Cancellation of Debt Income and Short Sale Tax Consequences

As tax season approaches, and more importantly, the expiration of the Mortgage Debt Relief Act of 2007, it is important to review the tax consequences following a short sale.  In general, the IRS will treat any canceled debt, such as forgiveness of a mortgage loan, as taxable income. Thus, if you live in a recourse state, such as Massachusetts, the only way to avoid tax consequences following a short sale is to qualify for a tax exemption. The most common exemptions are insolvency and bankruptcy. To prove insolvency, your total debts have to be greater than the total fair market value of your assets. A lesser known exemption, and one that is due to expire at the end of 2012, is the Mortgage Debt Relief Act of 2007. According to the Debt Relief Act, a homeowner may exclude the forgiven debt as taxable income if you can prove to the IRS that the indebtedness was incurred on your “qualified principal residence.” Most homeowners qualify for tax relief under the Debt Relief Act. Keep in mind, however, that not all states recognize the Debt Relief Act and you should always check with a qualified tax professional prior to agreeing to a short sale. The following paragraphs will explain why the IRS considers forgiven debt as taxable income and how to qualify for a tax exemption following a short sale.

The IRS Treats Forgiven Debt As Taxable Income

According to current tax laws, if you owe a debt to a third party and they cancel or forgive that debt, the IRS considers the canceled debt as “taxable income.” In the case of a mortgage loan, if you don’t repay your debt, you will be taxed on the amount of the money you failed to repay the lender, commonly referred to as the loan deficiency. In other words, if default on your loan, and the lender waives their right to seek repayment, the unpaid loan proceeds are converted into taxable income because you no longer have the obligation to repay the lender.  Thus, following a short sale in which the lien holder relinquishes their right to collect the deficiency amount, they are obligated to report any forgiven debt to the IRS on a Cancellation of Debt form 1099-C. Individuals are similarly required to report the forgiven debt to the IRS on Tax Form 982 and attach the form to your tax return.

Exceptions To The Rule

As mentioned above, the only way to exclude forgiven debt from taxable income is to qualify for a tax exemption. Unless you can prove insolvency or file for bankruptcy, the tax implications of a short sale will primarily depend on whether the property being sold is your primary residence and, if so, whether you qualify for a tax exemption. The most common scenarios when cancellation of debt is not taxable income involve the following:

• Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007; The Act applies only to forgiven or canceled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes.  The maximum amount you can treat as qualified principal residence indebtedness is $2 million or $1 million if married filing separately. The Debt Relief Act expires at the end of 2012.
• Bankruptcy: Debts discharged through bankruptcy are not considered taxable income;
• Insolvency: If you are insolvent when the debt is cancelled, some or all of the cancelled debt may not be taxable to you. You are insolvent when your total debts are more than the fair market value of your total assets;
• Certain farm debts: If you incurred the debt directly in operation of a farm, more than half your income from the prior three years was from farming, and the loan was owed to a person or agency regularly engaged in lending, your cancelled debt is generally not considered taxable income; and
• Non-recourse loans: A non-recourse loan is a loan for which the lender’s only remedy in case of default is to repossess the property being financed or used as collateral. That is, the lender cannot pursue you personally in case of default. Forgiveness of a non-recourse loan resulting from a foreclosure does not result in cancellation of debt income.  However, it may result in other tax consequences. It is important to determine whether your jurisdiction is considered recourse or non-recourse.

Qualified Principal Residence Indebtedness

The  Mortgage Forgiveness Debt Relief Act of 2007 is the most common exception to the rule that canceled debt is taxable income.  According to the Debt Relief Act, taxpayers may exclude debt forgiven on their “qualified principal residence” if the balance of their loan is $2 million or less. Qualified principal residence indebtedness is limited to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. Thus, even debt incurred as a result of a refinance loan will qualify for this exclusion, but only to the extent that the principal balance of the old mortgage would have qualified.  In other words, if the debt forgiven was a result of a short sale of your qualified principle residence, and you never refinanced, you will qualify for the tax relief.  If, however, you took out a refinance loan on your principal residence, you will qualify for tax relief only up to the principal amount of the original mortgage.  This is a very important consideration and one that is overlooked by many so- called experts. Debt forgiveness on second homes, rental property, business property, credit cards or car loans does not qualify for the tax-relief provision of the Debt Relief Act.  The Debt Relief Act of 2007 is set to expire at the end of 2012. Keep in mind, however, that not all states recognize the debt relief act and you should always check with a qualified tax professional prior to agreeing to a short sale.

Recourse Versus Non-Recourse States

Given the recent popularity of short sales, it bears mentioning that some states, such as California and Arizona, are non-recourse states, meaning that forgiveness of debt in non-recourse states generally does not result in taxable income. The lender’s sole recourse would be possession of the home, not repayment of the loan. This is not the case in Massachusetts. Massachusetts is a recourse state, meaning that lenders have the right to seek a deficiency judgment against a homeowner who defaults on a loan obligation. Thus, the lender will decide to either pursue the deficiency judgment against the homeowner or they will agree to cancel the remaining debt. If they choose to cancel the debt, the former homeowner will suffer tax consequences as a result of a short sale unless they provide the IRS with proof that they qualify for one of the aforementioned tax exemptions. Massachusetts does not recognize the Mortgage Debt Relief Act, therefore, in order to qualify for a tax exemption following a short sale you will likely have to prove insolvency or file for bankruptcy. For this reason, you should always consult with a licensed attorney and/or tax professional regarding your specific situation in order to determine whether a short sale will result in tax liability or legal consequences.

Tax Consequences Following a Short Sale

In summary, the general rule states that a homeowner will suffer tax consequences following a short sale because the IRS treats the forgiven debt as taxable income. The only way to avoid tax liability following a short sale is to qualify for the principal residence exemption, prove insolvency or file for bankruptcy. Regardless, the important thing to remember is that all of the exemptions require the homeowner to take affirmative action on their subsequent tax returns. Your lender is required to issue a 1099-C Form following a short sale.  It is your responsibility, however, to prove to the IRS that you qualify for a tax exemption by filing Tax Form 982 . Tax liability is not negotiable, you either qualify or you don’t. You should never, under any circumstances, take a lender’s word that a short sale will not result in tax consequences. In fact, if the lender is agreeing to waive their deficiency rights, they are required to issue 1099-C stating that they canceled your debt. The IRS, in turn, will treat that canceled debt as income unless you prove to them that you qualify for an exception. Massachusetts does not recognize the Mortgage Debt Relief Act, therefore, in order to qualify for a tax exemption following a short sale you will likely have to prove insolvency or file for bankruptcy. For this reason, you should always consult with a licensed attorney and/or tax professional regarding your specific situation in order to determine whether a short sale will result in tax liability or legal consequences.

