Added and amended by HUD Mortgagee Letter 2014-15
Effective Date: October 1, 2014
The Federal Housing Administration (FHA) requires all pre-foreclosure sales and deeds-in-lieu of foreclosure transactions on properties encumbered with FHA-insured mortgages to be arm’s length transactions. FHA defines an arm’s length transaction as:
- a transaction between two unrelated parties;
- characterized by a fair market value selling price; with
- no hidden terms or special understandings between any person or entity involved in the sale (i.e., buyer, seller, appraiser, escrow, real estate agents or mortgage holder).
The arm’s-length requirement has been clarified to allow real estate brokers and agents to:
- serve in more than once capacity in arranging the PFS transaction; and
- include customary broker’s fees in the HUD-1 Settlement Statement.
Consideration for the occupant-seller
Owner-occupant sellers may apply to the FHA for a credit of up to $3,000 on the successful completion of a pre-foreclosure sale.
Sellers who, following a cash reserves analysis, are required to contribute cash toward the unpaid principal may apply the $3,000 credit towards their required cash contribution.
Sellers who are not required to contribute cash toward the unpaid principal may use the credit to resolve junior liens, offset sales transaction costs and pay for relocation costs. Use of the credit is to be itemized on the HUD-1 Settlement Statement and paid at closing.
New marketing requirements
Seller’s brokers are required to list and market a pre-foreclosure sale property for at least 15 calendar days before evaluating any offers. After the 15-day period, offers may be evaluated as they are received.
If multiple offers are received, the seller’s broker is required to forward the offer that provides the highest net return to HUD and complies with HUD’s bid requirements to the mortgage holder.
Editor’s note — FHA pre-foreclosure sale bid requirements are found in HUD Mortgagee Letter 2008-43.
Back-up offers are to be held by the seller’s broker until the mortgage holder makes a decision on the offer submitted previously.
All offers submitted to the mortgage holder for evaluation need to be signed by both the seller and prospective buyer. When approving a pre-foreclosure sale, the FHA mortgage holder is to attach a standard Pre-Foreclosure Sale Addendum signed by the buyer, seller, buyer’s and seller’s agents and escrow to the submitted offer.
