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THE ROB LAMB TEAM

TUCSON'S #1 REAL ESTATE AGENT!


FORECLOSURES AND SHORT SALES

Many homeowners in this economy are experiencing financial hardship that make it hard to make their mortgage payments. There are not many options for a homeowner in this situation other than loan modification, short sale or foreclosure.

 

SHORT SALES

What is a short sale?

A short sale occurs when a homeowner is selling their home for less than is owed to the lender and asking the lender to accept less. The seller will receive no money on the sale of the property.

 

Why are banks willing to short sale instead of foreclosure?
On average it costs $50,000 to foreclose on a house and that is just the process itself! Once they try to sell the home it will have to be priced at market value, not the loan value. In most cases the bank prefers to approve a short sale because it losses less money for the bank than a foreclosure would.

*TIP* Banks would prefer to keep the homeowner in the house! They may renegotiate your loan making your payments more affordable so they wont have to short sale or foreclose. Call your lender first to see what they can do for you!

 

Does Short Selling affect my credit?

Short selling your home will have a negative affect on your credit. It may lower your credit score 200-300 points or more for about 2 years. (Foreclosures often affect your credit for 7 years+)

 

Will I have to pay the deficiency amount back to the bank?

No, Arizona is a non-deficiency state. For more information visit: http://www.irs.gov/individuals/article/0,,id=179414,00.html

 

Are there any tax implications on a short sale?

Depending on your situation there may be. Contact your accountant or attorney for more information.

 

What is the process for short selling a home?

The general process breaks down as follows:

 

1) Fax in offer - The banks take between 2-5 (sometimes as much as 10!) business days to acknowledge the fact that they received a fax and to put it into their computer system.

 

2) Assign a negotiator- This takes about a week to assign and this person just looks over the file to make sure that they have all the documentation that they need.

 

3) Order 2 BPO's (Broker Price Opinions) - The banks hire 2 realtors to go the property and give an opinion about what they think the house is worth. Their report is usually due 2 weeks after it is ordered. (this is the most likely time that the buyer will be countered although it is not common)

 

4) Once they have the BPO reports the negotiator takes a looks at the them and if they are similar then the bank takes about a week to finish the documentation they need to do to complete the report for their investors. (If the BPO's are very different then they hire an appraiser to go out to the property. This takes an additional week or two.)

 

5) The file goes to the investors! Fannie Mae or Freddie Mac usually.

 

6) The file goes the mortgage insurance company, if there is one, for approval.

 

7)Approval letter! If there is more than one mortgage then steps 3 through 5 have to be started with the second. If not then the buyer will have 30 days to close. They can take the full time or close as fast as his lender will allow.

 

The whole process takes between 30 - 90 days to complete depending on which bank holds the loan. We have closed many short sales and have contacts at many of the banks to help facilitate the short sale process.

 

Who can short sale my home?

We can help! We know the ins and outs of short selling homes! WE will take care of everything including negotiating with your lender(s). Selling your home will be our priority. There are no extra costs in selling your home as a short sale and the bank even pays the commission! You will receive weekly updates on the progress and personal service.

 

FORECLOSURES

Foreclosure is the legal and professional proceeding in which a mortgagee, or other lien holder, usually a lender, obtains a court ordered termination of a mortgagor's equitable right of redemption. Usually a lender obtains a security interest from a borrower who mortgages or pledges an asset like a house to secure the loan. If the borrower defaults and the lender tries to repossess the property, courts of equity can grant the borrower the equitable right of redemption if the borrower repays the debt. While this equitable right exists, the lender cannot be sure that it can successfully repossess the property, thus the lender seeks to foreclose the equitable right of redemption. Other lien holders can also foreclose the owner's right of redemption for other debts, such as for overdue taxes, unpaid contractors' bills or overdue homeowners' association dues or assessments.

 

The foreclosure process as applied to residential mortgage loans is a bank or other secured creditor selling or repossessing a parcel of real property (immovable property) after the owner has failed to comply with an agreement between the lender and borrower called a "mortgage" or "deed of trust". Commonly, the violation of the mortgage is a default in payment of a promissory note, secured by a lien on the property. When the process is complete, the lender can sell the property and keep the proceeds to pay off its mortgage and any legal costs, and it is typically said that "the lender has foreclosed its mortgage or lien". If the promissory note was made with a recourse clause then if the sale does not bring enough to pay the existing balance of principal and fees the mortgagee can file a claim for a deficiency judgement.

 

Types of foreclosure

The mortgage holder can usually initiate foreclosure at a time specified in the mortgage documents, typically some period of time after a default condition occurs. Within the United States and many other countries, several types of foreclosure exist. Two of them namely, by judicial sale and by power of sale are widely used, but other modes of foreclosure are also possible in a few states.

Foreclosure by judicial sale, more commonly known as Judicial Foreclosure, is available in every state and required in many, involves the sale of the mortgaged property under the supervision of a court, with the proceeds going first to satisfy the mortgage; then other lien holders; and, finally, the mortgagor/borrower if any proceeds are left. As with all other legal actions, all parties must be notified of the foreclosure, but notification requirements vary significantly from state to state. A judicial decision is announced after pleadings at a (usually short) hearing in a state or local court. In some fairly rare instances, foreclosures are filed in Federal courts.

Foreclosure by power of sale, which is also allowed by many states if a power of sale clause is included in the mortgage or if a Deed of trust was used instead of a mortgage. In some states so-called mortgages are actually deeds of trust. This process involves the sale of the property by the mortgage holder without court supervision. It is generally more expedient than foreclosure by judicial sale. As in judicial sale, the mortgage holder and other lien holders are respectively first and second claimants to the proceeds from the sale.

