In Mississippi, 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, when your mortgage lender can collect one against you in Mississippi, and what happens to the deficiency in a short sale or a deed in lieu of foreclosure in Mississippi.
When a lender forecloses on a mortgage, the total debt owed by the borrowers 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 borrowers by doing such things as garnishing the borrowers’ wages or levying the borrowers’ 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.)
Most foreclosures in Mississippi are nonjudicial, which means the lender does not have to go through state court to get one. However, sometimes foreclosures in Mississippi are judicial, where the lender forecloses through the state court system. (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?)
Learn more about Mississippi foreclosure procedures.
Deficiency judgments are allowed. In Mississippi, the lender can obtain a deficiency judgment in the court proceeding if the foreclosure is judicial or in a proceeding filed within one year from the foreclosure sale date if the foreclosure is nonjudicial. (Miss. Code Ann. § 11-5-111 and § 15-1-23).
Limitation on deficiency judgments. If the lender is the winning bidder at the foreclosure sale, the bid must be reasonable (based on the fair market value of the property) or the deficiency may be denied.
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 Mississippi 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 file a lawsuit to obtain a deficiency judgment.
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.)
There is no Mississippi law that says a lender cannot get a deficiency judgment following a deed in lieu of foreclosure. 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 against you.
To read the statutes that govern Mississippi deficiency judgments, go to www.lexisnexis.com/hottopics/mscode and look in Title 11, Chapter 5 ( § 11-5-111) and Title 15, Chapter 1 ( § 15-1-23).