Failed Investment Property is More Than Foreclosure


Dear Debt Adviser,

I am emailing you in hopes of getting some honest advice. I recently owned a condo in Atlanta, and I financed it with two mortgages. I used a first mortgage and a home equity loan/line of credit. This was not my primary residence. I'm one of the many people who tried to rent out my condo because I couldn't sell and break even. Long story short: The bank foreclosed three weeks ago. I continue to get threatening calls from the bank concerning my equity loan. So my question is: What should I do about the loan balance? I don't have the money to pay it off. Will they take me to court, garnish my wages or just keep calling me? What's your advice? Thanks in advance.

- Adam

Dear Adam,

If this wasn't your primary residence, then I'll assume you bought this condo as an investment hoping to make money. When an investor plunks down money on an asset, it is often said they are making a bet. In your case, you bet and lost. As a result, the rules that govern unpaid mortgage debts in your situation are different from those of a homeowner who buys and loses a home he or she bought as a primary residence.

Expect your lender to come after you for the deficiency balance after the property is sold. Yes, they will sue you and go after wages to the extent allowed by state law. If you were in a nonrecourse state (Alaska, Arizona, California, Connecticut, Florida, Idaho, Minnesota, North Carolina, North Dakota, Texas, Utah and Washington), you could not be sued for the deficiency. In addition, state laws vary on what actions lenders can pursue in collecting from a homeowner for deficiency balances once a home has been foreclosed upon, is sold in a short sale or otherwise falls short of the full loan balance due.

In your state of Georgia, the lender must file an application to collect a deficiency balance with the court along with proof the home has sold. The lender must do this no later than 30 days after the home sells in order to collect the debt. If more than 30 days have expired after the sale of the home, the application would be thrown out by the court. The trouble is, banks may hold on to the home for months or years after a foreclosure before the home is sold. As a result, it is important to stay in touch with your lender or a Realtor, so you will know when the home is sold and if the 30 days is up. Any conversations with the bank will likely continue to be unpleasant because you don't have the money you owe them. Still, it is to your advantage to keep the communication lines open.

As to what you might do about the debt, my suggestion is to try to come to some sort of payment plan with the bank. Also review your other assets to see if you can borrow on them or sell them outright to make a dent in the bill. I spoke to Matthew Harvey, supervisor for the Homeownership Preservation Foundation at Take Charge America. He recommends seeking the advice of a real estate or bankruptcy attorney to learn all the possible legal ramifications and your options due to the foreclosure. Remember, you will probably have tax considerations on any forgiven amounts for your first or your second mortgages. The Mortgage Forgiveness Debt Relief Act of 2007 does not apply to investments or second residences. So, even if you escape the bank's collectors, you'll still have to deal with the Internal Revenue Service to pay a hefty tax bill as a result of the foreclosure -- and the IRS is a creditor you don't want to owe.

The bottom line is you can almost certainly expect your lender to attempt to collect the deficiency balance on your mortgages. My advice is to try to come to terms with the bank or explore your legal remedies. This is one debt you don't want to ignore.

Good luck!

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