For more tax information regarding cancellation of debt, including detailed examples, please see Publication 4681, Canceled Debts, Foreclosures, Repossessions, and Abandonments. Also see IRS news release IR-2008-17.

Related Posts:

Short Sale Tax Consequences: Understanding Qualified Principal Residence Indebtedness

How Does A Short Sale Affect Your Credit Score

The Mortgage Forgiveness Debt Relief Act 2007

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

If you are considering a Massachusetts short sale, and would like a free short sale consultation, please call my office to schedule a meeting or a telephone consultation at (617)264-0376.

TAX DISCLAIMER: None of the information on the site shall be construed or interpreted as tax advice and is strictly for informational purposes.  Readers shall not act upon this information without first seeking advice from an independent tax professional. To ensure compliance with IRS Circular 230, any U.S. federal tax information provided on this site is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. All readers are encouraged to seek the advice of an independent tax professional when considering a short sale.

Five Things A Buyer's Agent Must Do To Ensure Short Sale Approval

Getting a short sale approved is no easy task. Buyers can, and do, walk away if they feel the transaction is taking too long. Mortgage insurance companies frequently demand unreasonably high contributions from the seller, thus killing the deal. Servicing rights can be transferred to a new lender mid- transaction. The foreclosure auction occurs despite the lender repeatedly telling you that it was postponed. These are only a few examples of what can go wrong. Admittedly, many of the aforementioned reasons are unforeseen and cannot be prevented. The majority of short sales that fail, however, do so because the person handling the transaction makes a mistake and the buyer walks away prior to obtaining short sale approval. While it is imperative that the person handling the short sale negotiation takes certain steps to ensure a successful short sale, the buyer’s agent plays an equally important role in the approval process. With a traditional sale, the buyer and seller negotiate against each other, whereas the agents in a short sale must work together to keep the transaction from falling apart. As someone with an extremely high short sale success rate,  I encourage buyer’s agents to take the following steps in order to ensure a successful short sale transaction.

1. Ask The Listing Agent Important Questions

 The buyer’s agent should always inquire as to specific transaction details prior to submitting an offer. You should always begin by asking the listing agent if they will personally be handling the short sale negotiation with the lender. If they use a third-party negotiator, then you will need to speak with that individual in order to determine their experience level. The first thing you need to ascertain from the individual handling the negotiations is the amount of liens encumbering the property. If the homeowner has two loans, then you will need to obtain short sale approval from both lien holders. As you can imagine, this fact, as well as the lenders’ identity, will largely dictate how long the short sale transaction should take. Keep in mind, you should also confirm that all taxes are current and, if it is a condominium, whether all condo fees are paid because any delinquencies will result in additional liens that must be released prior to a deed transfer. Once you determine the total amount of liens, you should also ask whether the seller is already in default and, if so, whether a foreclosure auction date is scheduled. The last thing you want to do is spend a couple of months committed to a short sale only to find out that a foreclosure date is imminent. Finally, it is always a good idea to ask the seller why they are seeking a short sale. Although the seller does not need to provide specific details, the buyer does have a right to know whether the seller has a lender approved hardship and, therefore, whether they even qualify for a short sale. If the listing agent or third-party negotiator cannot answer these basic questions, it is highly unlikely that they have enough short sale experience to get your short sale closed.

2. Manage Your Buyer’s Expectations

 Once you determine that the seller is a qualified short sale candidate, you should next turn your attention your client, the buyer. You should immediately provide the buyer with a reasonable short sale time-line. By doing this, you not only show the buyer that you have done your homework, but you also ensure that all parties are on the same page from the outset of the transaction. On the most basic level, all short sales consist of three stages: (1) offer (2) valuation and (3) negotiation. Thus, if you provide a reasonable estimate of how long each stage will take, it is much more likely that your buyer will remain a party to the transaction, even if an unexpected event occurs, such as the loan being transferred to a new servicer or the lender grossly overvaluing the property. Both of which, by the way, have happened to me. If, however, the buyer enters the transaction with the expectation that the short sale will be approved in one month, the lender never has a reasonable opportunity to complete the short sale approval process. An offer that expires in thirty days is not a strong offer and most likely not the “highest and best” offer because it never has a fighting chance to close. Instead, the buyer and seller should mutually agree upon a time period in which they reasonably expect the short approval to be obtained. That way, all parties are on the same page from the outset of the transaction. The simple task of providing the buyer with a short sale time-line will not only manage the buyer’s expectations, but will also discourage casual purchasers from making an offer on a short sale property.

3. Eliminate All Contingencies In The Contract

 Simply put, short sale lenders do not like contingencies. The only exception to this rule is the mortgage financing clause and, even in that case, the buyer will have to submit a pre-approval or proof of funds letter showing that they will be able to eliminate the financing contingency shortly after receiving short sale approval. Thus, if you represent a buyer who needs to sell their current home prior to purchasing another, your client should not be looking at short sales. Another common contingency, and a source of contention, involves the property inspection. Most buyer’s agents insist upon conducting the inspection after the lender approves the short sale. Most listing agents, however, don’t like this because it gives the buyer the ability to walk away from the transaction at any time, without cause. In my opinion, an offer that enables the buyer to walk away at anytime is likely not the “highest and best” offer because the buyer is not committing to purchase the property subject only to short sale approval. The post approval inspection gives the buyer another opportunity to back out of the purchase with little or no penalty. The seller, on the other hand, is unequivocally making a commitment to the buyer because they effectively take the property off of the market once they submit the signed offer to their lender. Admittedly, I understand why buyers may want to not want to spend a few hundred dollars up-front on an inspection, but you could easily make the argument that this decision potentially costs the buyer more money in the long run. Keep in mind, once you submit the offer to the lender, you forfeit your right to adjust the purchase price. If you are buying an “As Is” property, such as a short sale, wouldn’t you rather take into account all necessary property information prior to submitting your offer to to the bank? In other words, wouldn’t it be in the buyer’s best interest to find out whether there are any major property condition issues prior to committing to the transaction for 60-90 days? More often than not, a short sale fails because the buyer walks away as a result of the property inspection, not because the seller was unable to obtain short sale approval. Regardless of your point of view, it is always best to deal with the inspection contingency issue at the outset of the short sale transaction so as to avoid any potential disagreements between the buyer and seller.

