$8,000 first time homebuyers tax credit extended

NEW YORK (CNNMoney.com) — President Obama signed an extension and expansion of the first-time homebuyers tax credit on Friday.

The $8,000 credit was scheduled to lapse on Dec. 1 but will now be in effect through the end of June. Homebuyers must sign a contract before April 30 and close by June 30. The income limits were also raised: Single buyers can now earn up to $125,000 and still get the full credit while a married couple can earn $225,000.

The bill also made more homeowners eligible to claim the credit on their taxes. First-time buyers — those who have not owned a home in the past three years — still qualify for an $8,000 rebate. But now people who want to trade up can also qualify. Those who have owned and occupied a residence for at least five years out of the past eight can claim a $6,500 tax credit if they close on a purchase by the end of June.

“The new version of the tax credit has the potential to stimulate the housing market even more than the old version due to the fact that more people will qualify under the new rules,” said Gibran Nicholas, chairman of the CMPS Institute, an organization that certifies mortgage bankers and brokers.

Who qualifies?

Nicholas provided four scenarios illustrating how the tax credit rules for existing homebuyers will apply:

• Harry owned a home in 2001 and 2002 but sold it to relocate for a job. He would qualify for the $8,000 first-time-buyer credit because he has not owned a home in the past three years.

• Sue purchased a home in 2004 and has lived there since. If she decides to buy a new home, she would qualify for the $6,500 tax credit because she has lived in the same residence for five consecutive years in the past eight.

• Jane purchased her home in 2002, lived there for five consecutive years before she rented it out in 2007. She would qualify because she was an owner/occupier for at least five consecutive years in the past eight.

• Mark purchased a home in 2006 and lived there for the past three years. He would not qualify because he is neither a first-time homebuyer nor someone who lived in the same primary residence for five consecutive years out of the past eight.

How it helps the economy

Legislators and industry experts expect that the credit will encourage buyers such as Jane and Sue to move up their purchase plans.

“This bill will shift demand from the second half of 2010 into the first half,” said Pat Newport, a real estate analyst with IHS Global Research. “As a result, home sales and prices will get a boost in the first half of 2010, with payback in the second.”

That’s not a bad thing, according to Bill Kilmer, vice president of advocacy for the National Association of Home Builders. It’s important to stabilize real estate markets quickly to help bring the economy out of its tailspin.

The original $8,000 tax credit appears to have helped accomplish that goal: Home prices have inched up the past few months, according to the S&P/Case-Shiller Home Price Index.

Would it have happened anyway?

But critics still see the program as being ineffectual because it rewards buyers who would have purchased a home anyway. Newport estimates that fewer than 400,000 of the 2 million who have claimed the original credit made their purchases solely because of the tax advantages.

Furthermore, buyers do not, in reality, receive the entire benefit. “The credit helped prices stabilize,” said Newport. “So the credit has been split between seller and buyer. The sellers are getting higher prices and buyers paying more than they would have without it.”

The housing industry, however, is pleased with the extension, although the credit has not been quite as effective as they hoped.

The industry thought the credit would provide a ripple effect, with sales to first timers triggering as many three additional “move-up” sales.

That did not happen, according to Lawrence Yun, NAR’s chief economist.

“It did not have the chain reaction impact it was supposed to,” he said. “Instead, many first-timers turned to vacant, foreclosed or other distressed properties the sellers of which were unlikely to be move-up buyers.”

So, the tax credit helped prop up the low end of the market without having much impact on the rest of the spectrum. Expanding the benefit to existing homeowners should boost those segments. That should produce additional benefits, according to Yun.

“Preventing further price decline or even nudging prices up a bit stabilizes housing wealth, which makes homeowners more comfortable in their spending,” said Yun. “They’re more likely to go out to the stores or buy a new car. That provides a boost to the overall economy.” To top of page

By Les Christie, CNNMoney.com staff writer

November 6, 2009: 3:18 PM ET

Secretaries Geithner’s Short Sale Plan

Secretaries Geithner, Donovan Announce new Details of
Making Home Affordable Program, Highlight
Implementation Progress

Just Over Two Months after Release of Program Guidelines,
Homeowners Realizing Relief under Administration Plan
Join Secretaries to Share Personal Stories 

To view the Program Update Fact Sheet: Foreclosure Alternatives and Home Price Decline Protection Incentives, please visit link.
To view the Making Home Affordable Progress Report Fact Sheet, please visit link.
To read biographical sketches of homeowners attending today’s event, please visit link.