 

Other types of foreclosure are considered minor because of their limited availability. Under strict foreclosure, which is available in a few states including Connecticut, New Hampshire and Vermont, suit is brought by the mortgagee and if successful, a court orders the defaulted mortgagor to pay the mortgage within a specified period of time. Should the mortgagor fail to do so, the mortgage holder gains the title to the property with no obligation to sell it. This type of foreclosure is generally available only when the value of the property is less than the debt ("under water"). Historically, strict foreclosure was the original method of foreclosure.

 

Acceleration

The concept of acceleration is used to determine the amount owed under foreclosure. Acceleration allows the mortgage holder to declare the entire debt of a defaulted mortgagor due and payable, when a term in the mortgage has been broken. If a mortgage is taken, for instance, on a $10,000 property and monthly payments are required, the mortgage holder can demand the mortgagor make good on the entire $10,000 if the mortgagor fails to make one or more of those payments.

 

Lenders may also accelerate a loan if terms are there is a transfer clause, obligating mortgagor to notify the lender of any transfer, whether; a lease-option, lease-hold of 3 years or more, land contracts, agreement for deed, transfer of title or interest in the property.

 

The vast majority (but not all) of mortgages today have acceleration clauses. The holder of a mortgage without this clause has only two options: either to wait until all of the payments come due or convince a court to compel a sale of some parts of the property in lieu of the past due payments. Alternatively, the court may order the property sold subject to the mortgage, with the proceeds from the sale going to the payments owed the mortgage holder.

 

Process

The process of foreclosure can be rapid or lengthy and varies from state to state. Other options such as refinancing, a short sale, alternate financing, temporary arrangements with the lender, or even bankruptcy may present homeowners with ways to avoid foreclosure. Websites which can connect individual borrowers and homeowners to lenders are increasingly offered as mechanisms to bypass traditional lenders while meeting payment obligations for mortgage providers.

In the United States, there are two types of foreclosure in most common law states. Using a "deed in lieu of foreclosure," or "strict foreclosure", the noteholder claims the title and possession of the property back in full satisfaction of a debt, usually on contract. In the proceeding simply known as foreclosure (or, perhaps, distinguished as "judicial foreclosure"), the property is subject to auction by the county sheriff or some other officer of the court. Many states require this sort of proceeding in some or all cases of foreclosure to protect any equity the debtor may have in the property, in case the value of the debt being foreclosed on is substantially less than the market value of the immovable property (this also discourages strategic foreclosure). In this foreclosure, the sheriff then issues a deed to the winning bidder at auction. Banks and other institutional lenders may bid in the amount of the owed debt at the sale but there are a number of other factors that may influence the bid, and if no other buyers step forward the lender receives title to the immovable property in return.

 

Other states have adopted non-judicial foreclosure procedures in which the mortgagee, or more commonly the mortgagee's servicer's attorney or designated agent, gives the debtor a notice of default and the mortgagee's intent to sell the immovable property in a form prescribed by state statute. This type of foreclosure is commonly referred to as "statutory" or "non-judicial" foreclosure, as opposed to "judicial". With this "power-of-sale" type of foreclosure, if the debtor fails to cure the default, or use other lawful means (such as filing for bankruptcy, which temporarily stays the foreclosure) to stop the sale, the mortgagee or its representative conduct a public auction in a similar manner to the sheriff's auction. The highest bidder at the auction becomes the owner of the immovable property, free and clear of interest of the former owner, but possibly encumbered by liens superior to the foreclosed mortgage (e.g., a senior mortgage or unpaid property taxes). Further legal action, such as an eviction may be necessary to obtain possession of the premises.

 

Defenses - The Constitutional Issue of Due Process has affected the ability of lenders to foreclose property. In Ohio, the Federal District Court has dismissed numerous foreclosure actions by lenders because of the inability of the alleged lender to prove that they are the real party in interest. In Colorado, on June 19, 2008, a District Court Judge dismissed a foreclosure action because of failure of the alleged lender to prove they were the real party in interest.

 

"Strict foreclosure" is an equitable right available in some states. The strict foreclosure period arises after the foreclosure sale has taken place and is available to the foreclosure sale purchaser. The foreclosure sale purchaser must petition a court for a decree that cuts off any junior lien holder's rights to redeem the senior debt. If the junior lien holder fails to do so within the judicially established time frame, his lien is canceled and the purchaser's title is cleared. This effect is the same as the strict foreclosure that occurred at common law in England's courts of equity as a response to the development of the equity of redemption.

 

In most jurisdictions it is customary for the foreclosing lender to obtain a title search of the immovable property and to notify all other persons who may have liens on the property, whether by judgment, by contract, or by statute or other law, so that they may appear and assert their interest in the foreclosure litigation. In all US jurisdictions a lender who conducts a foreclosure sale of immovable property which is the subject of a federal tax lien must give 25 days' notice of the sale to the Internal Revenue Service: failure to give notice to the IRS results in the lien remaining attached to the immovable property after the sale. Therefore, it is imperative the lender search local Federal Tax Liens so if parties involved in the foreclosure have a federal tax lien filed against them, the proper notice to the IRS is given. A detailed explanation by the IRS of the Federal Tax Lien process can be found.

 

The US congress passed, and President Bush signed into law, a temporary change to the tax code. For the period Jan. 1, 2007, through Dec. 31, 2009, homeowners do not have to pay tax on canceled debt.

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