Arizona Short Sales Not For The Faint of Heart

I’ve commented before about short sales on this blog, but not to much extent, and I haven’t seen many of the other contributers do it either. I wonder why? Does everyone abhor them? Are they afraid of them?

I have taken a lot of advice around here, and one of the best pieces of advise I have gleened is to write about something that interests me, and build a long tail. Well, the long tail has actually been working. I have written on my home blog about The Ins & Outs of Arizona Short Sales, and lo and behold, people started coming out of the woodwork. And I don’t mean a few. Let us just say it’s been a fabulous return on investment.

I have agents calling me from around the country asking for short sale help. I have homeowners calling me (from around the country, no less) about the possibility of doing a short sale on their home. I refer them out. (Incidentally, if you are from some other state than AZ, and you are familiar with short sales, send your contact information to me, I may have clients for you.)

I would like to first give a shout out to the new Barry. His Real Estate Radio USA has been very cool and helpful for me professionally, and is entertaining to boot.

When I say that short sales are not for the faint of heart, I mean that in two distinct ways: for realtors, and for sellers.

Realtors are running up against brick walls with “The Gate Keepers.” That’s what I call the people who protect the actual “loss mitigators” like the Swiss Guard protects the Pope. Loss mitigators are behind bullet-proof glass, tucked away somewhere in a bunker under the Potomac river, without email, which out phone lines, whichout fax machines; they are completely incommunicado. They send messages between the bunker and the outside world by carrier pigeon. The particular brand of pigeon they use is not one of the kind where you separate it from its home turf by a thousand miles, thow it up in the air, where it circles a few times and “goes where it knows.” The kind they use soars into the air, flies crazily for a few weeks, and then lazily makes its way to where ever it happens to be open season for pigeons. This is enough to drive any semi-sane realtor into a nut house.

Then there are the sellers. They come in a few varieties. The first is the charming couple who believes that because their home is worth less than they own against it, they are eligible for a short sale.

The second is current on their mortgage, and will use credit cards for as long as necessary to “stay afloat” while they continue to pay their mortgage, while at the same time, pursue a short sale, hoping that the lender will look favorably on their “diligence.” This is in fact true, as the lender does indeed look favorably on the payment of mortgages. In fact, the lender’s advice to the homeowner at this point is predictable: “Keep it up! You’re doing great!Keep sending us your money!”

I think I’ll pause here and offer some advice for those unlucky homeowners who happen to read this blog, and fall into category two. Mortgage debt can be forgiven. Credit card debt cannot. Unless you want to go to foreclosure AND declare bankruptcy. If you are truly screwed, and are digging yourself a hole of unsecured debt to continue to pay the mortgage on a house you will ultimately loose, STOP IT! You’re throwing your money away. Just come to grips with the fact that you are losing your home. The sooner you face this reality, the better.

The final type is the truly destitute homeowner, who truly CANNOT pay his or her mortgage any more. They have come to face the fact of the loss of their home, and are ready to proceed with their lives. They have a real hardship, they are ready to provide all the documentation needed to demonstrate this, and they are already moved on to a new rental home. This is the golden client. This is where short sales actually work. This is where the realtor has some reward for his or her (copious) labour.

Short sales are definitely not for the faint of heart, whether seller or realtor, but they do work. Unfortunatey, in Arizona, that’s where the market is. The Land of The Lost Equity.

A Question Regarding Short Sales

This question came in the in-box yesterday, and I wanted to share it with the other inquisitive folks out there who may be wrestling with similar issues, and I’m sure there are many! Remember, if you need help, don’t be afraid to ask for it! You can also look at The Realty Butler Foreclosure Help Resources Page. Talk to you soon. . .

Question:

Hi. My husband and I are considering doing a short sale on our townhome. We owe $195,000 on our home but cannot get that amount for it due to the comps in our neighborhood. We are current on our payments and have good credit but our realator said we could do the short sale to sell our home lower so we can move to Missiouri. My question is basically will we be able to buy once in Missouri with the short sale on our record? I know that with missed payments it damages your credit a ton but will it damage ours as much since there won’t be any missed payments? We just need to sell our house so we can relocate. Thank you!

Answer:

Thanks for the question. Generally speaking, lenders are very averse to allowing borrowers who are current on their payments to do short sales. The whole premise of a short sale is based upon hardship, however, and it doesn’t necessarily have to be a financial hardship. Let’s put it this way: is staying where you are causing a hardship that would be alleviated by moving to Missouri? If that’s the case, the lender may look at your need to move. It might depend on how far the townhome is “upside down”. Also, most credit damage resulting from a short sale is the result of missed payments. So, if your lender agrees to a short sale with your being current on the mortgage, very little, if any, damage will result. When I say very little, it is because of this: when your loan is payed off (in whole or in part), an annotation is made to your credit report. The note says something like “loan remitted.” Some lenders may make a small footnote to that footnote, that says, “remitted for less than amount owed”. There is some debate as to whether that little footnote will affect a borrower’s credit at all. Hope this helps.