4. Make Sure Buyer Is Prepared To Close Upon Receipt Of Short Sale Approval

Most short sale approval letters are only valid for 30-45 days, and the majority of buyers make the mistake of waiting until receipt of the short sale approval letter before they initiate the financing process. In today’s market, it is virtually impossible for a buyer to obtain mortgage financing during this time frame. Moreover, simply obtaining a pre-approval letter from your buyer’s lender is insufficient. Anyone with an email address can obtain a pre-approval letter. As the buyer’s agent, you need to initiate contact with your buyer’s lender and confirm whether they will be able to close within 30-45 days of receiving the short sale approval letter. I always ask the buyer’s lender for a list of conditions that need to be satisfied in order to receive a firm mortgage commitment. Next, I make certain that the buyer completes as many of these tasks as possible during the time in which I am working on getting the short sale approved. This way, the buyer simply needs to update their financial information and conduct the appraisal in order to finalize their financing. While most short sale lenders will grant an extension, they are harder and harder to obtain, and in some cases the seller is required to update their financial documents and re-submit the entire file to the investor for review. In my opinion, it is much more efficient, and doesn’t cost the buyer anything, if they eliminate all financing conditions during the short sale approval process rather than waiting until the short sale is approved.

5. Be Prepared to Negotiate and Engage The Use of a Professional

If you haven’t figured it out by now, short sales require the cooperation of all parties involved. Unlike a conventional sale, where the process is primarily adversarial, the buyer and the seller must work together during a short sale in order to get the deal approved. This includes the negotiation. Everybody knows that lenders prefer short sales to foreclosures, but they are not going to give the property away for less than what they deem as fair market value. By agreeing to the short sale, the lender is trying to mitigate their losses. As a result, the lender is going to attempt to cut their losses wherever possible. The most common method is to reduce real estate commissions or seller paid closing fees. Lenders also try to minimize their loss by demanding a cash contribution or promissory note at closing. This is where it pays to engage the use of a short sale professional, even if you are the buyer’s agent. The short sale lender typically pays the negotiator’s fee, so why wouldn’t you take advantage of the negotiator’s expertise? Furthermore, by encouraging your client to use an experienced short sale negotiator, you are showing the seller that you are committed to the purchase and taking the necessary steps to get the deal closed as efficiently and effectively as possible. The short sale negotiator should be able to leverage their expertise and get the lender to agree to the short sale with minimal financial damage to all parties. A good negotiator is one that it is able to convince the lender that the proposed offer will result in less of a loss than a foreclosure, while at the same time getting the buyer their desired purchase price and, most important, getting the seller out of a bad situation with minimal credit damage an no deficiency balance owed following the short sale. All parties must be willing to negotiate and showing the lender that everyone is willing to make concessions will greatly increase the likelihood of getting your short sale closed.

Related Posts:

Five Tips For Listing Agents To Ensure Short Sale Approval

How To Keep Buyers A Party To A Massachusetts Short Sale Without A Signed Purchase Contract

Five Things To Avoid When Writing Your Short Sale Hardship Letter

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

If you are considering a Massachusetts short sale, and would like a free short sale consultation, please call my office to schedule a meeting or a telephone consultation at (617)264-0376.

Five Tips To Ensure Short Sale Approval

According to a recent report by California based RealtyTrac, distressed properties accounted for one third of all US housing sales in the second quarter of 2011. The glut of inventory is only going to increase as lenders slowly bounce back from the robosigning crisis and foreclosure filings begin to pick up around the country. A large portion of distressed sales are undoubtedly pre-foreclosure sales, or short sales. If you are a real estate professional, odds are that you worked on a short sale transaction in 2011. For those real estate agents who are yet to work on a short sale, you can no longer afford to ignore this segment of the housing market. If you are refusing to work on short sales, you are ignoring nearly 1/3 of your potential earnings. What makes these transactions so difficult is that every short sale is unique. The housing market is not getting better anytime soon, and short sales will likely account for a large portion of all housing sales in the next few years.  Below are five things a listing agent should do on all Massachusetts short sales in order to ensure a successful transaction.

1. Ask The Homeowner Specific Questions Prior To Accepting The Listing

Contrary to popular opinion, a homeowner does not automatically qualify for a short sale just because the amount they owe on their mortgage is greater than fair market value of their home. All short sale lenders require a financial hardship, yet very few listing agents ask the homeowner why they are requesting a short sale. As a listing agent, it is imperative that you first determine whether the homeowner qualifies for a short sale. Once you determine that your seller is a qualified short sale candidate, it is equally important to inquire as to the status of the foreclosure process. Most lenders no longer require homeowners to be delinquent on their mortgage in order to initiate a short sale, but the last thing you want to do is spend time working on the transaction if the foreclosure auction is imminent. A large percentage of all short sales that fail get denied because the seller is unable to postpone the foreclosure auction. Short sales are complex transactions that can be very frustrating for inexperienced real estate agents, but taking the initial steps of asking why the seller is pursuing a short sale, as well as making sure that a foreclosure auction isn’t scheduled, will greatly increase your chances of closing the deal.

2. Ascertain The Amount and Identity Of All Lien Holders

The listing agent should always ask the seller how many loans are on the property. You must obtain short sale approval from each lien holder. Thus, the more lien holders, the more complex the short sale transaction. Furthermore, the primary lien holders must agree, or at least approve, all payoff amounts to subsequent lien holders. Keep in mind that all lien holders need to approve the short sale, not just the lenders, so it is important to inquire as to any potential tax liens, unpaid condominium fees and any other debts the homeowner may have that could prevent you from obtaining short sale approval. It is equally important to identify the lenders from whom you will be requesting a short sale. All lenders have specific short sale procedures. Some lenders can process a short sale request in as little as 30 days, while others can take months to respond. Thus, by identifying the lien holder, a listing agent can take a lot of the guesswork out of a short sale transaction by simply ascertaining the identity and amount of lien holders.

3. Submit A Complete Short Sale Package

One of the biggest mistakes a listing agent can make is submitting an incomplete short sale package to the lender. Lenders receive hundreds of short sale requests every day. Upon submitting a complete package to the lender, the file is immediately assigned to a short sale negotiator. The sooner your file is with a negotiator, the faster he or she will schedule the lender’s appraisal. In contrast, if you submit an incomplete short sale package to the lender, your short sale is dead in the water. At that point, the only way to get someone to work on your file is to get a customer service representative to grant a review of the previously submitted documents. By the time that happens, most of the homeowner’s financial documents will have expired and you will be asked to re-submit those items. Most lenders can process a complete short sale package in the first 30-45 days, but the clock doesn’t start ticking until they receive a complete short sale package. If you make the mistake of submitting an incomplete short sale package, you make the short sale process infinitely harder than it needs to be.

