Short Sale Laws in California

Share This!

California Short Sale Laws and Rules

Do I still owe the bank after a short sale?

Maybe. When you sell your home for less than the amount you owe against it, something needs to be done about the balance left over.  This is called the deficiency balance.  The bank can do one of three things:

  • choose to forgive this balance, known as a waiver of deficiency.
  • they can ask you to pay it back by carrying a unsecured note.
  • they can pursue a judgement or collection on the remaining balance.

California has passed laws that require lenders to waive the deficiency if they agree to accept a short sale. This means that you lender must agree to settle the debt in full when completing a short sale.

Do most banks waive the balance after a short sale?

Generally, most 1st position lien holders will waive the remaining balance on a short sale.  2nd liens get a much smaller portion of the funds in a short sale and as a result will generally want to make up the difference in some way.  They may ask for you to contribute funds at closing, send your account to collections, or sue you in court to get a judgement against you.
There are federal short sale programs like HAFA, that require all participating lenders to waive the balance. There are other programs like the Chase Short Sale Outreach and the Bank of America Cooperative Short Sale Program that also have the deficiency waiver built in.  If you are not participating in these programs, it is important that your agent negotiate this release and have it built into the short sale approval letter

Do I have to hire a real estate agent to do a short sale?

There is no state law that requires you to hire a licensed agent to sell your house in a short sale.  The bank however may require that you list the home for sale with a local real estate professional to ensure that you are doing everything possible to get fair market value for the property.  They can’t force you to list your home with an agent, but they can refuse to do a short sale if you don’t.

Do I have to show the bank my financial information?

Generally the bank will want to see that you do not have the capacity to continue to make your loan payments until it is paid off as agreed when you borrowed the money.  Because of this, they will need to see that there is a reason for you to sell your home.  If you are claiming that you can no longer afford to make your payments, they will require proof of that.  This is done by having you supply tax returns, bank statements, and recent paystubs and a short sale hardship letter.  There are some short sale programs that require a limited amount of documentation which would eliminate the need to supply financial documentation.

Do I have to pay for someone to negotiate my short sale?

No.  You don’t have to pay to sell your home on a short sale.  The commissions paid to real estate agents come out of the banks proceeds. Some states  allow for short sale negotiators to collect a special fee for negotiating a short sale that will be separate from a real estate commission. It is beneficial but not necessary to hire a specialist to handle your short sale.  They can often be paid by the buyer, bank, agent or the seller.

Judicial or Non-Judicial Foreclosure

The primary method of foreclosure in California involves what is known as non-judicial foreclosure. This type of foreclosure does not involve court action. When the deed of trust is initially signed, it will usually contain a provision called a power of sale clause, which upon default allows a trustee to sell the property in order to satisfy the underlying defaulted loan. The trustee acts as a representative of the lender to effectuate the sale, which typically occurs in the form of an auction. Unlike many states where trustees are appointed by lenders, title companies primarily serve as trustees managing foreclosure sales in California. California has a requirement known as the one-action rule. If a foreclosure is completed by non-judicial means, a second action to recover a deficiency judgment is not permitted. Using a judicial foreclosure, a lender may recover a deficiency judgment in certain circumstances. But since this process takes longer than non-judicial foreclosure, it is rarely used. California non-judicial remedies have stringent notice requirements and the mortgage documents are required to contain the power of sale language in order to use this type of foreclosure method. Judicial foreclosure are permitted in California and these usually occur when no power of sale language is included in the loan documents.

Laws For Selling Short Sale Homes

California law states that only licensed Real Estate Agents can market and sell homes on a short sale for compensation.  For more on this licensing requirements click here http://www.dre.ca.gov/pdf_docs/re4.pdf

Laws Regarding the Pursuit of a Deficiency Balance

A deficiency judgment may not be obtained when a property in foreclosure is sold through a non-judicial public sale or if the foreclosure relates to a purchase money mortgage. Different rules apply to guarantors of such loans.

California recently passed Senate Bill 458 which states that all lenders must agree to waive their pursuit of a deficiency judgment against the seller for all 1st liens where the loan is secured by a property of 1-4 units.

View California Short Sale Law SB 458

Who Can Negotiate Short Sales?

Currently, only licensed Real Estate Brokers or Attorney’s make collect payment for negotiating short sales in California.

Here is a warning bulletin issue by the California Department of Real Estate regarding short sale fraud http://www.dre.ca.gov/pdf_docs/Article_ShortSales03_2010.pdf

Laws and Rules Regarding Foreclosure and Short Sales