Required Dates On FHA Amendatory Clause /Real Estate Certification

By
Mortgage and Lending with George Souto NMLS #65149 FHA, CHFA, VA Mortgages NMLS #65149
http://actvra.in/4QTv

FHA has recently clarified the Required Dates On FHA Amendatory Clause /Real Estate Certification Disclosure.  Up until this clarification FHA Amendatory Clause Forms were signed by the Borrower(s) at the time of the Mortgage Applications.  The form was then forwarded to the Borrower's Realtor for his or her signature, and then forwarded to the Listing Agent and Seller(s) to sign.  This will not be the process going forward.

The new FHA Handbook 4000.1 states the Amendatory Clause Form must be executed and signed on or before the date of the Purchase & Sales (P&S).  This means:

  • One more document Realtors/Agents are going to have the Buyer(s) sign with the P&S, or
  • Amened the P&S later with a new date, or
  • The Loan Originator is going to have to commit fraud by having the Borrower(s) back date the FHA Amendatory Clause /Real Estate Certification Disclosure to the date the P&S was signed by the Borrower.

I would say option #3 will not be an option Loan Originators will be willing to do.  So Realtors/Agents will need to make sure they have the Borrower & Seller sign this form at the time the Purchase and Sales Contract is executed.

I case anyone is not familiar with the FHA Amendatory Clause /Real Estate Certification Disclosure, it looks like the above form and contains two clauses both Buyers and Sellers have to sign.

1.  FHA Amendatory Clause:

"It is expressly agreed that notwithstanding any other provisions of this contract, the purchaser shall not be obligated to complete the purchase of the property described herein or to incur any penalty by forfeiture of earnest money deposits or otherwise, unless the purchaser has been given in accordance with HUD/FHA or VA requirements, a written statement by the Federal Housing Commissioner, Department of Veterans Affairs, or a Direct Endorsement lender setting forth the appraised value of the property of not less than $ _____________. The purchaser shall have the privilege and option of proceeding with consummation of the contract without regard to the amount of the appraised valuation. The appraised valuation is arrived at to determine the maximum mortgage the Department of Housing and Urban Development will insure. HUD does not warrant the value or the condition of the property. The purchaser should satisfy himself/herself that the price and condition of the property are acceptable."

 

2.  Real Estate Certification:

"We, the borrower, seller, and the selling real estate agent or broker involved in the sales transaction certify by our signatures below that the terms and conditions of the sales contract are true to the best of our knowledge and belief, and that any other agreement entered into by any of these parties in connection with this real estate transaction is part of, or attached to, the sales agreement."

 

The Real Estate Certification in addition to being signed by the Buyers and Sellers, also needs to be signed by both the Listing and Selling Realtor/Agent.

NOTE:

Falsifying this form is a Federal Crime punishable by fine, imprisonment or both to knowingly make any false statements concerning any of the above facts as applicable under the provision of Title 18, United States Code, Section 1012 and 1014.

Realtors/Agents should request their Loan Originators to provide them with a blank FHA Amendatory Clause Form, so they can submit with every offer they make which will require FHA financing.  For my Realtors I plan on both providing a blank FHA Amendatory Clause Form, as well as include one already filled with every FHA Pre-Qualification Letter I provide them with.

This new FHA clarification on the Required Dates On FHA Amendatory Clause /Real Estate Certification Disclosure is another example of how ridiculous some of the guideline in the Lending Industry are.  I fail to understand the logic for requiring this form to be signed on or before the Sales & Purchase Contract is executed.  The requirement should be for the FHA Amendatory Clause Disclosure to be signed at the time of the Mortgage Application, and leave the Required Dates On FHA Amendatory Clause /Real Estate Certification Disclosure as it has always been in the past.

