BofA Tests Foreclosure Rental Program

By Kaitlin Ugolik

Law360, New York (March 23, 2012, 6:25 PM ET) — Bank of America Corp. has launched a pilot program in New York, Nevada and Arizona that would allow homeowners facing foreclosure to rent their homes from the bank for up to three years at or below the market rate, the bank announced late Thursday.

Billed as a way to help homeowners transition out of their homes through a landlord-tenant relationship with the bank, the plan will be offered to about 1,000 underwater customers who have been delinquent for more than 60 days. The participants will transfer their home titles to the bank, which will partner with management companies to act as a landlord for up to three years.

This pilot program will help determine whether conversion from homeownership to rental is something our customers, the community and investors will support, Ron Sturzenegger, Legacy Asset Servicing executive at Bank of America, said in a statement.

In connection with their participation in the pilot program, homeowners will pay a monthly rent that is lower than their mortgage payment and will be excused from certain other payments, such as property taxes and hazard insurance, the bank said.

At the end of the program, the homes are expected to be sold to investors. If it goes well, the bank said it would consider creating a broader partnership with real estate investors in which they would purchase certain foreclosed-on properties on a regular basis and serve as landlord to the underwater homeowner.

The unique program capitalizes on certain real estate investors’ growing interest in taking on the landlord role in order to take advantage of the distressed properties, the supply of which is only expected to grow. But some experts question whether the customers themselves will be willing or able to take advantage of the program if it advances past the pilot stage.

While the plan offers rent payments below market rate and lower than the mortgage payments, some severely underwater homeowners may benefit more from other options, such as declaring Chapter 13 bankruptcy, according to New York real estate and foreclosure attorney Scott Lanin.

In that scenario, the home is surrendered to the bank and the homeowner remains in place during the long process, often making no payments at all during the transition period targeted by Bank of America’s plan. This could give the homeowner much needed control during that time, Lanin said.

Bank of America said the program would initially be offered only to homeowners who owe more on their mortgages than their homes are worth, but who have enough income to make smaller payments. The bank said it expects that the program will not only help homeowners transition, but possibly help stabilize housing prices in the surrounding community by keeping distressed properties off the market.

Others say the bank’s motives are suspicious, but suggest less extreme alternatives, such as restructuring.

“If the borrower can afford to pay rent at a lesser amount than the mortgage, then the borrower can afford to pay under the terms of a restructured mortgage, with principal balances reduced to reflect current property values, and interest rates reduced to reflect Bank of America’s current cost of funds,” Marc A. Landis of Phillips Nizer LLP, who has represented clients on both sides of the coin, told Law360 Friday.

More than 1.3 billion homes are currently in foreclosure in the U.S., with a surge in foreclosure activity in February, according to RealtyTrac LLC. The numbers are rising as lenders deal with a backlog of unpaid loans that were stalled during the government’s probe into mortgage lending practices at the five biggest banks, ending in a $25 billion settlement last month.

Even with a rise in foreclosure activity, Trulia Inc. reported this week that in most U.S. markets it is actually cheaper to buy a home than to rent, as home prices remain depressed and rents rise in response to increased demand.