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Real Estate Finance: Understanding the Laws and Contracts Governing Mortgages - Prof. Thom, Study notes of Real Estate Management

An in-depth exploration of various aspects of real estate finance, focusing on the legal framework and contracts surrounding mortgage loans. Topics include the effects of mortgage debt, elements of a mortgage loan, note and mortgage details, payments, and the note's other terms. Additionally, it covers what happens when things go wrong, such as default, nonforeclosure responses, and foreclosure.

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Pre 2010

Uploaded on 07/30/2009

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Copyright ©2008 by the McGraw-Hill Companies, Inc. All rights reserved.
McGraw-Hill/Irwin
Professor Thomson
Fin 3433
Chapter 10
Professor Thomson
Fin 3433
Chapter 10
Real Estate
Finance:
The Laws and
Contracts
Real Estate
Finance:
The Laws and
Contracts
10-2
Some Effects of Mortgage Debt
More households can own their home
Businesses can use their cash for core
activities
Investors can leverage and diversify
investments
Homeowners can obtain credit on better
terms than consumer debt (home equity
credit lines)
Tax favored
Longer term
Lower interest rate
10-3
Two Elements of a
Mortgage Loan
Note: Exact terms of the financial
obligation
Mortgage: Pledges the property as
security for the note
10-4
The Note – Interest Rates
Fixed rate
365-day interest (daily rate is 1/365 of annual
rate; contrasts with commercial mortgage
loans at 360-day interest
Monthly charge is 1/12 of stated annual rate
Adjustable rate
Index rate: Market-determined rate beyond
control of either borrower or lender
U.S. Treasury Constant Maturity Rate
Thrift institution Cost of Funds Index
LIBOR
Home mortgage rate index
10-5
The Note – Interest Rates (continued)
Adjustable rate (continued)
Margin: Lender’s markup
200 to 300 basis points (bp)
Average is extremely stable at 277 - 278 bp
Change Date: Date that interest rate changes
each time
New index rate commonly is the last published rate
45 days, for example, before the change date
Teaser rate: Initial, temporarily reduced interest
rate
10-6
The Note – Interest Rates (continued)
Adjustable rate (continued)
Interest rate caps: Limit on changes in interest
rate charged
Periodic
Lifetime
Important question: Does cap apply to the teaser
rate?
Payment caps: Limit on payment changes
rather than interest rate changes
Can result in negative amortization: Unpaid interest
added to the balance
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McGraw-Hill/Irwin Copyright © 2008 by the McGraw-Hill Companies, Inc. All rights reserved.

Professor Thomson

Fin 3433

Chapter 10

Professor Thomson

Fin 3433

Chapter 10

Real Estate Finance:

The Laws and Contracts

Real Estate Finance:

The Laws and Contracts

10-

Some Effects of Mortgage Debt

ƒ More households can own their home ƒ Businesses can use their cash for core activities ƒ Investors can leverage and diversify investments ƒ Homeowners can obtain credit on better terms than consumer debt (home equity credit lines)

  • Tax favored
  • Longer term
  • Lower interest rate

10-

Two Elements of a

Mortgage Loan

ƒ Note: Exact terms of the financial

obligation

ƒ Mortgage: Pledges the property as

security for the note

10-

The Note – Interest Rates

ƒ Fixed rate

  • 365-day interest (daily rate is 1/365 of annual rate; contrasts with commercial mortgage loans at 360-day interest
  • Monthly charge is 1/12 of stated annual rate ƒ Adjustable rate
  • Index rate: Market-determined rate beyond control of either borrower or lender
  • U.S. Treasury Constant Maturity Rate
  • Thrift institution Cost of Funds Index
  • LIBOR
  • Home mortgage rate index

10-

The Note – Interest Rates (continued)

ƒ Adjustable rate (continued)

  • Margin: Lender’s markup
    • 200 to 300 basis points (bp)
    • Average is extremely stable at 277 - 278 bp
  • Change Date: Date that interest rate changes each time - New index rate commonly is the last published rate 45 days, for example, before the change date
  • Teaser rate: Initial, temporarily reduced interest rate

10-

The Note – Interest Rates (continued)

ƒ Adjustable rate (continued)

  • Interest rate caps: Limit on changes in interest rate charged - Periodic - Lifetime - Important question: Does cap apply to the teaser rate?
  • Payment caps: Limit on payment changes rather than interest rate changes - Can result in negative amortization: Unpaid interest added to the balance

10-

Payments

ƒ Always in arrears (end of month) ƒ Virtually always monthly ƒ Various arrangements for fixed-rate loan:

  • Level payment
  • Partially amortized (term for amortization, term to maturity, balloon loan)
  • Interest only nonamortizing; s ometimes called a “bullet” loan
  • Negative amortization

10-

10-9 10-

The Note: Right of Prepayment

ƒ Traditional: No right of prepayment

unless explicitly provided

ƒ Modern statutory case: Right of

prepayment unless explicitly

prohibited

ƒ Loans with right of prepayment:

