Why it Never Makes Business Sense For a Bank to Foreclose on an Owner Occupied Home

I believe that in the current housing and economic environment (with declining home values nationwide) it never makes economic sense for a Bank/Servicer to foreclosure on an owner occupied home. In a declining home price environment, a foreclosure is always the least attractive option for a Bank economically, as the time and cost of foreclosure result in lower economic returns compared to other pre-foreclosure options. As a result, I believe we can successfully and rightfully place a temporary nationwide foreclosure moratorium on homes occupied by cooperative owners/borrowers - if we design such a moratorium right and support it with appropriate private sector initiatives.

A foreclosure should only be necessary if and when the borrower (individual or family) doesn't return the Bank's phone calls or respond to the Bank's letters and is otherwise uncooperative on the issue of how to address their housing costs and reality in a way that is sustainable for them and the Bank longer term. This in my mind is a key concept: the goal of all foreclosure prevention initiatives should be to adapt the borrowers economic reality with their housing reality.

In simple terms, here's how we can avoid foreclosures in a way that is consistent with good business and good policy:

1. Loan modifications to make housing costs affordable: Maximize the number of borrowers whose loan is modified such that their housing costs are consistent, on a go forward term basis, with their go forward monthly income. The Obama administration has announced several initiatives to expand current loan modification programs to help achieve this goal.

However, loan modification cannot work for everyone. If an individual's earnings are down a lot with no immediate prospect of returning to previous higher levels (which is the case for many people in the housing, real estate and mortgage sectors)...then they really cannot afford to stay where they currently are. For example, if a realtor previously earned $500,000 per year and is living in a $3 million dollar home but is now only making $100,000 per year then loan modification just isn't an option for them. A different solution is required.

2. Servicer assisted short sales: For every individual who does not qualify for a loan modification, a servicer assisted short sale should be pursued right at the point the loan modification decision is made. In a servicer assisted short sale, the (troubled) borrower works with the servicer as a partner instead of adversary. The home is sold for market value, the difference between the amount of the home sale proceeds and the loan amount is forgiven (and current law waives any tax liability associated with this forgiven amount), and the servicer can even afford to pay the borrower to help make their move to more affordable housing smooth, graceful and respectful.

This type of short sale program is and should be the industry standard - and I and HausAngeles are enthusiastically working with a leading servicer to pilot and refine this program in Los Angeles (so it can quickly be rolled out nationwide).

The above foreclosure prevention strategy - implemented in a coordinated and well communicated manner - can effectively eliminate foreclosures for all cooperative troubled borrowers while actually reducing servicer/Bank losses on these troubled assets.

Can doing the right thing be good business? On the issue of owner occupied foreclosures I believe the answer is yes - as long as all parties are polite, respectful and realistic.

Disclaimer: This blog is not intended to provide legal or tax advice to anyone and merely reflects my personal understanding and opinions on this issue. Individuals should consult with their tax advisor before taking any action based on the above.