4. Attend The Lender’s Appraisal

One of the most common short sale misconceptions is the belief that the lender calculates the potential loss as the total amount owed on the mortgage minus the short sale offer price. Instead, when you apply for a short sale, the lender is making the determination as to whether a short sale or foreclosure will result in a greater loss to the investor. In order to make this conclusion, the lender sends a representative, usually a local real estate agent, to come up with a fair market value of the property. Once the fair market value is assigned to the property, the lender uses this figure as the amount they expect to recoup if they sell the property at foreclosure. Consequently, if the short sale offer price is at least within the ballpark of the lender’s appraised value, the lender will approve the short sale because they can recoup the same amount of money without having to incur additional legal and carrying costs associated with a foreclosure.  In other words, the entire short sale transaction hinges on the result of an independent third-party property valuation conducted by a local real estate agent on behalf of the lender. As a result, the listing agent can greatly improve the likelihood of getting their short sale approved simply by attending the appraisal and presenting the lender’s representative with current market data and property condition issues that substantiate the current offer price.

5. Manage The Buyer’s Expectations

Aside from a foreclosure auction, the most common reason that a Massachusetts short sale fails is due to the buyer walking away from the transaction prior to obtaining short sale approval. While there are some steps the listing agent can take to prevent the buyer from walking away, the most effective method to keep a buyer a party to the transaction is through constant communication and managing the buyer’s expectations. As long as you are familiar with the lender’s short sale process and you submit a complete short sale package, you should be able to provide the buyer’s agent with an accurate estimate of how long the short sale approval should take at the outset of the transaction. This way, the buyer does not have unrealistic expectations and they are more likely to remain a party to the transaction, even when unforeseen events occur. As a short sale negotiator, there is nothing more frustrating than working on a file for 30-45 days only to have the buyer walk away days before obtaining short sale approval.

Related Posts:

Five Things To Avoid When Writing Your Short Sale Hardship Letter

How Does A Short Sale Affect Your Credit Score?

Short Sale Tax Consequences: Understanding The Qualified Principal Residence Exception

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today at (617) 264-0376 if you are a homeowner facing foreclosure or a Realtor seeking assistance with a Massachusetts short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

FTC Issues Stay On Enforcement Of Certain MARS Provisions

FTC MARS Exemption: Good Or Bad For Short Sale Agents?

The Federal Trade Commission (FTC) recently issued a statement that it would no longer enforce several provisions of the widely scrutinized Mortgage Assistance Relief Services (MARS) Rule. The MARS Rule required all real estate agents working on short sales to make certain disclosures to homeowners as well as banned the collection of up-front fees. In a July 15 press release, the FTC conceded that the MARS disclosures were “confusing customers and inaccurate in some contexts.” The Commission issued an immediate stay on the enforcement of the MARS provisions to ensure the guidelines did not “inadvertently discourage real estate professionals from helping consumers with [short sale] transactions.” The stay applies only to real estate professionals who: 1) are licensed and in good standing under state licensing requirements; 2) comply with state laws governing the practices of real estate professionals; and 3) assist or attempt to assist consumers in obtaining short sales in the course of securing the sales of their homes. The stay exempts real estate professionals who meet these requirements from the obligation to make disclosures and from the ban on collecting advance fees. These professionals, however, will remain subject to the Rule’s ban on misrepresentations.

History Of The MARS Rule

Enacted in December of 2010, the MARS Rule prohibited real estate professionals from making false or misleading claims and outlined several disclosures that had to be made by individuals offering foreclosure relief services, including short sales. The ban on advance fees went into effect in January, 2011. The rule applied to all individuals, as well as companies, who provided mortgage assistance relief services:

Section 322.2 DEFINITIONS (i) ‘‘Mortgage Assistance Relief Service’’ means any service, plan, or program, offered or provided to the consumer in exchange for consideration that is represented, expressly or by implication, to assist or attempt to assist the consumer with any of the following: and followed by subsection (6) Negotiating, obtaining or arranging:

(i) A short sale of a dwelling,
(ii) A deed-in-lieu of foreclosure, or
(iii) Any other disposition of a dwelling other than a sale to a third party who is not the dwelling loan holder.

While the authors of the MARS Rule specifically exempted attorneys from complying with the rule, they failed to provide a similar exemption for real estate agents. As a result, a number of real estate professionals immediately sought clarification as to whether they were considered a MARS provider and, therefore, subject to the rule.

Failure to Exempt Real Estate Professionals From MARS

As mentioned above, the FTC refused to explicitly exempt real estate agents from the MARS Rule because they felt real estate agents did not qualify as mortgage assistance relief service providers:

“The Commission concludes that an exemption for real estate agents is not necessary. Real estate agents customarily assist consumers in selling or buying homes and perform functions such as listing homes for sale, showing homes, and finding desirable homes for consumers. The Commission is aware that real estate agents may perform these functions when properties are bought or sold through a short sale transaction, but does not consider these services to be MARS.”

On the one hand, the FTC clearly intended for the rule apply to any real estate professional working on short sales. On the other, the failure to specifically exempt Realtors created widespread confusion among real estate agents as to whether they had to comply with the rule if they were obtaining, arranging or negotiating a short sale. The FTC’s reluctance to provide an exemption for Realtors, as they did for attorneys, essentially deferred interpretation of the MARS Rule to local and national real estate boards.

NAR Interpretation of MARS

The National Association of Realtors (NAR) broadly interpreted the MARS rule to conclude that “negotiating a short sale of a dwelling includes any communications with a lender about the possibility of a short sale transaction involving a consumer’s loan.” Consequently, “anyone who provides short sale negotiation services is considered a MARS provider and subject to the disclosure requirements”. Based on this interpretation, NAR expressly stated that “the MARS rule could have an impact on real estate professionals who represent short sale clients or market themselves as a MARS provider or a short sale specialist”. The NAR opinion strongly encouraged all individuals handling short sales, while working under their licensed capacity as a real estate professional, to comply with the MARS disclosure requirements. As a result, real estate agents throughout the country were required to update their advertising materials and consumer disclosures.

The Revised MARS Rule And The Realtor Exemption

Less than seven months after enactment of the rule, the FTC stated that “the stay on enforcement applies only to real estate professionals who are licensed, in good standing under state requirements and in compliance with all laws. Anyone who meets these requirements is now exempt from “the obligation to make disclosures and from the ban on collecting advance fees.” The Commission said that the stay does not apply to real estate professionals who provide other types of mortgage assistance relief, such as loan modifications. While the stay of enforcement provides some relief to real estate agents working on short sale transactions, in that they no longer have to issue short sale disclosures, the FTC made it clear that they will closely monitor this industry and continue to bring enforcement actions against all real estate professionals who engage in unfair or deceptive acts or practices.

FTC MARS Exemption: Is it Good Or Bad For Short Sale Agents?

