Belsky Weinberg & Horowitz, LLC A Personal Injury & Workers’ Compensation Law Firm

Thinking About Short Selling Your Home or Walking Away? Think Again!

avenues in an attempt to limit the damage of a foreclosure that will be caused to their credit, their pocket books, and their lives. Even millionaires are strategically walking away from their homes When loans aren't being modified, when defaults occur after a modification, or when no one will buy your home for what it is worth, many homeowners are seeking to "short sell" their homes to avoid a foreclosure sale. There are, however, risks that need to be brought to your attention

What is a "short sale" anyway? A "short sale" is when a homeowner sells their home for less than what is owed on the outstanding mortgage balances. In order to effectively and properly "short sell" a home, the bank holding the mortgage rights must agree to accept an amount less than what is owed. The agreement by the bank to accept less than what is owed, however, is fraught with peril and uncertainty. Typically, agreements entered into between banks and homeowners regarding short sales are often times silent as to the treatment of the deficiency balance that will exist after a short sale. For example: if a homeowner owes $100,000 on their mortgage, but through a short sale agreement the bank is willing to accept only $80,000 from the short sale, then a deficiency balance of $20,000 owed to the bank will arise. Short sale agreements are typically silent to the treatment of the remaining deficiency balance.

There are usually two treatments of the deficiency balance banks have been employing. The first, banks agree to forgive and release the deficiency balance, which absent a bankruptcy filing, is considered forgiveness of debt income. Upon completion of the short sale, the short selling homeowner is issued a miscellaneous 1099 for the amount of the deficiency that has been forgiven by the bank. In our example, the ex-homeowner will now be responsible to report on his current tax year's tax returns the amount of the forgiveness, $20,000 of gross income. The second, banks can also retain the right to pursue the ex-homeowner for the deficiency balance that arises after a short sale. Banks can sue and garnish wages, bank accounts and other property in satisfaction of the deficiency balance. These balances can also be sold to collection companies for pennies on the dollar, while the ex-homeowner still remains liable for the entire deficiency balance.

The only parties that usually win in a short sale scenario is the buyer, whom typically buys the home for less than market value, and the realtor, whom still gets paid their commission for the sale.

The ex-homeowner is usually left with the resulting fall out; forgiveness of debt income or liability for the deficiency balance.

Many times a person can file a Bankruptcy to eliminate the forgiveness of debt income issue and/or any deficiency balance that may result after the sale. This avenue is often the best course for a person in this situation as the bankruptcy not only replaces the foreclosure notation on a person's credit report to one of a discharge status, but also eliminates the possibility of being sued for the deficiency balance.

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