If you are a homeowner facing foreclosure, a short sale might sound like the perfect solution to your problem. After all, with a short sale you sell your home for less than the total debt balance remaining on the mortgage and the lender agrees to release the lien on the property. What could be easier?
Well, there are many different potential hurdles that you’ll have to overcome to complete the deal. Read on to learn more about common problems that come up in short sales and what you can do to avoid these obstacles.
What Is a Short Sale?
A short sale is when the lender agrees to let you sell your home for less than the outstanding mortgage debt. The proceeds from the sale pay off a portion of the mortgage balance and the lender releases the lien on the property. (Find out more in Nolo’s article Is a Short Sale Right for You?)
Example. Say you owe $300,000 on your mortgage. Your lender agrees to let you sell the property for $250,000 and release its lien. The sale price is “short” of the full debt amount by $50,000, which is called a “deficiency.” (Find out more in Nolo’s article Deficiency Judgments: Will You Still Owe Money After the Foreclosure?)
In the past, short sales were difficult (if not impossible) to complete. Following the recent mortgage crisis, servicers and lenders revamped their short sale guidelines and, as a result, it is now easier than ever to complete a short sale. However, certain problems do still tend to crop up in short sales.
Common Problems and Obstacles With Short Sales
If you are aware of the most common short sale problems, you’ll be better prepared to deal with them as they arise. Some frequent issues are:
What Happens to the Deficiency?
In many states, the lender can seek a personal judgment against you after the short sale to recover the deficiency amount. (Learn more about deficiency judgments in Nolo’s article How to Avoid a Short Sale Deficiency Judgment.)
While many states have enacted legislation that prohibits a deficiency judgment following a foreclosure, most states do not have a corresponding law that would prevent a deficiency judgment following a short sale. (Find out which states prohibit a deficiency judgment after a short sale.)
Even if your state does not have a statute that prohibits a deficiency judgment following a short sale, there are ways you can prevent the lender from getting a deficiency judgment, such as:
- negotiating a waiver of the deficiency
- declaring bankruptcy, or
- negotiating a settlement for an amount less than you actually owe. (To find out more about settling a debt, see Nolo’s articles Dealing With Debt: An Overview of Your Options and Debt Negotiations: Common Mistakes.)
To avoid any nasty surprises following the short sale, you should figure out what will happen to the deficiency before completing the transaction.
Lowball Offers That Waste Everyone’s Time
Potential purchasers sometimes make ridiculously low offers hoping to get an amazing deal on your property. However, banks owe their shareholders and investors a duty to get as much as they can for distressed properties. Lowball offers do not meet investor guidelines and, as a result, the lender will very likely come back with a significantly higher counteroffer and the potential buyer will most likely walk away.
To avoid wasting everyone’s time, avoid submitting lowball offers to the lender for approval. You still may have to submit several offers (and deal with several counteroffers) before finding a buyer that is willing to pay the lender’s desired price, but at least you won’t waste your time with someone who isn’t willing to pay fair market value. (Fair market value is determined by the recent sales prices of similar, nearby homes, with some adjustments made for the property’s condition.)
Lack of Buyer Scrutiny
Another potential problem with short sales is the issue of buyer scrutiny. Before you get too deep into the deal, you need to ensure that the buyer is qualified and serious about purchasing the home. For example, make sure that the buyer is pre-approved for a sufficient loan amount, otherwise you may go through the entire short sale application process with your lender only to find out that the buyer can’t complete his or her end of the deal.
Junior Lienholders Won’t Accept the Payoff Amount
In order to obtain clear title following a short sale, the first mortgage lender must obtain releases from all of the junior lienholders. This means that if there is a second mortgage, HELOC, tax lien, or other lien (like a judgment lien) on the property, all must sign off on the short sale deal -- not just your first mortgage lender. To get the junior lienholders to agree, the first mortgage holder will offer each junior lien holder a portion of the total amount they are owed (this is usually a small amount of money) in order to release their lien.
The main obstacle in getting junior lienholders to agree to a short sale is that each party usually wants more money than the first lender offers. This can make it very difficult to get an approval from each lienholder. (Learn more in Nolo’s article Short Sales With Multiple Mortgages.)
A few potential solutions to this problem are:
- convincing the junior lienholders that they will receive more by letting the short sale go through than they would in a foreclosure
- paying off the junior lienholders (though this is generally not possible for most distressed homeowners), or
- convincing the first lender to contribute more of its share of the funds to the junior lienholders.
Neglecting Junior Liens
Some banks have a reputation for being difficult when it comes to approving short sales and releasing their junior liens. If you do not devote adequate time and attention to the junior lienholders from the very beginning of the process, it may not leave you with sufficient time to obtain their consent and complete the short sale.
Unrealistic Timeline Expectations
In general, short sales are much faster than they used to be, though the process can still take a few weeks or months. Since it is quite likely that the lender will reject the first offer (particularly if the offer is substantially lower than the listing price or below fair market value), uninformed buyers and sellers who expect a quick turnaround can get frustrated and bail on the deal before the sale is approved.
Fortunately for some borrowers, Fannie Mae and Freddie Mac, as well as some of the major banks, have streamlined their short sale processes so that homeowners can be more quickly and easily approved for a short sale. (Find out if Fannie Mae or Freddie Mac owns your loan in Nolo’s article Short Sales for Fannie Mae and Freddie Mac Loans.)
The Lender May Require a Promissory Note
If you have sufficient income or assets, you should be aware that sometimes the lender may require you to sign a promissory note to pay back some of the deficiency as a condition of agreeing to the short sale.
The lender may remove this requirement if you:
- raise the sale price (and the buyer agrees), or
- offer a lump sum paid at closing.
Example. Say the lender will approve the short sale, but only if you agree to sign a $10,000 promissory note to cover some of the deficiency. Rather than signing a $10,000 promissory note, you could offer to pay $3,000 at closing. Lenders are sometimes willing to take less money at closing rather than hope they’ll get more money out of you at some point in the future.
Documentation Must Be Correct and Complete
One common reason that short sales fail to close is problems with the documentation. For example:
- the documents may not get drawn up in time
- certain documents may be missing, or
- the documents may not be signed and dated properly.
Any problems with the documentation can slow the process down or kill the deal altogether. Therefore, it is in your best interest to push for the loan documents to be prepared several days before the closing date and to carefully review them.
Hiring an Attorney
If you are considering completing a short sale, you should go into the process knowing the pitfalls so you can take steps to avoid them. Hiring an attorney with experience in negotiating short sales is also recommended. Short sales can be tricky, so be sure your attorney is familiar with how they work.