October 11, 2011 at 2:10 pm EDT | by David Bediz
Navigating short sales and foreclosures

For sellers who are upside-down (owing more than their home is worth) on their mortgages, especially those who need to sell their property, it helps to know the options available to extricate themselves from their mortgages.

There are government programs like the Home Affordable Mortgage Program (HAMP) of 2009, which aims to reduce the number of foreclosures by incentivizing loan modifications such that monthly payments are within homeowners’ means, but not all lenders participate, and not all borrowers qualify. In addition, some homeowners simply need to sell due to lost employment, a necessary move, medical conditions, etc., and can’t benefit from a reduced mortgage payment.

In the latter situation there are three main options available, all of which are unpleasant in one way or another. For homeowners with the means to do so, they may sell their property at market value and pay the difference between their loan amount and the sale price, in addition to the fees associated with the transaction. For some of our clients in this position, this has cost them upwards of $100,000, but there is really no limit, in theory, as to how much this may cost.

The second option is simply to stop paying the mortgage. A homeowner’s loan documents will outline the process for foreclosure to begin, which usually takes three months, but can take longer. Banks will contact their borrowers to determine the situation and hopefully to offer assistance in getting the payments back on track.

If a borrower can’t do so, the legal machine will grind into action to effectively evict the homeowner from the house. The ultimate effect is that the homeowner’s credit is severely tarnished, preventing him or her from obtaining financing for another home purchase for several years and also affecting his or her creditworthiness for everything from credit cards to cell phone plans, for up to seven years.

Many borrowers don’t realize that in many states, banks have the right to sue their clients for the deficiency amount, calculated as the difference between what they are owed (including legal fees, insurance and other costs) and what the property eventually sells for at a foreclosure sale. This suit can be brought even years after the foreclosure, so it can be a constant threat and a cause of anxiety for borrowers even after they feel a sense of relief when the foreclosure is finally finished.

Buyers of properties that have already been reacquired by the lending bank (listed as “Real Estate Owned” or “REO” properties) should know that the process is generally the same as with a normal sale. The bank generally behaves like any other seller, offering the property for sale and accepting or negotiating to get the best offer possible. The few differences include the fact that the bank will almost always offer the property in “as-is” condition only and the property will likely be in sub-standard condition (although not always). In addition, the listing prices for REOs are generally below market value, which drives many other buyers to be interested. Because of this, it is important to be able to offer the best terms possible, including a contract with as few contingencies as possible, a price that may exceed the list price (sometimes by more than $100,000) and with no financing at all, if possible.

Instead of allowing a property to go into foreclosure, a homeowner may opt for a “short sale” instead, which usually minimizes the possible liability they may owe. In this scenario, the sale price is less than the total debt on the property and transaction costs of the sale. Sometimes the proceeds are enough to satisfy one loan on the property but not another, and sometimes the proceeds are not even enough to pay a single debt on the property in full.

In any of these situations, the lien holder or holders who will not be paid completely will have to agree to take a reduced amount, or perhaps nothing at all, for the sale to go through. Usually the process can be handled by the homeowner themselves, or through an agent, but the process can be so cumbersome and unpredictable that we always recommend working with an attorney who specializes in short sale negotiations. Owners should accept the written agreements provided by the bank only if the deficiency amount is forgiven, if possible. This eliminates the chance they may be sued for that amount in the future, but it should be noted that they must pay ordinary income tax on the forgiven amount to the IRS as if that money were earned.

As a buyer, you must know that if you are interested in pursuing a short sale listing, there is a large chance the process will not be successful, even after many months of waiting. The chances of success go up sharply if the seller is working with a short sale negotiator, but even then there are no guarantees. Therefore it should be noted that a short sale is only worth pursuing if the price really is attractive enough to justify the risk involved.

Either way, the outlook for owners of properties in distress is not rosy. Foreclosure affects their credit for up to seven years and may result in a lawsuit to recover the deficiency. Short sales have a softer impact, although still significant, on their credit and may also expose them to liability for the deficiency amount, if that amount is not forgiven. And paying the shortage themselves at closing can be a very difficult thing to do, although it preserves the borrower’s good credit. If the property must be liquidated, however, one of these three options may actually allow the homeowner to move on with their lives and start working on their financial future with less of a burden.

Buyers can take advantage of the current market conditions to acquire a property in distress at a good price, but should be aware of the potential pitfalls, especially when purchasing a short sale property.

David Bediz is a Realtor at Coldwell Banker Residential Brokerage and part of the Dwight and David Real Estate Group. He can be reached at 202-352-8456 or through DwightandDavid.com.


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