Today It Begins

This afternoon, my firm initiated the first Condo Termination in the State of Florida since the 2007 legal requirements revisions at a 44 unit multi-family condominium complex in Margate, Florida.

The waiting period before a condo can ratify a Plan of Termination through a Special Meeting is two weeks.  Our vote is going to be held at the Trustees office on June 9th at 9 am.  After the Plan is ratified, and recorded, the Condo Association will continue to exist, but building will be deeded to a Condo Termination Trust managed as a special purpose entity by Condo Terminators and Howard W. Mazloff, Esq. an experienced real estate attorney.

Condo Termination Benefits Everyone

The Florida condominium statute provides an orderly process to terminate failed condos and revert them into apartment buildings with single owners. Condo Termination has the potential to produce positive outcomes for local governments and the Florida Condo market as a whole. Local governments are facing eroding tax bases due to mass cascading failure of the Florida condo market. The market for condominiums in Florida is oversupplied with liquidation priced condo units. Removal of failing condos from the housing stock will ultimately speed the recovery process in the Florida condominium market. Communities face a wave of decaying multi-family housing projects and "investor hotel" condos without adequate cash reserves and looming deferred maintenance. Condo associations all over the state lacking insurance, reserves with high levels of negative equity should be removed through Condo Termination, soon.

Local governments, school boards rely on property taxes for their operating budgets and to pay debt service. The Florida Constitution requires that this local tax money is set aside for the exclusive use of counties. With the implosion of thousands of condominium unit values, local tax bases are shrinking faster than budget predictions. When a few units inside the project sell at liquidation prices, and financing is frozen, local tax assessors have little choice but to write down values for the entire project. The net effect is raising property tax millage rates across the board. Single family homeowners with lower absolute value depreciation will feel the squeeze, while condo investors get the tax break from lower assessments. County governments will still be forced to cut back on services due tax base erosion, while homeowners will feel the squeeze of higher proportional taxation on their depreciated homes. Condo Termination will allow multi-family housing to be assessed at the leased income value, which is higher than market value where condo prices have crashed.

There's no mechanism to transfer distressed units to new end users without abundant financing. Agency and Government lending authorities place financing restrictions on projects that are largely investor held. Financing for fractured condos still poses tremendous challenges for developers with inventory and investors alike. Investors are weary of lending into or buying into condos due to the potential for sharply rising HOA dues or potential Special Assessments. Condo bulk buyers face the potential of developer's liability buying as few as 7 units. Condo Termination will reduce inventory quickly without requiring thousands of loan workouts and new loans in a tight credit market.

Local economies benefit by the maintenance and repair cycles in multi-family housing. The Florida condo market has a vast supply of Class B and C condominium units where rentals once existed. Healthy condo associations set aside hundreds of thousands of dollars over the course of years for the purpose of replacing roofs, aging plumbing, and improving electrical and/or fire systems. Like apartment buildings, condos require regular maintenance and periodic replacement of major components. Many projects near the end of their economically useful lives were sold to condominium converters and sold to end users with a few engineering reports, limited reserves and abundant financing. Lacking sufficient operating funds, these condos have limited or depleted reserves. Deferring maintenance will further reinforce the negative cycle condos are experiencing. Condo Termination will invite value seeking investors to purchase failed condos in need of repair, creating jobs and helping local economies.

Many new communities were launched with unsound footing and inadequate reserves during the recent real estate boom. Condo Termination will reverse eroding tax bases in the Florida condo market by removing liquidation priced units. It will reduce inventory quickly, without thousands of bank transactions when negative equity is drowning communities. The recovery process will accelerate with lower inventories and establishing criteria for communities that are failed. Apartment house maintenance will be performed by value seeking investors after Condo Termination, which will stimulate local economies and maintain high quality of housing stock. Ultimately, I believe that up to 15% of the post 2003 condominiums developed statewide in Florida could be legitimate candidates for Condo Termination in the course of the next 5 years.

Miami Condo Developer Kicked Around by Northern Trust

Often banks cause the very problems they seek to avoid by their pre-emptive strikes against developers who borrow to build. Northern Trust bank is not your typical real estate lender, but made a special exception to lend money to a long time client, Developer Mario Egozi.

After the project's completion, the bank spent over a year refusing to allow changes to the developer's business plan, nor support his efforts to obtain condo certification from Fannie Mae, nor the FHA.

