If your home in California sells at a foreclosure sale for less than you owe on your mortgage loan, you might still be on the hook to pay more money afterward. That's because, under specific circumstances, California law allows the foreclosing bank to get a deficiency judgment for the difference between the sale price and the total mortgage debt. Fortunately, though, most foreclosed homeowners in California won’t have to pay a deficiency judgment.
In this article, you’ll learn what a deficiency judgment is, when the bank can get a deficiency judgment against you in California, and what happens to the deficiency in a short sale or a deed in lieu of foreclosure.
In a foreclosure, the total debt that the borrower owes sometimes exceeds the foreclosure sale price. The difference between the total debt and the sale price is called a “deficiency.”
Example. Say the total amount you owe on your home loan—including outstanding principal, interest, fees, and costs—is $600,000. But your home sells for just $550,000 at the foreclosure sale. The deficiency is $50,000.
In some states, the foreclosing bank can seek a personal judgment, called a “deficiency judgment,” against the debtor to recover the deficiency. Generally, once the bank gets a deficiency judgment against you, the bank may collect this amount—in our example, $50,000—from your other assets or income. (Learn about different ways that creditors use to collect judgments.)
In California, foreclosures can be either judicial or nonjudicial. Judicial foreclosures are administered through the state court system, while nonjudicial foreclosures have no court supervision, and a foreclosure trustee handles the process. Most residential foreclosures in California are nonjudicial.
In California, a foreclosing bank can't get a deficiency judgment after a nonjudicial foreclosure. (Cal. Code Civ. Proc. § 580d).
Because most residential foreclosures are nonjudicial, most Californians going through foreclosure don't have to worry about being on the hook to the foreclosing bank for a deficiency judgment.
If the bank chooses to pursue a judicial foreclosure, deficiency judgments are generally allowed. To get the deficiency judgment, the bank has to file an application with the court within three months of the foreclosure sale. The judge will then hold a fair value hearing to determine the fair value of the property. The deficiency judgment will be limited to the lesser of:
But even if the bank uses judicial foreclosure, deficiency judgments are not allowed in cases where the loan was:
California's one-action rule further limits a bank’s ability to get a deficiency judgment. Under this rule, the bank can only pursue one form of action for the recovery of a debt or mortgage. (Cal. Code Civ. Proc. § 726(a)). So, to collect the defaulted debt, the bank may only:
While the one-action rule seemingly gives the bank the option to sue the borrower personally on the promissory note and forgo foreclosing, courts have interpreted the rule to mean that a bank must pursue the secured real estate first. Under this “security-first rule,” the bank can’t sue on the note as the first method of collection. (Cal. Code Civ. Proc. § 726(a)).
California law generally prohibits a deficiency judgment following the short sale of a residential property with no more than four units. Junior lienholders are also prohibited from pursuing a deficiency judgment if they agree to the short sale. (Cal. Code Civ. Proc. § 580e). Though, if you perpetrate fraud or commit waste with respect to the property (damage it), the bank can seek damages against you. Also, the anti-deficiency law doesn’t apply to a borrower that is a corporation, LLC, limited partnership, or political subdivision of the state.
Also, under California law, the bank can't require the borrower to pay any additional compensation, aside from the proceeds of the short sale, in exchange for giving written consent to the sale. So, the bank can’t require the borrower to sign a promissory note or contribute funds at the close of escrow as a condition of the short sale. (Cal. Code Civ. Proc. § 580e).
A deed in lieu of foreclosure (deed in lieu) is when a bank agrees to accept a deed to the property instead of foreclosing to get the property’s title. With a deed in lieu, the deficiency amount is the difference between the total debt and the fair market value of the property.
Often, a deed in lieu is deemed to satisfy the debt fully. But California doesn’t have a law that says the bank can't get a deficiency judgment following this kind of transaction. So, the bank might try to hold the borrower liable for a deficiency following a deed in lieu. To avoid a deficiency judgment, the agreement must expressly state that the transaction completely satisfies the debt. If the deed in lieu contract doesn’t contain this provision, the bank may file a lawsuit to obtain a deficiency judgment. Though, if the bank forgives the deficiency, you might have tax consequences.
If you’re a California homeowner facing a foreclosure and want to learn about any defenses you may have or about different ways to avoid a foreclosure, consider talking to an attorney. If you can't afford an attorney, a HUD-approved housing counselor can tell you about foreclosure avoidance options at no cost.