Short-sale sellers and their agents have plenty to think about, and it is understandable if they are annoyed by the reams of paperwork that may come their way. Nonetheless, it really is important not only to pay attention to what is in the paperwork but also to be sure to retain it for possible future use. This is because of bad consequences that the seller may experience sometime after the sale has taken place.

Bad enough that a short sale involves the loss of one’s home with no equity to show for it, and a credit negative that may last for years; it also has the potential to produce two very bad after-effects. One is that the lender, or the lender’s assignee, may continue to pursue the beleaguered seller for the remainder of the debt. The other is that the I.R.S. may come knocking on the seller’s door, seeking tax on the amount of debt that was unpaid.

The first possibility is often contained in the paperwork that goes along with the seller’s ok of the short sale. The borrower may be required to sign a promissory note for the difference between the debt owed and the short sale proceeds received by the lender. Or, a lender may require the borrower to sign a paper acknowledging that the lender reserves its right to pursue the borrower for this amount.

The second possibility resides in the fact that, if a debt is forgiven, the borrower may be taxed on the amount he didn’t have to pay back. (see I.R.S. publication 4681). To be sure, there may be short sales where the debt that is unpaid is not taxable. For those exemptions, see a tax accountant.

The point here is that the short-sale seller may suffer one of those unpleasant consequences; but he ought not to suffer both.

The point is raised because here is what can happen: In allowing the short sale, the bank requires the borrower to sign a note for the difference, or to acknowledge that the bank has the right to take action to collect that amount. Also, probably sometime later, the bank sends out a 1099-C, informing the I.R.S. that a certain amount of debt had been cancelled.

NO ONE who has dealt with a short sale would raise the question: “How could this happen? The two actions contradict each other!” That is because anyone who has been through the process knows that it is common for the right hand of the bank not to know what the left hand is doing. Indeed, it is not uncommon for the right hand not to know what the right hand is doing.

This is why it is important for the seller to be sure to keep his paperwork. If he signed a document to the effect that the bank was going to pursue its unpaid interest, he should hang on to that. Then, if he receives a 1099-C saying that the debt was forgiven (and, therefore, taxable), he will have support for the claim that the 1099-C is incorrect.

Conversely, suppose that there was no specific release of the debt and that the paperwork contained no reference to it. Then, if the seller receives a 1099-C, saying the debt was cancelled, he should keep that, just in case the bank, or its assignee, comes calling a year or so later, trying to collect the debt.

None of what has been said here should be construed as tax or legal advice. I am not certified to do that sort of thing. But I hope this little piece will encourage short-sale sellers to consult with their appropriate advisors about these matters.


B. Hunt

The recent drop in interest rates has prompted millions of households to refinance their mortgages. Borrowers who refinance need to familiarize themselves with tricky tax rules on what is or is not deductible for interest payments. Here are some reminders on how the rules work.

Question: I own a personal residence. It is worth more than the remaining principal balance on the mortgage. My lender is willing to allow me to refinance for more than the balance of the existing mortgage. I know that the tax rules allow me to deduct interest payments on a refinancing loan as long as it is for the same amount as the existing balance. But am I also entitled to deduct interest payments for the part of the refinancing that exceeds the existing balance? And does it matter that I plan to use most of the excess refinancing proceeds to pay off credit card debts?

Answer: Whether borrowers are entitled to deduct interest on the excess amount depends upon how they use the proceeds from the refinancing and the amount of the proceeds. When borrowers use the amount in excess of the existing mortgage to buy, build or substantially improve principal residences, meaning year-round dwellings, or second homes such as vacation retreats their interest payments come under the rules for home acquisition loans. Those rules allow them to deduct the entire interest as long as the excess plus all other home acquisition loans do not exceed $1,000,000, dropping to $500,000 for married couples filing separate returns.

