Smart Real Estate News & Commentary by Chris McLaughlin October 5, 2010
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Home sales up
The Pending Home Sales Index rose 4.3% to 82.3 based on contracts signed in August from a downwardly revised 78.9 in July, but is 20.1% below August 2009 when it was 103.0. The data reflects contracts and not closings, which normally occur with a lag time of one or two months. Lawrence Yun, NAR chief economist, cautioned any sudden rise in mortgage rates could slow the recovery. “Current low consumer price inflation has helped keep mortgage interest rates very attractive this year. However, recent rising trends in producer prices at the intermediate and early stages of production, along with very high commodity prices, are raising concerns about future inflation and future mortgage interest rates,” he said. “Higher inflation would mean higher mortgage interest rates. In the meantime, housing affordability is hovering near record highs.” The PHSI in the Northeast declined 2.9% to 60.6 in August and remains 28.8% below August 2009. In the Midwest the index rose 2.1% in August to 68.0 but is 26.5% below a year ago. Pending home sales in the South increased 6.7% to an index of 90.8 but are 13.1% below August 2009. In the West the index rose 6.4% to 101.1 but remains 19.6% below a year ago.
Administration anti-business?
Who says so? Just because it tries to regulate every sector to death? The latest in this ongoing round is that the Justice Department filed a lawsuit against Visa, MasterCard and American Express yesterday for allegedly anti-competitive practices that prevent merchants from offering discounts and raise prices for consumers. Visa and MasterCard took the easy way out and agreed to settle the charges, but American Express denied wrongdoing and said it will fight the suit. At issue are certain fees the companies charge merchants every time a consumer makes a purchase using their credit card, prosecutors said. These “swipe fees” totaled $35 billion last year, according to the Justice Department. The lawsuit, filed along with seven state attorneys general, alleges that the credit card companies have put in place rules that block sellers from offering consumers lower-cost payment options. “These restrictive rules restrain competition among credit card networks for merchant acceptance and distort the competitive process,” Christine Varney, an assistant Attorney General, said in a statement. The chief executive of American Express, Kenneth Chenault, said in a statement that the company has “no intention of settling the case. We will defend the rights of our card members at the point of sale and our own ability to negotiate freely with merchants,” he said.
American Express shares fell 6.5% to close at $39.05. The American Bankers Association issued a statement saying the group would monitor the potential impact of the settlement on banks’ ability to offer attractive products. “For years, retailers have claimed that lowering the costs they incur to accept credit cards will translate to lower costs for consumers,” said Kenneth Clayton, general counsel for ABA card policy. “We look forward to seeing whether their newfound pricing authority will actually result in consumer benefit or merely be used to pad their own bottom lines.” I hate credit card fees too, but since when is it a good idea for the government to intrude into private business deals? After all, it was getting involved in deciding who should have a mortgage that led to the sub-prime crisis in the first place.
Olick – Banks make the mess they made even bigger
“You wouldn’t know it from the hit their stock took on Friday, but the top title insurer, Fidelity National Financial claims it will not be hit by additional claims exposure thanks to the robosigning scandal at some of the nation’s largest lenders. “FNF believes that these policies will not result in additional claims exposure to FNF because the new owners and their lenders would have the rights of good faith purchasers which should not be affected by potential defects in documentation,” the company notes in a statement.
“Even if a court sets aside a foreclosure due to a defect in documentation, the foreclosing lender would be required to return to our insureds all funds obtained from them, resulting in no loss under the title insurance policy.” Some argue that delay will be a boon to the greater housing market because a smaller inventory of foreclosed properties selling at a discount will put a floor on home prices. I don’t buy that for a second. First of all, there are plenty of empty homes sitting on the market, where the borrowers are long gone and likely unaware that they have any recourse. For those that are aware, most of them don’t have any recourse because whatever the flaws in the paperwork, the bottom line is they didn’t make payments on their loan commitments. This delay is just going to cost everyone more time, more money and more pain as housing struggles to find its footing. The banks managed to do it to us again. They couldn’t handle the mess they made, so they just made it bigger.”
Loan delinquencies up
The American Bankers Association says the overall delinquency rate rose slightly from 2.98 percent to 3 percent in the second quarter based on the statistics the group uses to measure how much trouble consumers are having making payments on loans. The delinquency rate had been dropping steadily since hitting 3.35 percent in the second quarter of 2009. Mobile home loan delinquencies went from 3.65 percent to 4.01 percent in the second quarter while marine loan delinquencies jumped from 1.93 percent to 2.2 percent.
