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One of the more common questions that I get during the short sale process is "Can my bank seek a Deficiency Judgment after a short sale or foreclosure?"
In other words, after the short sale process is complete, can they come back after me for the difference of what I owe on the property and what they ultimately end up with?.
There are three common ways to avoid a Deficiency Judgment in California. The first is SB931, the second is [link widoczny dla zalogowanych] Purchase [link widoczny dla zalogowanych] Money Loans and the third is through proper negotiations.
SB93 is a new law that went into effect January 1st, 2011 affecting short sales in the State of California. It states that if the first lien holder agrees to do a sale in California, they cannot come back after the short sale is completed and seek a Deficiency Judgment.
This is significant because prior to January 1st, Banks could double dip and agree to do a sale, and still retain the right for years, to turn the debt over to collections and seek the losses that they incurred in the sale process.
The other thing that’s significant with SB931 is that it does not matter how the loan originated. If you refinanced the loan to get a better rate or refinanced and pulled out $200,000 of your equity to buy an RV or a boat, the law still applies.
If your first lender agrees to do a sale on your principle residence, they cannot come back after you [link widoczny dla zalogowanych] for the losses afterward.
The second way to avoid a Deficiency Judgment in [link widoczny dla zalogowanych] California, after a sale has been done, is having a purchase money loan(s). A Purchase Money loan is the loan [link widoczny dla zalogowanych] you ORIGINALLY USED to purchase your home. As an example, if you purchased your home 5 years ago and [link widoczny dla zalogowanych] got an 80/20 loan that you did NOT refinance [link widoczny dla zalogowanych] or pull equity out [link widoczny dla zalogowanych] of, then your loans are considered PURCHASE MONEY.
California is a non-recourse state. This means if you have a Purchase Money Loan on your principal residence, and the home goes to foreclosure, the Bank cannot come back after you and seek a Deficiency Judgment. This is critical during the negotiations.
A seasoned broker will typically remind, the bank’s negotiator that if your home does go to foreclosure they have no recourse and will recoup none of their losses.
That leads us to proper negotiations, which is the third tool you can use to avoid a Deficiency [link widoczny dla zalogowanych] Judgment in your sale. This tool may the most important because your Broker has [link widoczny dla zalogowanych] the ability to not only negotiate the Deficiency Judgment release, but also negotiate promissory notes and cash required from the seller at Closing.
If your broker does a good job, you’ll get an approval letter that states the Bank will not pursue a Deficiency Judgment after your sale is complete. This is why it’s so critical that you work with a Broker that really knows what they’re doing.
Some of you may be ready to get started with a Short Sale, and if that is you, simply go to the website in the resource box for more information about how to have a successful short sale. If you’re not ready yet and know of someone who is upside down [link widoczny dla zalogowanych] or behind on their payments that could benefit from this information, please pass along the website address. [link widoczny dla zalogowanych] This could be the very best gift that they get this year.
Thanks for reading this article and look for more soon.
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