When borrowers use the excess for any other purposes, another set of rules prohibits deductions for payments of interest on “consumer loans.” This wide-ranging category includes credit card bills, auto loans, medical expenses and other personal debts such as overdue federal and state income taxes. There is, though, a limited exception for interest on student loans, one of those “above-the-line” subtractions to arrive at adjusted gross income, the amount on the last line of the first page of the 1040 form.

But most borrowers are able to sidestep these restrictions on deductions for consumer interest, thanks to the rules for home equity loans. Those rules allow them to deduct the entire interest as long as the amount in excess of the existing mortgage plus all other home equity loans do not exceed $100,000, dropping to $50,000 for married couples filing separate returns. It makes no difference how borrowers use the proceeds.

When their refinanced loans are partly home acquisition loans and partly home equity loans, there is an overall limit of $1,100,000 to $1,000,000 home acquisition debt and $100,000 home equity debt, dropping to $550,000 for married couples filing separately.

When the loans exceed the ceiling of $1,000,000 for home acquisition loans and $100,000 for home equity loans, the excess generally is categorized as nondeductible personal interest. The general disallowance is subject to exceptions for loan proceeds used for business or investment purposes.

Yet another restriction applies to the steadily growing number of borrowers burdened by the AMT (alternative minimum tax). The AMT allows deductions for interest payments on home acquisition loans of up to $1,000,000. But AMT rules deny any deductions for interest on home equity loans for first or second homes, unless the loan proceeds are used to buy, build, or substantially improve the dwellings — one reason why advertisements for home equity loans frequently finesse the troublesome question of tax deductibility.

J. Block

If you're a commercial property investor looking toward 2010, where are the most promising real estate markets in the U.S.?

The Urban Land Institute teamed with consulting firm Pricewaterhouse Coopers and asked more than 900 investors, developers and lenders that question recently, and came up with some intriguing answers.

The top market for heads-up investors among literally hundreds around the country turns out to be Washington D.C.

The nation's capital, where you send your tax money and where your federal government continues to grow, turns out to be the only truly "recession proof" market in the U.S., according to the real estate experts polled in the study.

Why? Because Washington thrives when the economy falls apart, thrives when the country is at war, and does really well when the political party in power believes in big government, more agencies and more federal spending.

And that's precisely where we are right now.

"While hard pressed lenders pull back in most cities," according to the Urban Land Institute's summary of the study, in Washington "major insurers and banks have taken a long term view and are actively providing financing for new (commercial real estate) deals. "

No shortage of equity or debt for the right project -- if it's in D.C.

And it's not just the city itself that's prospering. The Virginia and Maryland suburbs are adding high tech, defense and scientific jobs by the thousands.

According to the study, "Bethesda (Maryland), home to the National Institutes of Health, should benefit from increased biomedical (federal) spending," and the close-in Virginia suburbs are expected to grow defense-related jobs and new construction as well.

Ranking number two after Washington for commercial property investment in 2010 is San Francisco, with especially good prospects for apartments, warehouses, offices and hotels. Metropolitan San Francisco not only is a tourist and convention magnet, but combines strong center-city employment with the high-tech industry in suburban Silicon Valley.

The third rated top investment prospect in the survey might be a surprise to some: Austin, Texas, with lots of technology businesses growing and needing more space. The survey ranked it near the top because of the city's pro-business political climate and low taxes, both of which should, it said, "contribute to future growth and continuing corporate relocations. Austin fits the "brainpower" model that attracts investment even when the national economy is soft.

Rounding out the top ten hot spots for commercial and income-property investors for the coming year, by rank: Boston, New York, Houston, Seattle, Raleigh/Durham North Carolina, Denver and San Jose, California.

K. Harney

McLean, VA – Freddie Mac (NYSE:FRE) today released the results of its Primary Mortgage Market Survey® (PMMS®) in which the 30-year fixed-rate mortgage (FRM) averaged 4.91 percent with an average 0.7 point for the week ending November 12, 2009, down from last week when it averaged 4.98 percent. Last year at this time, the 30-year FRM averaged 6.14 percent.