Developer alleges Helms-Burton Act violation - South Florida Business Journal by Paul Brinkmann

excerpts from story published in the South Florida Business Journal on May 8th, 2010

Mario Egozi, the Cuban-born developer of a $24 million luxury condominium in North Bay Village, is citing the controversial Helms-Burton Act in a legal battle to fend off a foreclosure lawsuit by a development group with past connections to a resort in Cayo Coco, Cuba.

Egozi, 52, worked primarily as an architect rehabbing upscale homes in New York until 2005, when he convinced his longtime family bank, Northern Trust Bank, to provide a $16.9 million construction loan for his dream project, the 16-story Cielo on the Bay. But Northern Trust sold the loan last year to a company called 7835 NBV LLC, some of whose principals are affiliated with French-Canadian real estate firm Thibault Messier Savard & Associates. At least one member of that firm, professional hockey legend Serge Savard, was also involved in tourism development in Cuba several years ago.

That connection with Castro’s government should disqualify the new owner from doing business in the U.S., Egozi alleges. An attorney for 7835 NBV disputes Egozi’s allegations; the case is now before a bankruptcy judge in Miami. Egozi is stung by Northern Trust’s decision to sell the loan. In an e-mailed statement, attorneys for 7935 NBV denied that the company was in violation of the Helms-Burton Act. “Neither 7935 NBV nor its members have conducted business with the government of Cuba,” said Jose Casal, a litigation partner with Holland & Knight. “A separate foreign entity indirectly related to one of the investors of 7935 NBV’s owner held an interest in a joint venture with other foreign investors who invested in a hotel project in Cuba.”

Egozi has alleged that Northern Trust breached its fiduciary duty to him by suggesting midway through the project that he pledge $3.5 million to cover his personal guarantee, then walking away from the project. Cielo on the Bay includes 35 units originally priced from $750,000 to $1.8 million.

The building is considered a top-flight luxury condo with incredible views, said Grant Stern, a mortgage broker at Morningside Mortgage. “Northern Trust didn’t work with Mario, they just kicked him around,” Stern said. “Northern Trust Bank was always such a chi-chi service-oriented bank that took care of long-term customers,” Percal said. “But the bank was very aggressive and self-centered here.” On a recent balmy day, Egozi glanced up at the building, and said: “I was prepared to walk away with the loss of equity, but there was this pledged collateral also. What I am hoping for now is that they will leave me alone and let me do my project."

FHA Busts Red Tape, More Lender Responsibility

Obama's Federal Housing Administration cut red tape, and eliminated one of the least useful and most arduous processes for small businesses who wish to do business with the Federal Government. The direct link to FHA's final rule

Mortgage Insurer Turns to Lenders to Police Brokers by Nick Timiraos

excerpts from story published in the Wall Street Journal on May 8th, 2010

The Federal Housing Administration, the government agency that insures a bigger and bigger portion of home loans, plans to rely more heavily on lenders to police mortgage brokers.

The changes will put more of the onus on lenders to make sure there is no fraud or faulty underwriting in the loans they fund, and less on the FHA. The lenders could be held liable for losses if a loan insured by the FHA goes bad and there are signs of fraud or mistakes in the underwriting.

...the number of brokers approved to arrange FHA-backed loans swelled to 9,043 at the end of 2009, from 5,759 two years earlier. The FHA has required mortgage brokers to submit an annual audit to the agency and to maintain a $63,000 net worth. It also tracks the performance of brokers' loans.

...Under changes set to take effect May 20, the FHA will stop certifying mortgage brokers or tracking the individual performance of loans that they originate. Instead, it will require lenders to sponsor brokers and to assume responsibility for those loans, including losses from fraud or poorly underwritten loans, such as those in which the income stated on a loan application doesn't match accompanying financial documents.

Mortgage brokers have borne the brunt of blame for bad loans made during the housing bubble, and lenders have become more wary of dealing with them as a result.

The National Association of Mortgage Brokers generally supports the FHA's changes. Grant Stern, president of Miami brokerage Morningside Mortgage Corp., said they represented a "huge cut in red tape" that should produce better rates for consumers.

Why? Why would this produce a consumer benefit?

Mortgage lenders do not disclose to consumers the payments they receive for originating and then selling loans (service release premium" and yield spread premium) to GNMA, the secondary market maker for FHA insured loans. However, most investors reasonably know before closing what those premiums will be through the Rate Lock process - and many banks offer Rate Lock guarantees to their customers. The prior reasoning for non-disclosure is that banks couldn't know for certain how much they would earn upon sale - implying some rate risk. Some lenders do in fact have rate risk, but no loan correspondents would have rate risk.