WASHINGTON – With the Making Home Affordable (MHA) program delivering much-needed relief to homeowners and to our economy just over two months after the release of program guidelines, Treasury Secretary Tim Geithner and Housing and Urban Development (HUD) Secretary Shaun Donovan today provided an update on the program’s impact on stemming the housing crisis and keeping families in their homes and announced new options for homeowners facing foreclosure.  The announcement and update came following a meeting with housing counselors from the National Community Reinvestment Coalition (NCRC) and with homeowners Nicholas Tekpertey of Reston, VA, and Warren Rohn of Lewiston, CA, who shared their success stories since participating in the Home Affordable Modification program.

“In just over two months, the Making Home Affordable program is up and running, helping our economy recover and making a difference in the lives and livelihoods of thousands of American homeowners.  Historically low interest rates are allowing Americans to refinance and save money, and modifications are helping homeowners avoid foreclosure,” said Secretary Geithner.  “Today we are announcing a new program component to help homeowners obtain modifications in areas suffering from home price declines.  If a modification is not possible, we are also announcing steps to encourage the quick private sale or voluntary transfer of property, which will save homeowners money and protect their financial f uture.  These are critical steps in stemming the foreclosure crisis and stabilizing the housing market, both of which are critical to our economic recovery.”

“I can’t stress enough how important our HUD-approved counseling agencies are to the success of the Making Home Affordable program, and ultimately, to helping to keep American families in their homes,” Secretary Donovan said.  “That’s why HUD has requested a $100 million investment in our Housing Counseling Assistance Program for fiscal year 2010, a $35 million increase from our 2009 budget. This investment will help further support the work of our 2,600 HUD-approved housing counselors across the nation, just like those at NCRC, who play a key role in ensuring that borrowers can take part in the modification and refinancing options made available through Making Home Affordable.”

The Secretaries announced new details on the Making Home Affordable program: 

Foreclosure Alternatives provide incentives for servicers and borrowers to pursue short sales and deeds-in-lieu (DIL) of foreclosure in cases where the borrower is generally eligible for a MHA modification but does not qualify or is unable to complete the process, which helps prevent costly foreclosures and minimizes the damage that foreclosures impose on borrowers, financial institutions and communities. The new details will simplify and streamline the process of pursuing short sales and deeds-in-lieu, which will facilitate the ability of more servicers and borrowers to utilize the program. The program provides a standard process flow, minimum performance timeframes and standard documentation, and it offers financial incentives to servicers and borrowers to pursue these alternatives to foreclosure.

Home Price Decline Protection Incentives will provide lenders additional incentives for modifications where home price declines have been most severe and lenders fear these declines may persist. To encourage the modification of more mortgages and enable more families to keep their homes, the Administration, building on insights pioneered by Chairman Bair and the FDIC, has developed an innovative payment that provides compensation based on recent home price declines.  Together the incentive payments on all modified homes will help cover the incremental collateral loss on those modifications that do not succeed.  HPD P payments will be linked to the rate of recent home price decline in a local housing market, as well as the average cost of a home in that ma rket.

Since the launch of Making Home Affordable, more than one million Americans have now refinanced, due to historically low interest rates, and thousands of underwater borrowers have refinanced under the Home Affordable Refinance Program. Fannie Mae has had over 233,000 eligible refinance applications through its refinancing program, with more than 51,000 of these having loan-to-value ratios between 80% and 105%.  More than 55,000 Home Affordable Modification offers have been extended to qualifying borrowers.  Additionally, servicers have mailed more than 300,000 letters to homeowners who are potential candidates for the program. The refinance application volumes and modifications underway make clear the desire of homeowners to take advantage of the Admin istration’s program. 