The 15-year FRM this week averaged 4.36 percent with an average 0.6 point, down from last week when it averaged 4.40 percent. A year ago at this time, the 15-year FRM averaged 5.81 percent.

The five-year Treasury-indexed hybrid adjustable-rate mortgage (ARM) averaged 4.29 percent this week, with an average 0.6 point, down from last week when it averaged 4.35 percent. A year ago, the 5-year ARM averaged 5.98 percent.

The one-year Treasury-indexed ARM averaged 4.46 percent this week with an average 0.6 point, down from last week when it averaged 4.47 percent. At this time last year, the 1-year ARM averaged 5.33 percent.

"Mortgage rates eased further over the week, helping to promote an affordable home-purchase market and stimulate refinance," said Frank Nothaft, Freddie Mac vice president and chief economist. "This comes at a time when house price declines are moderating and consumer demand for prime mortgages at commercial banks has picked up."

"The National Association of Realtors® reported that national median sales price of existing homes fell 11.2 percent in the third quarter relative to the same period last year. Moreover, almost 20 percent of the top metropolitan areas experienced positive annual growth, compared to only about 12 percent in the first quarter of this year."

Members of the International Code Council's Residential Building Code Committee (RBCC) have made it clear that fire sprinklers are destined to become a standard feature in all new homes. The fire sprinkler requirement was added to the International Residential Code (IRC) last year, and it is scheduled to become effective January 1, 2011, in states that adopt the latest version of this code. Currently, 48 states use the IRC as a basis of regulating residential construction, although some states lag behind in adopting updates.

At a hearing held earlier this week, the National Association of Home Builders (NAHB) had petitioned the International Code Council (ICC), which publishes the IRC, to repeal the fire sprinkler requirement, but the RBCC rejected that request by a vote of 7 to 4.

"This vote is significant in two ways," said Chief Ronny J. Coleman, president of the IRC Fire Sprinkler Coalition and former fire marshal for the state of California. "Not only did the RBCC reject the homebuilders' request to repeal the sprinkler requirement, but if you look at the vote, every member of the committee, other than the four who are appointed by NAHB, voted to uphold the fire sprinkler requirement." Following the committee vote, NAHB attempted to use a new procedure in the ICC process that allows members assembled at the hearing to overrule the committee decision, but the members made it clear that they were standing firm on protecting American families from fire. More than 1,000 ICC members in attendance voted overwhelmingly to affirm the RBCC's decision.

"ICC's message on this matter is pretty clear," said Jeffrey Shapiro, P.E., executive director of the IRC Fire Sprinkler Coalition. "Their membership has now supported the home fire sprinkler requirement at both the 2008 and 2009 annual hearings, and each of those votes passed by more than a two-thirds margin." Those decisions have now been further affirmed by the RBCC, which is a balanced, consensus committee that includes homebuilders, building and fire safety officials, architects and engineers.

"People who buy new homes that comply with the IRC fire sprinkler and smoke alarm requirements can sleep peacefully knowing that their families and their homes are protected from fire," said Meri-K Appy, president of the non-profit Home Safety Council.

While fire sprinklers provide a level of comfort, further prevention is sometimes necessary. Take for example the recent announcement from the Communications Cable and Connectivity Association, Inc. (CCCA) that warns of an increased risk of fire from offshore-manufactured communications cable products which fail to meet National Fire Protection Association (NFPA) minimum requirements for fire safety. It's a problem, the CCCA says, that continues to plague the industry and marketplace.

"As we witnessed last year, the failing products were made with inferior materials and designs to save on production costs and they predictably failed the minimum fire safety requirements," said CCCA Executive Director, Frank Peri, whose organization's test results showed that six of the eight samples failed to meet the minimum NFPA code requirements for low flame spread and/or smoke generation for installation in commercial buildings, schools and multi-tenant residences. "All of the failing samples exhibited catastrophic results, indicating an unacceptable public safety hazard still exists."