Among the bright spots, bank card delinquencies fell from 3.88 percent to 3.62 percent in the second quarter, and direct auto loan delinquencies fell from 1.79 percent to 1.67 percent over the same period. Consumer spending had been a major driver of the economy before the recent recession. During this time, however, the accumulation of too much debt, particularly through mortgages, is seen as a leading cause of the 2007-2009 financial crisis and the ensuing economic downturn. How to strike a balance between spending and debt has proved vexing. On Monday, President Obama said consumer spending was less likely to drive a robust recovery because Americans are focusing more on reducing their debts and increasing their savings.
Home prices drop
Home prices in the Altos Research 10-city composite index dropped 1.5% to an average median price of $465,968 in Septembe after a 1% drop the month before. In the last 14 months, prices only increased month-over-month once. In May, prices improved 0.2%. Further price declines are expected. “As the market continues to correct, continued price decreases can be expected, likely until the early part of 2011, when the boost of the ‘Spring market’ is felt,” according to Altos. Just as in August, home prices fell in 25 of the 26 markets covered by Altos, an analytics firm. Prices dropped the most in Phoenix, down 4.55%, San Francisco by 2.96% and a 2.53% drop in Dallas. But nationally, inventory was down 2.24%, which, according to Altos, will soften the impact of weakening homebuyer demand in many markets. “While home prices are still falling, it is significant that there are fewer and fewer homes listed for sale. In fact, in only nine of the 26 markets that Altos follows in its monthly report were increases noted,” according to the report.
Now for our real estate education section…
Up Close & Personal – Piercing the Veil
Real estate investors frequently use the corporate structure in order to reduce personal liability, afterall, it’s one of the most trusted and reliable methods of limiting personal exposure to debts and litigation surrounding deals gone bad. Unfortunately, that last link of protection is now under a growing threat as courts across the nation rule against individual CEO’s and managers. This week we are going to get up close and personal as we examine the pitfalls and personal risk factors associated with improperly defined LLC’s and Corporations.
Who is Impacted?
Large and small, a new era of personal responsibility is raising concerns for investors, brokers and CEO’s alike when it comes to the financial distress of their real estate related LLC’s and corporations. Take for instance the case of Bruce Elieff, CEO of SunCal Cos, a California land developer and home builder that had to forego completion of 20 large residential property developments after their biggest lender, Lehman Brothers filed for bankruptcy in 2008. A similar situation resulted in the sale of the Manhattan General Motors building when Harry Macklowe, a noted New York developer, was forced to sell much of his extensive real estate holdings in order to satisfy corporate debt.
What is at Stake?
A lot. Traditionally when a corporation made a bad business decision or was forced to file bankruptcy protection, the individual officers were not at risk of losing their personal fortunes. Today that has changed; in the case of Elieff, CEO of SunCal, not only is his personal property – including three homes – at risk but he may be required to pay back millions more from his savings or other assets.
The Heart of the Problem
Is there a lesson to be learned? Yes – each of these examples had one common problem which opened the doors for personal liability…essentially nullifying the protections provided by a corporation; each individual personally signed or guaranteed loans, bonds or other financial instruments and/or used their own personal money to partially fund projects.
Assets How to Protect Your Personal
Savvy short sale and other real estate investors can reduce personal risk by following these simple steps:
1. Don’t mingle or invest personal money to fund projects. Not only is the use of OPM (other people’s money) the preferred way to invest in real estate, mingling personal funds with that of the LLC or corporation is asking for trouble. Use properly established channels to invest in the corporation and clearly keep personal funds distinct and separate at all times.
2. Don’t sign a personal guarantee or note. That is the purpose of the corporation. The corporation is a legal entity of its very own and is able to enter into legally binding contract. The designated officer can sign on behalf of the corporation but should be careful to evaluate the contract to eliminate the possibility of a personal guarantee. This should include all liabilities including lease(s), loans, bonds or other transactions.
3. Don’t neglect the corporate line of credit. Do you even know your corporations credit rating? If not, take time to look it up and begin a plan of action to increase your corporate credit line and rating.
See you at the top!
Chris McLaughlin
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Copyright Loss Mitigation Institute LLC 2010.
All Rights Reserved.
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About the author:
Chris McLaughlin is widely known as America’s top
Real Estate Attorney and Investment Consultant.
* As the top Florida foreclosure and pre-
foreclosure expert, he oversees more than
100 short sale & REO closings each month
* Long-time authority on real estate investing
and rapid reselling of distressed homes. Owns
portfolio of nearly 100 high-value, high-profit
properties
* Owner of one of Florida’s largest Real Estate firms,
running 4 different offices, supporting over
400 agents, uniquely positioning him to help
thousands of investors make money in the
biggest market opportunity ever!
* Highly sought-after speaker, consultant, and
seminar leader for current trends and hot topics
in Real Estate Investing, Entrepreneurship, and
Wealth Building
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