Skip to main content

MORTGAGE LOAN DEFICIENCIES



Homeowners are not always "out of the woods" once their home is lost to foreclosure or sold by "short sale."  Foreclosures and short sales remove  the mortgage lien from a property, but do not eliminate the debt described in the note or loan agreement, or it's promise to repay the debt in full. That remaining balance due is the "deficiency." Contrary to public perception, banks are not only allowing short sales and completing foreclosures,  but they are still looking to borrowers to satisfy deficiencies well after closing.


The Illinois Appellate Court has started the new year with a "win" for mortgage lenders. The Court confirmed  a bank's right to pursue it's borrower for everything that was due and owing, over and above the recovery from a foreclosure sale. Banks can be awarded deficiency judgments as long as borrowers are given proper notice of the fact that they were being sued.   This case held specifically that even a notice (summons) handed to another member of the household - also mailed to too - was a proper notice of the foreclosure lawsuit.


Deficiency judgments go on your permanent record. Unpaid judgments stay there forever. In the short term, they can influence credit scores and employment applications or prospects. More importantly, and over the long term, they can be enforced by wage deductions or asset forfeitures (garnishments). Following proper procedures, a bank can enforce for up to 27 years

Home owners using short sales to escape their mortgages may also see long term after-effects of their efforts. Many short sale lenders are asking their sellers to either pay additional money out of pocket at closings, to sign new promissory notes agreeing to make further repayments over time, or are simply refusing to waive the right to pursue deficiencies in the future.  Second lien holders in particular are very insistent on retaining the right to repayment.

The best way to avoid deficiency complications is to try to get the lenders to waive them, Many will. Often times however, home owners have little choice but to sign loan re-affirmations or modifications. Doing so may be necessary to accomplish the much more important goal of ending the mortgage loan and cutting off liability.   Even still, there are several known and effective strategies that people facing deficiencies can employ to mitigate their losses. Legal counsel can and should be able to explore these with debtors and help craft courses of action best suited to the circumstances.

A final problem - there may also be income tax consequences to borrowers where lenders waive a debt/deficiency. Debt that is forgiven or cancelled by a lender must be included as income on your tax return and is taxable. The Mortgage Debt Relief Act of 2007 gives some protection to people who have lost their homes to foreclosure, but this relief is schedule to expire this year. Always best to consult your own tax consultant to evaluate these consequences.

Popular posts from this blog

PLM Title Shuttered

Title insurance is a critically important part of any real estate transaction; or at least it should be. The title company guaranties the "quality" of an owners interest in the property - that there aren't any (unknown) liens or defects. No buyer that I work for will purchase a property without it. Title insurance is only as good as the insurer. We want to know that the insurance company, like the Rock of Gibraltar , will always be there. We want to sleep easy at night, knowing that the client is protected. That said, it was a bit distressing to see that PLM Title Company shut its doors, without any forewarning last week. Worse still, this morning's news is that there is a criminal investigation underway - and that we do not yet know why. Old timers like me shudder with memories of the great Intercounty Title debacle five years ago. Here's to hoping that this one is nothing like that one. Set aside the problems involved trying to make a claim against a defun...

FHA Loans and Condo Sales - Is Relief on the Way?

By all outward appearances, state government in Illinois has ground to a complete halt, with all eyes focused on the Governor's "problem" and all the related fal - der -rah. Its hardly business as usual in Springfield, but not everything has ground to a halt. Several new bills have been introduced this week. That is not to say that they will be of benefit to we the people. Nonetheless, the cogs and gears are turning, and we are hoping for the best. One such proposal comes from Rep. LaShawn Ford of Chicago's west side, who is himself a real estate broker and entrepreneur . He is the author of House Bill 155 , introduced & referred to the Rules Committee Wednesday. It seeks to address one of the most common problems I am seeing in condominium resale transactions these days; the tension between many Declarations of Condominium and FHA loan guidelines. Many Condo Declarations provide Associations with a "right of first refusal," which basically allows t...

MAYOR DALEY PROPOSES TIF FINANCING FOR SOME DISTRESSED PROPERTIES

Lets see how City Council reacts on this one, but the Mayor introduced a pretty interesting little ordinance that might be a real boon to first time area home buyers willing to buy and rehabilitate some bank-owned properties. Progress Illinois reports that the mayor's bill, introduced on March 9: "seeks to tackle the growing problem of vacant homes that are blighting neighborhoods across Chicago, and in particular in minority communities. Called the Vacant Building TIF Purchase and Rehabilitation Ordinance, the  bill  (PDF) proposes allowing residents with a household income no greater than 100 percent of the regional median income to apply for a tax increment financing (TIF) grant that would pay for up to 25 percent of the cost of purchasing and rehabilitating an empty residential property. Single-family empty homes or units in condo and cooperative buildings with four units or fewer are eligible. The empty homes must be located in a TIF district and must be in need of...