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Short Sale “Promissory Notes” and Foreclosure “Deficiency Judgements”: How Much Will YOU Owe YOUR BANK After a SHORT SALE VS FORECLOSURE? Promissorynotedeficiency Full view

Short Sale “Promissory Notes” and Foreclosure “Deficiency Judgements”: How Much Will YOU Owe YOUR BANK After a SHORT SALE VS FORECLOSURE?

Every homeowner who is looking to short sale their property should be asking the following question:  “On a short sale, will I have to pay the bank the difference between what I owe and the final sales price of my property?”  The answer to this is both yes and no.  Don’t worry, I’ll make it simple for you to understand.

*UPDATE 3/13/10 Feel free to visit my new blog post regarding how to negotiate & waive short sale deficiency balances*


#1:  Let’s define terms: 

Foreclosure Deficiency Judgment:  A deficiency judgment is a lien against the borrower whose foreclosure does not produce sufficient funds to pay the mortgage in full.  It is an actual judgment, that is, you are being sued.  Thus, the borrower is liable to pay the difference between what they owe and what it sells for on a short sale or in an auction.  The option to pursue the borrower is only available if the lender proceeds with a Judicial Foreclosure (basically, the lender sues you for the difference).  Keep in mind that in a Non-Judicial Foreclosure, the junior lienholder can still pursue a deficiency judgement in many states.  All of this can be determined based on original loan documents and/or the type of loan/lender. 

Short Sale Deficiencies as Unsecured Notes:  Short sale deficiencies are realized when the short sale does not produce sufficient funds to pay the mortgage in full.  Short sale deficiencies are typically:

a.  Waived in exchange for a pay off

b.  Accounted for via promissory note for the deficient balance or percentage of the balance

c.  Collected after the short sale as unsecured notes, that is, they will not be able to secure the lien against your other assets (since you’ve already sold the collateral property in a short sale) unless they actually sue you.  Again, unless the lender/PMI/collections agency sues you in court and actually files a “deficiency judgment” against you, the note shall remain unsecured.  For the most part, lenders will not sue their borrowers as it is more costly for them to do so then to keep in unsecured.  Lenders often “reserve the right to pursue the deficiency” in a short sale, but what typically ends up happening is that the unsecured note most likely ends up being substituted with a 1099 (tax on sale) for the deficient balance (which they will charge off), which most homeowners are exempt from (Mortgage Forgiveness Debt Relief Act of 2007). 

I Think I`ve Been Hit With an Invoice for the Deficiency/ I think I’ve Been Sued for a Deficiency Judgment:  No need to fret.  We can help significantly reduce and ultimately eliminate unsecured notes and deficiency judgments whether it was incurred via short sale or foreclosure. 

Promissory Note:  A promissory note is also an unsecured note and a contract between the lender and borrower where the borrower agrees to pay the difference (or a percentage of the difference) between the amount owed and the sales price of the property.  This is usually presented during a short sale and can only be enforced if the borrower agrees in writing.  These notes are also negotiable after the short sale. 

#2:  Let me explain why you are better off pursuing a short sale vs. a foreclosure. 

In Washington state, a majority of foreclosures will be non-judicial, meaning that the lender will not be able to pursue you, the borrower, for a deficiency judgment.  However, in other states, as well as some WA. based lenders (ie. BECU) do proceed with judicial foreclosures and borrowers may be liable to pay a deficiency judgment. 

The number one reason why we advocate pursuing a short sale vs. a foreclosure, is that a foreclosure (regardless of whether it is a non-judicial or judicial foreclosure), will prevent you from obtaining a mortgage for a minimum of 5 years, in addition to extensive damage to your credit, whereas a short sale will have far less damage to your credit in that most borrowers will be able to obtain a mortgage after 2 years of conducting a short sale.  Also, the deficiency (or tax consequences) in the event of foreclosure, if is collectable, will be significantly higher than in a short sale (since properties sell at extremely discounted prices at foreclosure auctions). 

The second reason why we advocate short sales is that promissory notes and deficiency judgments before and after the sale are, for the most part, negotiable.  In many cases, the deficiency owed can be negotiated to a percentage (ie. 10% of a Bank of America HELOC loan) or sometimes completely waived.  The lender may forgive the balance in exchange for a small pay off or an affordable payment arrangement with the borrower.  This largely depends on two factors: 1.  The strength of the negotiator 2.  Lender policy and type of loan.  Sometimes, it is even possible to have the buyer pay the difference!

Again, should the lender reserve the right to pursue a deficiency, at least you have a short sale on your credit report vs. a foreclosure.  Keep in mind that it is rare for the lender to actually pursue the deficiency and therefore the unsecured note will most likely be replaced with a 1099 issued by the IRS for the taxes owed on the sale.  You will want to explore the Mortgage Forgiveness Debt Relief Act of 2007 to verify whether you are exempt from this tax. 

In addition, if the remaining deficiency is pursued by the lender, the deficient amount can, even after the short sale, be negotiated down further with the assistance of an experienced debt negotiations specialist.  Keep in mind, there are situations where the lender will absolutely not allow a short sale unless the homeowner signs a promissory note for the full amount of the difference.  We have recently discovered that BECU will not approve a majority of their short sales unless the homeowner signs a promissory note for the full amount (our team has, however, been able to negotiate these down to a fraction of the deficiency). 

In these situations, I strongly suggest hiring a professional short sale negotiator to aggressively negotiate the balance before the short sale as much as possible, then having a debt negotiation specialist pick up the tab after the short sale.  You will want to explore these options before considering to file for BK. 

#3:  Finally, let me answer this question in the simple terms:  “On a short sale, will I have to pay the bank the difference between what I owe and the final sales price of my property?” 

Yes:  As we discussed earlier, the lender may ask you to pay the difference in the form of a promissory note and will not allow a short sale unless a note for the full amount is signed by the borrower or the “right to reserve to pursue a deficiency” is outlined in a statement signed by you.  In these situations, again, it may be in your best interest to have your short sale negotiator bring down the balance as much as possible before the short sale, then to have a debt negotiation specialist negotiate the balance even further after the short sale (if the deficiency is actually pursued by the lender/pmi/collections agency).

