14 Mar 2011
by Ronald Wheatley, Esquire
Massachusetts Elder Answers reports on a reverse mortgage lawsuit against the government’s role in reverse mortgage rules, charging that reverse mortgage borrowers were caught in what amounts to a regulatory bait and switch, the AARP’s legal arm is suing the Department of Housing and Urban Development (HUD) on behalf of three now-deceased borrowers’ surviving spouses who are facing imminent foreclosure and eviction from their homes.
The case involves the spouses of individuals who took out Home Equity Conversion Mortgage (HECM), which are the most widely available reverse mortgage and are administered by HUD. A reverse mortgage allows homeowners who are at least 62 years old to borrow money on their houses. The loans do not have to be repaid until the last surviving borrower dies, sells the home, or permanently moves out.
The borrowers in the AARP case all died, leaving their spouses, who were not listed on the loan documents, living in the mortgaged homes. Because of the housing downturn, the homes are now worth less than the balance due on the reverse mortgage. None of the three spouses — residents of Indiana, New York and Maryland — can obtain loans for more than their homes are worth and so are facing eviction.
Since 1989, HUD rules governing reverse mortgages have stated that a borrower or heirs would never owe more than the home was worth at the time of repayment. But at the end 2008, the Bush administration abruptly changed this policy and said that an heir — including a surviving spouse who was not named on the mortgage — must pay the full mortgage balance to keep the home, even it if exceeds the value of the property. This, AARP says, violates existing contracts between reverse mortgage borrowers and lenders.
“HUD has illegally and without notice changed the rules in the middle of the game at the expense of vulnerable older people,” said Jean Constantine-Davis, a senior lawyer with the AARP Foundation, the organization’s charitable unit.
A spouse might not be named on the mortgage for a number of reasons: one spouse may have taken out the reverse mortgage before the marriage, or one spouse may be under age 62 and ineligible, or, more likely, lenders often encourage the younger spouse not to be named as a borrower because then the loan amount can be bigger. AARP notes that, perversely, under HUDs current rule a stranger can purchase the property for its current appraised value, but a surviving spouse cannot. The policy also negates a key purpose for which borrowers pay for insurance, AARP adds, pointing out that reverse mortgage borrowers have always paid insurance premiums to protect against going “underwater” — owing more than their homes are worth.
The suit charges that HUD is ignoring another provision of the HECM program that protects a surviving spouse from being arbitrarily displaced from the home upon the death of the borrower.
“This is shameful and we intend to make HUD honor the representations and promises they made to borrowers when they signed up for these government-insured loans,” Steven A. Skalet, of Mehri & Skalet, the law firm pursuing the case for the AARP Foundation. The case was filed in Federal District Court for the District of Columbia. HUD had no comment on the pending litigation.
Nearly one-quarter of all mortgaged homes are underwater, according to CoreLogic, a housing data firm.