Many people experience unexpected events, such as job loss, sudden disability, or other life events that cause them to fall behind on mortgage payments, real estate taxes, and other financial obligations which lead them to be sued for home foreclosure. In a desperate attempt to avoid foreclosure, some people consider pursuing a short sale, selling the home for less than it is worth and repaying the bank only what is recovered in the sale — even if it is less than what is owed on the home. Unfortunately, there are many disadvantages to pursuing a short sale, including disadvantages that result in additional liabilities to the debtor.
Notified of Foreclosure? Our Lawyers Can Help.
At the Law Offices of Robert M. Geller, P.A., our Tampa foreclosure attorneys advise and counsel people about their options when confronting foreclosure, including:
- Seeking a loan modification through the federal government Making Home Affordable Program (HAMP) in an attempt to reduce interest payments and reduce mortgage payments
- Pursuing a short sale
- Filing for bankruptcy
Unfortunately, people are frequently unsuccessful in securing an acceptable loan modification and are left with the latter options. Afraid of the stigma many people associate with filing for bankruptcy, they consider pursuing a short sale in an effort to both avoid foreclosure and avoid the need to file for bankruptcy. However, given the many disadvantages and liabilities that can result from a short sale, people may be better off filing for bankruptcy instead.
Pitfalls of Short Sales
- Promissory note: Your lender may not be willing to release you from your promissory note (your debt obligation). While the bank may allow you to enter into the short sale and approve of the sale, it may still require repayment for the remaining balance of your debt. Even if this is not communicated at the time of the sale, unless the lender releases you from the promissory note, it will have five years to attempt to recollect this debt. However, filing for Chapter 7 or Chapter 13 bankruptcy can discharge you of all obligations on the promissory note.
- Tax consequences: While lenders will rarely release debtors of obligations to the promissory note, if it does, and the property was not the debtor’s primary residence, the amount of debt from which the debtor was released may be considered taxable income, which will need to be reported on the debtor’s next tax filing. These additional tax liabilities are not usually explained to people who are pursuing a short sale. However, debt that is discharged through bankruptcy does not result in additional tax liabilities.
- Liabilities associated with home sale: Sellers are required to sign a warranty deed which guarantees there are no encumbrances on the property, such as title defects, home defects, property liens, or other problems. As a result, you may be subjected to the costs of curing such defects prior to closing. If such defects are found after the sale, the new homeowner may have a claim against you. Additionally, by selling the home in a short sale, any remaining debt owed on the home, including remaining balance of the mortgage, second mortgage, and liens will then be considered unsecured debt. If you are subsequently required to file for Chapter 13 bankruptcy, you may be required to repay more debt to creditors than you originally would have been required if you had not completed the short sale.
- Additional liabilities: Many people who are faced with foreclosure typically have a significant amount of other debt problems, such as unpaid credit card bills, unpaid medical bills, unpaid taxes, car repossession concerns, and countless other debt problems. Even if the short sale is successful, they ultimately may need to file for bankruptcy to address these issues. Consulting an experienced lawyer prior to pursuing a short sale can be beneficial in helping understand if the short sale is the best option, or if they should be considering filing for bankruptcy instead.
People who successfully file for bankruptcy may no longer be obligated to repay the debt, may no longer be required to make mortgage payments (unless they intend to keep the home), and may be capable of remaining in the home without making payments until the foreclosure sale (which could be anywhere from two months to two years). Conversely, individuals who proceed with a short sale will be required to vacate the home immediately upon the sale. Filing for bankruptcy may provide people with the time necessary to get back on their feet, re-establish their credit, and purchase a new home in approximately one to two years after filing for bankruptcy.
Contemplating a Short Sale? Talk With a Tampa Bankruptcy Lawyer First
Attorney Robert M. Geller is a certified specialist in Consumer Bankruptcy Law by the American Board of Certification *. Benefiting from Mr. Geller’s more than 20 years of bankruptcy law experience, our law firm educates people of their options, advises them of whether it makes sense to keep or surrender the home, and counsels them through the entire process. Contact our Tampa bankruptcy law firm for additional information. Call us at 813-254-5696 to schedule a free initial consultation.
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We are a debt relief agency. We help people file for bankruptcy relief under the Bankruptcy Code.
* Accredited by The Florida Bar to certify lawyers in the specialty area(s) of consumer bankruptcy law.