Turning In The Keys

One of the sadder effects of the Bush/Obama Depression has been the phenomenon of numerous families losing their homes to foreclosure. The direct causes for the losses have been varied. Some have lost employment and have had to choose between eating and meeting their mortgage payments. Some have been transferred to a different location in order to keep their jobs, and not being able to pay for both the home in the old location and that in the new, have abandoned the old. Some have realized that the home they purchased at a high price has devalued and that they are paying on a mortgage loan which, in terms of the value ratio that once was and the one that now is, has an exorbitant and punitive effective interest rate.

The reasons are numerous. Walking away from a house and its attached debt, however, is a poor solution, and should be avoided at all costs. Granted, there are financial advisors who would argue differently, but the picture should be examined not just as an economic one but also as a moral, ethical, and spiritual one.

It is possibly true that the most egregious sin (if you don't like that word, I would advise that you stop reading now) in America is covetousness. That is an old-fashioned word that loosely translates into English Vulgate as "greed". It is the driving factor in the American economy. It is the desire to have what someone else has. Prohibited by the 10th Commandment, it is there stated as wanting one's neighbor's specific belongings.

That is a narrow reading of the Law. The underlying principle has to do with the fact that God is the giver of all good gifts. America in general rejects that concept. In the modern American economy, it is believed that those who work hard and smart get rich, and those who are lazy or weak remain poor. A man's wealth is evidence of his brains and brawn, a major factor in his self-steem and pride. Thus "keeping up with the Joneses" or better yet a little ahead of them, has become the American dream and greased the path to further sin. It matters not how often he goes to church; a little leaven does a great puffy amount of damage, and few are immune to the lure and ravages of such sin.

A consequence of this rampant covetousness is the willingness to sell one's self into slavery. There is a certain segment of our society that believes it has a corner on the discussion of slavery. Because their long-dead ancestors were abused by people also long-dead, they carry a grudge against anyone who does not belong to their culture group, all the while tolerating (and even encouraging) a form of slavery more insidious and debilitating. They have no monopoly on being slaves. The great majority of the American populace has joined them.

The concept of credit in a capitalistic culture has a number of nuances. At it's core, credit is used to facilitate trade. Trader A has a stock of widgets which he is offering at a set price, but will sell them in bulk with a discount if he can liquidate his stock. Trader B needs the widgets, but has left his gold at home. Trader A agrees to sell all his widgets right now, with Trader B promising to send the gold as soon as he gets home. He signs a note to that effect. On his way out of the market, Trader A spots a fat sheep for sale by Trader C. He has no money, but his family is hungry. He trades the note from Trader B to Trader C for the sheep. As long as Trader B keeps his promise to pay, everyone is happy. This is the essence of a banking economy.

There is no condemnation of such an economy in the Scripture. There are warnings, though. The borrower is the slave of the lender (Prov. 22:7). Failure to pay what is owed is considered to be fraud (Lev. 19:13, Rom. 13:7). Further, failure to keep a promise is a sin (Num. 30:2, Matt. 5:33) and the warning is given that promises should always be conditional (Matt.5:34-37, Jas. 5:12, Jas. 4:13-17).

In our society we rarely consider these things, carelessly agreeing to Terms and Conditions, whether in a software download or a loan, often without reading thoroughly what it is we are agreeing to. Thus, in my career, I have come across people like the lady who was having her house appraised for a HELOC, not even knowing that her fully paid-for home would become the collateral (the loan officer, she said, had told he it was a good idea to take out the loan). Or like the man who became angry when told that his home would be compared to homes that had recently sold. He saw no sense in that, because as he put it, he was not selling his home; he was blithely unaware that he would be signing a mortgage deed selling his home to the bank until the loan was paid.

In the past 6-7 years there have been hundreds of thousands of home foreclosures across the land. In some places, like California, if a debtor returns the collateral (hands the keys back to the bank), the debt is extinguished. In most other places, though, returning the keys, or worse yet just walking away from the property, creates headaches and potential headaches to follow a person for years and perhaps the rest of his or her life.