Homeowners Nicholas Tekpertey and Warren Rohn have already seen the impact of the MHA modification program.  In March, Tekpertey heard about the Home Affordable Modification from a friend, called his lender, faxed in his documents, and was qualified with relative ease. With this modification, he saves almost $600 per month and his payment is now affordable, with an annual total savings of $7,154. Warren Rohn received a Home Affordable Modification offer from his lender and was able to modify his loan with a 2% interest rate for five years. 

“In February, I was facing foreclosure,” Tekpertey said. “Making Home Affordable changed my situation, and gave me my home back.  All homeowners who are worried about their mortgage payments should do what I did. Go to the website like I did. See if you qualify. This program is real, and this program works.”

“This program saved my bacon,” Rohn said.  “Losing my trucking business was tough enough, but I’m not sure what I would have done if I lost my home. I want to say something to all the homeowners out there — this program has made a real difference in my life. It’s given me and my wife the security to know we’re not going anywhere.”

Making Home Affordable, a comprehensive plan to stabilize the U.S. housing market, was first announced by the Administration on February 18.  The three part program includes aggressive measures to support low mortgage rates by strengthening confidence in Fannie Mae and Freddie Mac; a Home Affordable Refinance Program, which will provide new access to refinancing for up to 4 to 5 million homeowners; and a Home Affordable Modification Program, which will reduce monthly payments on existing first lien mortgages for up to 3 to 4 million at-risk homeowners.  Two weeks later, the Administration published detailed guidelines for the Home Affordable Modification Program and authorized servicers to begin modifications under the plan immediately.  Fourteen servicers, including th e five largest, have now signed contracts and begun modifications under the program.  Between loans covered by these servicers and loans owned or securitized by Fannie Mae or Freddie Mac, Home Affordable Modification participants now account for more than 75 percent of all loans in the country.

Short Sale Q&A

 

What is a real estate short sale?

 

A little-known alternative, once more commonly used in the real estate downturn of the early ’90s, is the “short sale,” which works like this: A homeowner falls behind on his or her mortgage payments, usually due to a job loss, rising debt payments, or both. Facing a situation in which the home value has fallen and cannot be sold for the amount of the mortgage owed, 360 Realty works out a deal with the lender to sell the home for whatever the market will bear. If the amount of the sale is for less than the amount owed on the mortgage, the lender gets the proceeds and discharges the remaining debt. 

Also known as a real estate short pay-off or a pre-foreclosure workout, a short sale is an agreement with a lender to accept less than the amount owed by a borrower via a sale of the property to a third party.

 

- What are the advantages of a short sale vs. a foreclosure? 

While in both cases, short sale and foreclosure, the delinquent mortgage will negatively affect their credit rating, at least short sellers avoid having a “debt discharged due to foreclosure” on their credit reports. Mortgage and credit experts say that, after bankruptcy, having a foreclosure on your credit report is the worst result and will reduce your credit score by over 250 points. You could also have to wait up to several years to qualify for a mortgage at a reasonable rate. 

Short sales show up on a credit report as a “pre-foreclosure in redemption” status and can result in a credit score reduction of 100 points or less. After the sale, the mortgage may show up as “discharged.” People who successfully complete a short sale may also qualify for a mortgage at a reasonable interest rate in as little as 18 months. So, if buying a home is a future goal, then a short sale is the better option for many families.

- My mortgage payments are late and I maybe facing foreclosure. Is the Short Sale option available to me?

360 Realty understands as a homeowner unable to make your mortgage payment or dealing with the possibility of facing foreclosure can be a stressful experience and an emotionally painful time in your life. If you are currently behind on your mortgage payment – or predict that you will soon be unable to continue making your mortgage payments – you’re not alone: you do have an option. 

360 Realty will assist you to identify and implement the best possible Short Sale solution helping you to avoid foreclosure. After a thorough review of your situation by one of our Short Sale specialists, we will work your lender to come up with the appropriate solution. 360 Realty will diligently negotiate to secure a fair and equitable solution with your lender. 

