Law Office Of

Joseph A. Velez

480.710.5079

Real Estate & Business Law Attorney

9 Critical Questions Arizona Homeowners Must Know Before Walking Away

(or Short Selling, or Strategically Defaulting on their Mortgage)

  1. 1.Is a bank barred from coming after me for a deficiency judgment after a short sale? No, and this is probably the biggest misconception. Banks typically make it a term of the short sale agreement that they reserve the right to come after a borrower for a deficiency. The most at risk are borrowers who earn substantial W-2 income, since the lender has an incentive to recoup some its loss from the short sale.


  1. 2. Is a Foreclosure worse on my credit than a short sale? This depends on a number of variables. The short answer is probably, but not much worse than a short sale. It’s worth remembering that any derogatory information (such as a 30 day late payment on a car, home or credit card) may appear on a credit report for up to seven years. Thus, whether you fail to make your mortgage payments because you are short selling/foreclosing your home, or because you are strategically defaulting to increase your chance of obtaining a loan

  1. modification, your credit score will decrease and the credit report will reflect this non-payment for up to 7 years. However, the real concern should not be how long will the derogatory information stay on the borrower’s credit report, but rather, how long will it affect the borrower? There are many free resources available to improve your credit quickly, even after a significant credit scarring event such as a bankruptcy or foreclosure.


  1. 3.How long before I can obtain another mortgage? Currently lenders require that you both rehabilitate your credit score and that you endure a waiting period. The answer depends on how the homeowner lost her home. For a short sale the waiting period is typically 2 years (assuming a rehabilitated credit score). For a foreclosure, the answer depends on the type of loan one is seeking. If it’s an FHA or VA loan, then the waiting period is currently 3 years. For Fannie Mae/Freddie Mac (conventional) loans, the waiting period is 4 to 5 years.


  1. 4.How long is the foreclosure process? The actual foreclosure process is 91 days (from date of the official Notice of Trustee Sale until the auction date). However, most lenders do not start the actual foreclosure process until the homeowner is approximately 4 to 5 months in arrears, onto which they must add the 91 day period, giving the homeowner approximately 7 to 8 months (or longer) before the home is auctioned off by the bank. In some cases, lenders have waited considerably longer than 4 to 5 months to commence the official 91 day foreclosure process.


  1. 5.Can I keep my home if I file Bankruptcy? Yes. Under both a Chapter 7 or Chapter 13 bankruptcy, a debtor has the right to keep her home. However, the borrower must continue making timely mortgage payments.  


  1. 6.What tax consequences will I face if the home is foreclosed or short sold (for less than what I owe)? This will depend on a number of factors, such as whether the Mortgage Forgiveness Debt Relief Act applies, whether the loan is non-recourse, whether the homeowner is insolvent or files bankruptcy, and if a home equity line was obtained, what were the HELOC funds used for? Recommendation: see a CPA.


  1. 7.I am a landlord with a tenant, does Arizona law require me to inform my tenant that the home is being foreclosed? No - at least not yet. Indeed, residential tenants now have greater protection after a foreclosure since Congress passed the Protecting Tenants In Foreclosure Act (May, 2009).  Tenants now cannot be evicted immediately after a home is foreclosed (caveat: this law does not apply to tenants in short sale homes), and in many circumstances the terms of their lease may be required to be honored by the new owner.


  1. 8.What can I take from my property after the foreclosure?  Beware: Serious criminal laws may be violated for stripping a property or taking items which are prohibited.  Answer: You make take all personal property, provided it’s not nailed, bolted or affixed in some way to the property itself. For example, your typical washer and dryer may be removed. Turning now to your refrigerator, you make take it provided it’s the normal “roll-in roll-out” type. However, if it’s in a casing or in some way affixed to the property, it may not be removed.


  1. 9.HOA fees - must I pay them even though I’ve decided to short sell or foreclose? Yes. HOA fees must be paid even if you are planning on short selling or foreclosing. This is because HOA fees and assessments are generally “personal debts” of the homeowner, meaning that the homeowner is personally liable. Turning now to property taxes, the answer is no because these taxes are debts of the property; thus when the home is foreclosed or short sold, the new owner (bank or a 3rd party buyer) will be required to pay and bring current these unpaid property taxes.

The Law Office of Joseph Velez

Commercial Real Estate & Business Law Attorney

Scottsdale Financial Center

7272 E. Indian School Rd., Suite 111

Scottsdale, Arizona 85251

480.710.5079

Our law office represents clients throughout the Phoenix, Arizona area including the cities of Scottsdale, Maricopa, Mesa, Surprise, Paradise Valley, Avondale, Gilbert, Chandler, Glendale, Florence, New River, Fountain Hills, Peoria, Surprise, Queen Creek, Tempe, Sun City, Apache Junction, and Casa Grande. We serve the counties of Maricopa, Yavapai, Gila, Pinal, La Paz, Yuma, and Pima County.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

One hour initial office consultation fee is $295 for the matters discussed above.