Our Second Mortgage Company Won't Subordinate Its Loan

As part of its efforts to stimulate the US economy in 2008 and 2009, the Federal Reserve lowered interest rates to record low levels, which in part allows banks to offer some attractive rates to homeowners applying for a new mortgage or mortgage refinance.

Refinancing When the Loan Balances Exceed the Property Value

Although many current homeowners would like to refinance their home loans to take advantage of the low interest rates, the downturn in property values has resulted in many owing second mortgages or home equity loans that push their total current financing perilously close to, if not over, the actual values of their homes. In this situation, a refinance lender is unlikely to loan the homeowner enough money to combine the first and second mortgages into a single obligation, as the lender does not want to extend a loan that exceeds the value of the property securing debt.

The refi lender may be willing to refinance the first mortgage, but only if the lender holding the second mortgage or home equity loan is willing to give the refi lender's encumbrance on the property seniority over the second mortgage.

Allow me to travel on a momentary tangent regarding legal terminology. In Colorado, California, Texas and 18 other states the "mortgage" is actually a "deed of trust." Legally, the two are different, but a comparison of the two exceeds the scope of this discussion. Although it is inaccurate technically to call a Colorado home loan a mortgage, we will continue to refer to the first and second loan on the property here a mortgage because that is expected and understood by our non-property lawyer readers.

Subordination

Getting back to the subordination issue, without such an agreement, the second mortgage, as the older debt, would become the senior encumbrance on the property once the refi lender pays off the first mortgage as part of the refinance.

Unfortunately, unless you have a significant equity cushion, the bank holding your second mortgage loan is likely to refuse to agree to subordinate its encumbrance, especially if you are planning to "cash out" any of your equity by borrowing more from the refi lender than you currently owe on the first mortgage.

The secondary lender's position is already relatively weak in terms of its ability to enforce its security interest in the home, since it would be required to either pay off or otherwise receive the first mortgage lender's consent to proceed with foreclosure. Given its already tenuous ability to force repayment, the secondary lender is unlikely to agree to subordination to a "cash out" refi loan, which would eat up the small amount of equity to which it may be able to lay claim in case of default.

On the other hand, if you can show the second mortgage holder that the refi loan will actually reduce the risk of default on your home loans by reducing your total mortgage payments each month, you may find the secondary lender more willing to cooperate with you and the bank providing the refinance loan.

Consult with the agent handling your potential refinance loan, as well as any other mortgage professionals you know, to discuss the best way to present your plan to the second mortgage lender. The key is making the lender believe that the refinance loan and required subordination will ultimately serve its interests.

Appraisal by Second Mortgage Company

In your question, you state that your second mortgage company has requested a full appraisal of your property before it will consider agreeing to subjugate its encumbrance to that of the company through which you are trying to refinance your first mortgage.

First, you should understand that demanding a complete appraisal of the home's value is not unusual. The second mortgage company wants to determine how much equity you currently have in the property (the more equity, the more likely junior encumbrances will be paid in case of foreclosure), and how the proposed refinance loan will affect this equity cushion. It will also want to determine if you are "upside-down" on the property (you owe more that the home is worth), as being in this position significantly increases the possibility that you will default on one or all of your mortgage obligations.

Here, it sounds like the lender has refused to subordinate, and refused to refund the appraisal fee paid. Unfortunately, I do not think that you have much recourse in this regard, as appraisal fees are usually non-refundable.

However, if you think that you were mislead by the lender, you may want to contact the Colorado Dept. of Real Estate and the Colorado Attorney General’s Office to file complaints against the lender. While these agencies cannot guarantee you a favorable outcome, they are often successful in mediating disputes between consumers and businesses.

Loan Modification

You are correct in pointing out that a Bills.com reader reported that a second mortgage holder made a lump-sum settlement with a homeowner for 10 cents on the dollar. Keep in mind that there are dozens of companies making second mortgage loans, and hundreds of thousands of second mortgages under contract. Your lender may not offer such attractive settlement terms.

As for what department at the second mortgage company you need to contact to discuss the possible modification of your loan terms (payment amount, interest rate, loan term, etc.), you should probably start by contacting the general customer service department. They may help you directly, but a good CS agent should be able to point you to the correct department (probably named something like "loss mitigation," though this will depend on your specific lender).

To read more about refinance loans, I invite you to visit the Bills.com home refinance page. I wish you the best of luck in your efforts to refinance your current mortgage loans, and hope that the information I have provided helps you Find. Learn. Save.

Best,

Bill

Bills.com