No:  It is possible, in a short sale, to negotiate the deficiency owed down to a percentage that can be paid or to even waive the liability completely.  What this means is that, say, if you owe $500,000 to your lender but your property sells for $350,000, a strong negotiator may be able to get the lender to settle at $350,000 and not pursue the deficiency with the homeowner (in exchange for a pay off or sometimes a payment arrangement with the borrower).  That means the homeowner will be able to walk away from their short sale (although they may owe the IRS a tax for the difference, which most homeowners are eligible for exemption under the Mortgage Forgiveness Debt Relief Act of 2007).  A negotiator will accomplish this by demonstrating to the lender what their losses will be in the event that you, the borrower, allow the property to go into foreclosure or if you file for bankruptcy.  The negotiator will argue that it is in their best interest to proceed with the short sale, and will present all the market data, financial comparison sheet, etc. in order to make a strong case. 

Hopefully this answers many of your questions regarding deficiency judgments, unsecured notes, promissory notes and how they relate to short sales and foreclosures.  If you have any questions, just respond.  You WILL receive a prompt response.

Your friend,



Written by SSB


  • Thanks for the clarifying information on short sales and deficiencies. Question: I’m in the final stages of a short sale with a 1st and 2nd lender. 1st lender has agreed to short sale with a 0$ promissory note,( 1st will be almost completely paid back via short sale). 2nd lender has asked for 10% of outstanding balance to be paid to them in order to release lien to buyer; this amount being paid by buyer. 2nd lender taking the brunt of the loss. 2nd lender sending over approval letter today. Also, BK, CH7 filed and discharged 6 mos ago and the 2nd lien was included in BK and discharged. Considering the 10% payment to 2nd lender and the discharged BK,( BEFORE short sale), what’s your opinion on 2nd lender trying to come after me, either before short sale via promissory note or after via deficiency judgment)?

  • Hey Kevin,

    Good article, spoken from someone who truly has been down in trenches fighting the good fight!
    It amazes me how many misinformed realtors there are telling people that a foreclosure would probably be better because of the possibility of a deficiency or 1099. I have witnessed it first hand…Talk about stepping over a dollar to save a penny.

    The one thing I’m curious about is if you guys employ the back-to-back closing method? For my business this really helps setting up the spread in the middle that allows for any incidentals to be paid, such as deficiencies or promissory’s. This has saved countless deals from otherwise failing.

    I have been slaying the foreclosure monster myself down here in Santa Barbara CA. It’s nice to know there are other intelligent people in the industry amongst all this ignorance.

    Thanx Kevin!

  • Thanks for all of your comments. Please visit my new blog post with new information on how to deal with the deficiency balance:


  • Any comments on this? Because they specifically stated that they will not waive their deficiency rights does that mean that they will come after me for the difference or are they just covering their butts.
    Also can the 15 K to PMI be negotiated down.
    Any ideas are welcome.

    Fannie Mae has approved the DIL but will not waive their deficiency rights and a 1099 C will be issued for the loss.

    See the terms of the Promissory Note below.

    Thank you for the deed in lieu request on the subject file. A recent credit report indicates that you are current on some of your other credit obligations at this time, including an auto loan. An approval of the DIL would obligate the Mortgage Insurance Company, Radian, to a claim payment of approximately $56,000. Radian will require that you agree to repay $15,000 (120 months at $125.00) of the anticipated loss as an interest free promissory note. This amount and/or repayment terms of this required unsecured note may be negotiable.

  • Kevin,
    I am writing to update the progress of our short sale. We have had an approval for almost one month on our HELOC. We are still waiting for Wells Fargo to approve the 1st. Our contract is $24,000 less than what we owe them. We have been waiting for 3 months on Wells Fargo. We were told through email it was approved and they would be printing out the approval. Now a week later they say there is no approval yet. Our closing date was set for 5/25 since on 5/26 the HELOC approval expires. They extended it 10 days for Wells Fargo and if the house doesn’t close on 5/25 it will go under review again. This is now an 8 month nightmare. Our foreclosure sale was to take place 5/28. We had an email it would be extended 60 days but since we were misled on the approval we don’t trust the 60 day extension. All of our furniture/ tools are still in the home. We are at the point where we don’t have faith in anyone regarding this sale. Why do these banks do this??? Our first buyer walked away after waiting 3 months and it was a full price offer on the 1st. Still took Wells Fargo 2 months to decide if they would approve and then continued waiting for the HELOC, the buyer gave up! I seriously don’t ever want another thing to do with a bank after this experience. We have kept the home, pool, and yard neat while we struggled to buy groceries for ourselves and the bank could care less. No urgency and we are now 11 days away from the deadline. We just don’t understand how banks can treat homeowners like this when we tried our best to do what we thought was right. FICO score was 775 until the housing crashed.

    • Banksdontgivearatsassaboutyou on

      Don’t bother with the banks they’ll give you hell just because you didn’t keep up with the contract. They’ll just take your home so best be prepared to move and find a place. If it’s your first only mortgage it’s rarely they’ll come after you. Short sales are pain in the ass because you have to please so many people and it winds of draining your pocket money. Sometimes, it’s best to think simple and know your routes.

  • Hi Kevin!
    I am doing a short sale in Oregon. I have a 1st and 2nd mortgage. The 2nd is willing to say mortgage satisfied on the letter and I don’t have to sign it either. The 1st presented us with a lengthy offer, promisary note of $0.00 but it states that the balance after the short sale remains owing and if applicable it will be considered part of settlment and forgiven. We asked many times by email to change it but they refused. One day the negotiatior called and stated that the debt will be forgiven and I would get a 1099-c in 2011. We wrote one last email stating that we would terminate the sale if the bank wouldn’t answer the question:
    Will my balance be considered part of settlement and forgiven?
    They replied by email and all they said was Yes. A very short answer. We signed the short sale without specifically stating the mortgage satisfied but have the emails to back it up. Do you think this makes a strong court case if neccessary? Any input would be appreciated. You are the only one who has made sense in all this.

