My Beautiful Sacramento

Whether chains are rattling, the floor is shaking or there is simply the knowledge that an evil deed was committed on the premises, you could possibly be dealing with a haunted house, or a "stigmatized property" sale. 

Since liability issues on these types of transactions vary from state to state - what is the guiding principal for selling a haunted house? 

In 1991, a case in New York provided some legal precedent on the matter. 

Stambovsky v. Ackley

The owner of a house, Helen Ackley had reported the existence of numerous poltergeists in her home and had, in fact, publicized these occurrences in Reader's Digest and a local newspaper on three occasions. As a result, the home was placed in a five-home walking tour in the city and received an enormous amount of publicity.  She even referred to the home in a article as a "Riverfront Victorian with ghosts." 

Some of the interactions Ms. Ackley described to reporters included ghosts waking her each morning by shaking her bed.  When spring break arrived she loudly proclaimed to the spirits that she did not have to wake up early anymore.  On this, she insisted that they listened to her requests and the bed immediately ceased all shaking.  

Despite the local notoriety, an unknowing buyer, Jeffrey Stambovsky signed a contract to purchase the home. On an agreed upon price of $650,000 he made a $32,500 down payment.  Since Mr. Stambovsky was not from the area he claimed to have ignorance of the widely known haunting tales. 

When the buyer subsequently learned of the haunting stories, he filed for a request of the rescission of his contract for the sale and also sued for damages citing fraudulent misrepresentation on the part of Ackley as well as the Realtor®. 

In ruling on this case, the court stated that since the existence of ghosts in the home had been widely reported, as a matter of law, the house was haunted. 

However, the court dismissed the fraudulent misrepresentation action and stated that the Realtor® had been under no obligation to disclose the haunting to any potential buyers. The court affirmed that the law of caveat emptor (let the buyer beware) applied in this case so the buyer did not prevail. 

Mr. Stambovsky subsequently appealed the case and won a reversal. 

On appeal, the court stated that a "haunting" was not a condition that a buyer could fairly be able to ascertain  through even the most thorough of home inspections.  In this case, "the most meticulous inspection would not reveal the presence of poltergeists at the premises or unearth the property's ghoulish reputation in the community."

It further stated that the seller had taken unfair advantage of the buyer's ignorance.  Since she had taken it upon herself to inform the community at large of numerous spirits roaming rampantly throughout the home, she owed no less to her perspective buyer. 

The judge then rendered a somewhat entertaining opinion using the following phrases:  

"In his pursuit of a legal remedy for fraudulent misrepresentation against the seller, plaintiff hasn't a ghost of a chance," I am moved by the spirit of equity," "In this instance - who you gonna call?" and "The notion that a haunting is a condition which can and should be ascertained upon inspection of the premises is a hobgoblin which should be exorcised from the body of legal precedent and quietly laid to rest." 

I have no knowledge of whether or not the parties in question had any appreciation of the judge's sense of humor. 

However, Mr. Stambovsky was finally let out of the deal and had his deposit fully refunded. 

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Ancient Mortgage Proverb: No deal is ever 100% certain until the loan is completely paid off.

There exists a chasm in communication, familiarity and point of view between agents and loan officers. Sometimes we try to act like it does not exist and we really wish it was not so. I know this chasm exists, just as you do for many reasons, because I have had real estate agents - very good agents - try to convert to loan officer at my companies and I have seen this chasm immediately appear. Sales are fairly and generally black and white, go or no-go, yea or nay. Either the seller accepts the offer, counters or declines. Every agent I have seen try to become a loan officer has had a difficult time adjusting to the different levels of approval.

There are different levels of approval with virtually every mortgage application to loan process and agents we really need you to do your best accept them even if you don't understand them. Otherwise you're going to continue driving the loan officer (me :) nuts and forcing the weaker ones to lie to you or avoid you. Let me help you not contribute to their delinquency by briefly explaining some of the levels of loan approval and addressing how I handle them individually.

First please recognize the average loan has many human and non-human touch-points. It's not just the loan officer or just the loan officer and the underwriter. There are also as many as dozens of other humans plus automated systems involved. If the loan application is not approved by each and every one of these processes as required by the lending or insurance (mortgage insurance) guidelines the application will be denied and the deal will be done.

I don't care who the loan officer is, where they work or what they say - these are constants and work the same way at every lender/bank/broker unless the person you are talking to has the money in their personal checking account and are personally making the loan - something a loan officer does not have the authority to do for any lender.)

[See the edit notes at the end of this post.]

Application Approval - these are generally worthless. These are generally called a pre-approval and sent on a letterhead from the bank, lender or broker. These are often given only after accepting the application and examining the credit history of the applicant(s). At this point nothing has usually been verified or even documented such as income, assets and job history. (I do give these and I explain this is a CREDIT ONLY pre-approval and I have verified nothing except credit and payment history.)

Credit Only Approval - see above.

Automated System Approval (Application Stage) - this is also generally worthless. The loan officer generally has not verified income, assets and job history at this point. This is where most "approval letters" are issued on that official looking FNMA Pre-Approval sheet. (I give these as well and explain I still need all the documentation and several verifications of documenation from the appropriate source.)

Underwriter's Opinion Pre-Approval - again basically worthless for the same reasons. (I give these ocassionally when there is a borderline issue as in tax returns for example.)

Underwriter's Conditional Approval - this is where the loan officer should have a very good idea if this application will be approved. There can be as many as 3 or more weeks between the Application Approval and this date because this is the first time anyone has looked at the complete application package which will include: income documentation (pay stubs, tax returns, etc.), asset documentation (bank statements, retirement account statements, letters of verification), employment verification, rent/mortgage verification, appraisal, insurance documentation, inspection (if required), fully executed and legible purchase agreement, and whatever else is needed. THIS IS STILL NOT AN APPROVAL! There will be conditions and until the conditions are satfisfied this is not a loan.