As someone who exclusively negotiates Massachusetts short sales, I depend on local real estate agents for a large portion of my business. Since the inception of the MARS Rule last December, I found that very few real estate agents were aware of the rule, let alone compliant. Seeing as many agents didn’t issue the required MARS short sale disclosures, the exemption likely won’t have much of an affect on individual short sale transactions.  By exempting real estate agents from the advertising disclosures, however, the FTC may have opened the door for more inexperienced real estate professionals to market themselves as short sale specialists without having any short sale experience.

Many real estate agents who were aware of the MARS Rule were reluctant to enter the short sale market because the disclosure requirements were extremely prohibitive with regard to advertising and marketing materials. Granted, the MARS rule will still be enforced against any real estate professionals engaging in unfair or deceptive practices, but it won’t prohibit inexperienced agents from targeting distressed homeowners through mass marketing campaigns. One of the biggest problems in the short sale industry is the spread of misinformation, and by lowering the barrier of entry into the short sale market, the FTC MARS exemption may have the opposite result than that which the Commission intended.

Related Posts

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Are Realtors Subject To The FTC MARS Ruling?

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

Five Things To Avoid When Writing Your Short Sale Hardship Letter

When working with Massachusetts short sale candidates, the most daunting task always seems to be writing the hardship letter. All homeowners requesting a short sale are required to provide the lender with a hardship letter. The hardship letter is your best, and only, opportunity to explain to the lender why you are no longer able to afford your mortgage payments. Most real estate professionals make the mistake of viewing the hardship letter as a mere formality, or simply one more document amongst the many requested by the lender. That is a poor assumption and one that could prove costly at a later stage in the short sale process. It is no secret that banks are approving more short sales than ever before, but they are also rejecting short sales if they feel the homeowner’s hardship is insufficient. As someone with a high short sale success rate, I can honestly say that a well-crafted letter, written by the homeowner, can be the determinative factor in getting the lender to agree to a short sale. Even though I have been negotiating short sales for about five years and reviewed hundreds of hardship letters during that time, I am still unable pinpoint what exactly makes a great hardship letter, but I can tell you a few things to avoid when presenting your short sale hardship to the lender:

Don’t use a form letter or download one from the Internet

The loss mitigation department reads hundreds of hardship letters each and every day. You don’t need to be a great writer, but you should be able to tell the lender, in your own words, why you are requesting a short sale. The lender does not care about your grammar and they certainly don’t care whether your letter is typed or handwritten. The loss mitigation representative has one objective and that is to determine whether you qualify for a short sale. If you can’t take the time to write your own letter, they probably won’t take the time to read it.

Don’t try to explain your hardship

Every letter the short sale department reads attempts to explain the unfortunate circumstances surrounding the inability to make the mortgage payments. Instead of focusing on the effects of the financial hardship, an effective letter should state the actual hardship event, such as divorce or loss of job, and move on to the next paragraph. If you are writing a hardship letter, the reader already knows that you are having trouble making your payments. Your job is to tell them the reason why you are no longer able to make your mortgage payments, not to get them to feel bad for you.

Don’t blame others

Even if a loan officer from a bank convinced you to refinance and you used the equity in your property to pay off your student loans, this is not relevant to your request for a short sale. Instead of blaming others, take responsibility and stress the fact that some event, which was outside of your control, caused your financial situation to change such that you are no longer able to afford the mortgage payments. The financial documents you provide should support this assertion.

Don’t blame the poor economy or collapse of the real estate market

If the real estate market didn’t collapse, the person reading your letter wouldn’t have a job. There are other ways to tell the bank representative that your property is no longer worth what it once may have been. Instead of blaming the poor economy, it may be more effective to highlight the fact that the property has been on the market at full price for over a year and you only received one offer. Showing the bank that you at least attempted to sell at a higher price only substantiates the current short sale offer price. The bank will examine a multitude of factors, including how long the property has been on the market and whether you have lowered the asking price, in order to determine whether you qualify for a short sale.

Don’t write a novel

Some of the most effective hardship letters are no more than a few sentences long. Keep in mind, the person reading your letter most likely has hundreds of other files similar to yours. The sooner you can present the reader with your hardship reason, the more likely they are to approve your hardship request. Even if you have a great hardship reason, if you bury it on page three of you letter, the lender is less likely to read the pertinent portions of your  letter. In fact, some of the most effective letters are actually those which bullet-point the hardship reasons and simply refer to the financial documents as proof that you can can no longer afford the home.

Admittedly, there is no magic formula to writing an effective hardship letter, but if you can avoid some of the above-referenced examples and present the lender with a concise and informative letter,  you will greatly improve your chances of getting your short sale approved.  The hardship letter is one of the first documents the loss mitigation department reviews,  so if your letter fails to convince the lender that you are a qualified short sale candidate, it is highly unlikely that any additional information in your application will prove otherwise.

Related Posts

How To Qualify For A Massachusetts Short Sale: The Involuntary Hardship

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About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

The Involuntary Hardship

As someone who exclusively negotiates Massachusetts short sales, I receive about three to five new short sale referrals every week from local real estate agents or distressed homeowners. While it may come as a surprise, I actually reject quite a few of these short sale requests. The most common reason I refuse to submit a short sale package to the lender is due to an insufficient homeowner hardship. In order to qualify for a short sale, all lenders require a financial hardship. More specifically, most lenders require an involuntary hardship. An involuntary hardship is some event, beyond the homeowner’s control, that caused the mortgage payments to become unaffordable, even if only temporarily.

For example, a loss of job or curtailment of income is a lender approved hardship. It is important to note, however, that most lenders distinguish between someone who lost their job and someone who voluntarily quit their job. Even if you are able to prove to your lender that you are no longer able to make your mortgage payments, you still need to prove that your inability to make the payments was involuntary. Thus, unless you are able to prove that you were forced to leave your job, or asked by your employer to take a significant pay cut, a change of employment status may not automatically qualify you for a short sale. Furthermore, many homeowners have suffered multiple hardships, and it can be difficult deciding which hardship you should present to your lender when requesting a short sale. In all of my short sales, the most successful cases are those in which the homeowner is able to show that the hardship reason was involuntary and beyond their control. A good hardship letter will list all of the reasons, but the most effective letters focus on the involuntary hardship.

Due to the recent foreclosure problems in Massachusetts, lenders have bolstered their loss mitigation departments and are approving more short sales than ever before. Most lenders have a list of approved hardships which act as a benchmark for individuals contemplating a short sale. There are, however, many situations which may not automatically qualify as a lender approved hardship and need to be examined on a case by case basis. As someone who only gets paid upon a successful completion of a short sale, I use my experience to analyze each homeowner’s situation, coupled with their specific lender’s hardship requirements, to determine whether their short sale request is likely to be approved. This way, I don’t waste my time, the lender’s time, and most importantly, the homeowner’s time if a short sale is not a viable option.

