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Short-Sale and Foreclosure Advice: Urban Legends versus FACTS

By
Real Estate Agent with Alain Pinel Realtors

I have received dozens of phone calls from California home owners as a result of my post Clarification Regarding California Non-Recourse mortgages.

Based on these phone conversations, I have come to the conclusion that there is a very frightening trend:  real estate professionals (both loan officers and real estate agents) are offering advice based on "real estate urban legends" i.e. information that has been passed from person to person and is treated FACT but is completely unsubstantiated. 

Three examples of these calls are:

A homeowner has lost 60% of the value on his investment property which has negative cash flow.  The mortgages (a 1st and 2nd) were refinanced so they are no longer non-recourse.  He doesn't have a hardship situation.  His loan officer told him to to stop making the payments and let the home go to foreclosure to get out from under the mortgage debt.  Urban legend advice.  Foreclosure will release him from the obligation to repay on the 1st mortgage only (assumed to be the foreclosing lender) but the 2nd lienholder will have the right to collect a whopping $180k for up to four years - and they are pursuing these collections.

A homeowner with a valid hardship is selling his home as a short-sale.  The home had been refinanced multiple times with some level of cash-out each time.  His real estate agent told him not to worry about income taxes on the deficiency because "there is a federal law that says he doesn't have to pay".  Again, urban legend advice.  The Mortgage Forgiveness Debt Relief Act very clearly states that income taxes don't have to be paid on the "acquisition indebtedness" for a primary home.  Income taxes DO have to be paid for the unpaid balance above the original purchase mortgage.  In this case, the amount of phantom income will be over $250k.

Another homeowner with a short-sale.  The approval clearly states that the 2nd lienholder retains their right to collect the balance due.  The real estate agent told him not to worry about it.  If the lender tries to collect, he can always file bankruptcy.  Urban legend advice.  In California, you must pass a "means test" to file a Chapter 7 bankruptcy if you earn in excess of approx. $75k per year.  Most people will not pass the means test without their mortgage and will be forced in to a Chapter 13 bankruptcy (repayment plan).

To be treated as professionals, we must act as professionals.  Due dilligence and research on the information we offer as fact should be the bare minimum standard of conduct.  Equally important, clients making these crucial decisions should be emphatically urged to consult with the appropriate legal and tax professionals or the financial repurcussions could be devasting.

Wendy Cutrufelli
Your Real Estate Advocate

 

Ralph Gorgoglione
Metro Life Homes - Palm Springs, CA
California and Hawaii Real Estate (310) 497-9407

Great post.  So many uneducated agents will say just about anything to try and close a deal.

 

Aug 01, 2009 02:48 AM
Wendy Cutrufelli
Alain Pinel Realtors - Walnut Creek, CA
Contra Costa Realtor

Ralph:  Thanks for reading.  Yes, there are those that will do anything to close a deal, but equally frightening are those agents who are truly well-intentioned but haven't done their homework.

Aug 01, 2009 02:52 AM
June Piper-Brandon
Coldwell Banker Realty - Columbia, MD
Creating Generational Wealth Through Homeownership

Wendy,  this is great advice.  So great, I'm going to reblog and share with my agents and friends.  Thanks for doing such great research.

Aug 01, 2009 02:58 AM
Terry Miller
Miller Homes Group - Tyler, TX
Miller Homes Group and Tyler Apartment Locator

Great post, We need to stay educated on these things. They can be hard enough without stupidity.

Aug 01, 2009 02:59 AM
Wendy Cutrufelli
Alain Pinel Realtors - Walnut Creek, CA
Contra Costa Realtor

June:  What a huge compliment!  Thank you for your re-blog.

Aug 01, 2009 03:01 AM
Wendy Cutrufelli
Alain Pinel Realtors - Walnut Creek, CA
Contra Costa Realtor

Terry:  Thanks for reading.  Things get much harder with stupidity.  Unfortunately, those that offer less than stellar advice are not always the ones dealing with the fall-out.

Aug 01, 2009 03:03 AM
Lois Davies
Century 21 Birchwood Realty, Inc. - Cape Coral, FL
Cape Coral & SW Florida

Good information.  As an agent I try to know as much as I can concerning the mortgages on Short Sales.  I also like my customers to be pro-active with their banks so we don't have communication.  Thanks for the post. 

Aug 01, 2009 03:14 AM
Wendy Cutrufelli
Alain Pinel Realtors - Walnut Creek, CA
Contra Costa Realtor

Lois:  Thanks for your comment.  There are many agents who ARE dilligent and careful with their advice and information regarding short-sales and foreclosures but hard for consumers to identify them!  You sound like one of the dilligent ones.  :)

Aug 01, 2009 03:53 AM
Irene Tron
Valparaiso, IN

I can remember being told over and over in real estate salesperson classes not to give out advice such as this.  The better advice is to have them talk to their attorney or a financial expert.  Thanks for the great post.

Aug 12, 2009 01:45 AM