  • we have a short sale of our primary residence in california in july 2009. we did not sign a PN but the short sale has this language ” we reserve the right to pursue collection of remaining balance of loan xxxx (which is the equity line).”. our realtor did not explain this nor were we aware of it until i asked them why the collector is pursuing the balance of this loan. the realtor then showed me the approval letter which i dont remember seeing before we sign the short sale. my 2 sons were co-borrower. these loans were original purchase money loans, neither were refinanced. does the collector really pursue a judgment on me? can they also do that to my sons? both are employed, except for me. i received a 1099c for the first loan, in my credit report, the 2nd loan/equity loan showed as discharged/written off but why are they still pursuing to collect. do they really have a cause to do this? i asked collector to show me proof that this loan is pursuable but they just keep calling and causing me lots of sleepless nights because i am worried for my sons. the realtor wants me to pay them to negotiate a debt settlement but my thought is that they were negligent during the short sale for not looking after my interest, thats why this is happening. i have not talked to anyone but a BK atty for free consultation and they said i am not qualified bec i have savings on which i am living on. pls help me figure out my situation.

  • Hi Kevin!

    I live in Oregon.

    I have tried to catch your attention before but I have had no luck. We are 7 days away from completing a short sale. 1st mortgage is held by Suntrust. The offer letter dosen’t say that we are off the hook but it says that the balance remains owing after the short sale and if applicable it will be considered part of the settlement and forgiven. It has a promisary note of $0.00. They are unwilling to change the letter but called my realtor to say that I will get a 1099-C in 2011. Also, the sent us an email saying yes(it will be forgiven.) But no actual letter.

    The second mortgage is held by United Guaranty. They sent us a letter that they will release the lien and the mortgage is satisfied. They don’t report to IRS or send out a 1099-C.
    1. Can the first one come after us for a deficiency judment? Can a documented phone call or email be used in court?
    2. If any entity forgives an amount shouldn’t they send a 1099-C?
    We met with a real estate lawyer and still are unsure and thinking of backing out of this short sale but my realtor says that the buyers will take us to court.

    Any comments about our case or the state of Oregon will be much appreciated.

    Thank you Kevin

  • Hi Kevin,
    What can we have our clients request from the bank, before we close the short sale, to make sure they do not receive a deficiency judgement from either the first or the second mortgage?
    Thank You

  • How do realtor fees for a short sale factor in? If a seller agrees to pay a realtor 6% in a short sell, does the lendor simply transfer this cost to the seller by including it in the short fall sought via a promisory note?

    • Realtor costs are paid by the lender, and any deficiency realized in a sale is typically negotiated to be reduced or eliminated after the sale. There is not always a direct correlation between realtor costs and your deficiency (which the lender may try and cover by having you sign a promissory note).

    • The key to successfully settling your short sale is not to push out realtors for the purpose of saving 6%, rather, it is to have a solid negotiator who knows how to settle your short sale at the best terms possible

  • thank’s im clear on balanced owed
    what happen on a bankruptcy, if you have not
    established a trial modification dollar amount.
    maenwhile you stay on premises for how long

  • Renee DeRosa on

    If a borrower purchased a property in the state of CA as a N/O/O but has not refinanced the loans since the original purchase transaction and the property is about to be foreclosed upon, can the borrowers lender file a deficiency judgement against the borrower once the property has been foreclosed on?

    • Hi Renee,

      I’ve done enough research that you WILL be protect under the one action rule if you didn’t refi or taken money out from your original loan. If time permit, you should talk to your lender and see if they are willing to let your take a shortsale WITHOUT collectible balance. shortsale is alot less damaging to your credit then a foreclosure.

      if you don’t have any HELOCs (home equity line of credit). You should consider a shortsale.

    • You need to ask a Ca. based attorney about this:


  • Hi Kevin:

    thanks in advance for your response!

    I’m in CA and got two HELOCs with BofA about to close my short sale.

    I received a note from B o A that they agree to accept the short sale offer and will release the lien and charge off the remaining debit as a collectable balance. Their recovery department will be in contact with me to make arrangements on this balance. Will report the accout to the credit bureaus as “charged off ” and show the balance remaining owed to B o A.

    After the shortsale goes through, I probably will have a 250K remaining balance. yes, it’s a large balance. This property was my primary residence. I thought I about foreclosure as well. However, giving the fact that my loans were HELOCs and I wouldn’t have protect by the one action law or qualify for the Debt Forgiveness Act. BofA WILLL NOT negosciate until the short sale is closed.

    Do you think taken the short sale with collectible balance vs foreclosure is the right choice? I’m pretty much taken a chance that BofA might 1099 me end of the year giving that this is my primary residence and have no other property or major asset.

    • Whether you allow your property to go into foreclosure or not, your secondary lienholders will retain the right to pursue the deficiency. I say you wait, threaten BK using an inexpensive Pre Paid Legal attorney and ultimately see what the lender does. You need to prove to them that you are not worth suing.

      • thanks Kevin,

        I drag this 9 months and they already issued a NOD (notice of deafult) and started the foreclosure process. They approve my short sale and the foreclosure process was postpone. I got until Sept 5, 2010 to complete the shortsale. BofA will not talk to me until the short sale is done. They keep repeating because my loans were HELOCs, they will not change the verbage on the collectible balance.

        I opened escrow and started the short sale process.

        • again, I have no other signicant asset. If they come after me, I’ll just file BK. BK will be the final chapter if they want to push me that far.

          What do you think?

          • I think that is wise. If your credit score is worth 250k to you, by all means, pay it up. However, 99.9999% of homeowners out there would rather have broken credit then a 250k bill

  • Kivin: I have a short sale approved. I used my retirement several years ago to purchase a home for retirement prior to market downturn.
    Short sale agreement in place an now we are negotiating with the MI. BAC approved the sale with a $3k contribution. I agreed, but now the MI asked for a 40k promissary note.
    Choices: Let it go into forclosure or agree to the promissary note.
    My realtor suggest taking the promissary note and better to default the promissary note then letting it go into foreclosure.
    If I default the promissary note, whar are the chances that they will see me for defaulting the Promissary note?
    I do not have any saving and the promissary note will be challenging to pay…
    Note: two years away from retirement…
    Please advise.

  • feeling screwed on

    Completed a short sale with Wells Fargo. Had to short sale due to cicumstances that would not let us afford keeping our home. Followed their process as best as we could. Right after completing the short sale, Wells fargo came after us for the deficiency. Threatening us to pay before they go to the courts and sue for damages – which per WF can be a lot more than the deficiency as they have incurred the costs of hiring very expensive lawyers. Telling us that they have the right to start garnishing wages. Have two days to accept the offer from Wells Fargo. Will require us to dig into our childrens education funds to pay them and live with longer term consequences..

