During the next few months, short sales will sky rocket. Short Sales are sales of upside down houses for the market value. To make the short sale work the first and second mortgage holders must write down the loans to equal the true market value of the house. Since the first has first call on the funds, the second write down a much large percentage of its loan, often 80-90%. Seconds have been resistant to do so, in hopes that the First would foreclose because under current law, if the First forecloses and makes the Second worthless, the Second the right waive the deed of trust and sue on the note- for the full amount of the second loan.

However, under an amendment of CA Code of Civil Procedure 580, the second cannot get a deficiency judgment in any event on any loan, refinance, or other credit transaction that is used to refinance a purchase money loan, as defined, or subsequent refinances of a purchase money loan.

The law seems to limit these rules to new loans but I believe that holders of Seconds will be fearful that the law will be extended by the courts to all loans. If that happens the Second becomes worthless. I think that this threat will induce the seconds to take what they can get in a short sale.

For more information contact David or a broker that specializes in short sales.

DiJulio Law Group: Los Angeles real estate attorneys with more than 35 years of experience. Call 888-519-1613 or emal

DiJulio Law Group


The California Legislature has amended the rules for seconds suing after a foreclosure suit. Under current law, after foreclosure sale by the first, the second can sue for the note unless it was part of the purchase price. But starting January 1, 2013 the rules will be changed to prevent the seconds from suing on refinances too.

The law provides that no deficiency judgment shall lie in any event on any loan, refinance, or other credit transaction that is used to refinance a purchase money loan, as defined, or subsequent refinances of a purchase money loan

However there is an exception for refinances that had a cash out or a HELOC where additional funds were withdrawn,

These provisions would apply to a loan, refinance, or other credit transaction used to refinance a purchase money loan which is executed on or after January 1, 2013.

For more information contact or go to DiJulio Law Group


What Happens if You Abandon Your Home and Let it Foreclose?

When you are facing foreclosure, it can be tempting to just give up and walk away from the home. Before abandoning your mortgage, you should consider the possible consequences of letting your home foreclose. Sometimes abandoning a house might seem like the best option, but not always.

Besides losing your home and possibly having no place to live, allowing your home to be foreclosed will dramatically affect your credit rating and make it more difficult for you to qualify for a new loan in the future. There are also tax consequences of foreclosure that you should be aware of before you make the decision to let your home go into foreclosure.

So what happens if you abandon your home and let it foreclose? This article will help you understand what the consequences will be if your home ends up being foreclosed. It will also give you an idea of what to expect and offer some options for those who want to try to save their homes and avoid foreclosure.
The Effect of Foreclosure on Your Credit Rating
You may be wondering what happens to your credit with a foreclosure. You are probably aware that a foreclosure will hurt your credit score. How much it affects your score can vary, but keep in mind that every late payment will show up on your credit report. Also, when your home does go through foreclosure, an entry will be made in the section of your credit report that covers legal actions.

A foreclosure tends to affect your credit score more if you have very little other debts. If you have credit cards and car payments that are all up to date, this can help buffer the effect of the foreclosure on your credit rating. However, if you have few other items on your credit report, or those bills are also falling behind, the effect will usually be much greater.

The foreclosure and late payment record can remain on your credit report for up to seven years, but that doesn’t mean that you will be unable to get a loan for seven years. As soon as your financial situation improves, you should start making an effort to pay every bill you have on time. Many people find that after as little as two years of doing this, they are able to qualify for a new loan.

After going through a foreclosure, it is likely that you will need a large down payment next time you borrow money to buy a home. Your interest rate is also likely to be higher. Keep in mind that government programs such as Fannie Mae and Freddie Mac are unavailable to people who have had a home foreclosed within the past two years.


Deficiency Judgments

One question that is asked often is, “If my house is foreclosed, can they make me pay?” In many states, the answer is yes. This is happening much more often now that it used to. The reason is that real estate prices have fallen, so it is much more likely that your home will be sold for less than the amount of the loan. If your state allows deficiency judgments, the lender can come after you for the difference between the amount you owed on your mortgage and the price the house sold for at the foreclosure auction.

Deficiency Judgments Are Unlikely in California

Under California law Deficiency Judgments are generally not available. If the loan was made as part of the purchase then there is no possibility of a deficiency judgment. If the loan was part of a refinancing and the bank forecloses without going to court, then there is no possibility of a deficiency judgment.

However, if there is more than one loan, then the picture is more complicated. If the second forecloses first then the above rules apply. If the first foreclose first, then the second can file a lawsuit to try to collect on the second loan. In these situation, you should consult with

The Tax Consequences of Foreclosure

One thing many people don’t realize is that there is often a tax penalty that goes along with foreclosure. What happens is, if the house sells for less than the amount owed, the rest of the loan balance is considered “forgiven.”

The IRS looks at this as income because it is something you would have had to paid but are getting out of. As a result, you may be taxed on the difference between the amount you owed and the amount the house sold for.

However, due to the number of foreclosuress, Congress has adpoted legisltation to forgive this “income.” It appears that until the end of 2012, there are no tax consequences.

But it is a good idea to talk to an accountant or tax lawyer about the possible tax consequences before you allow your home to foreclose.

Other Real Estate and Property
One thing people often worry about when facing foreclosure is whether the lender will be able to take other property and real estate that they own as well. Because real estate loans are secured by the property that is being financed, that property is usually all that the lender can take. However, if you specifically listed another piece of real estate as additional security when you applied for the loan, that property can also be taken.

When your lender forecloses on your home, your personal property is not included in the foreclosure. The lender has no claim on any property that is not permanently attached to the house.
Options for Avoiding Foreclosure
Instead of walking away from the house, it’s a good idea to contact your lender as soon as you start to have trouble making your payments to try to work something out. Many lenders have programs available to help homeowners who are going through short-term financial difficulties.

Deed in Lieu of Foreclosure

If it looks like you will not be able to work out a way to keep your home, some lenders will offer a “deed in lieu of foreclosure” or “cash for keys.” If you can get your lender to pay you to move out quickly and leave the home in good condition, that could help you pay the cost of moving into a new home. However, a deed in lieu of foreclosure usually has about the same effect on your credit rating as an actual foreclosure.

Short Sale

One alternative to abandoning your home is a short sale. When you sell your house in a short sale, the bank agrees to accept the amount that the house is selling for as full payment on the mortgage. Some banks will make you jump through a lot of hoops and fill out tons of paperwork to get the sale approved. But most Banks are doing short sales to avoid the costs and time involved with foreclosures. If you can do it, a short sale is better that letting your house go into foreclosure. A short sale will have less effect on your for a shorter time.

Loan Modification

A loan modification is an agreement between you and the bank that changes the terms of the loan. It is just about as hard to convince a bank to enter into a loan modification agreement as a short sale, maybe harder. If you pursue this option, it is a good idea to have an experienced attorney or loan modification company help you through the process.

As of 2012, there is a new program for houses where the loan is owned by the government- Fannie Mae or Freddie Mac. If so, you can refinance at the current value of your house at a below 4% rate. See our blog on this issue. You can check to see if your has qualifies on the links there.