Ginnie Mae (GNMA) performs the Mortgage Backed Security sales function of Fannie/Freddie but doesn't issue underwriting guidelines or portfolio loans. (a possible future model for the GSEs I would add)

Mortgage brokers must disclose to consumers any yield spread premiums earned - and have for some time - that are earned from lenders as a result of raising the loan's interest rate to obtain a bank payment.

FHA Loan Correspondents under the mini-eagle program acted like mortgage brokers, but probably table funded (the lender makes the loan with the lender's and immediately assigns the loan to the lender over the table) most of their loans, to gain the ablility to hide their Yield Spread premiums and so be noted as the lender of record on the mortgage itself and avoid disclosure.

Yield spread premiums are significantly higher for FHA insured loans, nearly 100 bps above agency premiums - which indicates that the market IS paying Originators a premium for insured loans. If you take a look at the Agency vs. FHA "loan level price adjustments", you'd see that the GSEs are paying substantially less to buy loans than FHA investors, which translates into higher payouts to originators for lower rates with FHA. Yet, FHA average rates are far higher than the Freddy Mac Weekly rate survey.

To give a couple of simple scenarios:

a) A First time homebuyer (FTHB) with a 680 credit score putting down 3.5% with a $100,000 FHA insured loan at 5.5% rate would give an originator's YSP of 4% or $4000 for originating the loan. Imagining that you have the same FTHB in a market with Private Mortgage Insurance available (let's imagine we're in Texas) and the borrower is getting a 95% LTV Fannie Mae loan: $2438

b) A First time homebuyer with a 680 credit score putting down 20% with a $100,000 FHA insured loan at 5.5% rate would give an originator's YSP of 4% or $4000 for originating the loan. Imagining that you have the same FTHB and the borrower is getting a 80% LTV Fannie Mae loan: $3188

The FHA loan carries an Up Front Financed Mortgage Insurance Premium of 2.25% currently (up from 1.75%) which the PMI loan lacks, but still, you can see why the interest rates on FHA loans have been higher, banks simply make more money writing them higher. If you don't have to tell anyone how much money you're making, and everyone is charging higher rates - then you charge the higher rate to make more money, regardless of the best interests of the consumer.

The GSE loans have so much more competition that banks and lenders simply can't act that way, since they'll lose market share to lower interest rate providers. There's a lot of premium built into the FHA loans that is being earned by FHA approved loan correspondents and not disclosed to consumers. Allowing more outlets to market these loans and outlets that have stronger consumer disclosures of the origination premiums should lower rates.

It's an important story in the housing finance markets that FHA rates could trend sideways or lower as mortgage rates rise due to this important procedural change. The FHA is really pushing for a more efficient market for its loans and reducing red tape! I'd say this is news considering that public perception might be strangely the opposite.

Postlude: To my loyal readers, I offer an apology for leaving a large gap in recent posts, but with the coming of the Summer, arrives the coming of a great many new posts to this blog.

FHA Raises Insurance Premiums and Credit Standards

The Federal Housing Administration (FHA) announced today that the government wants better credit quality from its low down payment buyers, as well as higher up-front premiums to be paid by all new borrowers who participate in it's Mortgage Insurance Program. In addition, the FHA commissioner David Stevens announced that "seller concessions" - the practice of sellers enticing buyers using the proceeds of realty sales to subsidize buyer's closing costs - would be halved from 6% of the purchase price to 3% after the comment period expires during the summer. The push by President Obama's appointees to modernize the FHA programs and guidelines is focused on averting the kind of loss making claims explosion experienced by the FHA insurance fund during the 1970s.

The credit change to restrict borrowers who have FICO scores of 580 from borrowing more than 90% of the purchase price of a home is not surprising. The minimum down payment on FHA loans currently stands at 3.5% of the value of the purchase. The FHA's rules and regulations were written prior to the wide adoption of the FICO score. The broad use of the FICO credit scoring system was adopted universally during the late 1980s but truly blossomed during the real estate boom, then bust of the 2000s, when lenders went so far as to issue loans solely based on collateral and FICO scores.

Raising the Upfront Financed Mortgage Insurance Premium (UFMIP) from 1.75% to 2.25% increases the costs to borrow for all new FHA loans immediately. The UFMIP is paid by every borrower regardless of down payment, the fee is added to the balance of all FHA insured loans at closing. The borrower pays the fee over 30 years or when the FHA loan is paid off in full. Today's announcement specified that this UFMIP change was a prelude to making a risk-based Mortgage Insurance Program fee scale - which will require legislation to accomplish. The Secretary announced that he will seek a change that will redistribute the UFMIP fees to borrowers with higher risks due to lower equity contributions or lower credit scores.