 

 

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 Info about the author:

George Souto NMLS# 65149 is a Loan Originator who can assist you with all your #FHA, #CHFA, and #Conventional #mortgage needs in Connecticut. George resides in Middlesex County which includes #Middletown, #Middlefield, #Durham, #Cromwell, #Portland, #Higganum, #Haddam, #East Haddam,# Chester, #Deep River, and #Essex. George can be contacted at (860) 573-1308 or gsouto@mccuemortgage.com

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Rainmaker
3,483,301
Gabe Sanders
Real Estate of Florida specializing in Martin County Residential Homes, Condos and Land Sales - Stuart, FL
Stuart Florida Real Estate

Yikes!!  I don't understand the need for this, George.  What happens when a borrower switches to a FHA loan later in the process?  We now need to do a new contract?

Apr 19, 2016 09:23 PM #15
Rainmaker
2,882,697
Dorie Dillard
Coldwell Banker United Realtors® ~ 512.346.1799 - Austin, TX
Serving Buyers & Sellers in NW Austin Real Estate

Good morning George Souto ,

One more reason I don't like FHA loans! The government needs to be stream lining instead of adding more paper work..they are very good at this! This is covered in our real estate contracts..how redundant!

Apr 19, 2016 09:28 PM #16
Rainmaker
2,355,832
Evelyn Johnston
Friends & Neighbors Real Estate - Elkhart, IN
The People You Know, Like and Trust!

One thing you can count on, FHA will periodicly change the rules.

Apr 19, 2016 10:01 PM #17
Rainmaker
2,793,238
Joan Cox
Metro Brokers - House to Home, Inc. - Denver Real Estate - 720-231-6373 - Denver, CO
Denver Real Estate - Selling One Home at a Time

George, this will be like the Lead Based Paint addendum, more paper to get signed with the offer!  Thanks for the heads up!  

Apr 19, 2016 10:34 PM #18
Rainmaker
2,131,753
Tony and Suzanne Marriott, Associate Brokers
Haven Express @ Keller Williams Arizona Realty - Scottsdale, AZ
Serving Scottsdale, Phoenix and Maricopa County AZ

Interesting George Souto  .  Our (Haven Express) Addendum has language which requires a purchaser to give the Seller the opportunity to accomodate the appraised value before the purchaser can cancel...will have to see how this plays out.  The good news is that we'll no longer be faced with requests to add this language in an Addendum some time after the original contract is signed by all parties. Re-Blog!

Apr 19, 2016 10:47 PM #19
Rainer
229,050
Mark Robinson
Geneva Financial, LLC - Beachwood, NJ
Honesty, Integrity, Service

Good post!

I never had it signed before the contract date but when my Realtor partners put in an offer I supply it. Contracts have a clause but FHA requires precise verbiage which is not always in standard contracts. 

Apr 20, 2016 12:13 AM #20
Rainmaker
586,759
Carol Williams
U.S.: I specialize in helping agents who have been in the business 2 years or less create a thriving business. - Wenatchee, WA
"Customized Mentoring & Marketing Services"

Hi George,
I've been out of "selling" for about 4 years and, frankly, I'm glad not to have to keep up with this kind of stuff anymore.  Good info, though.  Thanks for the post.  

Apr 20, 2016 12:32 AM #21
Rainmaker
589,946
Bill Roberts
Brooks and Dunphy Real Estate - Oceanside, CA
"Baby Boomer" Retirement Planner

OK George Souto and John Meussner There will be no changing horses in the middle of the stream. If you want FHA you need to do it from the gitgo.

If you decide later to do FHA, you need to cancel and start over.

Bill Roberts

Apr 20, 2016 12:43 AM #22
Rainmaker
363,582
Bruce Hicks
Best Homes Hawaii - Honolulu, HI
Your Lifetime Friend/Helper!

With TRIDS and CFPB, FHA, FNMA etc, it's a never ending change scene.  Thanks for the reminder George Souto .

Apr 20, 2016 01:26 AM #23
Rainer
7,100
david murphy
nation wide realty llc - Las Vegas, NV
nation wide Agent las vegas

george what is the dollar amount to be used on that form?

Apr 20, 2016 06:50 AM #24
Rainmaker
2,029,920
Joe Petrowsky
Mortgage Consultant, Right Trac Financial Group, Inc. NMLS # 2709 - Manchester, CT
Your Mortgage Consultant for Life

Nice job getting the information out, you always do such a great job with sharing with all of us.

Glad the post was featured.

