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You need to know the lender's perspective in a short sale
Your mortgage lender will be considering a number of factors in deciding whether to approve a short sale. A review of your circumstance, whether you deserve a break due to financial hardship caused by uncontrollable circumstances such as death, divorce, layoffs or illness. They will also take a hard look at whether it would be cheaper (or more profitable to them) to simply proceed with the foreclosure process on the house, make any necessary repairs and sell it through an agent. How many other real estate owned (REO) properties they have in their portfolio will affect their decisions as well.
The process
When a borrower falls behind on their payments the loan is usually sent to the lender’s loan loss mitigation department. Most lenders also consider short loan payoff sale requests in their loss mitigation departments.
Your chances of success with your lender improve if your communications with them is organized and complete. Your contact with your mortgage lender’s loss mitigation department should be professional. You’ll want to send them the appropriate documentation and provide them with any additional information that they may require.
Keep in mind that lenders will approve a short sale as a last resort to avoid foreclosure. If a home was purchased at the height of the market and has depreciated considerably, the home may be ”upside down”, or is worth less than is owed. The lender may consider a short sale. The same is true for a property was recently refinanced at 100% or on an option arm leaving the property without equity.
Keep in mind that lender is not in a position to manage property they are in the lending business. A home, while it’s sitting vacant waiting for sale, is accruing costly insurance premiums, taxes, repairs and bringing in nothing. The lender is losing even more because the lost interest they could be receiving on their asset. They have their money invested, but are making nothing from the investment until the property sells. If a short sale can be accomplished, their money is returned and they are no longer losing money on the investment. In a short sale the bank may even be willing to finance a new owner, making it a win/win for all parties.
The documentation you'll need to accomplish a short sale. Non-foreclosure alternatives.
While many lenders will have varying requirements and may demand that a borrower submit different types of documentation, the following should be treated as a guideline of what is required in a pursuing a short sale.
Contact your lender immediately
You need to make the effort to find the right person responsible for handling a potential short sale. You want to talk to person in charge of loss mitigation for the lender, you want a supervisor's name, the name of the individual capable of making these kinds of decisions.
Submit a letter of authorization
Your lenders will not want to disclose any of your personal information without written authorization to do so. If you are working with a real estate agent, closing agent, title company or lawyer, you will receive better cooperation if you write a letter to the lender giving the lender permission to talk with those specific interested parties about your loan. You should include the following information: name, address, loan number, third party agents involved and contact information on both the agents and yourself.
Preliminary estimate of your lenders proceeds
A preliminary HUD-1 settlement statement that indicates the sales price you are under contract for and all the costs of sale, unpaid loan balances, outstanding payments due and late fees, including real estate commissions, if any. Your third party agent (realtor, title company or lawyer) should be able to prepare this for you. The bottom line should not indicate any net proceed to the seller.
Your circumstances, in the form of a hardship letter
A complete description of the facts that brought you to financially challenging situation and why you have a valid reason for the lender to accept less than full payment. Lenders can understand many circumstances are unavoidable, loss of job, death, divorce, etc., but they are not very compassionate to situations involving dishonesty, misrepresentation or criminal (or criminally negligent) behavior.
A complete financial statement
Be truthful about your current financial situation and disclose your assets and liabilities. Provide information on savings accounts, money market accounts, stocks or bonds, cash, real estate or anything of tangible value. Your lender will need to be assured that you cannot pay back any shortfall in the short sale transaction.
Proof of valuation
Many homeowners caught by the current downturn of the real estate market have lost significant equity in their home. This should be part and parcel as to why you cannot sell your home for enough to pay off the existing lien. You need to substantiate this value to the lender through a proof of valuation. In declining value to the lender you could present a fully completed appraisal, a comparative market analysis (CMA) or a broker’s opinion of value.
Your purchase agreement and listing agreement
The lender should want a copy of the executed offer, along with a copy of your listing agreement. Be prepared for the lender to renegotiate commissions and to refuse to allow payment of certain items such as home protection plans or seller concessions inspections.
If your package is complete, the facts are accurate and the circumstances speak for themselves, the lender will approve your short sale. Within the ongoing communications and negotiations, you should ask that the lender not report any adverse credit references to the credit reporting agencies, although they would be under no obligation to accommodate this request.
Tax implications of the short sale.
If you are considering a real estate short sale of your home, you should be aware that you may receive a form 1099-C for the amount of the lender's losses. This is considered loan forgiveness in the eyes of the IRS.
If you have other assets such as saving and you are not insolvent, you may end up being responsible to pay ordinary taxes on the amount of the 1099-C.
If you settle a debt with a creditor for less than the full amount owed, you may be required to report this forgiven debt as regular income, with certain important exceptions. The forgiven debts include money owed after foreclosure or property repossession or credit accounts that you don't pay. There are exceptions noted below.
If a lender forgives or writes off $600 or more of a debt's principal (the amount not including interest or fees) must send you and the IRS a Form 1099-C at the end of the year. When you file your tax return for the tax year in which your debt was written off, the IRS will require that you report the amount on the form as income.
While you may not have received this form from the creditor, the creditor may have submitted one to the IRS anyway. If you don’t list the income on your tax return and the IRS has the information of the transaction on file, you could get a tax bill or, worse, an audit notice. This could end up costing you more than just the original tax bill.
There are several exceptions stated in the Internal Revenue Code. For example, you do not have to report the income on your tax return if the write off of the debt is intended as a gift, you discharge the debt in bankruptcy, or you were insolvent before the creditor agreed to settle or write off the debt. You should consult a qualified tax and legal counsel to see if these circumstances apply.
A real life short sale scenario.
To help you to better understand the short sale process, we have assembled a recent case study for your own review and study. The scenario will help you better understand the reasons and motivations behind a short sale transaction.
Tom and Marilyn owned their 2,500 square foot ranch home for 7 years. The year prior to their Tom losing his job, they had obtained a new mortgage on the home in the amount of $240,000 with their bank.
Over the course of the past several years, the home had suffered from deferred maintenance on the walls, doors, carpet and exterior. Given the softness of the real estate market and their desire to vacate their home, they initially they put the home on the market at $220,000. 75 days on market produced no offers, so the price was reduced to $205,000. After a number of weeks on the market, several offers were received, one at $195,000 and the other at $197,500.
The lender involved in this short sale counter-offered at $200,000, based upon the expectation the their net proceeds would amount to no less than $194,500, after seller-related closing costs, commissions and past due property taxes. The buyers agreed to increase their purchase price from $187,500 to $190,000 and the Sellers received a letter of investor acceptance, outlining that the loan would be considered ”paid in full”, with the remittance of the net proceeds.
The lender, in this actual transaction, accepted a loss of $52,095 or a 23% loss on their total balance owed. This home was listed at the reduced list price on September 21, went under contract on October 22 and closed on November 15, just one month before the scheduled foreclosure auction date.
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