Editor’s note: To every rule, there is always an exception. Some lenders may not be subject to investor restrictions or servicing agreements and merely want to get rid of a non-performing asset. As a result, these lenders do not require an involuntary hardship and merely require the financial inability to pay the mortgage. If you are in the Greater Boston Area and are considering a short sale, please contact us today and we can quickly determine whether a short sale is right for you or your client.

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How Does A Short Sale Affect Your Credit Score

Short Sale Tax Consequences: Understanding The Qualified Principal Residence Exception

Short Sale Frequently Asked Questions

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today at (617) 264-0376 if you are a homeowner facing foreclosure or a Realtor seeking assistance with a Massachusetts short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

The Short Sale Offer Addendum

During this past week alone , I have received ten new short sale requests.  As a Massachusetts short sale negotiator, my services are generally not required until the buyer and seller execute an Offer to Purchase. Once the offer is signed,  the buyer’s agent inevitably calls me to request the seller attorney contact information so the parties can immediately execute the purchase and sale contract.  In each and every instance,  I inform the buyer’s agent that it is unnecessary to sign a Massachusetts purchase and sale contract until we have third-party short sale approval.  Given the increased volume of short sales, coupled with  the amount of “new” agents working on these transactions, it bears mentioning why, when the proper procedures are followed, it is not necessary to sign a purchase and sale contract until third-party approval is obtained.

With regard to short sale transactions, most of the attorneys and real estate agents with whom I work prefer to execute the purchase and sale contract after having received third-party approval. That way, the attorneys don’t spend time drafting and negotiating the contract if the sale never gets approved.  In order to get a firm commitment from the buyer, however, the offer usually contains an addendum requiring the buyer to remain a party to the transaction during the short sale approval period, which is typically 60 to 90 days. During the approval period, the seller agrees to refrain from accepting back-up offers.  Upon signing the offer, the buyer generally places a 1%  deposit,  or at least enough money to ensure the buyer will remain a party to the transaction. In consideration of the seller no longer accepting offers, if the buyer chooses to walk away during the initial short sale approval period, they lose their deposit.  If the approval period passes without third-party approval, the buyer has the right to extend. The addendum also states that, upon receipt of third- party approval, the parties have 5-7 days to execute a purchase and sale contract and collect the remaining balance of the 5% deposit. The purchase and sale contract  typically calls for the  closing to occur 30 days from receipt of written short sale approval.

While every short sale transaction is different, most lenders only require a signed offer to purchase in order to consider a short sale request. As a result, if you are able to eliminate the 7-10 days it typically takes to get a purchase and sale contract drafted and agreed upon, you are one week closer to receiving short sale approval. As a real estate agent, you can now focus your efforts on getting new listings and more signed offers. Keep in mind, I always require the buyer to conduct a property inspection, or waive their right to do so, prior to submitting the offer to the short sale lender. The reason being, if the offer is submitted subject to a property inspection, the short sale lender will not allow for a price change due to any property condition issues revealed by the home inspection. Thus, if a buyer objects to spending $300-400 dollars on an inspection prior to submitting the offer to the lender, they probably aren’t the right buyer for your short sale. I would rather find this out at the offer stage, instead of 60 days down the road after having spent many hours negotiating the short sale with the lender.

Contact us today if you are a real estate professional currently working on short sales and you need assistance keeping your buyers a party to the short sale transaction.

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About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists homeowners, Realtors and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

FTC MARS DISCLOSURES

Mortgage Assistance Relief Services Rule

The Federal Trade Commission (FTC) now requires all companies that offer mortgage assistance relief services (MARS) to make three types of disclosures to short sale consumers. The rule, which went into effect March 31, 2011, also bans the collection of up-front fees. While the advance fee ban was clearly intended to protect financially distressed homeowners from mortgage relief scams that sprang up during the mortgage crisis, real estate agents are now subject to the rule. Almost overnight, thousands of real estate professionals woke up to find themselves in violation of the MARS rule. The FTC’s unwillingness to explicitly provide a Realtor exemption, as they did for attorneys, immediately subjected real estate agents to fines up to $11,000 per day unless they were in compliance with the new rule.

The National Association of Realtors (NAR) confirmed that the rule affects any real estate professional “negotiating, obtaining or arranging a short sale of a dwelling.” In response to the ruling, NAR interpreted the rule as one that applies to all real estate agents who represent clients involved in short sale transactions. According to NAR, the rule also applies if you market yourself as short sale specialist or advertise short sale experience. So, whether you handle the actual negotiations or refer them to a third party, you are subject to the MARS rule and need provide your client’s with the proper disclosures.

MARS Required Disclosures

When applied to real estate agents, MARS requires anyone working on short sales to make three types of disclosures to consumers. Depending on the type of communication, the MARS Rule contains specific requirements as to how the disclosures must be presented to consumers. In all cases, the disclosure must be clear and prominent. For printed materials, such as advertising or marketing flyers, the written disclosure must be at least 12-point type, or one-half the size of the largest font used to list the name of the firm providing the disclosures, whichever is larger. Below are examples that could be used in written materials.

General Commercial Communications Disclosures

A real estate professional that advertises MARS, not directed at a specific consumer, will need to include in all advertisements a clear and prominent disclosure with the following:

IMPORTANT NOTICE (in two point-type larger than the font size of the disclosure): (Name of company) is not associated with the government, and our service is not approved by the government or your lender. Even if you accept this offer and use our service, your lender may not agree to change your loan. If you stop paying your mortgage, you could lose your home and damage your credit rating.

Consumer-Specific Commercial Communications

The second disclosure is required in all communications that the MARS provider directs to specific “prospective” clients. These communications must be provided by the MARS provider before the provider begins mortgage assistance services on behalf of the consumer. The time when the real estate professional needs to provide this disclosure will vary, as a listing broker may not be aware that the transaction will need to be a short sale until far into the listing process. A listing broker should provide this disclosure to the client in a letter or memorandum once (s)he is aware the transaction may be a short sale, highlighting this fact in the document and prominently displaying the below disclosure statement. The disclosure must provide the following:

IMPORTANT NOTICE (in two point-type larger than the font size of the disclosure): You may stop doing business with us at any time. You may accept or reject the offer of mortgage assistance we obtain from your lender [or servicer]. If you reject the offer, you do not have to pay us. If you accept the offer, you will have to pay us (insert amount or method for calculating the amount) for our services. (Name of company) is not associated with the government, and our service is not approved by the government or your lender. Even if you accept this offer and use our service, your lender may not agree to change your loan. If you stop paying your mortgage, you could lose your home and damage your credit rating.