 

Many distressed homeowners simply give up and give in to the foreclosure process, often without being fully aware of the Short Sale option available to them.

Many distressed homeowners simply give up and give in to the foreclosure process, often without being fully aware of the Short Sale option available to them.

- Will the Short Sale cost me anything?

There are no out of pocket fees associated with the short sales. The borrower’s current lender usually pays 360 Realty for the real estate services provided.

 

- What criteria must I meet to be considered in a “hardship” situation? 

Borrower will usually to prove a “hardship” and therefore unable to continue making payments on the mortgage. A hardship situation is one that is the result of some extenuating circumstance that forces the borrower into a position where they can no longer afford their mortgage payments. While every situation is different, some frequent examples of hardship include:

      Decrease in the value of the home

      Unemployment or loss of primary income source

      Inability to work due to health crisis

      Mounting medical expenses

      Employment relocation

      Failure of business

      Bankruptcy

      Death of spouse or significant other

      Divorce or separation

- What do I need to do to get started?

In addition to the homeowner proving hardship, lenders require a specific set of supporting financial documents to consider a short sale. Contact 360 Realty today and one of our specialists will help you get started.

 

- When should I begin the short sale process?

Immediately, foreclosure and short sale situations tend to be extremely time sensitive and consuming for negotiations. The sooner we can begin the negotiations with your lender, the greater the chances of a successful resolution. There is no need to wait until the lender sends you a notice of default or initiates formal foreclosure proceedings against you. Time is of the essence!

 

- What effect will a short sale vs. a foreclosure have on my credit?

While in both cases, short sale and foreclosure, the delinquent mortgage will negatively affect their credit rating, at least short sellers avoid having a “debt discharged due to foreclosure” on their credit reports. Mortgage and credit experts say that, after bankruptcy, having a foreclosure on your credit report is the worst result and will reduce your credit score by over 250 points. You could also have to wait up to three years to qualify for a mortgage at a reasonable rate. 

Short sales show up on a credit report as a “pre-foreclosure in redemption” status and can result in a credit score reduction of 100 points or less. After the sale, the mortgage may show up as “discharged.” People who successfully complete a short sale may also qualify for a mortgage at a reasonable interest rate in as little as 18 months. So, if buying a home is a future goal, then a short sale is the better option for many families.

.

- How long does a short sale typically take to process? May the process be expedited if I am facing foreclosure or an auction date has been set?

All short sale situations are unique and follow their own timeline. Typically a short sale is completed within one to four months from the time we have a complete short sale package ready to present to the lender. The timing depends on how fast we can begin negotiating with your lender. If you are imminently facing foreclosure or even if an auction date has already been set, the process can certainly be expedited and we may even have the lender postpone the auction date. Please contact us today for a free consultation with one of our Short Sale Specialists so that we can be of immediate assistance to you.

 

- Why would my lender agree to a short sale?

In most distressed mortgage situations, foreclosure is a last resort for all parties involved. The homeowner and the lender usually want to avoid foreclosure at all costs. That is why a short sale is advantageous to foreclosure and lenders are typically very motivated to pursue a short sale prior to foreclosure.

 A short sale gives the lender the ability to cut its losses upfront thereby avoiding the expense and time of a foreclosure and potentially greater losses. Lenders want to make loans; they do not want to be in the business of owning and managing real estate. Whether the lender chooses to go through with a foreclosure or agree to a short sale, they are taking a loss either way, but in many cases they would take less of a loss with a short sale and resolve the matter in a comparatively shorter time frame. In nearly every case, a short sale offers a significantly better return on the lender’s investment than a foreclosure does.

 

- What is your relationship with lenders? Why shouldn’t I negotiate with my lender directly?

360 Realty works as independent third-party short sale negotiator. Our experience and professionalism ensures homeowners and lenders that we will be the driving factor of the short sale process. 

We firmly believe that just as most borrowers use a professional to initially get into a mortgage, it is in their best interest to do so if they are in the unfortunate position that they need to get out of a mortgage. If proactive, you only get one shot to negotiate your way out of foreclosure through a short sale process, and while it is nearly impossible to negotiate with the lender yourself, it is highly unadvisable. Let our professional team represent you through the short sale process. 

