In Montana, if you go through foreclosure and the sale price is not enough to cover the balance of your mortgage, in most cases, your lender cannot 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 Montana, and what happens to the deficiency in a short sale or a deed in lieu of foreclosure in Montana.
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.)
Most home mortgages in Montana are trust indentures (also known as deeds of trust) and most foreclosures in Montana are nonjudicial, which means the lender does not have to go through state court to get one. (In judicial states, the lender must foreclose 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?)
In Montana, deficiency judgments are not allowed after a nonjudicial foreclosure of a trust indenture or in a judicial foreclosure of a trust indenture for a occupied, single-family residence. See First State Bank of Forsyth v. Chunkapura, 226 Mont. 54, 734 P.2d 1203 (1987); Midfirst Bank v. Ranieri, 848 P.2d 1046 (1993).
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?
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 Montana 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 Montana 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.
The statutes governing Montana foreclosures can be found in the Montana Code in § § 71-1-222 through 71-1-235 and § § 71-1-301 through 71-1-321. (Specifically, the statutes that deal with deficiencies are § 71-1-232 and § 71-1-317.)
Go to http://leg.mt.gov and click on “Laws and Constitution” and then “Current Laws” to access the statutes. Then go to Title 71, Chapter 1, and look in Parts 2 (“Mortgages of Real Property”) and Part 3 (“Small Tract Financing”).