Disclosure When Providing an Offer of Mortgage Relief

The third disclosure needs to be provided in a clear and prominent manner at the time the real estate professional presents its client with the lender’s short sale approval letter. The disclosure must be provided on a separate page and state:

IMPORTANT NOTICE: Before agreeing to this service, consider the following information (in two point-type larger than the font size of the disclosure):This is an offer of mortgage assistance we obtained from your lender [or servicer].You may accept or reject the offer. If you reject the offer, you do not have to pay us. If you accept the offer, you will have to pay us [same amount as disclosed previously] for our services. If you stop paying your mortgage, you could lose your home and damage your credit rating.

The real estate professional must also provide the consumer with a notice from the lender or servicer that describing all material differences between the seller’s current loan and the lender’s proposal to modify the loan, or accept a short sale. This information will likely be contained in the lender’s short sale approval letter. If, however, the approval letter lacks this language, the MARS provider’s disclosure should include information regarding the lender’s ability to hold the seller liable for any deficiency amount and encourage them to seek the advice of independent counsel.

NAR on MARS

NAR unequivocally requires all Realtors working on short sales to provide their customers with clear and prominent disclosures. Depending on the type of communication, the disclosures should contain the language from the above-referenced examples. In addition, NAR expounded upon their interpretation to point out that rule not only affects how a real estate professional markets their services, but also applies to those referring a short sale client to an independent third party. A rule that was originally intended to ban the collection of up-front fees, something a Realtor rarely does, has indirectly affected the way real estate professionals interact with their clients when negotiating, obtaining or arranging the short sale of a dwelling.

If you are a Realtor handling short sales, I would love to read your comments regarding how you have amended your marketing materials in order to comply with the MARS Rule.

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About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists homeowners, Realtors and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

Foreclosure vs. Short Sale: Which Option Is Best For My Credit Score?

As someone who deals with homeowners facing foreclosure on a daily basis, I am often asked whether a short sale or foreclosure results in more damage to your credit. Unfortunately, there is no straight- forward answer. The reason why this is such a difficult question to answer is simply because it depends upon a variety of factors. In general, a short sale or foreclosure will affect your credit score 85-160 points. Many mistakenly believe, or are mis-informed, that a derogatory credit event such as a foreclosure is somehow worse than asking your lender to accept a short sale. In the world of credit scores, however, lenders interpret both of these events the same way: the customer did not pay as agreed. The degree to which your credit score will immediately be affected depends largely upon how delinquent you are on your payments at the time of the short sale or foreclosure. Neither event is “better” because they both seriously damage your credit and reflect your inability to repay a debt. With regard to the actual affect to your credit score, you can take proactive measures to mitigate the negative effect to your credit score. In order to understand why this is true, it is important to first examine how your credit score is calculated.

How Much Does A Short Sale Affect Your Credit?

What Is A Credit Score?

Each of the three major credit bureaus (Equifax, Experian, and TransUnion) collect information about your practices of borrowing and paying back credit. This information is compiled into a credit report, from which a credit score is calculated. While there are multiple formulas for calculating credit scores, the formulas introduced by the Fair Isaac Corporation (FICO) are the most widely used. This term is commonly referred to as your FICO score. All of these scores can be a bit confusing, so it might be useful just to think of “credit score” as a numeric grade of your credit history. Fair Isaac recently released a report stating that credit scores are affected nearly the same whether you go through a foreclosure or short sale. The report stated that the average points lost on a FICO score are as follows. Here are Fair Isaac & Co.’s tables:

Harm to FICO score

Time to Full Recovery

As stated above, the FICO score treats a foreclosure, short sale or deed in lieu of foreclosure exactly the same. They are all treated as “serious delinquencies.” Serious delinquencies are characterized by being in default a minimum of 60 days. Making matters worse, credit reports are limited in how they represent foreclosures, so it is generally impossible to tell from the face of the credit report if a reported derogatory event is a foreclosure, short sale, deed in lieu of foreclosure, settled account or some other variation.

How Are Short Sales Reported To The Credit Bureaus?

As stated in the previous section, FICO does not differentiate between a foreclosure or a short sale. Further complicating matters, lenders don’t have a uniform standard as to how they report a short sale to the credit bureaus. Some lenders report short sales as “settled as agreed” while others may report it as “account legally paid in full for less than the full balance.” In some cases, if the account is more than 120 days past due, the short sale will automatically show up as a “foreclosure” on the credit report. As a result, except in limited circumstances, the credit agencies typically treat foreclosures and short sales exactly the same.

According to the FICO guidelines, the most determinative credit score factor is being able to stay current on your account, or only slightly delinquent, in the months leading up to the derogatory credit event. By doing so, you thereby minimize the damage to your credit score by avoiding any serious delinquencies. This is not to be confused with your ability to purchase a home following a short sale or foreclosure, the mere existence of either event on your credit report will generally preclude you from buying a home for two to five years, respectively. Your credit score, however, will only be affected to the degree that you are delinquent on your payments.

Facts About Short Sales And Credit Scores

As previously mentioned, foreclosures and short sales have very similar effects on your credit because both events are reported to the credit bureaus as “serious delinquencies.” The degree to which your credit is affected depends upon how delinquent you were on your payments before the derogatory credit event occurred. Thus, a homeowner who stops making payments at the beginning of the short sale process will have a very similar credit score effect as those who go through foreclosure because, on average, a short sale takes three to six months to complete and your credit continues to tank with each successive late payment. Each missed payment negatively impacts your credit score regardless of whether the house is sold as a short sale or foreclosure. As a result, your credit will be seriously damaged by either event if you allow yourself to become seriously delinquent.

Your credit score can only start improving when the late payments stop and you divest yourself of the home. Until recently, most lenders required homeowners to be delinquent on your payments in order to qualify for a short sale. This is no longer the case. Consequently, a homeowner could theoretically short sell their property without being considered seriously delinquent, and therefore suffer minimal credit damage. In contrast, a homeowner who goes through a foreclosure will be at least 90 days delinquent. Whether you will be able to purchase a home anytime soon is another story, and perhaps my next blog post, but from a credit score perspective, it is possible to mitigate the damage to your credit score by avoiding a “serious delinquency.” In all other cases, however, a short sale will affect your credit exactly the same as a foreclosure.