The reduction in sales concessions from 6% to 3% to pay closing costs, aka the "seller kickback", is aimed at raising borrower's equity ratios in their homes. Government Sponsored Agency loan programs only allow sales concessions greater than 3% when borrowers have 20% down payments. Modern FHA lenders receive generous premiums for issuing insured loans, and the need for 6% of a sales price towards closing costs provided more opportunity to send money to intermediaries, than pay for actual borrowing costs.

The Obama Administration's push to modernize the FHA's programs while their market share explodes has been handled evenly during the last year. The changes are in line with the market's expectations for prudent lending. The FHA's new set of policies should ensure that risk premiums are paid sufficiently to cover losses, as well as to discourage risky real estate transactions at the fringes. High risk loans may account for a small percentage of the insured pool, but likely represent a large percentage of un-reimbursed losses to the government.

Week in Review

Wow! Three publications in a three day week! It's always great to give a little more commentary since a news interview might last 30-45 minutes and consist of several emails, but all you see in print is 1 or 2 sentences....

Priced to sell: South Florida housing market shows signs of life - Business - MiamiHerald.com by Monica Hatcher

"The market for so-called jumbo loans, or those worth more than $423,750 in South Florida, dried up more than two years ago, said mortgage broker Grant Stern."

Absolutely, the return of the Miami housing market is helping spur sales, along with the Federal tax credit for first time buyers. What's really aiding in the process too is low interest rates combined with prices that are affordable. The median home is selling for around 3 times the median household income. This is a welcome improvement from the 6 times income pricing of just a few years ago...

However, the mid-market homes in the $400-1,000k price range are lagging on the market, well beyond marketing times for homes priced under $300,000. Part of this has to do with the income curve required to purchase more expensive homes - there are fewer people with the earning power to acquire larger homes in fancier locales.

But deeper down, the mid to high end market is truly paralyzed by the lack of financing opportunities when loan amounts grow north of $417,000 - which is the Fannie Mae national conforming limit. Fannie Mae is authorized to issue loans up to 125% of the median home price in 2007 - which means that in the Miami district, the maximum "Agency" loan is $423,750 - hardly a great improvement.

The secondary market to sell these "Jumbo" or "Non-Conforming" loans crashed horribly in the summer of 2007 along with the private secondary markets for "Alt-A" home loans and more exotic loan products. Without a market to sell these loans, banks who issue them are forced to keep the loans - possibly to maturity - and have become very circumspect about issuing credit to high net worth people. I know this may come as a shock, but the risk profile for "Jumbo" loans is actually very similar to Sub-Prime lending - because these loans are larger and therefore carry higher risk!!!

An Upturn in the Housing Market May Be Reversing - NYTimes.com

“They’re not buying as investors, they’re buying as homeowners,” said Grant Stern of Morningside Mortgage Corporation in Bay Harbor Islands, Fla., near Miami Beach. “Nobody expects a 50 percent gain. Flat is the new up.”

Right now housing prices are flat, but with the bout of deflation we are fighting - this actually means that home prices are rising in real terms; ie. if you're earning 1% interest, but prices have fallen 2% during the course of a year, you have a 3% improvement in your spending power.

Edgewater Lofts condos sold in bulk deal - South Florida Business Journal:

Grant Stern, president of Miami-based Morningside Mortgage Corp., said there is a lot of interest in the area of Edgewater, which is north of the Adrienne Arsht Performing Arts Center. Renters, in particular, are looking to buy in nearby buildings because of the near market-bottom prices. Another reason for the interest is that some of the buildings have gotten FHA approval for loans.

He said future buyers have to be realistic about what they are getting when they buy in Edgewater Lofts.

“It’s not going to get exciting for you,” said Stern, about the unit’s prospective buyers and unit demand, which would normally drive pricing upward. “ Chances are that the minute it gets exciting, someone is going to come in and obstruct your view.”

This is a game that is going to go on for many years in the post-boom downtown environment. When it comes to views, there's un-obstruct-able and there's other. There are plans for projects throughout the Biscayne and Brickell corridor which have been approved and are simply waiting for the economic cycle to rise towards the skies!

Personally, I have a client who recently completed a land assembly in a Central Business District area - and got a Major Use Special Permit (MUSP) at a cost of nearly $500,000. They are long term players - and know that it will be 7-15 years before they can develop the 1,000 unit project they envision!

The Platinum Condo, is a developer client whose building is mentioned in the article - built a 22 story condo and got FHA approved with the help of Morningside Mortgage. They have a 2nd tower planned and permitted on the east side of their current project. However, they ensured that both towers would have outstanding views by planning the projects simultaneously. It's rare to see that kind of coordinated development in Miami - as it takes years to create major land assemblies. The Platinum developers spent nearly 2 decades.