  • All “conforming” and FHA/VA loans
  • Home equity credit lines

10-

The Note: Right of

Prepayment (continued)

ƒ Loans with restricted right of

prepayment:

  • Subprime home loans
  • “Jumbo” home loans
  • Most income property mortgage loans

ƒ Prepayment penalties (percentage of

outstanding balance; yield

maintenance; defeasance)

10-

The Note: Right of

Prepayment (continued)

ƒ Loans with restricted right of

prepayment:

  • Subprime home loans
  • “Jumbo” home loans
  • Most income property mortgage loans

ƒ Prepayment penalties

  • Percentage of outstanding balance
  • Yield maintenance
  • Defeasance

10-

Foreclosure

ƒ Legal process of terminating all claims of ownership and all liens inferior to foreclosing lien

  • Risk of failing to notify a claimant
  • Presence of superior liens
  • Costly and time consuming
  • Distressed sale ƒ Importance of lien priority ƒ Recourses of the defaulted mortgagor
  • Equity of redemption
  • Statutory right of redemption 10-

More Foreclosure (continued)

ƒ Deficiency judgment: Judgment against mortgagor for unrecovered balance

  • Example:
    • Net foreclosure auction price: $100,
    • Remaining loan balance: $120,
    • Deficiency judgment: $20, ƒ Judicial foreclosure vs. power of sale
  • Judicial foreclosure: Court-administered public auction
  • Power of sale: Public auction conducted by trustee or mortgagee (preferred by lenders)

10-

Power of Sale States

MassachusettsRhode Island New Hampshire

West Virginia (^) D.C. Virginia

Maryland

Georgia Alabama Mississippi

Hawaii

Alaska

Tennessee

Michigan

Minnesota South Dakota

Washington Idaho Wyoming

Oregon

Nevada California Arizona Texas

North Carolina

Missouri Oklahoma

Montana

Colorado Arkansas

Wisconsin

10-

Bankruptcy

ƒ Possible threat to lender’s ability to foreclose ƒ Three forms of bankruptcy

  • Chapter 7: Liquidation
  • Chapter 11: Court supervised “workout”
  • Chapter 13: Wage-earner’s proceeding ƒ No form of bankruptcy can set aside a mortgage lien ƒ Chapters 11 and 13 can result in delays ƒ Soldiers and Sailors Relief Act of 1940

10-

Acquiring Property with

Existing Debt

ƒ “Subject to” borrower does not sign

mortgage note

  • No personal liability for mortgage loan
  • Property still is subject to the mortgage

ƒ Assumption: Buyer adds signature to

note

  • Personal liability for loan
  • Property subject to mortgage

10-

Debt without a Mortgage

10-

Laws Regulating Home

Mortgage Lending

ƒ Equal Credit Opportunity Act ƒ Federal Truth-in-Lending Act (TILA) ƒ Real Estate Settlement Procedures Act (RESPA) ƒ Other laws

  • Home Ownership and Equity Protection Act
  • Home Mortgage Disclosure Act
  • Community Reinvestment Act

10-

Equal Credit Opportunity Act

ƒ Race

ƒ Color

ƒ Religion

ƒ National Origin

ƒ Sex

ƒ Marital Status

ƒ Age

ƒ Source of income

(public

assistance or

part time)

Prohibits discrimination in lending by:

10-

Federal Truth-in-Lending

Act (TILA)

ƒ Statement of Annual Percentage Rate (APR)

  • Cost of borrowing
  • Computed as yield to maturity ƒ Disclosures:
  • Demand clause
  • Assumability
  • Variable rate
  • Late charges
  • Prepayment charge ƒ Right of rescission for 3 days for non-purchase, non-business home mortgage loans 10-

Real Estate Settlement

Procedures Act (RESPA)

ƒ Applies to almost all standard home mortgage loans ƒ Requires:

  • Standard format closing statement (HUD-1)
  • Presentation of HUD booklet explaining HUD-
  • Good-faith estimate of closing costs within 3 days of applying
  • Closing statement (HUD-1) available for inspection 24 hours before closing
  • Prohibits kickbacks from closing service vendors

10-

Other Laws Regulating Home

Mortgage Lending

ƒ Home Ownership and Equity Protection Act

  • Targeted at abuses in subprime lending
  • Subprime: Loan to a borrower not qualifying for standard “prime” financing
  • Level of APR triggers certain requirements
    • Disclosure of fees
    • Prepayment fee for only 3 years
    • No balloon payment for 5 years
    • No negative amortization
    • No pattern of lending to households with inadequate income ƒ Home Mortgage disclosure Act ƒ Community Reinvestment Act McGraw-Hill/Irwin Copyright © 2008 by the McGraw-Hill Companies, Inc. All rights reserved.

End of Chapter 10

End of Chapter 10