Most lenders’ loss mitigation departments are understaffed, and the overworked loss mitigators are usually overloaded with all parties vying for their attention. Unfortunately, the loss mitigator can be very difficult to get a hold of, and when you finally do get through, you have very little time with which to make your case. Furthermore, the added stress of foreclosure in itself makes it difficult for a homeowner to effectively negotiate their way out of foreclosure. 

Because we work with all lenders and represent homeowners from all across the country, and since we specialize in loss mitigation, we understand how to collect, prepare, and effectively present the information that lenders require to seriously consider a loss mitigation solution such as a short sale. We have excellent working relationships with the lenders’ loss mitigation departments and we will leverage our network and expertise to help you solve your problem.

 

- Why should I use 360 Realty to help me?

Our expert short sale specialists are highly trained in this often complicated process. We operate in every state and have a comprehensive understanding of all the ins-and-outs and rules and regulations applicable to each foreclosure situation. It is this unique combination of industry-leading expertise, impeccable professionalism, and extraordinary customer attention which enables us to offer the highest level of service to our clients.

 

 

Countrywide Short Sale Approval

Once Countrywide has received a copy of a signed purchase agreement, they will need about 2 days to receive the faxed documents and review.  They will follow up with a confirmation of the receipt of the purchase agreement.  If the offer is viable, the interior appraisal will be ordered.  Within 3 days after the appraiser has been assigned, Countrywide will contact the customer or agent to schedule an appointment to dothe appraisal.  About 7 to 10 days after the appraisal has been ordered, the results of the appraisal will be received by Countrywide.  After Countrywide has received an appraisal, they will conduct an analysis to determine if the Short Sale offer is aligned with the fair market value.

Additional negotiation and/or information by be requested by Countrywide, such as: Changes to the HUD 1 statement, funds and/or promissory note from the borrower, information about the buyer, a deficiency letter signed by the borrower, explanation of the hardship, most reent year’s tax return.

Once all the parties involved have agreed to the negotiations, Countrywide and/or its investors/insureres will render a decision within 5 business days.  The decision to accept or decline the short sale will be communicated to the customer and/or agent within 48 hours after the final decision.

Tax Consequences Associated with a Short Sale

Until this year, there were definite tax consequences from escaping foreclosure through a short sale. Avoiding foreclosure has always been the best thing to do since it prevents a black mark on your credit report that might keep you from being approved for future loans. Most financial experts will tell you that even today, keeping a foreclosure off your credit report is more important than any added tax liability.

First, consider the credit problems

How will a short sale affect my credit?  Whether you are foreclosed or choose an option such as a short sale or a deed-in-lieu of foreclosure, you will have to deal with the tax man. And most real estate professionals will advise you that a short sale is your best option if preserving your credit is important. There are a number of potentially-costly consequences of foreclosure, deed-in-lieu of foreclosure and a short sale. Most of these are the impact on a debtor’s credit rating. The first two, foreclosure and deed-in-lieu, have about the same impact—reducing your FICO score by 200 points or more. With a short sale, this reduction is more in the order of 100 points. You can also expect it to be impossible to get a new loan for 36 months or more with the first two, and around18 months with a short sale. This means that you will be able to recover from the credit impact much faster with a short sale. Nevertheless, there will be credit consequences no matter which solution you select.

Mortgage Forgiveness Debt Relief Act of 2007

The new Mortgage Forgiveness Debt Relief Act of 2007 all but eliminates the extra financial ‘hit’ a debtor would take due to tax liabilities. It was first introduced in the House in September, 2007 and finally signed into law by President Bush on December 20th, 2007. Now, the act is law and is termed Public Law No. 110-142.

Prior to this year, a debtor would suffer the loss of his home, negative impact to his credit rating and additional debt arising from federal tax laws that made the difference between what the home sold for and what he owed on his mortgage, taxable as income. The only escape from this new financial liability was to file bankruptcy which, regrettably, makes one’s credit terminally ill.

