Understanding Deficiency Clauses
Recently a seller let an approved short sale go to foreclosure over a deficiency clause. This is a situation where everybody loses, the seller, the buyer, their agents, the servicers and the lenders all who spend their time and money to negotiate the approval. All wasted over two little sentences.
“BAC Home Loans Servicing, LP and/or its investors may pursue a deficiency judgment for the difference in the payment received and the total balance due, unless agreed otherwise or prohibited by law, if the short sale closes on the loan referenced above. In addition, if this loan is covered by mortgage insurance, the mortgage insurance company may reserve the right to pursue the seller for the deficiency based on the terms of the mortgage insurance policy.”
Initially the servicer, Bank of America, claimed that if there was Mortgage Insurance (MI) or a second lien on a file they couldn’t remove a deficiency clause. However, there was no MI on the loan and the second lien holder was a different lender who had already accepted the terms of approval. The seller consulted an attorney who advised him that unless the deficiency clause was removed from the approval, that he should go ahead and let the property foreclose. This would protect the seller from owing the deficiency since California is a nonrecourse state. Hoping to salvage the deal, the seller offered to pay a promissory note in lieu of the deficiency clause. This should have been a reasonable offer to Bank of America considering that according to an article by Jason Opland on Aug. 17, 2010
Bank of America’s previous Senior Vice President of Credit Loss and Loss Mitigation, Mr. Jack Schakett, stated that if a borrower proves he can no longer pay the mortgage and has a few or no assets, Bank of America will waive it’s right to a deficiency judgment during the processing of the short sale deal. But, if a borrower can afford to pay or has assets, the bank will try to negotiate a set fee for the borrower to pay at closing. “We want to help customers who legitimately can’t afford to make payments, but we don’t want the one’s who have a bunch of money to just be able to walk away. These individuals will have to share some of our loss.” Mr. Schakett acknowledged that short sales in which the bank agrees to accept less for the home than the balance of the loan are less expensive to process than foreclosures, and thus they want to encourage more homeowners to pursue this course by making it clear they do not intend to pursue homeowners for deficiency judgments.
However Bank of America didn’t get to make that decision because Freddie Mac who held the note would not allow it. The negotiator responded saying the investor would not accept the promissory note and refused to remove the deficiency clause. They pointed out that the approval letter states the deficiency clause can be enforced “unless agreed otherwise or prohibited by law” and that California won’t allow it. This isn’t entirely true. The current statutes prohibiting deficiency judgments only pertain to foreclosures, not short sales. SB 931 which would prevent deficiencies on short sales, has not been signed into law by the governor. He has until September 30, 2010 to do so. Even then, we don’t know when the law will take effect, likely after January 1, 2011. This means if the seller had completed the short sale with the deficiency clause intact he would’ve been at risk of Bank of America coming after him for the deficiency until the statute of limitations had passed (about four years). Based on this information the seller decided to follow the advice of his attorney and let the property foreclose and be protected from the lender pursuing the deficiency judgment.
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Stockton Credit Holds On - Know Your FICO and Vantage Scores
According to Experian the Stockton area currently ranks 79th out of 142 credit markets the company follows. This is optimistic news for the area which has been the real estate poster child for this recession with some of the highest foreclosure rates in the nation. Stockton with a current score of 744 is now just below the national average of 749.
Do these numbers sound exceptionally high for a national average credit score? If so, it’s because this statistic is measured using the new Vantage score credit rating system launched in 2006. Vantage Scores differently than the FICO system by utilizing data from millions of credit files reviewed by the Experian, Trans Union and Equifax while FICO credit ratings are based on individual credit file factors such as personal debt-to-income ratio, current credit usage and credit history.
Consumers should know the difference between these two scores. What appears to be a good score based on the consumer’s familiarity with the FICO system could actually be a poor Vantage score if the borrower is unaware of which scoring system is being used. This possible confusion is due to the difference in how these two scores are rated.
Vantage Scores are rated as follows:
- 901-990 A
- 801-900 B
- 701-800 C
- 601-700 D
- 501-600 F
FICO scores are rated as follows:
Anything below 600 = High risk borrowers
620 = Dividing line between good and bad credit
640+ = Pretty good
650 = Average general credit-use behavior
690+ = Very good
720 = Excellent
In order to avoid any misunderstandings always be sure to know your FICO and Vantage scores and discuss what scoring system the lender will be using to determine your credit worthiness beforehand.

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San Joaquin First In and Last Out of Recession
Expert economists announced on September 20th that the recession ended in June 2009. This is good news for the country, but not all areas are benefitting at the same rate of progress. Due to ongoing unemployment struggles faced by California and the valley, analysts are adjusting their previous economic predictions of relief in late 2010. However, the new projections have not been released yet. San Joaquin was one of the first areas affected by the recession and it will be one of the last areas to recover.