Apr 20, 2016 07:15 AM #25
Rainmaker
790,138
Barbara Altieri
RealtyQuest, Fairfield and New Haven County CT Real Estate - Shelton, CT
REALTOR-Fairfield County CT Homes/Condos For Sale

Thanks for the heads up, George. I like that you are including the form with your Pre-qual letters. Being proactive is so smart to avoid unnecessary delays/issues down the road.

Apr 20, 2016 10:16 AM #26
Rainmaker
1,025,702
Sharon Parisi
Keller Williams Dallas Premier Realty - Dallas, TX
Dallas Homes

George,  I have bookmarked this post to better explain the details to buyers.

Apr 20, 2016 01:17 PM #27
Rainmaker
664,239
Bruce Walter
Keller Williams Realty Lafayette/West Lafayette, Indiana - West Lafayette, IN

George, this is great information!  Is the new interpretation in effect right now?

 

Apr 21, 2016 04:05 AM #28
Rainmaker
1,427,136
Gene Riemenschneider
Home Point Real Estate - Brentwood, CA
Turning Houses into Homes

Although I think we all want to give as much good advise, warning, and disclosure as possible.  Sadly there is so much of it it gets ignored.  These become just another form to get out of the way. The increasing complexity of loans in general, the criminalization of almost every failure, and sever penalties for even minor mistakes is about a government out of control and an attack on business and freedom.

Apr 21, 2016 04:28 AM #29
Rainmaker
1,062,289
Mary Yonkers
Alan Kells School of Real Estate/Howard Hanna Real Estate - Erie, PA
Erie/PA Real Estate Instructor

George Souto Thanks for keeping us informed of changes.  No one wants to commit fraud.  I know I don't and don't want anyone else in trouble either.

Apr 21, 2016 06:42 AM #30
Ambassador
1,595,318
Jennifer Fivelsdal
JFIVE Home Realty LLC | 845-758-6842|162 Deer Run Rd Red Hook NY 12571 - Rhinebeck, NY
Mid Hudson Valley real estate connection

George it is frustrating that a new contract would have to be done  if in midstream the buyer switch to FHA.

Apr 22, 2016 03:52 PM #31
Rainer
47,825
Terry Kraemer
Exceed Realty - Houston, TX
Houston Realtor

Good information to know.  But I agree with some above that said just one more thing to add bureaucratic red tape.  Seems like every time somebody sues claiming they didn't know and wasn't informed, the higher ups that make decisions think adding another document is going to fix the problem.  When all it does is add to the problems.  it's like adding Caution this cup is Hot!  when you buy a cup of hot coffee.  We keep catering to the masses, they will keep finding things to be catered more.... Felling a bit jaded today...

Apr 24, 2016 02:36 AM #32
Rainer
279,232
Jana Holmstrup
Jana Holmstrup - VP Ops - Kings Mortgage Services, Inc. - Visalia, CA

Hi George,

When I first read this I had to bookmark because it was news to me.  Finally had a chance to research and the new 4000.1 states that the sales contract would need to be amended prior to closing to include the amendatory clause.

Where did you get the "prior to signing contract" info from?

May 03, 2016 02:58 AM #33
Rainer
1,225
andy smith
kot35 - Medford, MA
de

DE- Underwiter here. This is an incorrect interpretation of the guideline. Please call HUD for confirmation, but all the gideline states is: 

If the Borrower does not receive form HUD-92800.5B, Conditional Commitment Direct Endorsement Statement of Appraised Value, before signing the sales contract, the sales contract must be amended before closing to include an amendatory clause that contains the following language:

 

4000.1 does not specify anywhere a date requirement, this interpretation causes unecessary confusion and work. Provided the AC/REC is in file and executed by all parties, its date is irrelevant. Please revise this post as it negatively affects the work of many professionals. All others are strongly encouraged to call HUD at 1800-call-FHA before requesting such changes to the document.

 

4000.1 can be found here http://portal.hud.gov/hudportal/documents/huddoc?id=40001HSGH.pdf. Guideline in question is in page 129.

Sep 26, 2016 05:33 AM #34
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