Cables selected for the tests were all procured from North American distributor's inventory between March and May 2009 and were comprised of riser and plenum rated Category 5e and Category 6 cables, which are the predominant cable types used for wired local area networks (LAN). Category 5e cables also are typically used for telephone interconnection within a building. These cables are commonly installed behind walls and in ceiling cavities, and are connected to wall outlets that have phone or Ethernet ports.

"The CCCA has taken the position that this serious problem will not go away until quality assurance procedures include testing of samples of finished cable procured directly from the marketplace. Our association is cooperating with the major independent telecommunications industry testing agencies to establish a stronger approach to assure compliance to safety standards," Peri added. "We are very encouraged that a major independent testing agency has informed our association that it plans to put in place new quality assurance measures which include testing of finished product procured directly from the marketplace."

P. Mosca

Congress's extension and expansion of the $8,000 tax credit through next June 30 should take the pressure off first time home buyers who've been rushing to close deals before the November 30 deadline.

That deadline is now gone. Everybody's got until next June 30 to settle on their purchases.

But here's something in the expanded program that hasn't gotten much attention: The new $6,500 federal tax credit for so-called "move up" buyers took effect immediately upon enactment.

That means that potentially hundreds of thousands of Americans who fit the key ownership and income criteria for the new credit are eligible for it … right now.

What are those tests?

Number one: You have to have owned and used your current home as your principal residence for five consecutive years out the past eight;

Number two: Your adjusted household annual income cannot exceed $125,000 if you file taxes as a single, or $225,000 if you are married filing jointly.

To qualify, you've got to sign a contract to purchase a replacement residence before next April 30, and go to closing on it by June 30, 2010.

That's potentially huge for all sorts of people who never thought of themselves as qualifying for a tax credit under any circumstances, because they've owned a home for years.

Here are some other useful facts about the revised credit program:

* Although the $6,500 feature has been labeled the "move up” credit, there is nothing in the law forcing anybody to buy a bigger or costlier house. You can downsize or upsize and still get the credit.

For example, one Treasury investigation found 500 claims for the credit were submitted by kids under four years of age!

Other audits have documented violations of rules against purchases of homes from relatives, and the requirement that purchasers must not have owned a principal residence any time during the preceding three years.

In other cases, investigators found that no purchase had taken place! The whole thing was a fraud.

This time around, the IRS plans to evaluate credit claims much closely, up front.

K. Harney

McLean, VA – Freddie Mac (NYSE:FRE) today released the results of its Primary Mortgage Market Survey® (PMMS®) in which the 30-year fixed-rate mortgage (FRM) averaged 4.98 percent with an average 0.7 point for the week ending November 5, 2009, down from last week when it averaged 5.03 percent. Last year at this time, the 30-year FRM averaged 6.20 percent.

The 15-year FRM this week averaged 4.40 percent with an average 0.6 point, down from last week when it averaged 4.46 percent. A year ago at this time, the 15-year FRM averaged 5.88 percent.

The five-year Treasury-indexed hybrid adjustable-rate mortgage (ARM) averaged 4.35 percent this week, with an average 0.6 point, down from last week when it averaged 4.42 percent. A year ago, the 5-year ARM averaged 6.19 percent.

The one-year Treasury-indexed ARM averaged 4.47 percent this week with an average 0.5 point, down from last week when it averaged 4.57 percent. At this time last year, the 1-year ARM averaged 5.25 percent.

"Mortgage rates fell back this week pulling interest rates on 30-year fixed mortgages under 5 percent," said Frank Nothaft, Freddie Mac vice president and chief economist. "Lower mortgage rates should help homeowners lower their monthly payments and feed the ongoing recovery in the housing market." For instance, the Federal Housing Finance Agency reported that Freddie Mac and Fannie Mae have financed more than 3.5 million refinance loans during the first nine months of 2009. Freddie Mac estimates that borrowers who refinanced their conventional loan during the third quarter reduced their interest rate by a median of 1.1 percentage points, which will save these borrowers an aggregate of $3 billion in mortgage payments over the next 12 months.

