Short Sales, Deed in Lieu

With the current state of the economy, many homeowners are contemplating the options available to relieve the burden of their mortgage for real property, such as short sales, deeds in lieu or foreclosure. Just as with the bankruptcy option, each individual's unique situation or set of circumstances must be considered to determine which solution is the better choice. Because of the number of nuances to consider prior to deciding which path is best in your particular circumstances, it is important to contact a qualified attorney to help you navigate through your options.

A short sale, deed in lieu or simply allowing foreclosure may be an acceptable solution in some instances. In others, a deficiency judgment may be sought against the owner/seller, which can be collected using various methods that include, but are not limited to, the placing of liens on other parcels of property and business interests or garnishment of wages.

Short Sale - A short sale occurs when a home is sold for less than the amount owed on the mortgage(s) securing it. Short sales require the approval of each mortgage holder, the seller/owner and, in many cases, the private mortgage insurance (PMI) carrier.

Deed in Lieu - A deed in lieu occurs where the owner of the property agrees with one of the mortgage holders to "sign over" the property without the necessity of foreclosure action. Title to the property is transferred to the mortgage holder by a Quit Claim Deed in lieu of any foreclosure action.

Foreclosure - Foreclosure is the state circuit court action mortgage holders use to recover title to property for which they have a security interest in by virtue of a mortgage document. The owner is served with a foreclosure complaint notifying them of the commencement of the action and setting out the general grounds for the action. A Lis Pendens is also filed with the court to give general notice to any parties outside of the action that the property is in the process of foreclosure. The owner is given 20 days to file their answer to the foreclosure complaint.

Is my forgiven debt in a short sale, deed in lieu and foreclosure always taxable as regular income to me?

No, the Mortgage Debt Relief Act of 2007 and the Emergency Economic Stabilization Act of 2008 excludes the discharge of qualified principal residence indebtedness from gross income. This exclusion applies to debt discharged after 2006 and before 2013. However, only debt incurred to acquire, construct or substantially improve your principal residence and secured by your principal residence can be excluded. If you received a second mortgage to consolidate your credit card debt, it will likely not fall under the Emergency Economic Stabilization Act. Please be certain to consult a qualified accounting professional to help you determine what forgiveness of debt might be excluded from your taxes and also to determine what, if any, other tax liability you may experience as a result of a transfer of property through short sale, deed in lieu or foreclosure.

How is the transfer or surrender of property in bankruptcy different from the transfer or surrender in short sale, deed in lieu or foreclosure?

Property surrendered through Chapter 7, Chapter 11 or Chapter 13 of the Bankruptcy Code will not result in any 1099 tax consequences or deficiency judgment against the owner of the property, as long as the debt cancellation is granted by the court.

Contact the Bankruptcy Attorneys at James H. Monroe, P.A. Today

To protect your interests and rights, contact bankruptcy lawyer James H. Monroe today to schedule a free consultation and discuss your case. We can evaluate your current situation and determine the best course of action for you.