The Aftermath of a Deficiency Judgment

You probably already know what a deficiency judgment is. Generally, it’s a lawsuit to collect unpaid debts, and in our business, it’s a lawsuit to collect the balance due on a mortgage after a foreclosure. Not all states allow lenders to do this, but many of them do.

You also probably know that a deficiency judgment is something that we all want to avoid, but why? What happens after the judge lays down the gavel?

Deficiency judgments are often only avoided through negotiation with the bank before the foreclosure. In the process of getting a short sale approved, the homeowner or his agent can sometimes ask the bank waive their right to further collection efforts if the house is sold. Considering the cost of keeping an REO property and the fact that the homeowner is usually broke at that point, the bank will sometimes agree to this.

When that isn’t possible, depending on state law, the homeowner may have a deficiency judgment on their hands, whether the short sale was approved or the foreclosure went through. At that point, the debt only goes away through payoff or bankruptcy.

Let’s say that the foreclosure went through. In most states, a judge will look at both the highest bid at the foreclosure auction and the appraised value of the house. The greater dollar amount of the two is subtracted from the balance due on the mortgage, and that is the amount of the deficiency judgment against the borrower. In the case of a short sale, the judge subtracts the sale proceeds from the balance due.

So, the former homeowner now has a court order which says he has to pay the rest of that mortgage debt to the bank. If there were two or more mortgages or liens, that homeowner may even have two or more deficiency judgments against him.

One of the first things that usually happens after a deficiency judgment is issued is that it begins earning interest. By this time, the dollar amount has already gone up if the bank has any REO expenses, so adding interest only blows up the amount due. In Florida, deficiency judgments rack up 11 percent per year. What’s the interest rate in your state?

The debt is usually sold afterward for 5 to 10 cents on the dollar. Banks don’t see much point in trying to collect those debts themselves, especially since most homeowners with that kind of debt are broke. They would rather take the 10 percent now than hope for a larger payment later while keeping the debt on the books.

Payment or no payment, the former homeowner now also has a huge ding on their credit report, as if having a foreclosure on record wasn’t bad enough. That judgment will stay on a credit report for at least seven to ten years, depending on certain circumstances, and it will send a FICO score down. That lower FICO score means that the former homeowner could be turned down for loans, jobs, or even housing because of it.

The foreclosure scenario is changing. There are more property foreclosures than ever right now, and that means deficiency judgments could be increasing as well. The government is taking the lead in re-evaluating how foreclosures are handled. We may see some changes in the way deficiency judgments are handled in the near future, and we may not.

For now, your best strategy is to try and get the lender to see the wisdom of forgiving the debt and reporting the mortgage as “paid in full as agreed” on your credit report. Negotiating that deficiency judgment away is the key to survival here, because it can hang over your head for a long time.

Want more information on how to survive a foreclosure? Follow me on Facebook and Twitter.