"Further, pending sales for existing homes rose for the eighth straight month in September to the strongest pace since December 2006, while spending on private residential construction jumped 3.9 percent and represented the largest gain since July 2003. In the third quarter of this year, residential fixed investment added almost a full percentage point to economic growth."

There is a lot of talk about foreclosures in the news today. One aspect of foreclosures that has received little attention is difference between a judicial state and a non-judicial state. A judicial state requires that a lender file a foreclosure action in the court system and get an order from a judge before the property goes to a foreclosure sale. This provides the opportunity for the homeowner to assert any claims against the lender he or she may have and allow a judge to make a determination before the homeowner loses the home.

Homeowners that do fight the foreclosure in the court system obtain a better result and have a much higher rate of success in obtaining loan modifications or other favorable outcomes. In the states that follow this protocol, lender abuse, misrepresentation, neglect and lack of oversight has been exposed. Florida is in the top four of the highest foreclosure rate in the country and is a judicial foreclosure state. The amount of lender wrong doing that been exposed in the clients we represent has been enormous. This abuse would have never been exposed if we did not have the ability to fight these cases in the court system.

However, not every state follows the judicial foreclosure model. In fact, the majority of the states does not require a judicial process at all, but instead follow what is termed a non-judicial foreclosure. In a non-judicial foreclosure state, the lender only has to put the borrower on notice as to the default in payments and schedule the sale in as little as 30 days in some states. This process does not give the homeowner the opportunity to assert claims against the lender before the property is taken. Unfortunately, for the thousands of homeowners that do have legitimate claims to assert against their lenders they are prevented from doing so before their property is taken. More importantly, lenders that have engaged in misconduct get off the hook without their bad behavior being exposed.

Most of the lender abuses occurred in states that are now the hardest hit in the country with foreclosures. The three other hardest hit states in the country for foreclosures are California, Nevada and Arizona. All three of these states are non-judicial and mortgage lenders have continued to avoid taking responsibility for their actions in these hard hit states. Therefore, homeowners that have been taken advantage of or lied to in these states currently have no way to assert their claims to a third party who can make an impartial ruling on those issues before their property is taken. That is a travesty and is my humble opinion un-American.

Another unfortunate aspect of the non-judicial process is a lack of oversight as to the implementation of the HAMP (Home Affordable Modification Program) passed by the Obama administration earlier this year. This program provides that if a lender is participating in the program and a homeowner qualifies the lender MUST approve the loan modification. Unfortunately, some of the criteria listed in order to qualify is a matter of opinion and can be debated. In a non-judicial state, if the lender tells the homeowner he or she does not qualify for it that is the end of it. There is no impartial third party that can make a determination as to whether the homeowner really qualifies. In a judicial state, the homeowner can assert this claim in the court system and the judge hearing the case can make this determination.

As a result of this injustice, Kaufman, Englett and Lynd, LLC (KEL Attorneys) is going to start taking cases in the State of California this month. We will be representing homeowners facing a foreclosure and filing a lawsuit as the Plaintiff against the lender in order to assert any claims the homeowner may have against the lender. We will immediately move for injunctive relief so the lender is prevented from proceeding with the foreclosure until the homeowners claims are heard by a judge. We will be filing in state court and federal court if necessary. In the next couple of months, KEL Attorneys will also be going into Nevada and Arizona as well. Lenders should not be able to steam roll homeowners in foreclosures actions without the opportunity to be heard by a fair and impartial third party. We at KEL Attorneys will do everything in our power to make sure this most fundamental right is not denied.

M. Englett

The legislation also would extend the $8,000 homebuyer tax credit to contracts signed by April 30 and closed by June 30. The controversial credit, which many say has boosted home sales in recent months, was set to expire after Nov. 30.

