Homeowners who are facing the possibility of foreclosure may choose to relinquish their homes through a short sale. A short sale allows a homeowner who is delinquent in mortgage payments to sell his home for less than what is still owed on the mortgage. The funds from the sale are used to satisfy some part of the outstanding debt and the mortgagor agrees to release the lien on the property. Ideally the homeowner is able to walk away from the home after discharging the outstanding debt.
In other cases, the homeowner faces the possibility that the lender will initiate an action to recover the deficiency judgment. A deficiency judgment is a monetary award consisting of the difference between the balance on the mortgage and the proceeds incurred from the short sale. In many states, the lender can pursue a judgment for the deficiency amount from the homeowner and enforce the judgment by garnishing the homeowner’s wages or appropriating funds from their accounts. California law, however, prohibits the lender from recouping the deficiency amount after a short sale has occurred.
The law in California specifically disallows a deficiency judgment after the short sale of a residential property with no more than four units. In addition, lenders cannot require the defaulting homeowner to either execute a promissory note or to contribute funds when escrow closes. The homeowner must meet certain conditions to avoid a deficiency judgment from the lender. These include the following: (i) the loan pertaining to the home must be secured only by a mortgage, (ii) the funds generated from the short sale must be given to the lender, and (iii) title to the house must be conveyed to a buyer by a qualifying document that has been recorded in the county office where the home is located.
The prohibition against seeking a deficiency judgment applies as well to junior lienholders who have agreed to the short sale. Secondary liens must be released to unencumber title to the property after the short sale. The primary mortgage holder cannot proceed with the short sale unless all subordinate lienholders have given their consent.
Contact Shane Coons at 949-333-0900 or visit his website at www.ShaneCoonsLaw.com to find out more about his practice.