    Rep at Wells Fargo is Lori Talarico – 515.221.5965

    We live in Massachusetts. HELPP !!!!!!

    • Hello friend
      We have some good news and some bad news. The bad news is this issue is post the short sale transaction so you have fewer options to choose from. Had it been negotiated with banks prior to the approval letter, you may have been able to get the verbiage of “we reserve the right to pursue deficiency” taken out. Fortunately, there are some options available. Here is what we recommend
      1. You need to seek legal counsel if you have not already. You can acquire an attorney and attempt to fight the banks regarding this issue. I suggest either hiring a trusted lawyer or use affordable legal counsel (pre-paid legal).
      2. Post short sale, you may deal with your deficiency by offering a cash contribution or a promissory note to the bank. In our experiences, the majority of banks prefer receiving a cash contribution because they know your situation of previously not being able to pay your payments in the first place, hence your short sale. On the other hand, banks are aware that you would be more able to pay in smaller increments via a promissory note even though it would be in the span of several years. These are viable options for you.
      3. With regards to your retirement and children’s funds. Was the loan only under your name or was your wife’s name included? As we understand it, banks can only pursue deficiency on the person the loan is under. Trusts may be another option for you. A trust is an agreement under which money or other assets are held and managed by one person for the benefit of another. Putting your child’s education funds in trusts or under your wife’s name will make it difficult for WF to pursue your assets.
      4. Is bankruptcy an optimal option for you? Although there are negative aspects to this decision, mainly, damaging your credit, this will free you from this ever increasing cost that WF will in all probability make you liable for. You must seek legal counsel and make sure this is the right option for you.
      Unfortunately, as a blog we can only give you advice based on what we would do if we were in your shoes. Any additional actions are not possible to due liability reasons. I hope this was beneficial for you and I truly hope your issue is resolved.
      SSB team

  • Mr.Kevin Kim
    I found your blog very useful and informative. thanks for keeping the information on your blog

    My second lender TD Bank agreed for short sale. My primary home is in VA. They asked me to bring 12k during short sale settlement and 80K deficiency note. I am trying to following terms:
    “On xx, xx, 2007 the Borrower executed and delivered a promissory note in favor of the Bank in the original principal amount of or up to $106K. Upon application of the Required Proceeds, the Borrower understands and agrees that there will thereby be created a deficiency of not less than $79K remaining owed and to be paid to the Bank under the Note, with that Deficiency amount being calculated as of the date specified above.”.

    Do I need to sign to new promissory note after short sale settlement or year 2007 promissory note will be used against me for $80K? .

    Will they come after my retirement fund/pension fund? Bank did not detail about promissory note detail and new payment detail.

    Please guide me.

    • Kumar,
      Here is a comment that I posted previously which I know will be helpful to you.
      Hello friend. We have some good news and some bad news. The bad news is this issue is post the short sale transaction so you have fewer options to choose from. Had it been negotiated with banks prior to the approval letter, you may have been able to get the verbiage of “we reserve the right to pursue deficiency” taken out. Fortunately, there are some options available. Here is what we recommend
      1. You need to seek legal counsel if you have not already. You can acquire an attorney and attempt to fight the banks regarding this issue. I suggest either hiring a trusted lawyer or use affordable legal counsel (pre-paid legal).
      2. Post short sale, you may deal with your deficiency by offering a cash contribution or a promissory note to the bank. In our experiences, the majority of banks prefer receiving a cash contribution because they know your situation of previously not being able to pay your payments in the first place, hence your short sale. On the other hand, banks are aware that you would be more able to pay in smaller increments via a promissory note even though it would be in the span of several years. These are viable options for you.
      3. With regards to your retirement and children’s funds. Was the loan only under your name or was your wife’s name included? As we understand it, banks can only pursue deficiency on the person the loan is under. Trusts may be another option for you. A trust is an agreement under which money or other assets are held and managed by one person for the benefit of another. Putting your child’s education funds in trusts or under your wife’s name will make it difficult for WF to pursue your assets.
      4. Is bankruptcy an optimal option for you? Although there are negative aspects to this decision, mainly, damaging your credit, this will free you from this ever increasing cost that WF will in all probability make you liable for. You must seek legal counsel and make sure this is the right option for you.
      Unfortunately, as a blog we can only give you advice based on what we would do if we were in your shoes. Any additional actions are not possible to due liability reasons. I hope this was beneficial for you and I truly hope your issue is resolved.
      SSB team

  • rhonda parsley on

    Thank you for providing clear answers. I am in foreclosure and my house is set for a “super Tuesday” sale in Texas on Dec. 7. This nightmare started when I applied for a loan modification. My payments were reduced under a trial for almost a year. Then, the final mod raised my payments. I said I cannot do this and the bank (Chase) said all of the money is due at once. I was trying to make payments and pay a little more. The little more was applied to late fees instead of my payments and I could not get an official payment plan. I was denied the Making Homes Affordable plan because Chase MISCALCULATED my income and basically doubled it. They denied me based on income. Well, it took 3 months to get them to understand that the Social Security disability amount on the form from social security is the SAME money that is in my checking account and on my disability statement….not 3 different amounts.

    I am walking away. The house needs repairs that I can’t pay for. I am ill (thus, the disability) and have no help. Now, chase says, “Well, we may have made mistakes in the past, but you can reapply now.” A supervisor had told me I could not reapply until next May….way too late.

    I have done the math. I just can’t afford to live here any more. My income has gone down while my expenses have gone up. Now, a Chase rep threatened me with changing the locks on the door before the sale. I know they can’t do that. I was also threatened with deficiency judgement. I live in Texas so I know they can’t garnish wages (I just have disability insurance and Social Security.) What can they come after me for? I have NOTHING.

    Thanks you for giving answers. I wish I had NEVER heard about the loan modification program. My one money missed payment due to medical bills became 5 due to the temporary reductions and the increased final mod.

  • Good information on this site, it helped clarify some things. I have a rental home in Nevada that I bought in 2005 (BIG MISTAKE) and is way underwater. I owe $256K first and $40K HELOC both with BOA. Home is probably only worth $115K now. I can no longer afford to incur the negative cashflow from this property now that I lost my full time job, have a son with a birth defet (high medical costs), and cannot rent out the house. I am considering a short sale. If the short sale is successful, what is the probability BOA will file deficiency judgement for the first mortgage? And if they do my questions are as follows:

    1) I purchased this home before I got married – will any of this effect my husband who is not on the loan or title? Can they go after his assets or our primary home which is in CA in both of our names?