Myth: Short Sales Are Better For Your Credit Than A Foreclosure

It matters not to a lender why you failed to make your mortgage payments, only that you did. Lenders go to great lengths to alert each other, by way of reporting to credit bureaus, that the defaulting homeowner is someone who could not make their payment obligations. Thus, unless you can avoid being “seriously delinquent”, there is no credit score advantage to a short sale over foreclosure. A consumer’s FICO score will take a huge hit either way until responsible credit behavior supplants the foreclosure or short sale over a period of time. If you are able to minimize the immediate damage to your credit score, this will allow you to obtain credit, such as auto loans or credit cards, thereby putting you on the road to credit recovery faster than those who suffered a serious delinquency. With regard to buying your next home, the nation’s two largest mortgage investors, Fannie Mae and Freddie Mac, with certain exceptions, won’t lend to you again for five years (foreclosure) and two years (short sale).

Related Posts:

Short Sale Tax Consequences: Understanding The Qualified Principal Residence Exception

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How To Qualify For A Short Sale: The Involuntary Hardship

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today at (617) 264-0376 if you are a homeowner facing foreclosure or a Realtor seeking assistance with a Massachusetts short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

Short Sale Tax Consequences

As we approach the tax filing deadline, the Internal Revenue Service is reminding taxpayers that any canceled debt following a short sale, foreclosure or restructuring of a mortgage must be treated as taxable income unless you qualify for an exemption.  In general, when a creditor cancels debt, such as unpaid balances on student loans or credit cards, the forgiven amounts are treated as ordinary, taxable income by the Internal Revenue Code. The Mortgage Forgiveness Debt Relief Act of 2007 , however, provides a homeowners with various exemptions. Most notably, The Debt Relief Act provides an exemption for any debt canceled by the lender which was used “to buy, build or substantially improve your principal residence“. Due to the overabundance of foreclosures and short sales, the IRS recently issued guidance instructing former homeowners as to whether their canceled mortgage debt must be reported as taxable income.

As someone who exclusively deals with the disposition of distressed properties, I can attest that the treatment of canceled mortgage debt is one of the most widely misunderstood aspects of short sales and foreclosures.  A simple mis-calculation of tax liability, or a general misunderstanding of the tax law, costs consumers billions of dollars of tax liability every year. For this reason, it is important to understand how you can avoid getting hit with additional taxes and whether you qualify for a tax exemption following a short sale or foreclosure.

The IRS focuses on several key points that homeowners and real estate professionals need to know.  Surprisingly, many Realtors with whom I work are mistakenly under the impression that the homeowner automatically qualifies for the tax exemption if a lender writes off the mortgage debt of their primary residence. This is incorrect. There are specific requirements that need to be met in order to qualify for the tax exemption. Most notably, the debt canceled by the lender must have been used “to buy, build or substantially improve your principal residence.”

The cancellation of debt provision, commonly referred to as the ‘qualified principal residence exception‘, does not apply to your second home, an investment condo, a weekend retreat or a seasonal home you occupy for less than half the year. It can only be your main residence and you will need the documents to prove it.  Proving that the house is your primary residence is the easy part. The house also needs to be your qualified principal residence.

In order to be considered your qualified principal residence, the unpaid mortgage balance your lender canceled as part of a modification, short sale or foreclosure cannot have been used for something other than acquiring or constructing the house or making capital improvements to it. As a result, if you were amongst the millions of Americans who took advantage of historically low interest rates and refinanced your home, you likely will not qualify for the tax exemption unless the refinance proceeds were used to make substantial home improvements. In addition, refinanced mortgage debt used for tuition, vacations, buying cars or paying off credit card bills will not pass the test. As you can imagine, many people erroneously assume, or are incorrectly advised, that they will qualify for the tax exemption simply because the home was their primary residence, while in fact they are disqualified from the full exemption because they refinanced their primary residence in order to pay off debts.

The IRS offers a hypothetical example of how a simple refinance of your primary residence can affect your eligibility for tax relief: A taxpayer took out a first mortgage of $800,000 when he bought his home years ago. Thanks to strong appreciation, the house was soon worth $1 million and the owner refinanced the mortgage to $850,000. The loan balance at the time of the refi was down to $740,000, and the owner used the $110,000 in cash-out proceeds to buy a new car and pay off credit card debts.

Bad move. A year or two later — presumably well into the recession and housing bust — the home value had plunged to between $700,000 and $750,000. The owner then persuaded his bank to allow a short sale for $735,000 and to cancel the remaining $115,000 of unpaid debt.

Does the owner get tax relief on the full $115,000 under Congress’ special exemption? No way, according to the IRS. He escapes income taxes on just $5,000 of the $115,000 because he spent the other $110,000 on a car and credit card balances — neither of which counts as “qualified principal residence” debt.

The IRS is also warning taxpayers who may have unknowingly converted their qualified principal residence that they too may be subject to unexpected tax consequences. Those who walked away from their houses may be liable for taxes if, at some point, the property “no longer was their primary residence” — say they rented it out after their last payment and before the foreclosure — effectively converting the house into rental property, not their principal home. Likewise, if a homeowner vacated their property and rented it out prior to a short sale, this may also disqualify you from the protections afforded under the Debt Relief Act.

As illustrated above, the cancellation of debt tax rules are complicated and the IRS is encouraging individuals to seek assistance from a licensed tax professional if you recently lost a home to foreclosure or completed a short sale.  For more information on The Debt Relief Act, continue reading here or go to IRS.gov to download the appropriate forms. Lenders who write off unpaid mortgage balances are required to provide borrowers with a year-end IRS form 1099-C cancellation of debt statement, including the amount of the loan forgiven and the fair market value of the property. If you had mortgage debt canceled but haven’t received a 1099-C from your lender, you should immediately request it in order to avoid federal tax hassles. As always, anyone facing foreclosure should always seek the advice of an independent tax professional prior to agreeing to a short sale in order to assess whether you qualify for any tax exemptions under the Mortgage Forgiveness Debt Relief Act of 2007.

Please note that not all states recognize the Qualified Principal Residence Exemption and you should therefore always consult with a licensed attorney and/or tax professional regarding your specific situation in order to determine whether a short sale will result in tax liability or legal consequences.

Excerpts from The Los Angeles Times

Related Posts:

How To Qualify For A Short Sale: The Involuntary Hardship

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The Mortgage Forgiveness Debt Relief Act

About the Author: Greater Boston Short Sales, LLC (GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists homeowners, Realtors and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.

TAX DISCLAIMER: None of the information on the site shall be construed or interpreted as tax advice and is strictly for informational purposes.  Readers shall not act upon this information without first seeking advice from an independent tax professional. To ensure compliance with IRS Circular 230, any U.S. federal tax information provided on this site is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. All readers are encouraged to seek the advice of an independent tax professional when considering a short sale.