How to Do a Short Sale if You Can’t Pay Your Mortgage

This is a guest post by James Hua of The Intelligent Investor.

You can save a few hundred a month by buying discount items on Ebay or Amazon and by searching for the hottest deals. Saving a few hundred bucks a month is a ton over a year and its effects are even greater over 10 years. But what if that’s not enough? What if you need to somehow impossibly cut back your expenses like $1000-$1500 because you lost your job or your savings have depleted?

The mortgage payment is America’s single highest expense.

Honoring your word is sacred. You signed on the dotted line and said you would pay your debts. Abraham Lincoln spent 17 years paying off debt he borrowed to start a business in 1833. The virtues of repaying debt and honoring your commitments are self-evident.

However, at some point you have to acknowledge when the snowball gets irreversibly big and you have to make a decision between food and the mortgage. Most people choose the former.

I do not advocate walking away from your mortgage for the sake of it, but if you can only hang in for 3-6 months, you might have to take a close and hard look at the situation and start preparing accordingly. While you might not need a short sale, you might need to prepare for one or at least look at this option. Downsizing and renting can potentially save you thousands of dollars per month.

How do I get started on a short sale?

Just like purchasing a home, it takes time to work a short sale – in many cases, even more time. Be patient and take it one step at a time. This can often take 90-180 days, and if successful, could be well worth your time.

1. Contact your bank
– before the end of the road, you want to make sure that you’ve given them notice (i.e., speed bumps). Calling 30 days before you can’t make payment might not be helpful. See if there are loan modifications or refinancing programs that might help alleviate the burden. If you can’t find a viable and durable solution, then consider short selling your home. Request a short sale package to get the process started.

2. Find a short sales agent – it pays dividends to make sure you work with a realtor that has time of the day to answer your questions and go through the process with you. A short sale requires more time, thought, and effort to execute properly to bring all the relevant parties such as buyer, seller, lender, agents, title and escrow companies. Use an agent with good follow up.

3. Third party negotiators – sometimes (although not all) sellers in a short sales employ negotiators that charge a separate fee in addition to the realtor commissions (buyer’s and seller’s agent commissions). The beauty of this for the seller is that it does not directly cost the seller anything. It ultimately comes from the bank’s funds (or proceeds). However, there are plenty of short sales in which a “third party negotiator” is employed and the listing agent shares their commission with the negotiator.

I tend to like these arrangements where the seller’s agent and negotiator split the selling agents commission. Much of the work and brain damage comes from negotiating with the bank and making sure the borrower has everything right. If the seller’s agent does not do any negotiating besides list the property below market, they don’t earn their keep. In these arrangements, the listing agent can split their commission 35/65, where the agent gets 35% and the negotiator gets 65% or 50/50, etc.

Feel free to ask your agent whether they play to employ a negotiator and what the commission split is and why. While some agents can get prickly, you have every right to know if you plan to hire the agent.

SEE ALSO:
ShopKeep Review: Best POS System for Retailers

4. Pricing – some agents will deceivingly tell you to list your property at a fire-sale price. They say this will help get an offer on the price after which you can send to the bank to move the short sale process along. If the agent tells you to fire-sale the property, do not use this agent. While this may not be fraudulent or negligent behavior, it shows inexperience. All banks that approve short sales employ a valuation method often know as a broker’s price opinion (BPO). This valuation gives the bank a reference point on the value of the property and whether the short sale makes “business sense” to approve.

For example, if the contract price is $300k, but the BPO comes back at $600k the bank will likely not approve a 50% discount. However, if the BPO comes back at $350k (a 14% discount) then may approve this just to get the property out of their hair.

Time is precious. Don’t waste it on apparent solutions that will not avail. In 2009, the banks were seen approving discounts of 15% or greater for homes. In 2010, banks have gotten tighter on their discounts and are typically seen approving discounts on short sales of 7-10%.

The goal: Price realistically and close to the market. You want the deal approved so you can get rid of debt and move on.

What is a Deficiency and Why is it Important?

As part of short sale negotiations you should know whether the bank will maintain their deficiency rights. A deficiency exists when a bank receives less money than it is owed. For example, you owe $400k but the bank only received $300k. $100k is your deficiency.

In cases where the bank maintains their full deficiency rights you may want to think twice about the short sale because you are still fully responsible for the deficiency. I have cases where borrowers negotiated this out of the deal. This is highly recommended if possible.

Do I have tax consequences with debt forgiveness?

It depends. Pre-mortgage crisis the answer was generally, yes. Now, it depends on the situation. According to the IRS:

If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. When you borrowed the money you were not required to include the loan proceeds in income because you had an obligation to repay the lender. When that obligation is subsequently forgiven, the amount you received as loan proceeds is reportable as income because you no longer have an obligation to repay the lender. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.

However, with the Mortgage Debt Relief Act, certain debt forgiveness may be excluded from income. In general, the property has to be used as the owner’s principal residence (aka owner occupied) and this applies to debt forgiven from 2007 through 2012.

I hope this article has been helpful to those working on a short sale and informative to those you may have to do one in the future as a last resort. Selling your home like this isn’t easy, but it might be the best thing in your situation.

Learn more about real estate by subscribing to The Intelligent Investor.

  • Great article, did you also know there’s a free informational ebook and video that explains how to payoff your mortgage in 90 days so you wouldn’t have to worry about foreclosure ever again? It’s great information and a helpful tool to stop foreclosure.

    http://www.youtube.com/watch?v=suLCFLVbkEg