    2) Can they go after my IRA/ROTH IRA accounts?

    3) Any real estate attorneys that specialize in Nevada that you can refer me to? I want to get rid of this house but I don’t want it to ruin my life.

    I have read that even if the lender issues a 1099-c they can still go after a deficiency judgement (see link below).


    Do you see BOA going after deficiencies often on the first mortgage?

    • Jay,
      Great questions! Firstly, we are not attorneys and advise you to consult with a knowledgeable attorney in the State of Nevada. In response to your questions, here are our thoughts.
      1. It is our understanding that the banks cannot go after your husband for deficiency. The bank can only pursue deficiency on the person that the name of the loan was under.
      2. Typically they cannot/do not pursue your retirement accounts.
      3. I personally do not know of any real estate attorneys in Nevada. However, I do recommend affordable legal counsel which you can find on the top of this site under the legal counsel tab.
      4. In regards to the 1099-c question, the banks could still legally pursue the deficiency. Fortunately, from our vast experience, we have never seen a bank go after a deficiency after writing it off especially B of A. A bank is in the business of making interest on loaned funds, they are not in the business of pursing old debts. That being said, if it is in the banks best interest to pursue the debt, they will! Especially if the seller is financially stable. If they decide the best financial decision is to write off a loan, then they will, and they typically move on. They could return and pursue. However, this would require redoing their taxes for whichever year they took the write off. They cannot both write off a loss (providing you with a 1099c) and pursue the deficiency, as we understand this to be illegal.
      If you decide to short sale your home, please submit your information under the Short Sale tab above so
      our experts may answer any more questions about short sales.

      I hope this helps Jay.

  • NC Condo Owner on

    Hello Mr. Kim,

    I lost my job in 2009 and have been receiving unemployment benefits for over a year. With no foreseeable job in site, and my small (540 sf) Charlotte condo $40,000 underwater, I have no choice but to pursue a Short Sale or Foreclosure, move in with family and expand my job search nationwide…right?

    Throughout the course of this year I have pursued all alternatives to foreclosure and short sale including:
    reducing my debt to income ratio;
    requesting in-house refinancing (not available on my already very low adjustable arm rate);
    applying for an in-house loan modification (couldn’t prove 9 months of income on unemployment);
    researching government-backed modification programs (Capital One doesn’t participate in The Home Affordable Programs HAFA and HAMP)

    I even tried renting my condo, but due to area competition I was unable to ask for what I owe on the loan monthly, and realistically it will take 5-10 years of being an out-of-state landlord waiting to be able to sell the condo for what I owe on it because the value has dropped so far.

    Though I am current on my mortgage, as well as my other payments (taxes, car, HOA, credit card), my unemployment benefits are scheduled to expire next month, and my financial records definitely show without that income imminent danger of default.

    I have no other assets to draw from, besides a Roth IRA, which I understand will be protected during this process, and I have credit debt of $4000.
    This is my first property, with one lien holder (Chevy Chase, now Capital One), however I have an adjustable rate portfolio loan (predatory loan), which can change monthly due to an interest rate of 3% added to the current LIBOR.

    I bought for 143,000 in Feb 2006, my loan amount was 135,000 and I owe 129,000. My Broker’s Price Opinion is 90,000 and I can obviously show hardship, do you think Capital One will accept a Short Sale offer between 80,000-90,000, and release me in writing from any future liabilities like a judgment because I have no money to come after? Or will they issue a prom note because I am young and have time to earn more money?

    I am not worried about the 1099, as this is my primary residence, however I am deathly afraid of continuing to throw good money at bad only to have the bank turn down the Short Sale or issue a ridiculous promissory note, forcing me to default, foreclosure and/or file bankruptcy, adding more difficulty to my job search and deepening my financial ruin. These worries are pushing me to rent for less than what I owe, eat a portion of the monthly mortgage, maintain my credit and assess next year…not knowing what my job position will be, but knowing I will then Have to pay the taxes because I will be living out of state (Family lives in NY, strong job possibility starts in Feb in MA.)

    Positives and negatives across the board I know – and there is really no right answer because in the end the bank makes the final decision, but I would be open to hearing your point of view on which way to go.

    If anyone else would care to respond I would like to know your opinions as well.

    Thank you,

    NC Condo Owner

    PS – NC is a non recourse state.

    • Hello friend,
      It looks like you’ve done everything you can to keep your property but unfortunately cannot due to various reasons. That leaves you with two options: A short sale or a foreclosure. Looking at your situation, if you have no source of income, then you will be forced to go into a foreclosure. This will damage your credit and having a damaged credit will be detrimental for your future job situation. We highly recommend that you avoid foreclosure especially because you are younger. Unless you acquire another job and are able to keep up with your mortgage payments, you need to short sale your property regardless of the amount of a promissory note. This is the best option because if your property is going to foreclose anyway, you should attempt a short sale to reduce damages on your credit. Fortunately, we believe that the deficiency can be negotiated and even though a promissory note is issued, it shouldn’t be too high or unaffordable for you.
      This is the reason why the Seattleshortsaleblog exists. It is to help homeowners like yourself make the best options in a bad situation. If you want to have a specialist directly call you regarding promissory notes, foreclosures, and Shortsales, please submit your information in the tabs above so you can be further assisted with your situation.

  • Mr. Kim,
    My short sale closed 3/10 (second home). I live in NY property in Fl. Chase issued approval letter with no wording re deficieny. My attorney & realtor called negotiator to get it in writing and were told Chase does not issue letters as such but that they will not pursue. My attorney made me handwrite on the approval “Signing this approval with intention there will be no pursuit of deficiency. I signed a note with PMI, having me believe that this took care of any deficiency. Three months later, Chase recovery assigns to Oxford. Sent Oxford DV letter, they never responded (over 30 days). Im not as concerned with Oxford as I am with Chase as if it was assigned, they can do it again and again. Attorney & realtor have litany of emails trails requesting an answer before closing regarding deficiency and she never replied. My attorney says that they will not collect a nickel but I am still intimidated by this. He says we can ask for a Declaratory Judgement. Satisfaction of Mortgage only shows lien release. Dont know who owns note as doesnot appear on MERS. Any suggestions?…Im retiring and frantic. Thanks.