Remember, I am not an attorney, nor do I play one on TV or the Internet. If you have specific questions about your unique legal situation, contact qualified legal counsel. If you think I may be able to help, send me an email: abutler@realtybutlerhomes.com

Arizona Deficiency Statutes on Foreclosures

Here we are again. Unfortunately, a lot of questions have arisen lately about Arizona’s Deficiency Statutes regarding foreclosure. I say “unfortunately” because I feel somewhat less than qualified to definitively answer these questions. Greater legal minds than mine (and mine is decidedly NOT legal) will be required to put the issue to rest. I will, in spite of the danger of blatantly misrepresenting the facts, case law, and statutes, attempt to answer one (NON-) simple question:

“If I do a short sale, or my property is taken from me by foreclosure, can the bank ‘come after me’ for the difference between what the property eventually sells for, and what I owe them, including sale costs, legal fees, etc?”

First, let me point the reader in the general direction of actual legal minds on this issue. Here is a rather esoteric treatise on the subject of getting sued for a deficiency judgement. Very good read, and fairly definitive on the issue.

Here is another article, that is more user-friendly on the same subject.

Now, because I have a public education, and am somewhat literate, I will attempt to provide a synopsis of the above:

In Arizona, there are two types of “notes” given for real property: a “Deed of Trust” or a “Mortgage”.  Despite the common parlance of the term “mortgage,” most people in most states do not actually have Mortgages. They have Deeds of Trust. I won’t go into the differences here, but suffice to say that a Deed of Trust has three parties to the agreement, and an actual Mortgage has only two. Actual mortgages are very uncommon in most states.

Now, the remedy of a lender for a home in default depends on what type of note was used to secure the property. If there is a true mortgage in place, the lender must sue in civil court in a process known as “judicial foreclosure.” The particulars of a judicial foreclosure are not completely relevent to our discussion here, but here are a few key points.

1.) The legal fees associated with a judicial foreclosure action are substantial.

2.) A jucial foreclosure takes more time than “the other method” (hold on there. . .).

3.) A lender may sue for a deficiency judgement with a judicial foreclosure, but only in the case of non-purchase money loans. (A “purchase money loan” is one that is applied to the purchase of real property.  A “non-purchase money” loan is money you pulled out of your home to buy “stuff”.

Herein lies a very poignant distinction. If you got a line of credit, and spent all the money on a new boat, fancy clothes, and a new haircut, the lender can indeed sue you for that money. HOWEVER, they will have to use the process of judicial foreclosure to do it, which I have already explained is a lengthy and costly process. In real life: probably too expensive for the lender, with very little likelihood of getting money back from someone who is “insolvent” to begin with.

 If the note used to secure the property is the much more common Deed of Trust, the property will most likely be subject to a “Trustees Sale,” in which a notice is posted that the property will be sold to the highest bidder on the courthouse steps. If this happens, there is no recourse for a lender to “come after” the homeowner for money.  Now, a lender, who is party to a Deed of Trust, may also use the process of judicial foreclosure to take your house away. Any yes, this does give them the right to attempt to get a deficiency judgement against the borrower. Does this happen often? No. Why? For the reasons mentioned above: it’s expensive, and time consuming.

Another option for a lender is to “forego” their interest in the home, and sue the borrower directly for the money owed to them. All of it. Lenders very rarely do this however, for the reasons stated above: it is expensive and time consuming; more importantly, if a borrower is going into foreclosure, there is a pretty good likelihood that the borrower has no money to “go after.” Also, in the landmark case of Baker v Gardner heard before the Arizona Supreme Court in 1988, the justices hold forth in the Holding & Conclusion that “. . .the legislature’s objective in enacting [its anti-deficiency statutes] was to abolish the personal liability of those who give trust deeds encumbering properties of two and one-half acres or less and used for single-family or two-family dwellings. . . The holder of the note and security device may not, by waiving the security and bringing an action on the note, hold the maker liable for the entire unpaid balance.”

So, can you be sued for a deficiency on your mortgage? Who knows! Go ask your attorney.

Disclosure: I am not an attorney, and I do not play one on TV or on the internet. I am simply an inquisitive idiot with a penchant for holding forth opinions.  Have specific legal questions regarding your specific circumstances? Contact competent (how do you test for that?) legal counsel.

And, Speaking of Arizona Short Sales. . .

Here is one that is a brand new listing, and will be going on the market in just a few days. Check it out:

This is a 4 bed 3 bath home with over 2000 sq ft in Litchfield Park, AZ. This is a really nice home that’s in a great neighborhood, and is ready to go now! This stunning home is priced at only $210,000. Yes, you read that correctly. There are some great bargains out there, and this is definitely one of them. If you’d like the full details, you can get them here.

More On Arizona Short Sales

I’ve had an unbelievable number of people call me, both from Arizona, as well as other states, looking for help with selling their home in a short sale, or asking me more about the process. For those who may have missed it, you can see my Arizona Short Sale Help stuff here. Also, I’ve had a lot of questions about what forms & such are necessary for a short sale. Here is a list of Short Sale Documents that are applicable in any state in the union. Again, if you need a short sale specialist in Arizona, you may contact me. If you need a Realtor in another state for a short sale, I have a list of great referral agents. Just drop me a line, and I’ll find the right agent for you and your situation.