Short Sales and Deeds in Lieu of Foreclosure
A short sale or deed in lieu may help avoid foreclosure or a deficiency.
Many homeowners facing foreclosure determine that they just can't afford to stay in their home. If you plan to give up your home but want to avoid foreclosure (including the negative blemish it will cause on your credit report), consider a short sale or a deed in lieu of foreclosure. These options allow you to sell or walk away from your home without incurring liability for a "deficiency."
To learn about deficiencies, how short sales and deeds in lieu can help, and the advantages and disadvantages of each, read on. (To learn more about foreclosure, including other options to avoid it, see Nolo's Foreclosure area.)
Short Sale
In many states, lenders can sue homeowners even after the house is foreclosed on or sold, to recover for any remaining deficiency. A deficiency occurs when the amount you owe on the home loan is more than the proceeds from the sale (or auction) -- the difference between these two amounts is the amount of the deficiency.
In a "short sale" you get permission from the lender to sell your house for an amount that will not cover your loan (the sale price falls "short" of the amount you owe the lender). A short sale is beneficial if you live in a state that allows lenders to sue for a deficiency -- but only if you get your lender to agree (in writing) to let you off the hook.
If you live in a state that doesn't allow a lender to sue you for a deficiency, you don't need to arrange for a short sale. If the sale proceeds fall short of your loan, the lender can't do anything about it.
How will a short sale help? The main benefit of a short sale is that you get out from under your mortgage without liability for the deficiency. You also avoid having a foreclosure or a bankruptcy on your credit record. The general thinking is that your credit won't suffer as much as it would were you to let the foreclosure proceed or file for bankruptcy.
What are the drawbacks? You've got to have a bona fide offer from a buyer before you can find out whether or not the lender will go along with it. In a market where sales are hard to come by, this can be frustrating because you won't know in advance what the lender is willing to settle for.
What if you have more than one loan? If you have a second or third mortgage (or home equity loan or line of credit), those lenders must also agree to the short sale. Unfortunately, this is often impossible since those lenders won't stand to gain anything from the short sale.
Beware of tax consequences. A short sale may generate an unwelcome surprise: Taxable income based on the amount the sale proceeds are short of what you owe (again, called the "deficiency"). The IRS treats forgiven debt as taxable income, subject to regular income tax. The good news is that there are some exceptions for the years 2007 to 2009. To learn more, see "Income Tax Liability in Short Sales and Deeds in Lieu," below.
Deed in Lieu of Foreclosure
With a deed in lieu of foreclosure, you give your home to the lender (the "deed") in exchange for the lender canceling the loan. The lender promises not to initiate foreclosure proceedings, and to terminate any existing foreclosure proceedings. Be sure that the lender agrees, in writing, to forgive any deficiency (the amount of the loan that isn't covered by the sale proceeds) that remains after the house is sold.
Before the lender will accept a deed in lieu of foreclosure, it will probably require you to put your home on the market for a period of time (three months is typical). Banks would rather have you sell the house than have to sell it themselves.
Benefits to a deed in lieu. Many believe that a deed in lieu of foreclosure looks better on your credit report than does a foreclosure or bankruptcy. In addition, unlike in the short sale situation, you do not necessarily have to take responsibility for selling your house (you may end up simply handing over title and then letting the lender sell the house).
Disadvantages to a deed in lieu. There are several downfalls to a deed in lieu. As with short sales, you probably cannot get a deed in lieu if you have second or third mortgages, home equity loans, or tax liens against your property.
In addition, getting a lender to accept a deed in lieu of foreclosure is difficult these days. Many lenders want cash, not real estate -- especially if they own hundreds of other foreclosed properties. On the other hand, the bank might think it better to accept a deed in lieu rather than incur foreclosure expenses.
Beware of tax consequences. As with short sales, a deed in lieu may generate unwelcome taxable income based on the amount of your "forgiven debt."
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About Me
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Gerard Scheffler- Default and Distressed Property Sales Expert (773) 909-3346
www.chicagolandhomegallery.com - Park Ridge, Illinois, United States
- Gerard Scheffler has been very actively involved in the real estate profession for over seven years. In 2005, immediately after receiving his Broker’s License, he established his first Chicago based brokerage company. The company turned out to be very successful with hundreds of satisfied customers and millions of dollars in closed real estate transactions. Over the years, Gerard has developed a network of returning customers who always refer his services to their family and friends. He is presently a managing broker at Home Gallery Realty brokerage firm specializing in default and distressed property sales. Regardless of his professional development and success, Gerard is constantly looking for ways to improve his skills as well as build his company image and reputation. He is very hardworking and aggressive when it comes to representing his customers ‘ real estate needs and doing his job right. He will work with you to ensure that your property is sold for the highest price possible in the shortest amount of time with the least amount of inconvenience to you. Area of service includes Cook, DuPage, Kane, Lake and Mchenry County in the State of Illinois.
Tuesday, November 16, 2010
Short Sales and Deeds in Lieu of Foreclosure - Free Legal Information - Nolo
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