    • Mike,
      Make sure that your attorney is speaking with the right person at Chase. The attorney should escalate the file and explain the situation to the manager/decision maker. The decision maker will have more clout and more apt to be able to send deficiency waiver verbiage. If you are very concerned about it, I would continue until you have closure.

      • Hi, even thought the sale closed in 4/10, the attorney should be calling the bank to send deficiency waiver verbiage or go another route since it is almost on year?
        Thank you very much!!!!

  • Hello-

    Trying to do short sell, but bank wants me to sign a note full remaining balance. My questions is if I sign the note and have some problems in future can i file a BK and get that note removed.

    • Paul,
      It depends on the type of bankruptcy you choose, the state you reside in, and the stipulations of the promissory note. Promissory notes are typically “unsecured” obligations meaning if you declare bankruptcy, your “secured” debtors will have to be dealt with first prior to any compensation to the unsecured creditors. If your note lender issues a secured note with proper UCC-1 filings which they probably will due to the substantial amount that you would be dealing with, then they would be first in line for compensation. A “secured” note gives your lender security by recognizing entitlement on your existing assets other than your home such as your car, boat, or any other items of worth in the event of bankruptcy. Be vigilant of the verbiage on the note.
      I highly recommend avoiding bankruptcy. You must make sure you know the repercussions of what that action entails.
      Fortunately, you are in the process of short selling your home and you can still negotiate your deficiency. I urge you to find an experienced 3rd party negotiator and try to waive your deficiency. More information on this is written here by Kevin Kim.
      Good luck friend


  • In May of 2010 we closed on a short sale with Bank of America being the first mortgage holder and Chase the second lein holder. We were very concerned about the short sale process but had been reasured that it would be better than a forclosure.
    During the closing we had been informed that we may recieve a 1099 from Chase for the difference in the sale price versus what we owed. Bank of America had been paid in full. The documentation from Chase only indicated that we needed to provide them with X number of dollars at closing from the sale proceeds by a certain date and if any funds over that amount were realized from the sale we would need to provide Chase with the additional funds. We met all of those requirements as required.
    At no time were we asked, notified or was it mentioned tha we may have a deficiencey balance to pay back nor did we sign a promisory note. We did not receive any notification from Chase after the short sale of a balance due until a letter arrived from a collection agency in December of 2010 stating we owed $125,000.
    We have no funds to pay this bill and in fact are a paycheck away from bankruptcy but have desprately tried to avoid this.
    We may have no option at this point but would like to know what next? How do we handle this and find a competent attorney in NH who can help us fight this or at least come to a reasonable resolution without having to file a BK?

    Thanks for your help

    • Dave,
      First off, I am sorry to hear about your unfortunate situation. I truly wish I could’ve been able to help you during your short sale. Always consult with an attorney, however, here are my suggestions:

      Firstly, You must investigate the matter by carefully reviewing the verbiage on the approval letter From Chase. If there is no verbiage addressing the deficiency or verbiage similar to “we reserve the right to pursue” on the approval letter, then unfortunately, you can still be liable for the deficiency.

      If, verbiage similar to “we release you from all liability and consider this loan paid in full” or verbiage stating you will be receiving a 1099 is on your approval letter, then this is good news. Releasing the debt as a tax write-off is good for the lender, and should free you from the deficiency. How could the lender write off the debt and pursue you for the money they wrote off? However, it is not guaranteed as they will act upon what is in their best interest.

      What I suggest you do now is try to negotiate the remaining debt via a negotiator or a certified debt settlement expert. DO NOT try to negotiate the terms yourself to save money as you will be speaking with experts who are trained to make you “slip” information that may be used against you. I do not personally know of any attorney’s or certified debt settlement experts in NH but if you want to find a place to start, google search such terms like “New Hampshire debt settlement companies” and try to get a free consultation.

      I am a strong believer in outsourcing professionals to help your situation. However, I cannot suggest to you any companies unless I know they are 100% legitimate and the best in the business.
      I hope this helps!

  • I have a property getting sold at the sheriff’s auction tomorrow. First mortgage is held by Citi and the 2nd is held by E trade. The house isn’t even worth enough to cover the 1st mortgage. Do you think the 1st mortgage holder (Citi) will come after me for the rest of the money ? Also, is anyone familiar with E Trade and what they may do ? They hold my 2nd mortgage and I assume will receive nothing since the sale I will not even cover the 1st mortgage. I wish I had the money to keep the house, but unfortunately I don’t. Also, I’m in Ohio.

    Thank you

    • SSB Post author on

      Unfortunately, Ohio is a recourse state meaning that the lenders are able to pursue the deficiency balance via various means even after they have taken the collateral through foreclosure.

      From our experience, typically in these cases the 1st does not pursue because they’ve gotten the larger portion of the remaining balance. It is the 2nd that is the concern. I suggest speaking with an attorney regarding BK as it may be a viable option for your situation.
      Hope this helps!


  • Hi Kevin,

    I completed a short sale one year ago and had a 1st mortgage with Chase and a HELOC with BECU. In order to get the short sale finished, I had to sign a promissary note with BECU for the 2nd. I was finishing up school and did not make any payments on the now unsecured BECU LOC. I just called them today to see what my options are and was not too happy. The balance is 36K and they initially said that they would settle for 22K. That amount is still much higher than I can come up with and I don’t want to be stuck paying on this for 10-15 years. Any advice? Do you think your team could negotiate this amount down more?



  • Hi Kj,
    Just to clarify, what was the original value of the promissory note in closing the short sale? Was it 22K? Are they saying they would settle right now for 22k in cash or was it 22k right after the short sale and it increased to 36K?

  • Our mortgage is in VA but we are renting in FL – we moved due to a job offer. We have been struggling to keep current with our mortgage. We listed our house for sale in November and the builder has been dramatically lowering his new homes for much less than what we owe on our mortgage. In order to be competitive with the builder, we asked our lender for a short sale. We entered into a short sale with a buyer but our lender then denied approving the short sale because we were not in default of our payments. In the illogical sense of banking, we will now intentionally going to stop making mortgage payments. Unfortunately as a result of the denial for the short sale we lost this buyer on the short sale. QUESTION: Is it better for us to attempt to find another buyer and try for another short sale (since we will now be in default) or since we are no longer living in the property, should we request our lender to enter into a Deed in Lieu of a Foreclosure? What would be better for us … would we be facing any deficiency judgements and / or tax ramifications, what would be our pitfalls for either option, please and thank you.