Planning and zoning information is public domain. However, a good real estate brokerage should have extensive information available not only on current projects, but as well on the projects that are planned which may affect the view of a unit which any buyer is seeking to purchase.

Why Condominium Termination?

Condo termination has the potential to mitigate the damages caused by the condo market collapse and to distribute benefits to the distressed owners, lenders with impaired loans, local markets in general and entire communities at large.   There are four main players are suffering during this downturn: Unit Owners, Banks, Markets and Communities.   This article will seek to address specifically the difficulties faced by unit owners and mortgage holders.   Ultimately, condo market trouble affects all residents of a given area because a condo project is integrated into surrounding communities, even if the front door is gated.  

 The unit owner in a broken condo can be terribly burdened supporting a failing project, and the time, expense and headache of a short-sale may prevent orderly exit from their properties.  Most cannot afford the time off work, or attorney's fee to conduct a short sale.  Most are unaware of the option to give Deed in Lieu of foreclosure.   Condo Termination produces a mass short sale.  It doesn't require any individual to spend thousands of dollars on representation which will pit the individual owner's needs vs. the association's well being. 

  Most Unit Owners have limited real estate experience and are simply looking for a home as shelter and long term investment.  Few Unit Owners have experience as a licensed Community Association Manager or Condo Attorney which is needed to perform distressed servicing.   Many associations are falling out of compliance with State accounting requirements.  Even worse, many more associations are dropping insurance coverage, putting at risk the property improvements, compensation in the event of the worst and putting the Boards of Directors at risk for liability in the event of a catastrophe.  Condo Termination has mechanisms to transfer decision making authority into the hands of full time real estate professionals who act according to a pre-determined plan and stabilize the property improvements while winding down the condo's affairs. 

Just this past week, I spoke with a condo owner who wiped out her savings trying to support a terribly failed condo project with mass delinquency.   Her story to me was that her 1000 sq. ft. apartment's monthly maintenance assessments skyrocketed from $800 a month (a high figure for a non-luxury property) all the way up to over $2000 monthly!  She says that currently, the project is still charging over $1300 monthly and that the unit owners are close to 100% underwater on a valuation basis.  However, she and her peers have no clue of a way out of their situation . . . Condo termination provides an alternative to bankruptcy courts for failing projects where creditors may get a terrible haircut, but ultimately, shareholders will be stuck paying attorney's fees, trustee's fees, and as much as the property can generate to repay the other stakeholders, while lasting for many years. 

I also encountered a Condo Association President this week, who presides over a failing "investor hotel" condominium over 100 miles from his home address.  An "investor hotel" is a mortgage industry term for a condominium which is primarily consistent of individual landlords, with an attendant negative connotation.   This President assured me that dropping insurance for casualty was a necessity due to the terrible expense.  

I advised this President that it would be possible he could be held personally liable if there's a major casualty and that he would be wise to issue an emergency assessment of the membership to immediately resume coverage.   The President actually said that "the Board wasn't interested" in this type of action because "nobody would pay anyhow"!!  Condo Termination can reduce or eliminate poor decision-making by interested parties; to protect first, the rights of the inhabitants, and preserve the property improvements' value.

Lenders hold a tremendous amount of loans which are under water just waiting for the expense and loss of the foreclosure to REO sale process.   A typical foreclosure can cost the bank up to 25% of the collateral property's market value between attorney's costs, filing fees, lost revenue, sales commissions, taxes, back assessments and carry costs in inventory.   Lenders are too short on staff to process the multiple short sales, modifications, foreclosures, deed returns and other distressed loan resolutions.  

Loan workouts also require expensive lender reports on value, title searches and staff time.   The short sale process, where a bank cuts its losses early, is difficult for banks to execute case by case, as they are attempting to get the best price, while eliminate Non-Arm's Length sales to relations whereby the borrower benefits from the debt relief.   Condo Termination provides an Arm's Length method to sell condominium property, while lowering the administrative costs and satisfying risk management requirements.  Additionally, lien holders can liquidate holdings knowing that they will never have to pay carrying costs or posses the units - unlike individual workouts which may simply time shift the inevitable.  

    The next article in this series will address the benefits of Condo Termination to housing markets and how that translates into community support.   There are myriad benefits to Condo Termination, which, if realized, will create a positive feedback loop and arrest the erosion of communities with high concentrations of single family homes in multifamily housing projects.