide.



    Where to Begin?

    Simply listing your home “for sale” when you owe more on your mortgage(s) than the current market value of your home is not an as easy task, nor is it always a guaranteed solution. Careful thought, consideration and planning should be given to the task of selling your home versus simply walking away when you are faced with being upside-down in your mortgage and wanting to move.  There must be a REASON for your mortgage holders to allow a short sale. 


    It is important to understand that not all lenders will allow short sales or accept discounted payoffs, especially if it would make more financial sense to foreclose; moreover, not all sellers nor all properties qualify for short sales. As such, homeowners contemplating a short sale should learn more about your Foreclosure and Short Sale Resources before proceeding with the sale of their home.

  • Attention San Jose Homeowners & Tenants - FREE City sponsored resources for those impacted by Foreclosure

    Posted Under: Foreclosure in San Jose  |  July 21, 2010 12:55 PM  |  436 views  |  No comments

    If you find yourself in the unfortunate event of falling behind on mortgage payments, or struggling to meet your mortgage obligations, or being pressured by your landlord to move out due to foreclosure, then you may want to contact the local ForeclosureHelp services offered through the City of San Jose.


    There is FREE assistance available – ForeclosureHelp (http://www.ForeclosureHelpscc.org) is a City of San Jose Housing Department program. Volunteers from the local Real Estate and Lending communities volunteer their time to provide information and referral services to assist families impacted by foreclosure and to help them navigate through the foreclosure process.


    IMPORTANT: You don’t have to be in foreclosure to receive assistance. Help is available for those that may be impacted by foreclosure including those that are currently being foreclosed by their lenders, those that are in jeopardy of being foreclosed on by their lenders, and even tenants of properties that have been foreclosed


    Services are provided to San Jose Metropolitan area residents and include prevention, intervention and family re-stabilization. By appointment, volunteer staff is available to discuss your circumstances and connect you to the appropriate resources including HUD-certified foreclosure prevention counselors, nonprofit legal services, emergency financial assistance and other housing services.


    Through the ForeclosureHelp services, homeowners can receive key information that may help them stay in their homes. The most important service offered through this agency is the ability to meet with someone both familiar with the foreclosure process and the FREE resources available through the City in order to hopefully provide a sense direction to those impacted by the foreclosure process.


    Foreclosure alternatives include loan modifications, deed’s in lieu of foreclosure, and even short sales. For tenants, the City offers programs that can provide rental and legal assistance. And for those that may have been impacted by foreclosure scams there is also legal assistance available.


    Contact the City of San Jose’s Foreclosure Help by calling (408) 794-1242 or visiting their website - http://www.ForeclosureHelpscc.org.


  • Top Foreclosure Rescue Scams – Coming to a Neighborhood Near You!

    Posted Under: Foreclosure in San Jose  |  April 7, 2010 10:13 AM  |  649 views  |  No comments

    With the current climate in the housing industry, and overall economy for that matter, it’s no surprise that some people may look for any angle in order to get ahead, and sometimes this may include taking advantage of those in financial desperation.

    Unfortunately, distressed homeowners trying to avoid the loss of their home through foreclosure are finding out the hard way these days that they may have fallen prey to an unscrupulous scam artist (or as they refer to themselves as “real estate investors”).


    The scariest part is that if you’re currently delinquent on your mortgage then chances are that you may have already met a few face-to-face, as these so-called “investors” frequently stalk the occupants of distressed properties for any possibility of “assisting them to avoid a foreclosure.”

    But beware of their empty promises, there are no quick corners to cut in order to “avoid foreclosure,” and there are also many legalities surrounding the foreclosure process in which homeowners should be aware of before they allow anyone to provide any such “foreclosure prevention services” or pay any upfront fees of any kind.


    Potential victims are easy to find: mortgage lenders publish notices before foreclosing on homes. Private firms frequently compile and sell lists of these foreclosed properties and distressed borrowers.

    After reading these notices, con artists approach their targets in person, by mail, over the telephone, or by e-mail. They often advertise their services on television, radio, or the Web, and in newspapers, describing themselves as “foreclosure consultants” or “mortgage consultants,” offering “foreclosure prevention” or “foreclosure rescue” services.