    • SSB Post author on

      Whether a short sale or a foreclosure is in your best interest depends on what you are willing to sacrifice in each situation. Based on the information you gave me, I believe a short sale would be your better option. I say this because I believe the state of Virginia is a deficiency state meaning if your home is foreclosed on, your lenders may still be able to pursue you for the remaining deficiency balance. In a short sale, the deficiency can be negotiated down to an affordable promissory note or even completely waived. Also, short sales can be approved even if you are not in default! It can be done, but you will probably have to pay some sort of cash for an approval from your lender.

      I would highly recommend an experienced negotiator to handle this transaction as it is difficult to negotiate between all parties: The buyer (hard to retain without a negotiator), you as the homeowner, the Realtor, and your lender.

      Regardless if your home sells via short sale or through a foreclosure auction, if the bank writes off the loss, then you may be liable for taxable income. These taxes typically are $2-5K as long as the deficiency is roughly 50-150K. Unfortunately, because this is not your principle residence, the mortgage forgiveness debt relief act does not apply to you. I would of course get this double checked with the IRS.
      I hope this helps.

  • My mother passed away on June 16, 2011. Seven years earlier, I reluctantly co-signed her refinance loan. Now her house and her mortgage are mine. The amount owed is about $85,000. A real estate broker said she would list the house for $96,000. That leaves little or no breathing room for a clean sale. Meanwhile, paying the mortgage would drain me financially, and would not be sustainable. I really just want to be done with it as soon as possible. I don’t care much if my credit takes a hit, but I don’t want to risk being sued. My biggest fear is that my own little house I built for myself debt-free could have a lien put on it, or my wages could be garnished. A 1099 for a big deficiency would bury me too. I talked to a lawyer who said if I walk away, there is virtually no chance whatsoever that the bank will ever pursue me for a deficiency, but I would greatly appreciate a second opinion. Any advice or information would be greatly appreciated.

  • BTW, I’m in Missouri. I’m pretty sure state laws make a big difference.

  • First of all, I am sorry to hear about your loss. I have recently lost a brother and it has been quite a journey.
    Is there a 2nd lien on the property? If not, from my understanding of the recourse/non-recourse laws in Missouri is that it is an anti-deficiency state meaning if you allow your home to be foreclosed on (typically non-judicial foreclosure in MO), no deficiency judgment may be obtained. If there is a second however, they may pursue you for the remaining balance.
    This decision is solely up to you as there are pros and cons to a foreclosure or a traditional sale.
    A foreclosure will definitely impact your FICO score and report but if you would like assistance with repairing your credit, feel free to contact me via email and I will guide you.
    I suggest you contact a HUD approved counselor in your state to get more opinions prior to making any big decisions. Here is the link: http://www.hud.gov/offices/hsg/sfh/hcc/hcs.cfm?&webListAction=search&searchstate=MO
    I hope this helps!


  • Geez, you’re a little over my head. The loan in question was a refinance loan. It’s the only debt owed on the house as far as I know. I suppose that means there is probably no second lien.(?) Missouri is supposedly a non-recourse state, but I don’t fully understand the in and outs of the classification. On the other hand, I’ve been told that Missouri is not “liberal like California”, and that I could be pursued. I’m thinking I could still get a big 1099 either way. I’m really confused, and I need to get the right plan sooner rather than later. Every day I wait, the interest on the loan accumulates, not to mention late fees. I’m starting to feel like a guppy in a shark pond.

    I lost my brother back in 2002, but I wouldn’t pretend to know how you feel about losing yours. I only know how I feel. I have no nuclear family left at all. Cherish the people that love you unconditionally, because they’re the best part of life.

  • Tom,
    I suggest contacting your attorney to verify the foreclosure laws in your state. Per your tax questions, I would do some research on the site below and call them to see whether you will be liable for taxable income.


  • Hi!

    Our home was purchased in 2007 for $169k. We owed $142k but the value was nearing 100k and we both lost our jobs. We drained all savings and finally found work out of state. The offer on the property has been there for 4 months and this has taken over 6 months now. Supposedly Freddie Mac approved the offer of $104k but the PMI company is asking for $7500 at closing or $15000 over 10 years. Bank of America said we would still receive a 1099 for the taxable difference. This house is in Michigan and we want the bank to provide documentation of a no deficiency judgement so they cant come back later, but if we did happen to somehow owe taxes and paid the PMI shat they wanted, we might as well keep the property. We have asked them to accept $2500 at closing and hope that they will accept that. We have small children and we hope to purchase another home in the future, what else should we be worrying about? .

    • Hi Christine,
      I recommend consulting with legal counsel for this matter. However, I’ve heard that certain attorneys believe a promissory note is a renegotiation of terms and hence is a release of remaining deficiency. It is always best to have the release in writing. I would think the $2500 counter is sufficient but they may require a promissory note of a value you are willing to pay. If you do this, you can negotiate for a longer term to minimize the payment and save capital. Then when you can save enough capital, call back and offer a lump sum of 40-60% of the promissory note as settlement.
      Hope this helps


  • Hi Kevin! I was just trying to get an advice from you. We own a condo that we owe more for than the actual cost now. Our plan was to short sale it and get another mortgage loan towards a house. What would your recommendation be? Our worries are revolving around short sales and deficiency judgements if we are to pursue a short sale.


    • Hi Beth,
      If your plans are to purchase another home soon, a short sale would be your best option. If you allow your home to be foreclosed on, obtaining a mortgage will be difficult as your credit score and report would record the foreclosure.

      Regarding the deficiency judgement, the amount that is remaining depends on various factors such as how much you currently owe, the value of your home, how many lienholders you have, the experience of your agent(s) in short sales, and other factors. Please feel free to contact me with more details at: Peter@seattleshortsaleblog.com
      Hope this helps

  • Our purchase price was around 200K and now its most likely 130K. So, big difference. However, my husband bought this condo on his own without my name on it. Our thought was to apply for a new mortgage loan together and either short sell this or get it rented. I understand that we can get chased for judgement deficiency or even mortgage fraud so we’re unsure on how to tackle this at this point.