Public Law No, 110-142 (H.R. 3648) amends the Internal Revenue Code of 1986 to exclude discharges of indebtedness on principal residences from gross income and for other purposes. It does not, however, apply to homes purchased for investment and subsequently rented out. It only applies to homes where the owner has been in residence.

There are some limitations under the new act

The new law also reduces the income tax breaks on most gains from the sales of non-primary residences based upon a formula that considers the amount of time that the taxpayer actually lived in the property during the five years preceding the sale. And it limits the excludable amount of the indebtedness to $2-million and forbids the inclusion of indebtedness arising from services performed for the lender. There are other benefits and penalties as well. Perhaps most important, however, the new law keeps insolvent homeowners form taking an additional financial beating on a 1099 IRS gift of their short sale or foreclosure which only bankruptcy could do until this year.

Full details on Public Law No. 110-142 (H.R. 3648) can be had by going to:http://www.govtrack.us/congress/bill.xpd?tab=summary.

You Need An Experienced Short Sale Agent!

Short Sale vs. Deed-in-Lieu: What’s Your Best Choice?

Homeowners facing foreclosure often have the option of selecting a short sale or a deed-in-lieu of foreclosure as a possible solution to their financial difficulties. But are they? Which is the best choice? Like most alternatives, both have their upsides and their downsides. Understanding these options is the only way to make a truly informed decision.

In a short sale, your lender takes the loss

When you decide to use a short sale to prevent foreclosure, you should understand that the sale must have the lender’s approval and that lenders don’t always agree. What the lender is doing when he accepts, is permitting you to sell your home for less than you owe him and taking the loss himself. If he does go along with the short sale, it will relieve you of the burden (arrearages) as well as the cost, emotional strain and embarrassment of a messy foreclosure procedure. On the upside, a short sale is far less destructive to your credit rating than a foreclosure, as it is supposed to be listed as a “settled debt” on your credit report. However, it is still harmful to your credit score and can reduce it by 200 points or more.

On the downside, the lender could always go after you to collect the difference between the short sale price and what you owed him by getting a deficiency judgment against you. However, more often than not, this doesn’t happen simply because he knows that there is no money to recover and that he will have to pay all the costs of the legal action.

deed-in-lieu may be your fastest way out

A deed-in-lieu of foreclosure is when you give your home back to your lender, take your losses and thereby prevent the foreclosure. Lenders will frequently accept this because it is a less expensive and time consuming process for him than a full foreclosure action. The upside is that a deed-in- lieu is a faster solution than a short sale and that it is more likely to be acceptable to the lender. The ramifications to your credit score are about the same as the short sale.

On the downside, if the lender eventually sells the home for a price that doesn’t pay off the original mortgage amount, he can get a deficiency judgment and try to collect it from you. Once again, however, he knows that you can’t get blood out of a stone and probably won’t proceed if there doesn’t appear to be any money to recover.

Select either Short Sale or Deed-in-Lieu as early on as possible

The sooner you act on either a short sale or a deed-in-lieu the better. Once the foreclosure process is activated, you will not be in a strong position to negotiate with your lender because payment arrearages, interest and penalties have piled up. He can hold you financially responsible for his losses and seek a deficiency judgment that will appear on your credit report even if you don’t have the money to pay it. In either case, however, avoiding foreclosure is always a better choice in terms of the effect on your credit.

 

You Need An Experienced Short Sale Agent!

California Anti Deficiency Statute And Short Sales

CALIFORNIA  ANTI DEFICIENCY STATUTE

California Code of Civil Procedure Section 580 b

“No deficiency judgment shall lie in any event after a sale of real property or an estate for years therein for failure of the purchaser to complete his or her contract for sale, or under a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price of that real property or estate for years therein, or under a deed of trust on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of that dwelling occupied, entirely, or in part, by the purchaser.”

 

 

 

Introduction:

In California, if you owe money secured with a purchase money mortgage or deed of trust (e.g. the money was used to purchase the dwelling) the holder of the Deed of Trust or Mortgage is prohibited from seeking to collect on the Note any sums more than it recovers from foreclosure or trustee sales (“Foreclosure”) even if the sums from Foreclosure are less than the amount due on the Note.

