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FORECLOSURE DEFICIENCY JUDGMENTS IN CALIFORNIA

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eMail: Charles@BayLiving.com


So your real estate agent is trying to talk you into a short sale?  What about the potential for a deficiency judgment?  Foreclosure has restrictions on deficiency judgments unlike short-sales (although there are some).  Read the California Code of Civil Procedure:

580d.  No judgment shall be rendered for any deficiency upon a note secured by a deed of trust or mortgage upon real property or an estate for years therein hereafter executed in any case in which the real property or estate for years therein has been sold by the mortgagee or trustee under power of sale contained in the mortgage or deed of trust.


You may wish to obtain legal counsel to see where you stand...foreclosure may be a better bet than a short sale.

Understanding California foreclosure

Posted: 02 Apr 2009 07:01 AM PDT

California foreclosure procedures provide that any secured creditor who uses the power of sale in a deed of trust to conduct a foreclosure sale gives up any claim against the borrower for a deficiency.  So, a creditor who chooses a quick and relatively cheap non judicial foreclosure cannot pursue the property owner for more money after the sale.

The thinking behind this provision of California law is that in non judicial foreclosure (one not involving the court), there is no assurance that the foreclosing creditor is getting the property’s value at the foreclosure auction.  It would be manifestly unfair for the creditor to bid $10 at the public auction, then chase the borrower for the balance.

This principle, called an election of remedies, applies to any foreclosure sale conducted under the terms of the power of sale.  The property can be a home or an investment property;  the debt can be purchase money or a refinance.  Hold a foreclosure sale and surrender all rights against the borrower.

It may be small comfort if you are facing a foreclosure, but it does reduce the number of worries that survive the sale.


CALIFORNIA RULES:

PURCHASE MONEY RULE: In California, a lender who loaned you money to originally buy your home, and was your primary residence, can only foreclose, they can't obtain a deficiency judgment. This means if the foreclosure sale does not pay all “purchase money” loans, lenders cannot sue you for the unpaid balance. This includes second mortgages. If you refinanced, or paid down a purchase money Home Equity Line of Credit (HELOC) and drew down on it again however, this rule does not apply.

ONE ACTION RULE: A lender can only take one action against you in California in a non-judicial or judicial foreclosure. A non-judicial foreclosure is just like the purchase money rule in which a lender can only sell the property to pay the loan. If the sale does not pay the mortgage off completely, the foreclosing lender cannot get the unpaid balance from you. However; the lender can get the balance from you in a judicial foreclosure. California is generally considered a non-judicial state but both foreclosure processes are available. Judicial foreclosures are so uncertain and costly for lenders that they are very rare. What's important to know however; if a lender’s junior security interest is wiped out by a senior mortgage in foreclosure, the junior lender might be able to obtain a deficiency judgment for their unpaid balance because they have not had their one action against you. This is a common situation when you've used the second mortgage for home improvements or paying other bills.

CANCELLATION OF DEBT RULE: Both the IRS and California tax you for the amount of debt that is cancelled in any given tax year considering it income. Debt is cancelled only when a lender has given up on its right to collect the debt or they are barred by law from collecting the debt for some other reason, such as...

THE BANKRUPTCY & INSOLVENCY EXCEPTION. Both the IRS and California exclude cancelled debt from your income if the debt was cancelled in bankruptcy or you were insolvent but only to the amount of your insolvency. You are considered insolvent if your debts exceed your assets which can include IRA and pensions.  See: debt forgiveness - tax consequences