Ownership of real property is a privilege that is taken for granted in the United States. There are few other places in the world where it is so easy to become a land-owner with the rights and privileges available here. With those rights and privileges, though, come obligations. When a deed for title is recorded, the owner of the property becomes responsible for its upkeep, for paying the taxes, and for protecting visitors. When a loan against a property is made, the mortgage deed will spell out the need for the debtor to continue to do those things, or it will provide a means for the lender to do so.

Simply walking away from a home or other real estate because the burden of payment has become oppressive or the shine has worn off the ownership is a very bad idea. First and foremost is the aspect of sin. To promise to pay, and to renege on that promise, is sin. It matters not that one has lost the ability to pay, or that the interest rate suddenly appears usurious, or that the grass is simply greener elsewhere. To break a promise is sin.

There are other consequences that are generally not considered. The bank holding the mortgage will not usually allow the property to deteriorate, and for this reason most high LTV mortgages have escrow accounts to pay the taxes and insurance. If the debtor defaults on his payment, the bank simply continues to protect the property, and adds the cost to the loan. The debtor goes deeper into debt. If the bank does not have such an account, the debtor incurs even greater risk. If the insurance lapses and the house burns, the total cost of the damage becomes the debtor's. If someone trespasses on the property, is injured, and sues, the debtor becomes fully liable for the lawsuit. If the utilities are turned off and the pipes freeze, ultimately the cost of any repairs will accrue to the debtor. If the house is vacant and vandals enter it, damaging it or dealing or manufacturing drugs, the clean-up costs accrue to the debtor. Walking away and leaving the home empty is a recipe for disaster.

Ultimately, after default, the bank generally forecloses. That is not, however, always the case. If damage to the home is great, and taxes have accrued to a considerable extent, the bank may allow the home to be sold at tax sale. The title will transfer, but the debt will not go away. If the bank does foreclose, the house may be sold by the bank at a substantial loss. The proceeds of the sale may not be sufficient to cover the debt plus the legal costs to the bank; the debtor most likely did not read the mortgage papers carefully and may not realize that the debt has not gone away.

I have heard of advice given that there is nothing to worry about in such cases. A prevailing feeling seems to be that the bank will not do much beyond sending threatening notices. This has often been the case until recently. Lately there has been an uptick in suits to recover damages from defaulted borrowers, and suits to recover damages from appraisers who fraudulently inflated values on appraisals so that the loans could be made. There is no statute of limitations for fraud; some of those appraisals were done 6-8 years ago and are just now going to trial. A sleeping dog may look like it is just lying there, but beware that it is not plotting revenge.

My advice to any homeowner who is no longer able to pay on the mortgage is to stay put. Keep the home in good repair. Keep it insured, with the utilities on. If, ultimately, the bank evicts the homeowner in the foreclosure process, the eviction will come after the filing of the foreclosure deed and the bank will have to take the responsibility for upkeep. In some cases, it may even be possible to work out a rental agreement until the bank is able to sell the home. All these things will work to minimize the size of the balance remaining on the debt.

Meanwhile, if the problem is due to not having enough income to cover the mortgage, it will be worthwhile to seek legal counsel regarding filing bankruptcy. I do not recommend bankruptcy unless it is absolutely necessary. It is too often seen as a means of escaping debt. Never forget that even if a bankruptcy proceeding is successful, and protection from creditors is afforded, the debts are not erased. If someone has promised to pay, he is morally obligated to pay -- it is sin to not pay, even if the court states that only a percentage is required to be paid back. Never confuse what is legal with what is right.

Bankruptcy carries a stigma, and it is true that for a number of years it may affect a person's ability to purchase things on credit, or even to rent a home. Eventually, however, the bankruptcy is cleared off the credit records, and life can return to normal. The debtor is required to pay the amounts judged by the courts, and can also arrange to pay the debt in full as opportunity arises. It is not a good thing to endure, but the debtor is protected so he can do what is right in the course of time.

But what if the debtor decides to not seek bankruptcy? What if the debtor allows the lender to proceed with a suit for judgment? Some people say this is not likely to happen. I say, it is more likely than not to happen. In such a case, without the protection of a bankruptcy judgment, the lender is free to garnish the wages of the debtor until the debt is paid. There may never be enough money left in such cases for the debtor to start over and get back on his feet. The judgment may follow him all his life; it will also touch the lives of any people who might enter into contracts or relationships with him. Deficiency judgments are meant to be punitive. Avoid them if at all possible.