FHA Guidelines: HUD May Stop Your Loan From Closing

A few years ago, during the real estate boom, an unforeseen problem began occurring regularly that created quite a problem for mortgage lenders when they had to foreclose on a home. Everybody who had ever stayed up late watching TV suddenly wanted to become a real estate investor. A “house flipper”.

There is such a thing as a legitimate “house flipper”. This type of investor uses their own money and credit to buy up foreclosures and other distressed real estate, repair the property and then sell it at a profit. This provides an important function in the economy. Unfortunately, the investors flooding the market over the last couple of years never quite matched that description. These master television trained real estate investors would make an offer on a property even though they had no financing of their own. Then they would go in and sweep it up and mop a little. At the same time, they would find some poor uninformed dreamer who didn’t really understand what was going on, agree to pay all the loan closing costs and down payment assistance, and get them preapproved for an FHA loan. They would then set up back to back closings so they could buy the property and sell it to the new buyer at the same time without ever having put up a dime of their own money. They would frequently sell the home at double the price they paid originally.

Of course these “sellers” would offer such easy terms (at a time when it was a seller’s market and others weren’t making such concessions) that they would have a boatload of potential prospective homeowners to choose from. Unfortunately after this had been going on for a few years, some of these new home owners began to default on their mortgages and HUD would have to pay off the lender from the FHA insurance fund. This is the source of all the HUD houses you see advertised in the weekend papers. Trouble is, when HUD was trying to sell these houses they kept having to take a big loss, endangering the very existence of the FHA program.

This resulted in HUD implementing a new anti-flipping rule. If a property had changed owners within 90 days, this property was not eligible for any FHA financing. The goal was to make sure that only legitimate investors who were actually repairing the property and increasing the value would be able to use FHA financing to sell their property.

Of course in HUD’s usual inimitable governmental style they overlooked one tiny factor that created a big problem in the marketplace. They failed to create an exemption for homes that had been foreclosed upon and were being sold by the lender. This excluded a large segment of the potential buyers from the picture and caused lenders to take a big hit in the prices foreclosed property would bring. So in 2006, HUD amended the rule to exclude homes being sold by government sponsored enterprises and federally chartered financial institutions. However, they left the rule in place for all other sellers.

Now we arrive at the present. The subprime market has crashed. Foreclosures are setting records every month. Thousands and thousands are losing their homes. But at least, we think, many potential new first time home buyers can now take advantage of this drop in home prices while FHA interest rates are low.

Working with a real estate agent and mortgage lender who are savvy about the rules, these knowledgeable eager new buyers go out into the market and the first question they ask as they look at these foreclosures is whether the owner fits into the financial institution exception. The agent representing the lender says in good faith that, of course, this home is still owned by the bank and the bank is exempt from the rule. They work out their contract, get all the signatures in the right place, get their loan application paperwork signed and in process and everything looks rosy. Just before closing the title examination results are faxed over and at first glance everything looks fine – until the loan processor notices that the owner named on the title policy doesn’t exactly match. So a call is placed to the attorney’s or title company’s office only to find out that now a subsidiary of the foreclosing lender owns the property. The lender always uses this subsidiary to manage its real estate owned after foreclosure.

The new, and extremely serious, problem is that this subsidiary often is granted title to the property many months after the actual foreclosure and does not fit into any of the categories exempted from HUD’s anti-flipping rule. They have only owned the property a month. No one in the listing agent’s office knew anything about this, and all the representatives of the lender thought everything was normal. Unfortunately, our aspiring new home owner, who has already given notice to their landlord, is now required to wait 60 more days to close on and move into their new home.

Mortgage originators, real estate agents and potential new home owners, whatever you do, please remember – this rule is there to protect you. Be sure that you go far above and beyond with questions about the ownership of the home before you put the dates on your sales contract. This isn’t much of a problem if you ferret it out at the beginning and plan for it, but can be a devastating blow if it catches you unaware.