by Tanta on 3/23/2008 10:07:00 AM

Since it's Easter Sunday, and you don't have anything better to do than munch on Peeps and read about relitter perfidy, another in our continuing series on real estate fraud.

Via Mish, this story of renters in a bind:

When the Hays found their rental home last June they were pleased. Not only could they move in right away, the landlord asked them what they could afford for a deposit. There was even the chance to buy the home at some point in the future.

But that would all change in less than seven months. There's no forgetting the day Jennifer and Travis learned something wasn't right with their rental home. Their landlord called January 15, a memorable day. It was the same day Jennifer was headed into surgery.

"She called to tell me I should start looking for another place, that she could sell me a house," Jennifer explains. "And that's when I figured out that not only am I going through a miscarriage, but I was also going to lose my house."

You really want to read the whole thing, including the unbelievable text messages the relitter-landlord sent to the renters, trying to get them to pay February rent (after the bank took the house at the foreclosure sale in the end of January).

What I don't think is necessarily clear in the story as reported is the timeline. A "perfect" foreclosure in Nevada--that is, one without unusual delays, that uses basically standard servicer approaches for when to start FC proceedings--takes around 270 days from the last payment made. Nevada has a 90-day reinstatement period in the statutes, meaning that once the initial Notice of Default is filed, the borrower has the next 90 days to bring the loan current and avoid FC. After the 90 days, if the loan isn't reinstated, the notice of sale must be published three times over three consecutive weeks. Including time for processing the original FC referral (before the NOD is filed), it takes about 120 days to get through the process to the sale of the property. If the servicer does not initiate the FC process until the 120th day of delinquency (the 150th day since a payment was made), the whole thing is 270 days.

In our case at hand, that means that the owner of the property probably made her last mortgage payment on May 1, or possibly June 1 if the servicer started FC after the 90th day of delinquency. (This is assuming she ever made a payment; the article doesn't tell us when she bought the property.) She rented the place to the Hays in June. In other words, we don't have a case here of a landlord who gets into financial difficulties at some point in time after renting the place to tenants. We have someone who appears to have intended from the start to "skim off" rents without paying the mortgage.

I really don't know how the Hays could have spotted this up front; there are no public records that will tell you if your landlord is delinquent the day you sign your lease, or is going to be delinquent thereafter. Tenants can check public records to see if a landlord is in foreclosure--if that Notice of Default or whatever it is in a specific state has been filed--but there's nothing to see until that document is filed. In the case at hand, it appears that nasty letters from the servicer were actually coming to the property address, but these tenants were apparently unwilling to open mail not addressed to them, and fell for the landlord's "explanation" of what that flurry of certified mail was all about. I'm sure it never occurred to the Hays that while some legitimate landlords will have servicer mail directed to the property address, that can also be a good indication that the property was obtained under occupancy fraud (that is, that the landlord claimed to the lender that the property would be the landlord's principal residence). Sadly, there's no sure-fire way for people who rent single-family homes from an individual to really verify whether or not they're getting caught up in a rent-skimming scam.

There is also no sure-fire way for servicers to know that this is going on, although there are steps that can be taken. A while ago we were confronted with a rant from our favorite Gretchen Morgenson, railing about servicers hitting delinquent borrowers with "unnecessary" property inspection fees. I have no way of knowing if the servicer in the Hays' case did inspections at all, if the inspector saw signs of occupancy and assumed the occupants were the owners, or if the inspector did catch on and the FC was actually accelerated because the servicer feared that rent-skimming was, indeed, transpiring. I do always fear, when the delinquent owner is a member of the local RE establishment, that the "inspector" might have eyes wide shut. I do actually claim to know that this is why delinquent borrowers find themselves with a bill for periodic inspections.

I make no claims that scams like the one perpetrated against the Hays--and it is a scam to enter a rental agreement with someone while not disclosing that you're about to lose the property to FC, that's kind of a material fact--are common or usual or an "epidemic." I am, however, convinced that a lot of "speculators" are suddenly trying to convert themselves into "landlords," and that the results aren't going to be good for anyone--not for the tenants, and not for the lenders. There's a problem with market-comparable rents not being high enough to satisfy the mortgage payment, and then there's the problem that it may not be anyone's intention to satisfy the mortgage payment anyway.

Nonetheless, I've seen some people lately encouraging renters to "take advantage" of the ability to rent nice big houses on the cheap from an amateur landlord these days, given the distress in the RE market. I'm merely observing that there is some room for caution, yet again, when the deal sounds "too good to be true." I am also observing that folks who have no experience with being landlords, and who are tempted to buy properties "on the cheap" in a foreclosure or short sale and rent them out, might want to stop and consider that they might have to "compete" with "distressed" landlords who can offer prospective tenants a "better deal"--no or minimal deposit, short-term or flexible lease terms, low rent--since they have no intention of making mortgage payments. In the current environment, you had better make sure you can carry the PITI and maintenance on a rental property you buy with a very high "vacancy factor." Any "RE guru" who is telling you different may well have, shall we say, ulterior motives.