Avoid Owing the Bank Money After a Foreclosure

You might be able to avoid owing your lender a deficiency judgment after a foreclosure.

By , Attorney

If you stop making your mortgage payments or breach the loan contract in some other way, the lender will most likely foreclose, a process in which your home is sold to repay the loan. If the total debt you owe is more than what the foreclosure sale brings in, the difference between the debt and the sale price is called a "deficiency."

In some states, the lender can seek a personal judgment, called a "deficiency judgment," against the borrower to recover the deficiency. Generally, once the lender gets a deficiency judgment, the lender may collect this amount—in our example, $25,000—using typical collection techniques, like telling your employer to deduct money from your paycheck (a wage garnishment) or forcing your bank to take money out of your account (bank levy).

But some states protect homeowners from liability for deficiencies under certain circumstances, like if the loan money was used to buy a property that's an owner-occupied dwelling or if the foreclosure was nonjudicial. Also, even if your state allows deficiency judgments, you might be able to eliminate or reduce the deficiency amount in some cases.

Filing Bankruptcy to Wipe Out a Deficiency

If you live in a state that allows for a deficiency judgment after a foreclosure, you can probably eliminate your liability for the judgment by filing for Chapter 7 or Chapter 13 bankruptcy.

Chapter 7 Bankruptcy

In most Chapter 7 bankruptcies, a lender's deficiency judgment is treated as an unsecured debt, like credit card obligations or medical bills. So when you get a discharge, the lender can no longer come after you to collect the debt.

Chapter 13 Bankruptcy

Unless the lender places a lien on any of your assets, its deficiency judgment is an unsecured debt in a Chapter 13 bankruptcy. The lender will likely receive little or nothing through the Chapter 13 repayment plan. When you finish making all of your plan payments, the deficiency judgment is discharged along with your other dischargeable debts.

Possible Defenses to a Deficiency Action

Sometimes, to get a deficiency judgment, a lender must file a separate lawsuit against the borrower after the foreclosure. (Other times, the lender may get a deficiency judgment in the foreclosure action itself.) You might be able to challenge the lender's right to a deficiency judgment or the amount of the deficiency judgment in this lawsuit. For example, if the lender used robosigned documents to foreclose or didn't pay fair market value at the foreclosure sale, you could have a defense to the deficiency judgment action.

What Is Robosigning?

All states require lenders to follow certain procedures when foreclosing. These procedures typically include filing certain documents with the court (judicial foreclosures) or with the county recorder (nonjudicial foreclosures). If the lender used robosigned documents—that is, documents that the lender's representative signed without reading or having any personal knowledge about the accuracy of the information in the documents—you could have a defense to a deficiency judgment action.

While robosigning was widespread during the past mortgage-foreclosure crisis, it now occurs far less frequently. Still, if you think robosigned documents may have been used in your foreclosure and you're facing a deficiency judgment, it's worth speaking to an attorney to learn about your options.

Did the Buyer at the Foreclosure Sale Pay Fair Market Value?

Many states have a law that limits the amount of the deficiency to the difference between the total mortgage debt and the property's fair market value, which is normally determined by a fairly complex statutory appraisal process set out in the state statutes. If you live in a state with this type of law and the lender bought the home at the foreclosure sale for less than the fair market value, you may challenge the amount of the deficiency. A court will then likely limit the deficiency judgment to the difference between the total debt and fair market value of the home.

Consider Talking to an Attorney

Foreclosure laws and deficiency judgment laws vary from state to state. Also, the defenses mentioned in this article are only a few of the possible defenses available to deficiency judgment or foreclosure, but there are, of course, others. If you're facing a foreclosure and worried about a deficiency judgment, consider talking to a local foreclosure attorney. A foreclosure attorney can also explain different options that might be available to prevent a foreclosure, like a loan modification, forbearance agreement, or repayment plan. If you can't afford to hire a lawyer, consider speaking with a HUD-approved housing counselor.

If you're thinking about filing for bankruptcy, consider talking to a bankruptcy attorney.

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