On Deficiency Judgments:
(Please see previous post on 1099s)
In my haste to get something out before leaving the office on Friday, I made a statement that was far from accurate on my previous post concerning 1099s.
I stated that,“Every foreclosure situation is going to face either a 1099 or a Deficiency Judgment” which is not an accurate statement. The two exceptions to the rules are as follows.
If after the foreclosure there was enough equity in the property to make everyone whole, then there is no reason for either a deficiency judgment or a 1099.
If there was not enough proceeds from the sale to make every lienholder whole, then a 1099 could be issued but probably won’t be issued if it was related to the forgiveness of acquisition indebtedness.
Also, some people have inquired if a lender can file a 1099 and come after the homeowner with a deficiency judgment. Remember, a 1099 is for debt forgiveness . . . and once filed a bank can not then file a deficiency judgment for debt that they’ve forgiven.
The bank will either file a 1099, OR a deficiency or the bank may decide to do nothing.
One more point that may apply to some of you – There are no deficiency judgments in California for purchase-money loans. Other states have similar laws; however, owners need to watch out for personal guarantees. What some people don’t understand is when they refinance or take out a hard-money loan such as a home equity loan, they are now opening themselves to a deficiency judgment in California in the event of default.
About deficiency judgments . . .
If Tom owes me 50k and doesn’t pay me, then I have two choices: 1) I can write it off, thereby forgiving the debt ––that’s were HR 3648 may apply; or 2) I can go after Tom (I want a judgment, and I am going to pursue it).
A judgment is only the result of a court order. A deficiency may mean one of two things: 1) it may either be a court order; or 2) an agreement to repay evidenced by a promissory note.
Lenders will ask for a note so that they can pursue the deficiency judgment. If the lender approves the short sale without the note, then their case is dismissed without a judgment and there’s no court order stating that Tom owes me money . . . so I have to get Tom to sign the note before the short sale is completed or I don’t get a chance to get my money.
If there’s a court order, the court order will specify the exact dollar amount. It’s also going to include the interest rate of the money is growing (a simple interest calculation at whatever the statutory rate is). The amount will also grow through the cost of the collection activities (bank levies, wage garnishments, etc.).
For all those out there who believe that a short sale hurts the homeowner because of the threat of a deficiency judgment, I have bad news. . .
If the house goes to foreclosure ––the whole way through – they’ve just guaranteed that they will have a deficiency judgment against them (accept in California). And it will probably be for a higher amount than if they do a short sale.
Also, for those Realtors & attorneys out there that it’s best to recommend to your clients to do a deed in lieu instead of a short sale . . . there’s a saying . . . “don’t self screw.” (sorry to be crude)
A deed in lieu not only will show as a foreclosure on your client’s credit report and damage their credit for seven to ten years . . . it in no way guarantees that the bank won’t file a judgment later. It simply saves the bank time and money.
One of the other ways the banks get their deficiencies is by a voluntary promissory note that is signed before the approval. Two things to look for: 1) this promissory note is negotiable. The lender is asking for it, but this is a part of the negotiation process.
Here’s a trick a lot of people forget: If the lender asks for a promissory note, and the homeowner has already filed Ch7 and that debt has been discharge . . . the lender can’t ask the homeowner to sign a promissory note.
For more info on the 1099s and The Mortgage Forgiveness Debt Relief Act, see: