Pursuing short sale on a property owned by a spouse

Question: My husband purchased a home under his name some time before we got married and everything on this property is registered under his name. The mortgage principal on this property is currently $20k less than the original purchase price, while the short sale asking price is $60k less. We didn’t want to pay $40k just to sell the home, and thus a real estate agent suggested that we do a short sale, which we have been pursuing since September and thus haven’t been making mortgage payments in hopes the house would be sold by now. We do have money saved up, but it is all under my name in my bank accounts. Are we doing the right thing by not making payments or should we start paying our mortgage? The bank is constantly sending us letters saying they will begin the foreclosure process on our home and our real estate agent tells us this is normal. Will this situation affect my credit score or just his? Will this matter the next time I purchase a home since we are married now? Can the bank come after us to collect?

Response: When you stop making your mortgage payments for over 90 days, the bank can begin a foreclosure action against your husband (since he is the borrower under the loan so long as the bank abides by proper procedural rules). Whether you can now resume making mortgage payments depends on whether the bank has legally commenced a foreclosure proceeding (i.e. you had to be served with summons and complaint). Short sale is an option that is pursued when you want to sell your home but your home is worth less than the mortgage. Short sale is considered an alternative to foreclosure, the benefit of which is that the bank cannot obtain a deficiency judgment against you and then try to enforce it (if you have joint assets, then the bank could try to enforce such judgment against your assets). What you have to keep in mind though is that the difference between what you owe to the bank and what the bank actually recovers at sale will be used as income when you file your tax returns, i.e., if the property sells for the asking price of your short sale, you might end up paying taxes to the IRS on the $40k that was forgiven by your lender. So, to cut more to the chase: (1) only your husband’s credit score will be negatively impacted as he is the only borrower under the note (his score is already adversely affected because he is no longer making payments); (2) you will be able to purchase another home in the future…if you intend to purchase another home with your husband before his credit recovers, then you may be better off taking out a mortgage in your name (your husband can still be a co-owner of the new property but you could be the sole borrower); and (3) the bank can go after you to collect only once the lengthy foreclosure process is actually completed (remember: it does not apply if you conduct a short sale other than the money you would owe to the IRS at the end of the year).

In the legal blog, Attorney Svetlana Kaplun addresses typical questions our firm has received from our clients, or come across from homeowners related to foreclosure, foreclosure defense, loan modification and bankruptcy topics.

The information contained in the legal blog of Attorney Svetlana Kaplun is for informational purposes only, and should not be construed as a legal advice on any subject matter. Please read our full disclaimer or contact the Law Office of Svetlana Kaplun, P.C. by telephone at 718-444-1115 for more information. Copyright © 2013 Law Office of Svetlana Kaplun, P.C.

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