I’m in San Francisco for the third ReBarCamp. As a result I got to hang out this weekend with my friend and partner  Ginger Wilcox, and spend time with her children and my friends Todd Carpenter and Andy Kaufman.

While we were having breakfast this morning Ginger asked me to read the latest post on her awesome “Blog by the Bay“. The title was “Is It wrong to Walk Away from an Underwater Mortgage”, written by George Crowe. The topic of the post was strategic default. The topic is interesting enough and struck a strong enough chord within me to require a response here ( for me, even if not for you )

If you don’t know what a strategic default is, it is a term used by people to apologize for their failure to live up to an obligation they created contractually. In other words, it describes people who are walking away from mortgage loans that they are capable of repaying.The key here is that the borrower has the ability to make the payments required by the loan, but they choose not to.

I am not a fan of strategic defaults. I can understand that people are stressed financially, but the mortgage documents don’t say that you can don’t have to pay if you get upset. I understand that the banks are being seen as the bad guys in the current economic climate, but the documents don’t say you don’t have to pay if you don’t like the actions of the lender. You borrowed the money, you bought something with it, and you’re supposed to pay back the loan.  George quotes a New York Times article:

Back in January Roger Lowenstein argued the case for strategic default in The New York Times Magazine, and he made some pretty good points:

“Mortgage holders do sign a promissory note, which is a promise to pay. But the contract explicitly details the penalty for nonpayment — surrender of the property. The borrower isn’t escaping the consequences; he is suffering them.”

I am not as familiar with mortgage lending in California or New York as I am in Pennsylvania where we sign a mortgage and a note. The mortgage document is the pledge of real property for the repayment of  debt, and the note is our personal pledge to repay the loan. Under the terms of those documents, the borrower might be liable for a deficiency judgment to return to the bank the funds that they do not recover through the foreclosure process.  But in any case, that is not a discussion of what is right or wrong, only what might be financially expedient.

Then there is the idea that “its only business” which seems to me to be another excuse. When people tell me something is business, not personal, it’s always because they are about to do something unpleasant, and they want to distance themselves from the moral responsibility for their actions. In this case, the term is being used to indicate that the decision here is a financial one, not a moral or legal one. And that’s just not the case. You can’t be moral only when its easy, or you have no real sense of right or wrong.

I don’t pretend to be able to stand in judgement of others or their actions. And I can understand the temptation to walk away from a loan because of the pressures of the economy, but your reaction to that temptation is what determines who you are.
When my late wife’s father passed away, her mom was left with debts from his business. She didn’t own a house, and was not responsible for his debts, but she worked for years to pay off each debtor. Tillie Rosen is an stand up human being. As a widow with limited resources, having only recently returned to the work force in a low paying clerical job, she made good on the obligations of her late husband (only one of e reasons I love and respect her). She could have chosen strategic default to benefit her family but she chose to scrimp and save to pay off the obligations of her late husband because she knew that was the right thing to do .

In a market like that in Marin County where Ginger works and lives, people are struggling to pay mortgages that are currently in excess of the value of their property. That’s a really tough problem, but the property was worth more when they bought it, and will probably be worth more again some time in the future.  Obviously, there is a financial benefit to the borrower if they walk away from the property and then buy another property back at the new lower value and wait for the recovery of the marketplace. But that is a financial decision, not a moral decision.  I wouldn’t blame a homeowner who was underwater and unable to make the payments for defaulting, or for “giving the keys” back to the bank through a deed in lieu of foreclosure. Those are cases of bowing to the inevitable. But for a member of the privileged class, who has a loan that they don’t want to pay, because the thing they bought went down in value? That’s just not right, at least in my opinion. Its not fun, but living up to the promises you make in life is always the right thing to do .

In closing his post George says:

If you buy into the argument that it was the irresponsible and greedy behavior of the banks that brought about the housing bubble and corresponding bust, then maybe it’s fair that they’re left holding the bag. It’s a tough question with no easy answer. What do you think?