This powerful protection for the home owner means that if you default on the Note and are sued or the property securing the Note is subject to foreclosure, the money you will have to pay for the Note secured by your dwelling will be limited to the actual equity in your dwelling and the financial institution cannot obtain a deficiency if that Foreclosure does not pay them the entire amount due on the Note.

For example, if you owe five hundred thousand dollars on a purchase money Note secured by your home and the bank forecloses for an amount less than the value of the Note, the bank has no right to sue you for the deficiency.  This is called the Anti Deficiency Statute in that the deficiency between the proceeds from foreclosure and the amount of the Note cannot be made up by a separate suit on the Note.

The above section should be read carefully. Note that the structure must be

  1. Primary Residence: This has to be the primary residence (note: the subject property may be 1 to 4 units).
  2. Purchase Money: The loan must have been incurred for the purpose of purchasing the property.

    The definition of an ordinary purchase money mortgage has been clearly defined by the courts: it is a mortgage (or deed of trust) given by the purchaser at the time of the conveyance of land to secure the unpaid balance for the price.  Stockton Savings & Loan Bank vs. Massanet  (1941) 18 C2d, 200, 207.  There are literally hundreds of cases involving complex transactions (e.g. the buyer transferred the Note, the buyer sold part of the property, etc, etc.) so the issue can become quite complex but the basic thrust of the law is clear: protection of the home owner from having to lose the home plus pay to the financing entity additional sums due to depreciation of property prices. 

    Because of this statutory goal of protection of the homeowner, the law has been liberally construed to include many transactions that might not seem strictly within the definition. For example, if one takes out a construction loan to build a dwelling and completes same, the construction loan has been held to be equivalent to a purchase money mortgage and subject to the protection of the statute. Allstate Savings & Loan Assn. v Murphy  (1979) 98 C.A. 3d 761.

  3. Trustee Sale or Foreclosure: The holder of the deed of trust or mortgage is barred only after seeking recovery from the secured home. 

(DO NOT CONFUSE THE ANTI DEFICIENCY PROTECTION OF SECTION 580b WITH THE “SINGLE ACTION RULE” OF CODE OF CIVIL PROCEDURE SECTION 726 WHICH REQUIRES THE CREDITOR TO PROCEED ON FORECLOSING THE SECURITY RATHER THAN SUING ON THE NOTE IN A “SINGLE ACTION.” THAT SECTION IS DISCUSSED ELSEWHERE IN THIS WEBSITE. )

Waiver of The Protection:

A common mistake of those seeking protection under Section 580b is to assume that the protection cannot be waived. It is true that the protection of 580b cannot be waived in advance, e.g. in the Note or Deed of Trust executed. However, the protective provisions can be waived by subsequent conduct of the debtor including a written agreement to so waive. The leading case is Russell v Roberts (1974) 39 CA 3d 390 in which an agreement with the creditor for an extension of time to pay in return for the waiver was upheld by the Court.

Thus the most critical time for the debtor normally occurs during the weeks after default is declared on payment of the Note and the creditor suggests various ways that the foreclosure can be delayed or stopped if the debtor merely agrees to pay some additional sums and/or waives the protection of the anti deficiency statute. All too often the debtor, hoping to rectify the situation, signs documents that end up waiving vital protections, not fully understanding how dangerous that can be.

California Anti Deficiency Statute And Short Sales

It is important to realize that the Anti Deficiency Statutes do not protect sellers in a short sale situation.  This is due to the fact that the statute only applies in a foreclosure situation.   Therefore, if the loan is a purchase money loan sellers should be advised that a short sale might not be the best course of action if the bank does not include anti deficiency language in the short sale approval.  Realtors negotiating the short sale should use the Anti Deficiency Statute as a bargaining tool to include anti deficiency language in the short sale approval.  

The Economic Ramifications of the Anti Deficiency Statute

Just because the bank cannot proceed independently in a separate action for the deficiency against the borrower does not mean the borrower does not suffer. First, the borrower will lose the home in the foreclosure sale. Second the credit history of the borrower will be adversely affected, usually for at least seven years.

