A deficiency judgment is something that looms over the head of everyone who has to take a loss on their house, whether by foreclosure or by short sale. This isn’t the law in every state, but in many areas the mortgage lender is allowed to sue for the unpaid debt after the sale of the home – and when they can, they usually will.
When you have to sell your home through foreclosure or short sale, is there any way to prevent a deficiency judgment from being awarded? What happens in those situations?
Most of the time, the only way you can avoid a deficiency judgment is by negotiating with the lender during the pre-foreclosure process. They know how expensive it is to maintain their REO properties. The lender may consent to waive their right to collect the rest of the debt if they see that it will cost them less money in the long run to allow a short sale and simply let the debt go.
When that isn’t possible, depending on state law, the homeowner may have a deficiency judgment on their hands, whether the short sale was approved or the foreclosure went through. At that point, the debt only goes away through payoff or bankruptcy.
How is a deficiency judgment figured? First, the judge will look at the proceeds from the sale of the home. If there was a short sale, the amount of the deficiency judgment is the mortgage debt less the sale proceeds. If the home went to auction, in most states, the judge will take the greater of the appraised value of that home or the highest bid from the auction and subtract that amount from the mortgage debt.
So, the former homeowner now has a court order which says he has to pay the rest of that mortgage debt to the bank. If there were two or more mortgages or liens, that homeowner may even have two or more deficiency judgments against him.
Immediately after the judge signs the order, the deficiency judgment begins earning interest. If the lender adds its REO expenses to the balance, the interest just keeps climbing higher. There is an interest rate of 11 percent per year on deficiency judgments in Florida. What’s the rate in your state?
Next, the lender usually sells these types of debt to collection companies for 5 to 10 percent of the amount due. Since they know their chances of collecting the debt from a financially drained homeowner are slim to none, lenders would rather get the debt off their books and get what they can out of it.
Besides the deficiency judgment, the former homeowner also has a wounded credit report and a lower FICO score. Having a foreclosure on record is one thing, but a deficiency judgment or a low FICO score could influence a critical decision by others on whether to give that person a job, a loan, or a rental home.
The foreclosure scenario is changing. There are more property foreclosures than ever right now, and that means deficiency judgments could be increasing as well. The government is taking the lead in re-evaluating how foreclosures are handled. We may see some changes in the way deficiency judgments are handled in the near future, and we may not.
For now, your best strategy is to try and get the lender to see the wisdom of forgiving the debt and reporting the mortgage as “paid in full as agreed” on your credit report. Negotiating that deficiency judgment away is the key to survival here, because it can hang over your head for a long time.
Just because the lender forgives a portion of your debt doesn’t mean that you’re off the hook. The IRS may still come after you for taxes on the amount forgiven.