In Michigan, if you go through foreclosure and the sale price is not enough to cover the balance of your mortgage, your lender can come after you for the "deficiency." Read on to learn what a deficiency judgment is and what happens to the deficiency after a short sale or a deed in lieu of foreclosure in Michigan.
What Is a Deficiency After Foreclosure?
When a lender forecloses on a mortgage, the total debt owed by the borrower to the lender frequently exceeds the foreclosure sale price. The difference between the sale price and the total debt is called a “deficiency.”
Example. Say the total debt owed is $200,000, but the home only sells for $150,000 at the foreclosure sale. The deficiency is $50,000.
In some states, the lender can seek a personal judgment against the debtor to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount (in our example, $50,000) from the borrower by doing such things as garnishing the borrower’s wages or levying the borrower’s bank account. (Learn about methods that creditors can use to collect judgments.)
(To learn more about deficiency judgments in the foreclosure context, see our Deficiency Judgments After Foreclosure area.)
Michigan Deficiency Judgments
In Michigan, lenders may foreclosure by either a nonjudicial or judicial process. Most foreclosures in Michigan are nonjudicial, which means the lender does not have to go through state court to get one, and the process takes around 60 days to complete if uncontested. (With a judicial foreclosure, the lender must foreclose through the state court system and the process is generally much longer.) To learn more about the difference between judicial and nonjudicial foreclosure, and the procedures for each, see Will Your Foreclosure Take Place In or Out of Court?)
Deficiency judgments following nonjudicial foreclosure. In Michigan, the lender may obtain a deficiency judgment following a nonjudicial foreclosure, but the borrower can contest the amount of the deficiency if:
- the lender was the purchaser at the foreclosure sale, and
- the foreclosure sale price was substantially less than the fair market value of the property. (Mich. Comp. Laws § 600.3280.)
Deficiency judgments following judicial foreclosure. If the lender chooses to pursue a judicial foreclosure, it may obtain a deficiency judgment as part of the judicial foreclosure process.
Can Lenders of Second Mortgages, HELOCs, and Other Junior Liens Collect From You?
Generally, when a senior lienholder forecloses, any junior liens (these would include second mortgages and HELOCs, among others) are also foreclosed and those junior lienholders lose their security interest in the real estate. If a junior lienholder has been sold-out in this manner, that junior lienholder can sue you personally on the promissory note. This means that if the equity in your home doesn’t cover second and third mortgages, you may face lawsuits from those lenders to collect the balance of the loans.
Learn more in our article What Happens to Liens and Second Mortgages in Foreclosure?
Deficiency After a Short Sale in Michigan
A short sale is when you sell your home for less than the total debt balance remaining on your mortgage and the proceeds of the sale pay off a portion of the mortgage balance. (Learn more about short sales to avoid foreclosure.)
There is no Michigan law that says a lender cannot get a deficiency judgment following a short sale. To avoid a deficiency judgment, the short sale agreement must expressly state that the lender waives its right to the deficiency. If the short sale agreement does not contain this waiver, the lender may later file a lawsuit to obtain a deficiency judgment.
Deficiency After a Deed in Lieu of Foreclosure in Michigan
A deed in lieu of foreclosure occurs when a lender agrees to accept a deed to the property instead of foreclosing in order to obtain title. With a deed in lieu of foreclosure, the deficiency amount is the difference between the fair market value of the property and the total debt. (Learn more about deeds in lieu of foreclosure.)
Usually, a deed in lieu of foreclosure is deemed to fully satisfy the debt. However, lenders frequently look for new ways to recoup their losses and Michigan does not have a law that says the lender cannot get a deficiency judgment following a deed in lieu of foreclosure. This means that a lender may try to hold the borrower liable for a deficiency after the deed in lieu of foreclosure transaction is completed.
To avoid a deficiency judgment with a deed in lieu of foreclosure, the agreement must expressly state that the transaction is in full satisfaction of the debt. If the deed in lieu of foreclosure agreement does not contain this provision, the lender may file a lawsuit to obtain a deficiency judgment.
Michigan State Law
The statutes governing Michigan foreclosures can be found in §§ 600.3101 to 600.3185 and §§ 600.3201 to 60.3285 of the Michigan Compiled Laws, which can be found on the official Michigan Legislative website.