February 2012 Housing Market Roundup

The National Association of Realtors (NAR) released some interesting information about last month (February 2012).  If you're wondering where the housing market is now, here are some little tidbits for you:

1)   33% of contracts to purchase real estate were canceled last month (for any reason).
2)   A third of homes that closed last month were bought by first-time homebuyers.
3)   23% of homes bought last month were bought by investors. 
4)   Home sales were up in the midwestern and in the southern regions of the country.
5)   The Northeast and West did not fare so well.  Home sales were down there. 
6)   The backlog of unsold homes went up another 4.3% last month.
7)   Foreclosures, short sales, and other distressed properties accounted for a third of properties sold last month. 

Let's hope that the spring and summer months bring better news!

Banks Can Collect Deficiency Judgments Without "Personal" Service on Mortgagors

In a recent case, Metrobank v. Cannatello, 2012 IL App (1st) 110529 (January 9, 2012) Cook Co., 1st Div., the court determined that a bank can collect a deficiency judgment from a mortgagor even if that mortgagor was not "personally" served. 

In this case, Metrobank's predecessor-in-interest lent Frank Cannatello approximately $190,000 in 2004.  At some point thereafter, Cannatello defaulted on his mortgage payments.  The bank filed a foreclosure suit and served Cannatello through abode service.  This means that when the sheriff went to serve Mr. Cannatello, Mr. Cannatello was not home.  However, another adult was at home, and the sheriff left the summons with that adult.  Cannatello never appeared in court, and a judgment of foreclosure was entered against him.  After the property was auctioned, the bank determined that there was a shortage of approximately $52,000.  The bank went to court to obtain a deficiency judgment against Mr. Cannatello, which the loan documentation allowed them to do. 

The trial court approved the sale at auction, but denied the deficiency judgment based on the Foreclosure Law(735 ILCS 5/15-1508(e) (West 2010)), which states that a deficiency judgment "may be entered, or enforcement had, only in cases where personal service has been had upon the persons personally liable for the mortgage indebtedness, unless they have entered their appearance in the foreclosure action."  Metrobank appealed.

On appeal, the court determined that in this case or in any similar situation, abode service could be considered appropriate personal service for a number of reasons.  For example, if abode service was not appropriate personal service, the result would be unjust,.  Moreover, such a result would not be consistent with legislative intent, and would therefore be inconsistent with the Foreclosure Law.  Additionally, legal definitions of personal service written prior to the Foreclosure Law encompassed abode service.

Metrobank therefore won on appeal and was entitled to collect the deficiency judgment from Mr. Cannatello.  It is interesting to note that Mr. Cannatello did not appear in this case at all, whether at trial or on appeal!

Protect Yourself From Mortgage Relief Scams

If you are a homeowner in financial distress, you may have received mailings and phone calls from companies purporting to help you negotiate a settlement or modification with your lender.  I have clients that have shown me letters that actually appear to come from the government, or from their lender, upon first inspection.  BE CAREFUL.  There are a lot of mortgage relief scams out there, and you don't want to be their prey.  The scams became so prevalent, in fact, that the FTC enacted a rule -- called the Mortgage Assistance Relief Services Rule (the "MARS Rule") in 2010.

Under the MARS Rule, you should be particularly careful when dealing with a NON-ATTORNEY for mortgage relief services, especially if:

1)  They request payment up front.
2)  They request payment from you before you have accepted the lender's offer.
3)  They do not provide a written explanation of how the lender's offer will change your current mortgage.
4)  They do not advise you that you may reject the offer WITHOUT incurring any charge from their company.
5)  They imply that they are affiliated with the government or with your lender, or that their services have been approved by your lender.
6)  They tell you that your loan modification is a "done deal", or that you are guaranteed to get approved.
7)  They advise you to stop making payments on your mortgage without advising you of a) the consequences to your credit; and b) that you may lose your home as a result.
8)  They tell you to stop communicating with your lender directly. 

Remember, you as a consumer have a right to stop doing business with any mortgage relief company at any time, without charge.

State and Cook County Partner to Buy and Sell Foreclosures

Last month the Governor announced that the state will be partnering with Cook County in a trial program aimed at stabilizing some of the neighborhoods that have been hardest hit by the recent rise in foreclosures and vacant properties.  The program, which is being funded by $40 million from the state and $10 million from Cook County, is intended to facilitate the purchase of vacant foreclosed homes.  The homes will then be renovated and sold at low interest rates.

If you qualify as a buyer under the program, you may get a $10,000 grant to be used toward your down payment and closing costs.  You will also receive financial counseling.  Any profits that are generated by the sale of the home to you will go back into the program to buy more vacant foreclosed property.

Currently six Cook County suburbs are participating -- Berwyn, Chicago Heights, Maywood, Park Forest, Riverdale, and South Holland.  These suburbs hope to diminish the number of vacant foreclosures on their tax rolls, thereby not only increasing the tax base, but making their communities more safe through the elimination of abandoned real estate.  Currently, the state estimates that 500 homes will be sold through this program.