    • Hi Beth,
      I highly recommend speaking with your attorney for this matter as you do not want to risk the penalties of mortgage fraud.
      In your decision to rent the property, I would factor in all the costs (HOA dues, taxes, utilities, repair costs and etc.) and see if you can get a positive cashflow or at least break even every month. If you are not able to, doing a short sale as soon as possible would be in your best interest as in all probability, your condo prices will drop making it harder for you to sell the property without a large promissory note at closing. Also, because this is your primary residence, you will not be liable for income taxes after the sale of your home due to the mortgage forgiveness debt relief act. However, the expiration date of this act is December of 2012.

      Although your reduction of deficiency amount is based on the lender and bank you work with, you will most likely end up closing the short sale with a promissory note. If you can get a strong negotiator to work on your behalf, this would greatly increase your chances of walking away from your husbands property on good terms.
      Hope this helps

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  • We purchased a house, but b/c of job loss, we foreclosed in Nune of 2011. The bank note at the time was $132K. The house was bought back by the bank for 58K and they paid (or forgave) the PMI….resulting in the final amount owed as 47K. We have been recieving phone calls from a company saying that they will help us settle the debt for pennies on the dollar (meaning they will accept approx. 5K) and then our debt will be considered paid. We aren’t sure what to do. Do we pay the 5K and be done with it all or do we wait if or until they serve a judgement against us for the 47K?? We are in Ohio and I know this is a recoarse state. Will they really sue us…in all honesty? We only had one mortgage on the property. What about taxes? Will we pay taxes on the 47K (because it wasn’t paid), the 5K (should we choose to pay it to settle the outstanding debt), or will we qualify for the Mortgage Forgiveness Debt Relief Act of 2007? Please help!

    • Hi Lynette,
      Visit here to see if you qualify for the mortgage forgiveness debt relief act. I suggest consulting with your CPA and calling the IRS to make sure that you qualify. Also, I would contact your attorney for this matter. If I were you, I would pay the lump sum and release yourself from any and all deficiency but make sure that you are free and clear on writing.

      Hope this helps

  • Jeff of Florida on


    We sold our home via short sale and closed last week of March 2011. Second lender’s right for deficiency judgment wasn’t waived, as they never agreed to it. Our Deficiency Balance is around $33200.
    We are just renting a house at the moment and still anytime now they could sue my family for a Deficiency Judgment.

    How can you help in this kind of situation? Can this debt be forgiven or at least be settled very soon? Just in case you can, how long does this usually take? It is very stressful to think about it and there’s know way we can afford to pay it because of our financial situation. We might as well file for bankruptcy rather than pay it.

    Thank you for your time, I greatly appreciate it!



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  • Prefer Forclosure instead on

    Here’s why I would understand why people prefer forclosure instead…

    In a short sale, UNLESS the lender agrees (you have to have a good agent to fight for this) then they will forgive the difference and just issue you a 1099-c (which is still good till 2012 mortgage forgiveness act, but that is only Federal, consult with your state law).

    In reality, unfortunately there more Agents that are just out to make the sale, not saying everyone, but a handful of them.. that would just agree on whatever the bank says, and unfortunately most of the homeowners are not savvy and does not educate themselves with what’s going on, an djust relying their trust with their dishonest agent. So they don’t read the paperworks and just sign off whatever documents, even the docs that states that homeowner will be responsible with the difference of the sale.

    if you have a good honest agent that looks after their client interest first before themeselves (as most of them are.. right?!) then short sale is good to go.. even though people says that you can buy in 2 years.. you better make sure you do have enough money down and needs to be prepared to actually pay more on interest and pmi.

    FORCLOSURE on the other hand.. Agent’s and the banks don’t like it, because of course agents don’t make a commision on it, and the bank supposedly spend more money if they forclose (but go figure why sometimes they would rather forclose than approve a legit shortsale offer)

    BUT the good news is, if you are on a non recourse state, and if your loan is a purchase money, (meaning all the loans we’re paid to the house, and no cash went to the homeowner) then the LAW ACTUALLY PROTECTS YOU FROM DEFICIENCY JUDGEMENT.

    Keep in mind, Forclosure or Short Sale, there will still be tax implication. like i said currently under the Mortgage Forgive relief act, federal exempts the 1099-c intil 2012.

    In forclosure, with non recourse state and purchase money, you don’t have to worry about the lender going after you after the sale is done.


  • John Trujillo on


    I had an investment property in Colorado foreclose in August of 2011. The balance on my loan was $241,000 and the property foreclosed for $144,000. This left a deficiency balance of about $96,000.

    I started receiving calls from a collection agency who claims that the are collecting for Freddie Mac. They are asking for a settlement on the deficiency balance.

    In January of 2012 Freddie Mac sent me a 1099-A. But I have not received a 1099-C.

    1) What is going on here? Are they going to send me a 1099-C and forgive the debt? Or are they trying to collect what they can on it with the intention of sending the 1099-C later?

    2) If I do a lump sum settlement of say $6000 on the $96000 deficiency balance, can they or will they then still send a 1099-C for the remaining $90,000?

    3) I am including the 1099-A in my taxes this year, but will the IRS be expecting a 1099-C even though I don’t have one? Does this increase my chances of an audit?

    Thanks so much for your help.

  • Fl Short Sale on

    I’m in the process of a short sale on a residence that we moved out of in September. I have a first and second mortgage. The first has approved the short sale with a $5K contribution. The first will provide the second with $6K in the settlement. The 2nd is Suntrust and they refuse to approve the short sale without a significant cash contribution or a promissory note. They want the cash contribution outside (prior to) of the closing transaction. The Arm’s Length Agreement that I signed with both the first and second state that there are no agreements that the Lender is not aware of. I feel like the Suntrust is coercing me into signing the agreement to make the short sale happen, and they are fraudulently doing this by suggesting that this agreement be outside of the closing, without the knowledge of the 1st. I’ve hired a BK attorney who has written Suntrust a letter to advise them of the wrongdoing as well as let them know that their unreasonable demands will force me into a CH 13 BK. I’m curious if you have any recommendations? Can the 2nd deny the short sale (if the 1st has already agreed) unless we sign an agreement that we believe requires us to violate the Arm’s Length Transaction? Our short sale has been going on for months and our buyers are ready to walk. PLEASE HELP

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