Short sales explained
If you are one of the many homeowners who have fallen behind on your mortgage payments and you don't see any way to avoid foreclosure, a short sale may offer you the least painful way to resolve the situation.
A short sale is when a lender agrees to accept a mortgage payoff amount less than what is owed in order to facilitate a sale of the home by a financially distressed owner. The lender forgives the remaining balance of the loan.
What's in it for a seller?
As a seller, there are cons to a short sale. Obviously, you will lose your home -- but that will happen if the bank forecloses. You will also walk away without a cent in profit from the sale. And, your credit score will take a major hit.
However, because you are making a good faith effort, the lender may look more favorably on you, and perhaps be willing to help minimize the damage to your credit score. You are also spared the stress and embarrassment of a long drawn-out foreclosure process. That's may allow you to feel more in control and that you have a more direct role in paying off part of the debt. Remember, too, that every short sale is a negotiated agreement between the owner and the lender. In a foreclosure, the lender can always pursue the seller for a deficiency judgment to recoup the difference between what it was owed and what it actually collected. In a short sale you may be able to get the lender to accept the sale as "payment in full without pursuit of any deficiency judgment." The lender might agree to a release in return for the seller showing the home, maintaining it as well as possible and not trashing it on the way out.
Two short-sale killers
The two situations in which an attempt at a short sale is almost certain to fail.
The lender's motivation
Convincing the lender
But don't think it's going to be easy. It's going to take a lot of proof and convincing evidence. To make your case, you, the buyer
Finding a buyer
While you may now be desperate enough to go for a short sale, you're still seeking the same thing -- a buyer. Some homeowners would like to get a tentative OK from the lender before seeking a buyer, but this doesn't happen in most cases -- the lender won't tell you it will accept any less than what it is owed and also probably won't even discuss this until you're 60 or 90 days behind in your payments. Any lender is more likely to agree if a buyer is already in place and you have a legitimate, signed offer with a sizable deposit.
There are a few things you can do to find a buyer. You can go the "For sale by owner" route with a sign on your lawn and classified ads locally and online. Explain to anyone that responds that you are seeking a short sale arrangement.
Consider, however, a short sale is not a do-it-yourself project, and this is one time you should seriously consider getting a real estate agent who has a track record with short sales, foreclosures and bank-owned properties. Real estate agents often maintain a contact list of investors and buyers in the area. Ideally, you will want to find a buyer who has at least a basic familiarity with short sales or works with a broker who does.
In addition to writing up the hardship letter and documenting the property's shortcomings, you should do everything else in your power to help convince the lender that the property would be difficult to sell via normal channels. Gather up any repair receipts and/or estimates. Take pictures (or allow the buyer to do so) of any problems or defects. Allow the buyer and their broker/appraiser to access the property (inside and out) when necessary.
In some cases, the lender may send you a 1099 tax form, which will list the "shortfall" (the amount the lender has forgiven) as income to the seller. Don't be alarmed: The Mortgage Forgiveness Debt Relief Act of 2007 gave short sellers a big tax break by changing the way the forgiven amount was viewed for tax purposes. Prior to passage of the act, that amount was considered as income for the borrower and was subject to tax. However, the new law removed that tax liability.
If you have more than one mortgage or more than one lender, remember they all have to approve the short sale. Make sure your sales contract includes all lenders' approval in writing. Lenders holding second or third mortgages probably will get nothing if the property is foreclosed, so at least in a short sale they have a chance of recouping some of their investment.
Some states allow deficiency judgments, in which a lender can pursue the borrower for any remaining balance of the loan. This usually only applies to cases where the home is sold at auction or as an REO, a real estate owned property, by the lender. In a typical short sale agreement, the lender agrees to waive this right. Make certain you're protected from this in the short-sale agreement.
The Mortgage Forgiveness Debt Relief Act of 2007
When the lender decides to forgive all or a portion of a borrower's debt and accept less, the forgiven amount is considered as income for the borrower and is liable to be taxed. However, amendments have been made to remove such tax liability and allow the borrower and lender to work freely together to find a common solution that is beneficial to both parties. This protection is limited to primary residences so consultation with a tax advisor is necessary ensure that a borrower qualifies.