Need help - tricky situation

Need help - tricky situation

Moore, OK · Member since 2012 · 4 posts · 0 votes

Ok - so this is a little tricky but ill try to be as brief as possible. Bottom line - my neighbor is about to sell his house and was going to use a realtor. Since rates are low and he told me this I decided to make him an offer. I offered to pay him his proposed list price (it will appraise - i'm certain) if he will give me the 6% back that he would have had to pay the realtors. I have the cash to do this on my own I assure you - but that is not an option as I have promised the wife to use it for other purposes. With that said, I've run into a snag. I wanted to use the 6% incentive to pay all of the closing costs and prepaids (about $5400) and use the remaining $3-4K towards the 5% down required which would leave me only about 2-3K out of pocket. The bank has said they won't allow him to give me cash above the amount of the prepaids and closing costs and that he should just lower the price if I want anything beyond the closing costs, etc. That doesn't help me though because I want the cash for the downpayment rather than using my own. My immediate thought was just have him pay me in cash at closing and not have it on the HUD 1. However, as I look into this it is clearly illegal (mortgage fraud). I'm not looking to do anything unethical or illegal. Do any of you have any ideas on how I can still get all 6% out of him so I can use as little cash as possible?

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Dion DePaoliPro Member
Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
14y

One other note I meant to say. The money outside of closing is a violation of RESPA. The mortgage fraud is lying to your lender to get a loan. The RESPA is settling the transaction outside of the rules of settlement practices which deals with kick backs.

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  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    14y

    It is not completely clear. Are you getting a loan?

    If you are there are some other issues that will come up. If he is your neighbor, to your primary residence, then his house, if you buy it, is an investment property. It is not a second home, it is too close to qualify for that classification and you currently live in your primary residence. Down payments for investor loans are far greater than 5%. That would fall into the bucket of mortgage fraud since you are not truthful in your desired occupancy.

    The restriction on the fees given in concession by the buyer is standard stuff. Any contribution above the cost of closing and prepaid items would be the seller paying down your mortgage and is not allowed in most lending programs. But, in an investor loan you would be capped on the amount even less than you have now.

    It seems like your Sale Price is $140k and your loan is around $133k. Your closing costs and prepaid are around 4%. That is a primary residence loan. MORTGAGE FRAUD and is ILLEGAL. That said, it is really hard for me to understand why your loan officer has not picked up your primary residence and subject property are right next to each other. Perhaps I am jumping to fast or they are just not good at their job. Are you using a broker? Or perhaps you have not fully submitted an application yet.

    An investor loan is going to require you to put down 10% or more and only take 3.0% at most in concessions. Additionally, because you are in cohesion with your neighbor this is no longer an Arm's Length Transaction.

    To truly qualify for an investor loan, you will need reserves and capacity to cover the debt of both homes since the subject property is not rented. All that said, you might want to consider your cash option. You would have to refinance in the future of several months and will be reduced to 70% cash out max.

  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    14y

    One other note I meant to say. The money outside of closing is a violation of RESPA. The mortgage fraud is lying to your lender to get a loan. The RESPA is settling the transaction outside of the rules of settlement practices which deals with kick backs.

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 18k+ posts · 17k+ votes
    14y

    To add to Dion's great responses above, underwriters will want to know where your downpayment money has come from -- if it's been in your bank account for at least 3 months, you should be fine, but if the underwriter sees that your account has suddenly increased right before closing, they're going to ask for documentation on where the extra cash came from.

  • Moore, OK · Member since 2012 · 4 posts · 0 votes
    14y

    I figured you would ask these questions. Yes, you are right that an investment property would require 25% down. I am actually going to move into this house and turn my current home into the investment property. The lender is fully aware of this and has said that as long as we assure the underwriter that I will move into this residence as my primary residence it shouldn't be a problem. And yes, I know the kickback outside of closing costs and prepaids on the HUD 1 is a violation of RESPA - that's the whole point of the question. Can you think of another way to structure the deal so that I can still gain the liquidity without it being a violation?

  • Moore, OK · Member since 2012 · 4 posts · 0 votes
    14y

    Also, I have the cash - I can easily show the funds necessary for the down payment. I just want the cash from him since he is offering it and I won't have to use my own.

    I can also cash flow both properties without rent - qualifying is not an issue. Just wondering if there is a way to get the additional liquidity without breaking the law.

  • Dion DePaoliPro Member
    Real Estate Broker · Northwest Indiana, IN · Member since 2011 · 2k+ posts · 2k+ votes
    14y

    These loans are kicked out of the agencies (Fannie/Freddie) everyday and twice on Tuesdays. If your neighbor has a superior home to yours then the occupancy classification is possible. If it is not superior to yours then it will not fly. People don't move next door into inferior homes. Remember the Jeffersons?

    In regards to the RESPA question. No, receiving funds outside of closing as a result of or to influence the sale of real property is a violation. If your neighbor pays you to help him move or borrows your lawn mower you are always free to barter amongst yourselves for those goods and services which are not related to the real estate transaction.

  • Moore, OK · Member since 2012 · 4 posts · 0 votes
    14y

    My lender is with Wells Fargo which is where my current mortgage is - my neighbor's home is basically and exact replica of mine. I understand what you are saying that Fannie/Freddie are rejecting these. I wonder why he (my lender) thinks simply explaining that I honestly will move in will rectify the situation. You have given me some good feedback and information. i appreciate it and will call the lender tomorrow to find out why he thinks this will be able to be underwritten with it being next door.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    14y

    Just to let you know, you will be signing authorizations to verify income, assets, bank accounts and taxes and after the loan is closed there may be an audit of your file. If you have anything that looks odd, they can investigate it. That means if you enter into any business transaction with any party related to the sale of the property, you may need to justify that later on. They are wise to buying a car or boat and such transactions, if not at FMV can get you nailed. I suggest you not mess around trying to figure out how to get a kickback, just lower the price and use the difference for your wife....

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 18k+ posts · 17k+ votes
    14y
    Originally posted by Dion DePaoli:
    These loans are kicked out of the agencies (Fannie/Freddie) everyday and twice on Tuesdays. If your neighbor has a superior home to yours then the occupancy classification is possible. If it is not superior to yours then it will not fly. People don't move next door into inferior homes. Remember the Jeffersons?

    I'm going to disagree with this to some degree...

    There are legitimate reasons to downgrade a home -- anything from new financial situation (where you plan to sell the original, nicer home) to new family circumstances (kids went off the college and don't need such a big house).

    Lenders will certainly scrutinize these loans more, and they will likely ask for justification of the purchase (perhaps even a written letter indicating that your intent to really move into the new property), but if you can reasonably justify why you're downgrading, the big lenders shouldn't have a problem with it.

  • Investor, Entrepreneur, Educator · Springfield, MO · Member since 2009 · 21k+ posts · 12k+ votes
    14y

    Yes, I have to agree with J. Scott as I have done these, next door, down the street and a block away. Secondary market underwriting is by region and it will depend on the underwriter you get and you'll need to justify why the move down. Neighbors can be a reason, improvements wanted and the other home is better suited, school districts can change (not in this case), kids moving out, maintenance requirements, etc. And so long as your intention is to sell the old home, it may not appear that you move in, stay awhile and then turn it into a rental as they will consider you doing the same thing to them. Good luck...

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