Short Sales in New York - Deficiency Judgments

As an attorney I have been working with homeowners in the luxury real estate market in Manhattan.  As we have been completing short sales, the banks have waived the deficiency judgments on loans that are close to the sale price.  However, in a recent Bank of America short sale - the loss is in excess of 500K -- I was presented with the following language that the bank would not waive the deficiency unless state law required it.

Is there a New York State law that requires waiver of the deficiency in a short sale?  The short answer is no. 

How contrary is this?  When you access the New York State Banking department's website, it specifically states:

•  "Short Sale:  The lender lets the borrower sell the house for less than the outstanding loan amount, takes the proceeds and forgives the remaining debt."

However after I called the Banking Department about this claim, no one could answer my questions, and they suggested that I speak with an attorney.  Interesting.

After speaking with several real estate attorneys, and the New York City Bar's attorneys who specialize in foreclosures - the answer is the same -- there is no law that says the bank must waive the deficiency judgment.  It seems to me as a reasonable person, that the bank would recognize that after all the work performed to acquire a buyer for a property at a higher amount then the bank would be able to receive in foreclosure, that waiving a deficiency is a better choice than taking the bankruptcy route.  But then again, who ever said that the people at the banks are reasonable?

Keep this in mind - bankruptcy is the option to all of this and in New York State there is no law that says (at the time of this post) that a bank must waive the deficiency against the homeowner for the amount of the loan that will not be paid off in a proposed short sale.

At my law site I have further information regarding foreclosures, short sales, and loan modifications.

NAR issues brochure to help reduce short sale stress

On April 5, 2010, the U.S. government will implement the Home Affordable Foreclosure Alternatives Program (HAFA). The HAFA helps homeowners who are unable to retain their home under the Home Affordable Modification Program by simplifying and streamlining the use of short sales and deeds-in-lieu of foreclosures. Homeowners must meet certain requirements to participate and incentive payments are provided to homeowners and servicers. To help REALTORS understand HAFA and its guidelines, the National Association of REALTORS ("NAR") has released an informational brochure available through the links below:
NAR’s press release
HAFA brochure

Open Letter to our Legislators

As my elected official, you should know that I strongly support President Obama's initiatives to help millions of American homeowners and reduce the massive wave of home foreclosures that are fueling today's national economic crisis. I urge you to adopt the President's plan to prevent home foreclosures that do not need to happen. A key part of the Obama plan would permit distressed homeowners to seek home loan modifications in bankruptcy court.

I do not think that what has been tried so far to stop the foreclosure crisis is working. If families are going to stay in their homes and avoid foreclosure, it seems clear that court-supervised mortgage modifications are necessary. We have wasted too much time already on half measures and other dead-end efforts that have done nothing to slow down the runaway foreclosure crisis.

I particularly like the judicial modification approach because it can prevent hundreds of thousands of foreclosures without spending one penny of taxpayer money. Is it too much to ask that you take this no-cost action for homeowners? After all, you have seen fit to spend billions of dollars on bailing out banks, car companies, brokerage firms and other corporate giants. It's time that we face facts: We can't end the financial crisis without ending the rising tide of foreclosures.

At a time when an estimated 6,600 families are losing their home to foreclosure each and every day, there is no time for delay. I urge you in the strongest possible terms to support this urgently needed legislation.

American families are reeling under the weight of the recession today. At a point where you can help lighten that load and save the homes of many Americans, I am asking you to support judicial modification of mortgages. This nation needs to put the housing crisis behind it.

As my elected official, you can be assured that I will be watching with great interest to see how you come down on this issue of great importance to my family, my neighborhood and my community.

Please keep me informed about how you vote on this important issue.

Sincerely,

Michele A. Peters, Esq.