Homeowners facing foreclosure are often concerned that the auction of their property will not be the end of their financial and legal worries. The threat of a deficiency judgment being initiated by the lender after the sheriff sale is always being raised by foreclosure consultants, attorneys, and representatives of the bank trying to wring more money out of borrowers. But finding actual cases of deficiency judgments against the average homeowner can be extremely difficult.
Is this an indication that banks are not pursuing deficiency judgments, or is it simply that these types of lawsuits are so rarely mentioned? Finding actual statistics relating to this type of lawsuit is difficult, and proving that they are rare can be even more trying, as it is nearly impossible to prove a negative. The absence of judgments against homeowners does not mean that they are never brought; after all, maybe every foreclosure victim defends the case and wins. Or these lawsuits are just rarely talked about. Or maybe former homeowners have deficiency judgments against them but, since they moved out of the house where paperwork was served, they are not even aware of it.
So finding evidence of deficiency judgments after foreclosure is not easy. Not for me, and seemingly not for other researchers online. Frank Llosa from FranklyRealty.com also wonders where these lawsuits are and comes to some of the same conclusions as we have, although he approaches it from the angle of banks bidding on properties at auction for the total amount due on the loan, thereby eliminating the possibility of a deficiency: “Why would they take over the property at $200,000 OVER what is it worth and let the previous owner be releaved [sic] from further obligations?”1
He suspects that the missing lawsuits may be an indication of the fact that foreclosing lenders, “figure it is a waste of time and effort for the banks to go after the homeowner since they are broke.” This is much the same seemingly reasonable solution that I have raised before; after all, why would a lender, who has been thus far unable to collect on a foreclosure judgment, spend more time and money pursuing deficiency judgments against former clients?
The Florida Asset Protection Blog also mentions the possibility of deficiency judgments in cases where a second mortgage is present, but admits no personal experience with such lawsuits: “I have not seen any case to date where a first or a second mortgage lender has sued the homeowner personally.” Same here, and these deficiency judgment laws, in the states and under the conditions in which they are allowed, have thus far proven to be unused weapons, similar in volume of enforcement to jaywalking violations.
Taking a look through actions in the local courthouse is also a bit of a wild goose chase, as there are far more foreclosures than deficiency judgments. In fact, there are no deficiency judgment cases that I could locate listed in my local court system. And this is in a state with a quick process and such lawsuits are allowed after the sheriff sale. Dozens of foreclosure cases, both open and closed, are listed, but no deficiency judgment cases involving the same defendants as the foreclosure cases in any of the listings I could find.
And online, instances of this type of lawsuit can most often be found in estate cases and auto loan repossessions, but not real estate foreclosures. Of course, this makes more sense, since someone who loses a car can still be served with lawsuit paperwork at a current address, car loan outlets have more access to local courts, and the small amount of an auto loan deficiency may be reasonably expected to be paid back.
Since it seems that deficiency judgments during foreclosure are quite rare, why are lenders not pursuing them right now? As has been discussed here before, it is usually just not worth the bank’s time to sue people who admittedly have little money. About.com states that, “In many cases, your lender will not go to the trouble. Legal action is expensive and time consuming, and people who just suffered a foreclosure often don’t have the assets or income needed to satisfy a deficiency judgment.” People with no job, assets, or not enough income may also be “judgment proof,” meaning that, even if the bank got the deficiency judgment, it could not be enforced or collected.
And when families are made homeless because of the actions of the bank, it may be difficult to get a legitimate judgment against people who can not be reasonably located to be served with court documents. Few former homeowners leave a forwarding address when the move out of a property before eviction, being completely aware of the fact that their lives would be much simpler without further correspondence from the mortgage company. Since the bank suing for the deficiency is obviously also responsible for the fact that the defendants may not have a current address, former homeowners later claiming the lawsuit was never properly served is not a difficult argument to make.
Also, an important point for homeowners to remember is that, if they put down less than 20% of the purchase price, they are probably paying Private Mortgage Insurance (PMI). Even though the homeowners themselves pay the PMI premium on a monthly basis, this kind of policy insures the bank against the default of the loan, and if an owner goes into foreclosure, the insurance will pay the bank the amount of the mortgage left unpaid. Therefore, if a mortgage is covered with PMI, the bank can collect the insurance on the policy they forced on the borrowers instead of seek a deficiency judgment. Citifinancial itself states that, “If you have Private mortgage insurance, a lender can use this money to offset any losses instead of getting a deficiency judgment.”
Now, investors and second home owners who have substantial assets may be at higher risk of being sued than first homeowners. But this is a very recent 2008 development. Robert Levin from Fannie Mae, announcing changes in the first quarter of 2008, stated that, “We are pursuing deficiency judgment against investors and second home borrowers.” Will this be the case in all second home or investment home foreclosures by Fannie Mae? Only time will tell, but there is still little evidence that any deficiency judgments have been pursued thus far, and the nationalization of the mortgage giants will probably change this plan.
In fact, with the nationalization of the banking system and the Government Sponsored Enterprises, it is highly unlikely that any borrower whose loan that is taken over by the government will be subject to a deficiency judgment lawsuit. Instead, the politicians, in order to soften the backlash against the $700 billion bank bailout and to reassure constituents, will push much harder for loan balance writedowns, interest rate adjustments, and other loan modifications to make mortgage more affordable for borrowers.
So, it seems that deficiency judgments have been and will remain quite rare in the mortgage industry. Having extenuating circumstances (lots of land, numerous liquid assets, clear evidence of mortgage fraud) may put certain owners in danger, but the vast majority who took out loans and then faced an economic hardship will continue to have little to worry about from their bank after losing a home. There are just too many problems, from serving the lawsuit, to collecting on it, to bad PR, for the banks to think it is worth the extra bother.