Since the banks were not  partners in profit when  properties went up in value during the boom they should not be expected to be partners in the loss of value today. They are lenders, and they lent money to willing borrowers, who in these cases were and are able to make the payments under the terms they agreed to – even if it isn’t the most expedient thing to do, it is the right thing to do.

Related articles by Zemanta

• Fannie Mae Intensifies Penalties for Strategic Defaulters (faarforum.com)
• Most Mortgages in Default Held by the Wealthy (news.firedoglake.com)
• Study: Nearly One in Five Mortgage Defaults Are ‘Strategic’ (blogs.wsj.com)
• Richest homeowners making most defaults (commercialappeal.com)

In a recent search, I noticed a post by another brokerage firm about a relationship with RealtyTrac that was promulgated by their national franchise. .

It reminded me why I hate salespeople sometimes.

This post would indicate to a real estate consumer that the agent and firm had some benefit through the publication of their third party information, and that this would make them some kind of foreclosure experts. And while the writer is a pleasant enough person, and just trying to create a business advantage for themselves, its just nonsense, and its frankly misleading – though I will give them the benefit of the doubt and assume that it is unintentionally misleading.

I have been selling foreclosures for 21 years in Philadelphia, Bucks, Montgomery, Delaware and Chester Counties, and for the past year or two also in Burlington, Camden and Gloucester counties in New Jersey. I have also been an active real estate investor for even longer than that, so I think that I would be considered an expert in the marketing, purchase and sale of foreclosure properties. From my experience I know that , for the most part third party relationships like the one touted by this broker don’t work. And I know that for the past 21 years, most of the calls from services like these that I received were from people that were calling on outdated properties that were published long after they were sold and settled.

Third party listings of foreclosures have a number of problems. As I mentioned, their information is often outdated.They often provide too much information seeming to provide value but muddying the waters for most consumers – for example “pre-foreclosure” data which is useless to most of their subscribers. The source of the information is not disclosed in many instances, and is therefore questionable. For real estate professionals, the third party information is less accurate than the Multiple Listing Service .

I understand the need for the third party company to sell subscriptions, and their right to advertise and boast about their services to do so. And I understand the need for the national franchise to create affiliate relationships to obtain income opportunities and to position themselves as providing value to their franchisees, I even understand the writer pimping this out as a benefit to the public – but it is indicative of their lack of understanding about the product and the foreclosure product that they even do so. It just burns me up that they are so busy posting something to appear at the front of the pack, that they don’t take the time to actually determine if it accomplishes that before they publish.

As salespeople I think we have an obligation to balance our need to market with the need to be genuine and transparent. Its too easy to lay claim to expertise when you’re writing alone in your home or office. Don’t just claim a position, have the position. Be the expert you claim to be – or claim to be the expert you are.

Photo courtesy of Creativecommons.org

As the FDIC takes control of IndyMac bank after the third largest bank failure in History, the Wall Street Journal wrote an article in which they announced that they would be halting foreclosures .

While I understand the political necessity of doing something perceived as positive by the public, and I understand that if they are able to make some of these loans productive, they improve the assets of the bank by moving these from “non-performing” to “performing” loan statuses. However IndyMac specialized in “Alt-A” loans a category between prime and sub-prime that frequently included loans in which borrowers didn’t fully document their incomes or assets. These “liar’s loans” as they have become known, may not provide the best workout opportunities, since they often provided unrealistic financial information to the lender.

The foreclosures will not be stopped, but the FDIC will be reviewing the loans to see what workouts are possible before sending them on to foreclosure.

Taken with the reassurances that Fannie Mae and Freddie Mac are stable, and now have the explicit guarantee of the government behind them, hopefully we’ll be on to better financial news for the rest of the summer – Maybe Price reductions on Salt Water Taffy at the New Jersey Shore! What could be better?