A BPO is not done for an FHA PFS, It's a full FHA Appraisal.
In accordance with 24 CFR Part § 203.379 mortgagees are responsible for the cost of
surchargeable property damage. If the property is being sold “As Is” subject to the damage, the
mortgagee will be required to deduct the government’s estimate of the cost of the damage from its
PFS claim (See Appendix A - Claim Filing Instructions for Item 109).
If the property is being sold “As Repaired” and funds for surchargeable repairs will be
escrowed or provided as a credit to the borrower at closing, the amount of the repair escrow or
repair credit is not an allowable settlement cost as defined in Section J of this ML and may not
be included in the net sales proceeds calculation.
If the damage is not surchargeable it is not necessary to obtain approval from NSC prior to
approving the PFS Agreement. Regardless of the cause of the damage, the mortgagee must work
with the mortgagor to file a hazard insurance claim and either use the proceeds to repair the property
or adjust the claim by the amount of the insurance settlement (non-surchargeable damage) or the
government’s repair cost estimate.
Mortgagors are required to disclose any property damage to the mortgagee during the
application or after the PFS approval. In the event a property sustains significant damage after a
mortgagor has received approval to participate in the PFS program, the mortgagee must re-evaluate
the property to determine if it continues to qualify for the PFS Program and terminate participation
if the extent of the damage changes the property’s FMV. .
The FHA PFS (Pre-Foreclosure Sale Program) is the only type of Short Sale option available for FHA Insured Loans. A Full Appraisal is required for participation into the Program.
Interesting problem, Nelly.
Isn't the issue here: Who is liable for the loss of home value because of the drywall? Basically, someone is on the hook to go sue the manufacturer. Who? The Note Holder? The Originator? Or the Insurer of the Note (FHA)? The liability insurer of the Originator?
I would think that the FHA as the Insurer of the Note is probably not on the hook. After all, they just insured the Note, based on a representation of value. Subsequently, information in revealed demonstrating that the value is not what was represented. So, I would think the FHA's agreement would state that they are not liable for the resulting loss. Seems reasonable, right? They issued insurance based on the representation of value of the collateral.
I would think that the originator of the loan is liable here, or their liability insurer, but not the FHA or note holder.
Hence, it would seem that perhaps BofA/FHA are being reasonable here. Until the responsible party indemnifies them for the loss by agreeing to pony up money, they cannot approve the short sale.
Sounds like that issue must be resolved before the property can sell. I would say you probably need legal assistance here to protect your interests. And, I think this is probably not a basic real estate attorney matter.
I would not be surprised if this house did not foreclose, for lack of desire to acquire and because of potential liability upon ownership. Also, the FHA does not move quickly, even under normal circumstances.
Upon agreement by parties unrelated to you, you might be back in the game.
Regarding "FHA liability", their liability is for a loss sustained by the holder of the note, not from the house itself, so I think the FHA liability as insurer would occur upon accepting a short payoff of the note. So, I think their liability is probably not mitigated by the buyer agreeing to accept the property "as in".
I did get a short sale approval with Space Coast on a home that had chinese drywall as well. While the loan was not an FHA loan, they had no issue with the existence of the chinese drywall, as the liability does not go with the lender. It took some doing to get them to waive the option for a defiicency judgement, as they had the position that should the home owner get any compensation from being a party to a class action lawsuit, they felt that the funds should go to them to offset their loss. We approached the bank with proof of the condition of the home with a full inspection report, and reiterated the home owner's financial circumstances. We also provided two estimates of the cost to remedy the condition of the home and were able to show that the cost to remedy far exceeded the current value of the home.
Maybe the buyer can have an attorney draft a Hold Harmless Agreement releasing Bank of America, FHA and all other parties to this transaction. I would also suggest you have the file escalated to a higher level and have them reconsider your case.
That is a tough one
So now that we have had the Short Sale declined we requested to do a Deed in Lieu and BofA is also declining that. Unreal! Here is what BofA stated:
Per FHA/HUD you must attempt a short sale before you can do a DIL therefore if you cannot do a SS you cannot do DIL
Is my only option now a foreclosure?