Understanding the Short Sale Process (Part 2 of 2)

A short sale is the sale of a property for less than what the owner still owes on the mortgage. A short sale is an alternative to foreclosure when a homeowner needs to sell and can no longer afford to make their mortgage payments. There is no guarantee that a short sale will work.

Once you fall behind on your loan, the lender can proceed to foreclosure if they choose to. But typically, lenders prefer not to foreclose and, if effectively presented with smart alternatives, they will often agree to a short sale rather than foreclose. If a short sale is attempted but doesn’t work, your house will likely go to foreclosure.

I Have More Than One Mortgage On My House. Can I Still Do A Short Sale?

Yes. Each mortgage can be negotiated individually. However, multiple mortgages make a short sale more complicated and time-consuming. Not only do you need the cooperation of the first lender, the second mortgage holder needs to agree to a short sale as well.

What Is A Release?

A lender may offer to “release” its security interest against the property in exchange for less than the total amount of the note. A release will allow the property to be sold without paying off the obligations of the note. However, the note is not satisfied. The advantage of a release is it allows the property to be sold and helps you avoid a foreclosure.

The disadvantage is the remaining debt on the property (sometimes called a deficiency) still exists. You are still liable for the note. In other words, you still owe the money. In reality, it’s not likely that the lender will pursue the deficiency unless you have other significant assets.

Furthermore, if you don’t attempt a short sale and the property goes to foreclosure, you can be liable for the full amount of remaining debt on any additional mortgages beyond your first mortgage.

What Is A Satisfaction?

A lender may agree to accept less than it is owed as complete and total satisfaction of the debt and release its lien against the property. Your note and obligation to the lender are satisfied for less than you owe. When the property is sold, the debt is paid off completely. Sometimes short sale negotiations are successful in obtaining complete satisfaction. Sometimes all that can be obtained is a release.

Are There Tax Consequences?

When a lender cancels, or forgives, your debt, the tax laws may consider the forgiven debt as taxable income. If a lender agrees to a satisfaction, the Mortgage Forgiveness Debt Relief Act of 2007 provides that debt forgiveness of up to $2 million is not considered taxable income if:

The house has been used as your principal place of residence for at least two of the previous five years.
The debt has been used to buy, build, or make substantial improvements to the home.

Home equity loans where the money was not used to buy, build, or improve the home do not qualify for the exclusion. Neither do mortgages for second homes or rental properties. The law has been extended to include debt forgiven through 2013.

There are additional tax considerations to keep in mind. A debt cancellation will affect your property’s cost basis. Insolvency or bankruptcy may also alleviate some of the tax burdens of a debt cancellation resulting from a short sale. You should always confirm tax matters with your tax professional.