The Murky Waters of Short Selling a Home

With residential real estate prices still depressed, sellers and buyers continue to find themselves navigating the murky waters of a short sale.

A short sale is a sale of property for less than the amount of the debt against it, and where the mortgage lender must agree to release its lien for less than what it is owed.

So why would a lender agree to such a sale? Because this is as good as it’s going to get. If the lender forecloses, it will incur additional costs and delays, and might have to evict its borrower.

In the end, the lender will receive less than what the short sale would produce. Thus, from the lender’s point of view, it’s better to have more money now than less money later.

For sellers, it’s important to understand that a lender’s agreement to release its lien for less than what it is owed does not mean the lender has agreed to forgive the remaining portion of the debt.

To the contrary, the lender may require that the seller sign a new note or an agreement modifying the repayment terms of the original note.

Or, the lender could file a lawsuit against the seller seeking a judgment for the unpaid balance of the original note. With a judgment in hand, the lender is then in a position to garnishee wages and bank accounts; have the sheriff sell the debtor’s possessions; and take other collection action.

If the lender does agree to forgive the balance of the debt — and this sometimes happens — the seller has another worry. Will the amount of debt being forgiven be treated as taxable income by the IRS?

In keeping with the tradition of the Internal Revenue Code, the rules here are technical and seem to change from time to time, so a property owner considering a short sale needs to check with a tax professional to determine the latest position the IRS has taken on this issue.

Because short sales are fraught with legal baggage of this nature, the Real Estate Division of the Washington State Department of Licensing and the Department of Financial Institutions have issued two bulletins about short sales. The DOL Short Sale Advisory is for home sellers but really should be for both sellers AND their Realtors/real estate brokers. DFI’s companion advisory is titled “Short Sale Guidance for Licensees” and contains many Q&As for both loan modification and short sale negotiation services.

Remember, Time is Not Your Friend when it comes to Short Selling your property. Call me today for solid answers to this very complex issue.