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The Good News and the Bad News for San Joaquin
Real estate market analysts have been hard at work crunching the latest round of numbers but what does it all mean? Wednesday the news looked optimistic for San Joaquin when it was reported that the area experienced a second quarter decline in foreclosures despite the fact that Stockton still remained 96th in the nation for foreclosures. However on the heels of that report it was announced that US home seizures had reached a new record and are now 25% higher than a year ago and that California accounted for 1/5th of the national total. UCLA economists predicted that California is on the road to recovery, but it will be slow stating that unemployment is not likely to fall below 10% until late 2012. This is something to look forward to for San Joaquin county which currently ranks 99th in the nation for employment and housing prices.
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California DRE Reports Increased Mortgage Fraud
The California Department of Real Estate and the Department of Financial Institutions are warning about increased reports of short-sale mortgage fraud activity. Some of the fraud related activity includes short-sale negotiators requiring buyers to pay their fee, fees being paid outside of escrow and unlicensed negotiators. At Homes In Stockton no buyer is ever asked to pay a short sale negotiation fee and no fees are ever paid “off the HUD”. If you have any questions about California short sales or are a buyer or seller considering purchasing or selling a short sale in the Stockton area feel free to call Pat Holkesvig & Your Home Team at 209.471.6516 or complete our Contact Us form. Pat Holkesvig and Your Home Team are The Central Valley’s Short Sale Specialists. We process Stockton Short Sales, Elk Grove Short Sales, Lodi Short Sales, Lathrop Short Sales, Manteca Short Sales, Modesto Short Sales, Mountain House Short Sales and Tracy Short Sales.
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Tracy, CA, REO Tracy Home for Sale & Tracy Real Estate, 2657 Spencer Ct, Tracy, CA ,95377
For information on this and all the Stockton homes for sale visit www.Homes-In-Stockton.com!
Great Tracy REO & Home for sale in one of Tracy’s most desirable neighborhoods! Kitchen boast granite counters and tile floors. Open staircase and floor plan. Built in entertainment niche w/ matching fireplace mantel. Separate family room and downstairs office space. Master bath with walk-in closet, shower stall, and tub. Backyard with swimming pool and concrete patio. Don’t pass it up!
A Plan to Bail Out Those With Negative Equity
Keith Gumbinger, a vice president at HSH Associates mortgage consulting firm, has proposed a new mortgage relief program he calls “value gap coverage.” In this plan, he proposes that if a borrower did not cause the decline in their home’s value, and has been making their monthly mortgage payments they should be subsidized rather than punished for doing the right thing. One of the primary differences between the Gumbinger and government plans is that the government plan requires mortgage holders to take a write down, and the “value gap coverage” doesn’t. In addition, Gumbinger’s idea absolves the borrower of any deficiency. Gumbinger believes the “value gap coverage” would reduce interest payments, and the incentive for strategic defaults. Another distinction of the “value gap coverage” plan is that the cost of this program would be known from inception and would go down as the time passed. This type of plan could be very successful in areas, like Stockton, where default rates are high by providing incentive to homeowners that could lead to a more stable market.
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Obama Launches New Mortgage Aid
Over the last month we have mentioned in Could This Be The End of Short Sales? and No New Ideas From Mortgage Summit that it was rumored the Obama administration was about to order the government-controlled lenders to forgive a portion of the mortgage debt for Americans who are underwater. Today the Obama administration has indeed launched a revised government mortgage relief program referred to as the “short refinance” program . However this program is not intended for Fannie Mae or Freddie Mac loans and it still faces the challenge of satisfying second lien holders. The administration still hopes that up to 1.5 million loans could be modified through the program. The intent is to focus on homeowners who are current on their mortgage payments but are at risk of default because they have no equity in their homes. It is still too early to tell how many Stockton area underwater homeowners will benefit from this program.
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Stockton, CA, Short Sale Stockton Home for Sale & Stockton Real Estate, 8185 Shay Cir, Stockton, CA, 95212
For information on this and all the Stockton homes for sale visit www.Homes-In-Stockton.com!
Great Short Sale Opportunity! 4 Bedroom 2 bath home with balcony on the upper level. Low Maintenance well kept yards. Close to schools and shopping.
Mortgage Rates Drop to New Low Record
Freddie Mac reports that the average rate for a 30-year fixed mortgage fell to another record low at 4.32%. The new 15 year fixed rate also dropped to 3.83%. These new record breaking rates show hope for a struggling housing market since the expiration of the popular home buyer tax credits. On 09-01-10 the Mortgage Bankers Association reported that mortgage applications for purchases increased last week and refinances were up 2.8%. It is too early to report on any impact these new mortgage rates will have on the local Stockton real estate market.