There is also danger for the financial institutions in the event the market truly deteriorates. Their security is only as good as the equity on the property. With people borrowing up to ninety percent of the value of the home in an appreciated market, any real deterioration of property values means that the banks will quickly lose any value to their security and the anti deficiency statute means that they will not be able to proceed against the other assets of the borrower. Banks normally carry debts on their books showing equity securing the debt at the value of the property when the loan was made. It is clear to many professionals in real estate that a reduction in value of property in this state could easily result in economic catastrophe to the lending institutions who would find their secured loans as essentially unsecured.


Junior Lien Holders (Second Deeds of Trust, etc.)

Note that if the holder of junior liens secures notes not used to purchase the property (thus are not purchase money mortgages) that the protection of this statute would not apply. (Thus “equity lines” used to purchase other things would not require the financial institution to comply with the anti deficiency statute.)

Assuming for the moment there are two lenders who loaned money to purchase the home, each taking back a Deed of Trust or mortgage, in that case, even if the holder of the first deed of Trust wipes out all the equity on the property by their foreclosure, the second deed of trust holder is still barred from seeking relief directly against the borrow under Section 580b. (Brown v Jensen (1953) 41 C.2d, 193.)  But be careful here, for the courts have at times eliminated that defense in various complex transactions and refinancing.

Conclusion

Property owners must take time to carefully consider the value of the protections afforded by this statute before taking actions that could forever lose its protection. One of our clients moved from her duplex to live with her sister in another state and when reversals in her business caused her to examine her asset/liability situation she found to her shock that the anti deficiency statute no longer protected her on her prior home precisely because it was no longer her dwelling. She had at first thought her risk was only the equity in the property. She found out that the entire Note, hundreds of thousands greater than the equity, was now a debt she would have to face. When she moved out of the state it never occurred to her to consider the long term effect ending the “dwelling status” of the property would have. A  little foresight…or a visit to her accountant and lawyer to discuss risks…would have saved her much anguish.

 

 

Eviction of Tenants From Foreclosed Residential Rental Properties

On December 19, 2008, the City of Los Angeles added Ordinance No 180441  to the Los Angeles Rent Stabilization Ordinance (“LARSO) to regulate the grounds for eviction of tenants from foreclosed residential rental properties.  The amendment only applies to properties that are purchased at a foreclosure sale on or after December 17, 2008 by a lender, mortgagee, or beneficiary of a deed of trust, or an agent thereof, in full or partial satisfaction of a default obligation.

The stated purpose of the new ordinance is to prevent the displacement of tenants and the loss of rental units in the City of Los Angeles due to foreclosures of the property, and to prevent homelessness and nuisances and blight caused by vacant foreclosed properties.

LARSO only applies to properties in the city of Los Angeles. (please see map attached to determine if property is in the city of Los Angeles).  Please note that that the areas of Westchester, San Pedro, Hollywood, Northridge, Encino, Woodland Hills, Van Nuys, Sunland, Canoga Park and Eagle Rock are all within the city of Los Angeles.

Previously under LARSO, rent control covered all residential units EXCEPT those fitting specified categories. The two biggest exemptions were (1) single family dwellings and (2) units built after 1978.   Under these exemptions, the lender was free to evict without cause.  However, with the passage of Ordinance No 180441, the foregoing exemptions were removed for a one year period for properties purchased at foreclosure sales.

Therefore, virtually all properties purchased by lenders at foreclosure sales in the City of Los Angeles that are occupied by renters are now subject to eviction control

Under LARSO you cannot be evicted except for one of 12 listed reasons.  The reasons for which tenants may be evicted include; nonpayment of (legal) rent, breaking a term of the lease, causing a nuisance [including drugs and gangs], using the unit for an illegal purpose [eg, a machine shop in an apartment], refusal to renew the lease on similar terms, refusal to permit the landlord reasonable entry to inspect, repair or showing the premises to prospective purchasers, or there is a different person in possession of the unit than who rented it.   (please see attachment “12 reasons for eviction”