    Here are the top Foreclosure and Loan Modification scams happening in your neighborhood:


    1. Foreclosure “Rescue” and Refinance Fraud. The scam artist offers to act as an intermediary between you and your lender to negotiate a repayment plan or loan modification and may even “guarantee” to save your home from foreclosure. You may be told to make mortgage payments to the scammer directly — along with significant, up-front fees — and be told that the scammer will forward the payments to your lender. In reality, the scammer may pocket your money and leave you in worse shape on your loan. The scam artist also may tell you to stop making payments or stop communicating with your lender. Don’t follow that advice, remember that your mortgage lender should be the starting point for finding options to avoid foreclosure and you also should consider contacting qualified and approved credit counselors.


    2. Fake “Government” Modification Programs. Unscrupulous people may claim to be affiliated with, or approved by, the government or may ask you to pay high up-front fees to qualify for government mortgage modification programs. While government-supported mortgage modification and refinancing initiatives are legitimate, the scam artists’ claims are not. Keep in mind that you do not have to pay to benefit from these government programs. All you need to do is contact your lender or loan servicer. Additionally, the scam artist’s name or Web site may be very similar to those of government agencies. These tactics are designed to fool you into thinking the scam artist is somehow approved by, or affiliated with, the government. The government is taking actions to stop this fraud, but you also need to protect yourself. Your lender will be able to tell you whether you qualify for any government initiatives to prevent foreclosure.


    3. Leaseback/Rent-to-buy Schemes. In this type of scam, you are asked to transfer the title to your home to the scammer, who will, supposedly, obtain new and better financing and/or allow you to remain in the home as a renter and eventually buy it back. The agreement may be very hard to comply with, because it may require, for instance, high up-front costs and monthly payments that you may not be able to afford. In fact, the scammers may have no intention of ever selling the home back to you. And remember, transferring your title does not change your payment obligations — you will still owe your mortgage debt. The difference will be that you will no longer own your home.


    4. Bankruptcy Scams. You may have heard that filing bankruptcy will stop a foreclosure. This is true — but only temporarily. Filing bankruptcy brings an “automatic stay” into effect that stops any collection and foreclosure while the bankruptcy court administers the case. Eventually, you must start paying your mortgage lender, or the lender will be able to foreclose. Bankruptcy is rarely, if ever, a permanent solution to prevent foreclosure. In addition, bankruptcy will negatively impact your credit score and will remain on your credit report for 10 years.


    5. Debt-elimination Schemes. Scammers may claim to be able to “eliminate” your debt by making illegitimate legal arguments that you are not obligated to pay back your mortgage. These scammers will provide you with inaccurate claims about applicable laws and finance, such as that “secret laws” can be used to eliminate debt or that banks do not have the authority to lend money. Do not stop making payments on your mortgage based on their claims.


    Always proceed with caution when dealing with anyone offering to help you modify your mortgage or avoid foreclosure. Remember that you do not need a third party to work with your lender — any such party should make the process easier, not harder and more expensive.


    The main ways to protect yourself from falling victim to a foreclosure scam are to:


    • Always keep in contact with your lender no matter what anyone else says;
    • Always make payments on your mortgage to your lender and no one else;
    • Avoid paying upfront fees of any kind;
    • Always understand what you are signing before you sign it;
    • Never, under any circumstances, sign the title of your property away to anyone without proper legal counsel;
    • Be sure to get all promises in writing.


    It’s important that homeowners understand that there are FREE foreclosure counseling services and loan modification services available. One of the most important services is offered by your lender, and if your lender becomes unresponsive then the government has sponsored a number of other resources such as the “Hope Now Alliance” and “Making Home Affordable” programs.


    But it’s up to you to keep yourself from falling prey to a foreclosure scam. Work with real estate professionals with a proven track record of assisting homeowners in your similar situation. And for more information on these scams and ways in which you can protect yourself, please visit http://www.occ.treas.gov/ftp/ADVISORY/2008-1.html


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