Clear to Close (or Cleared to Close) - this is it. This is the first time ANYONE can assure this will be a finalized transaction and it does have an expiration - usually 7 to 10 days after the approval.

-Side note about conditions. I had a first time home buyer ask me about "Conditions" the other day. He's a young and single man so I used an illustration I thought he could easily understand. I said, "Suppose you finally get up the courage and ask that pretty girl out on a date. She tells you she will go out with you if you drive a red sports car, pick her up at exactly 7PM and take her to the most expensive restaurant in town." I needed to offer no further explanation of conditions.

The bottom line is this: If you do your job right, the loan officer does their job right, the title/escrow agency does their job right, the appraiser does their job right, the inspector does their job right, the insurance company does their job right, the buyer's employer does their job right, the buyer's current mortgage company or landlord does their job right, the person giving the gift (if there is a down payment gift) does their job right, the IRS does their job right, the borrower's accountant/CPA does their job right, the seller does their job right, the appraiser does their job right, the HOA does their job right, the inspector does their job right, the processor does their job right, the underwriter does their job right, the closing co-ordinator does their job right, the funder does their job right, the seller's agent does their job right ... that's most of them ... then within a few days to a few weeks we'll meet at the closing table. Until then NOTHING is certain.

Now do you still want my opinion or do you want to wait for the truth?

[Edit notes: When I write the pre-approval is worthless I mean as far as the actual final approval - go to the bank and cash your check. Nobody's pre-approval means the application and entire transaction will be approved. A true mortgage professional will follow protocol and verify as much information as possible before issuing a pre-qualification. I was trained to do it that way many years ago and have trained all my staff members to do so as well. However, there are dozens of moving parts outside of our control. The pre-approval, even the best one, simply means there is no reason at that point in time not to proceed with the process of the application.]

Ken Cook - Community Outreach Leader Southeast Region (I make friends, that's my job :) - FHA, USDA, VA and Conventional Home Loans (678) 439-8683 NMLS ID 208452

My employer: AmericaHomeKey, Inc., 2300 Windy Ridge Parkway, 8th Floor North Tower - 840N, Atlanta, GA 30339. NMLS ID 102930. Georgia residential mortgage licensee 23191. Equal housing lender.

Rates - APR - Points - Fees: How the Playing Field is Still "Crooked"

I talked to a client today who was shopping me against some other lenders. I don't blame people, and frankly if I think someone else has a better offer and they are legit, I advise "my client" so and have no hard feelings.

In the scenario today, said client was offered 4.5% with no points. I told him it wasn't possible, but lest I be ignorant, I dropped by this other lender's website. Indeed, the lenders website quoted 4.5% with no points and an APR of 4.878%. The website gave the assumed loan amount and purchase price. So I went and did the math. What did I find out?  To make the rate and APR accurate, I had to add 2.25% in points ON TOP OF all of the regular fees (title, appraisal, etc.).

In other words, even though the quote was 4.5% with zero points, the TRUE cost was 4.5%, plus typical closing costs, PLUS 2.25% in additional fees/costs.

Please send me your Goofy Good Fake Faith Estimate!

There are several issues with this scenario

1. APR is supposed to HELP consumers, not confuse them. Clearly this bank (a large bank at that) is charging hefty fees instead of points. This brings us to our next point ...
2. Points are tax deductible costs - most other fees are not. Charging high fees in lieu of points is an injustice to the consumer. We see rates quoted with NO POINTS to make them look better to consumers. However the total cost is ultimately higher than a lender that is straight forward, charging the same dollar amount but in the form of points. A loan with the same cost in points (versus fees) is a far better deal, saving a consumer hundreds or thousands in tax deductible costs.
3. APR is "pliable" - Certain fees are calculated into the APR calculation, others are not. Do not assume lenders don't play with the "names" of fees to artificially lower their APR's. That doesn't seem to be the case in the above example, nonetheless keep this in mind.
4. Lastly, said bank WOULD NOT give the buyer a good faith estimate without having him apply for a mortgage. OK, not so crazy, but the good faith estimate would not be given for 3 days. And if the bank charged an application fee? That would just be another deceptive way to lure a consumer in and tie them to the bank.

Any lender should be able to offer you a good faith estimate (GFE) in a fairly short amount of time, 24 hours or less, allowing some time for when a lender is very busy. Assuming the lender is honest and accurate with their fees, you should be able to see the true cost of their offered rate. You should be able to see, as in the above scenario, that their rate of 4.5% with no points really has a lender fee of $4,119 (Actual additional cost based on their APR). This same week I had another rate shopper send me a goof good faith estimate with 1% in points and $2,100 in application fees. THIS IS NOT NORMAL or fair to you as a consumer, especially on a purchase loan.

I am not angry for losing business. I am however angry because of the lenders and loan officers that mislead and decieve consumers who are just looking out for themselves by rate shopping. What we often see, is that many consumers that search the world over for the lowest rate, actually end up paying much higher costs via deceptive lenders. Consumers can be blinded by a low rate, not allowing them to see the true cost.

 

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Steve Kappre is a Mortgage Planner with Treasury Mortgage. Steve specializes in;

• All areas concerning NJ First-Time Home Buyer Mortgages, grants, down payment assistance, tax credits, and more.

• Reverse Mortgages

• Equity Management strategies for high-end homes and high net worth individuals.

Contact Steve Kappre directly at 856-419-3561 or at www.stevekappre.com

      

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