The Senate's bill also created a $6,500 credit for those who buy a home after owning one for the last five years. That measure would apply to contracts signed by April 30 and closed by June 30. The current credit defines a first-time homebuyer as someone who has not owned a residence within the past three years.

The Senate bill would raise the adjusted gross income cap to $125,000 for single filers and $225,000 for joint filers. The amount of the credit currently begins to phase out for taxpayers whose adjusted gross income is more than $75,000, or $150,000 for joint filers.

"It's gonna put people back to work, the home builders, put people in the real estate business," said Sen. Chris Dodd, D-Conn. "The kind of jobs that can make a difference."

The extension will cost $10.8 billion over 10 years, according to the Joint Committee on Taxation.

Through mid-September, 1.4 million tax returns had qualified for the credit, according to the IRS. Some portion of those returns, which the IRS couldn't specify, represents buyers who took advantage of an earlier version of the tax credit, which was only worth $7,500 and has to be repaid over time.

By the end of November, the credit will have been used by 1.8 million homebuyers, at least 355,000 of whom would not have bought a house without the tax break, according to estimates by the National Association of Realtors.

"The data on the present home buyer tax credit show that the credit has had its intended impact -- sales have jumped in recent months to a projected 5.1 million for the year and housing inventory has been trimmed, thus stabilizing home prices noticeably," said Ron Phipps, the association's first vice president, in Senate testimony last month.

The credit, however, has also posed many problems. Critics say it's a waste of money because most of those claiming the credit would have bought homes anyway.

It's also been the target of fraud. Some 74,000 people claimed more than $500 million in credits even though they may not be first-time homeowners, according to Treasury officials. And more than 580 children, including some as young as 4-years-old, have claimed the credit.

"Some key controls were missing to prevent an individual from erroneously or fraudulently claiming the Credit and receiving an erroneous refund of up to $8,000," said J. Russell George, Treasury inspector general for tax administration, before a House subcommittee last month.

CNN Radio Capitol Hill correspondent Lisa Desjardins contributed to this report.

If you look at the latest Case-Shiller home price index numbers, which showed prices up in seventeen of the twenty markets it tracks and the fourth straight month of gains, you'd have to say: wow, how things have changed!

Even the gloomiest of the major indexes is now documenting month after month that housing not only bottomed out earlier this year, but is steadily racking up price gains.

But hold on, this week's numbers get better than that: According to the National Association of Realtors, resales of existing homes jumped sharply last month, up a very robust 9.4 percent during September.

Sales around the country were 9.2 percent higher than they were during September of 2008 -- pushed this year by first-time home purchasers looking to nail down contracts to qualify for the $8,000 tax credit that's scheduled to end in less than four weeks.

Still more good news: Inventories of unsold homes fell just about everywhere, averaging about an eight month supply in September, down from a 9 month supply in August. A six to seven month supply is considered a balanced market … so we're almost there.

Add in mortgage rates averaging 5 percent for a 30 year fixed mortgage and four and a half percent for a 15 year loan, and you can see why applications for new loans to purchase houses were up by nearly five percent last week, according to the Mortgage Bankers Association's national survey.

And as icing on the cake -- GDP or gross domestic product -- the barometer measuring the nation's overall economic health -- grew by three and a half percent in the third quarter, thereby officially ending the "great recession" we've been suffering through for the past two years.

So absolutely, there's a lot of positive news out there this week.

But not all the news has been good. As we've said here at Realty Times before, the marketplace is complex -- and the arrows usually don't ALL point in one direction.

And that is certainly true this week: New home sales dropped unexpectedly by more than three and a half percent in September. And consumer confidence dropped for the second straight month, according to the Conference Board, mainly because of fears about continuing job losses.

Both of those are troubling developments, no question, and the unemployment situation is obviously a major drag on the economy and housing.

But, as the reports on prices, mortgage rates, GDP and existing home sales show -- there's plenty of action out there, and the housing recovery is well underway -- even if it sputters here and there.

K. Harney