Real estate data companies are releasing regular reports on the housing market in New York City, sometimes with eye-popping statistics about sudden spikes in foreclosures and high rates of re-default. These reports are great hooks for news stories, and give the media a chance to highlight working- and middle-class families who are still struggling years after the 2008 financial crisis.
But reporters and researchers should view these reports with a heavy dose of skepticism and with a full understanding of how foreclosure works in New York State.
That’s because the reports frequently mix-and-match terms and use data without fully taking into account the complex foreclosure process in New York State. Many of these foreclosure spikes can be explained by the regular variation in filings from month-to-month or duplicate filings, while re-defaults are nearly impossible to track because of state laws mandating that foreclosure lawsuits be refiled at regular intervals.
In New York State, foreclosure has evolved into a system where homeowners in jeopardy have opportunities to get help and to stay in their homes. It’s also a judicial foreclosure state, which means lenders can’t simply seize a home because a homeowner is behind on payments. Instead, they have to file a lawsuit in court. These lawsuits can be lengthy, and while many homeowners negotiate modifications with lenders, many other homeowners exit the system by selling their home under pressure. This makes it difficult to estimate exactly how many people are in the foreclosure process at any given time.
So what can we track? Foreclosure data is not an easily measurable representation of money and property changing hands, as in property sales, but records of specific stages in a complex lawsuit that has a number of very different outcomes. There are four places in this process where some data is available:
• Pre-Foreclosure Notice: Thanks to the 2009 New York State Foreclosure Law, mortgage servicers are required to notify both the State and the borrower 90 days before legal action is taken against the homeowner. This information is not public so as to protect homeowners. The intent of this law is to connect homeowners to free, notforprofit resources before they get farther behind on their mortgage payments.
• Lis Pendens: This is the beginning of a foreclosure lawsuit. Lis Pendens records are tracked through the court system and by a variety of real estate companies. The Center tracks these as an indicator of how many homeowners have entered the foreclosure process and need legal assistance. The number of lawsuits vary from month to month, but tend to stay pretty stable by quarter. Lis Pendens are lawsuits and therefore publically available records. This can create problems for at-risk homeowners who may be vulnerable to scammers and home flippers. The Center makes sure that all data we publish is aggregated or protected to ensure that we don’t leave our clients or potential clients vulnerable.
• Auctions: Mortgage lenders cannot seize your house in New York State, but instead are required to auction your house to the highest bidder. Once a homeowner reaches a certain point in the foreclosure lawsuit, an auction can be scheduled. These auctions are a matter of public record (but don’t worry, a homeowner still has opportunities to resolve the lawsuit and keep their home!)
• Auction Results: For the few homeowners that complete the foreclosure lawsuit process in New York State, their homes will be auctioned off. These auctions can be attended by any member of the public, and the specifics of these auctions are recorded by real estate data companies. The number of auctions can change a lot in any given month based on how cases proceed through the court system.
Overall, we know how many people are at each of these four stages at any given time.
These stages are at the beginning and at the end of the foreclosure process. We can capture how many people are at risk and how many people have slipped through the cracks and are losing their homes. Unfortunately, in between there is a large number of homeowners who still need help. It can be extremely challenging to find out how many there are and where they live.
For example, data on foreclosure lawsuits will often contain multiple filings involving the same property — both in the same year and over a longer period of time. Some of these can be repeat filings, multiple mortgages, or servicer errors, but some are re-defaults, or cases when a homeowner resolves the foreclosure but falls back into foreclosure over time. However, Lis Pendens lawsuits must be re-filed with the courts every three years. Some servicers will be very conscientious about re-filing a Lis Pendens, while others will only refile when the lawsuit is thrown out of court. The differences between these repeat filings are extremely difficult to tease out based on the data available in these lawsuits.
For the media and real estate companies with data divisions, differentiating between foreclosures and auctions can make a big difference. Auctions aren’t really foreclosures, but the end of a long lawsuit and represent cases where homeowners were unable to resolve their payment issues. Use the term “foreclosure” for people entering the foreclosure process. It helps illuminate a huge problem for New York homeowners at a time when it’s not too late to get help.
Ultimately, being a bit more skeptical about bombshell reports on foreclosures can lead to better news stories and a better understanding of what working families are facing as they struggle to hold onto their homes.
The map above shows the number of lis pendens filed in the city in 2016.