10/1/2010 9:00 AM ET|
Lose your house, then get sued
Those, Maddux said, are among the reasons that only six out of more than 4,000 clients served by You Walk Away have been saddled with deficiency judgments.
"Only six cases in the last three years, and those were primarily people with second mortgages," Maddux said. "That's a very low risk. . . . It's a safe risk to take. I don't think that should deter anyone from strategic default or walking away from a house."
'You can't count on getting lucky'
Shulman disagrees. He's hearing from more people who have been sued, and he believes the pace of lender lawsuits has picked up in the past year.
"I think the banks are getting more serious about going after this debt," Shulman said.
Shulman noted that lenders often have several years to decide whether to pursue a borrower for mortgage debt. He said lawsuits aren't all that expensive to file, especially if the lender finds a lawyer willing to work on contingency -- that is, without being paid upfront. Or the lender could simply sell the unpaid debt to a collection agency.
"I don't think it's something you can predict," Shulman said of the risk of being sued. "If you're vulnerable legally, you can't count on getting lucky."
Maddux agreed that the risk of lawsuits may still exist for his clients.
"It's still too early to tell," Maddux said. "A lot of these lenders have three years, four years or even five years (to make a decision). They may be sitting back, seeing if they want to pursue deficiency judgments."
If you're about to lose your home, here's what you need to do:
- Try to relieve yourself of liability in a short sale. Tell your real-estate agent you want a deal in which the lender accepts the home sale proceeds as full settlement of the mortgage, Shulman said. Carefully examine all paperwork to make sure you're not signing a clause that makes you liable for any debt after the sale. If the lender balks, consider whether you might have more protection with a foreclosure. If not, consider negotiating a settlement to reduce what you owe to the lender.
- Research your state's laws. Attorney Elias compiled a summary of each state's laws for his book that's also posted on publisher Nolo's website. He notes that his list deals only with the most common types of foreclosures in each state and pertains only to single-family residences. Elias provides links to help you do further research, but I'd recommend discussing your situation with a bankruptcy attorney who can assess your vulnerability to lawsuits.
- Talk to your accountant. If, rather than suing you, your lender agrees to forgive a portion of your debt, the forgiven debt is potentially taxable income to you. The Mortgage Debt Relief Act of 2007 allows many taxpayers to exclude mortgage debt forgiven between 2007 and 2012 from their income, but the law has enough exceptions and limitations that you'll want to discuss your situation with a tax pro.
- Consider bankruptcy if you're sued. A deficiency judgment can be wiped out in a Chapter 7 liquidation filing, Shulman said, or what you have to pay can be reduced or eliminated in a Chapter 13 repayment plan. A bankruptcy might not be necessary if you have few assets and your income is the type that can't be seized by creditors, such as Social Security payments. In that case, you're considered "judgment-proof," and the lender wouldn't be able to collect on any judgment it gets. But you'll want to run your situation past a bankruptcy attorney, just to be sure.
Liz Weston is the Web's most-read personal-finance writer. She is the author of several books, most recently "The 10 Commandments of Money: Survive and Thrive in the New Economy" (find it on Bing). Weston's award-winning columns appear every Monday and Thursday, exclusively on MSN Money. Join the conversation and send in your financial questions on Liz Weston's Facebook fan page.
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