Questions Relating to Short Sales, Credit Scores, and Tax Consequences
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How long does a short sale take from receiving a contract on the property until closing? It varies. The Servicer will not work on your file unless all required documents are reported received. Also this depends on the backlog of your Mortgage Servicer. In general, a short sale takes 3-4 months although in certain instances it can take as little as 45 days (not likely) and as long as 6 months.
Do you have to be behind or late on your mortgage payments to be approved for a short sale? No, this is not a requirement. In fact, to preserve credit, it is better to be up to date.
Is it possible that a Servicer will write off the short fall between the mortgage balance and what the property sold for? Yes, depending on the tolerances of the Investor (the one who owns your loan), it is possible that the Servicer will write off the short fall with "0 dollars owed" and wll report on the credit report "Paid in Full for less than agreed to".
The following tax-related questions/answers are provided directly from the IRS website. See entire IRS explanation here. It is is highly recommended that you consult with a tax professional and/or accountant who is knowledgeable about short sales and foreclosures.
What are the possible tax consequences relating to the short fall between the mortgage balance and what the property sold for? Buyers typically receive at 1099-C for relief of debt, and under certain conditions the tax consequences of a 1099 is forgiveable under the Mortgage Relief Act of 2007.
What are the provisions of the Mortgage Relief Act of 2007? (Source: IRS provisions) If you owe a debt to someone else and they cancel or forgive that debt, the canceled amount may be taxable. The Mortgage Debt Relief Act of 2007 generally allows taxpayers to exclude income from the discharge of debt on their principal residence. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.
This provision applies to debt forgiven in calendar years 2007 through 2012. Up to $2 million of forgiven debt is eligible for this exclusion ($1 million if married filing separately). The exclusion does not apply if the discharge is due to services performed for the lender or any other reason not directly related to a decline in the home’s value or the taxpayer’s financial condition.
What is Cancellation of Debt? If you borrow money from a commercial lender and the lender later cancels or forgives the debt, you may have to include the cancelled amount in income for tax purposes, depending on the circumstances. The lender is usually required to report the amount of the canceled debt to you and the IRS on a Form 1099-C, Cancellation of Debt.
Is Cancellation of Debt income always taxable? Not always. There are some exceptions. The most common situations when cancellation of debt income is not taxable involve: - Qualified principal residence indebtedness: This is the exception created by the Mortgage Debt Relief Act of 2007 and applies to most homeowners.
- 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.
- 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.
What does exclusion of income mean? Normally, debt that is forgiven or cancelled by a lender must be included as income on your tax return and is taxable. But the Mortgage Forgiveness Debt Relief Act allows you to exclude certain cancelled debt on your principal residence from income. Debt reduced through mortgage restructuring, as well as mortgage debt forgiven in connection with a foreclosure, qualifies for the relief.
If the forgiven debt is excluded from income, do I have to report it on my tax return? Yes. The amount of debt forgiven must be reported on Form 982 and this form must be attached to your tax return.
Does the Mortgage Forgiveness Debt Relief Act apply to all forgiven or cancelled debts? No. The Act applies only to forgiven or cancelled debt used to buy, build or substantially improve your principal residence, or to refinance debt incurred for those purposes. In addition, the debt must be secured by the home. This is known as qualified principal residence indebtedness. The maximum amount you can treat as qualified principal residence indebtedness is $2 million or $1 million if married filing separately.
Does the Mortgage Forgiveness Debt Relief Act apply to debt incurred to refinance a home? Debt used to refinance your home qualifies for this exclusion, but only to the extent that the principal balance of the old mortgage, immediately before the refinancing, would have qualified. For more information, including an example, see Publication 4681.
Can I exclude debt forgiven on my second home, credit card or car loans? Not under this provision. Only cancelled debt used to buy, build or improve your principal residence or refinance debt incurred for those purposes qualifies for this exclusion. See Publication 4681 for further details.
If part of the forgiven debt doesn't qualify for exclusion from income under this provision, is it possible that it may qualify for exclusion under a different provision? Yes. The forgiven debt may qualify under the insolvency exclusion. Normally, you are not required to include forgiven debts in income to the extent that you are insolvent. You are insolvent when your total liabilities exceed your total assets. The forgiven debt may also qualify for exclusion if the debt was discharged in a Title 11 bankruptcy proceeding or if the debt is qualified farm indebtedness or qualified real property business indebtedness. If you believe you qualify for any of these exceptions, see the instructions for Form 982. Publication 4681 discusses each of these exceptions and includes examples.
I lost money on the foreclosure of my home. Can I claim a loss on my tax return? No. Losses from the sale or foreclosure of personal property are not deductible.
If I sold my home at a loss and the remaining loan is forgiven, does this constitute a cancellation of debt? Yes. To the extent that a loan from a lender is not fully satisfied and a lender cancels the unsatisfied debt, you have cancellation of indebtedness income. If the amount forgiven or canceled is $600 or more, the lender must generally issue Form 1099-C, Cancellation of Debt, showing the amount of debt canceled. However, you may be able to exclude part or all of this income if the debt was qualified principal residence indebtedness, you were insolvent immediately before the discharge, or if the debt was canceled in a title 11 bankruptcy case. An exclusion is also available for the cancellation of certain nonbusiness debts of a qualified individual as a result of a disaster in a Midwestern disaster area. See Form 982 for details.
What is a 1099-A? This means that the Lender can still do a deficiency judgment within a time period (meaning the Servicer has not forgiven the debt). This is treated as unsecured debt and the Servicer will most likely have a Recovery Department call the Borrower to settle the amount owed (much like settling a credit card debt through negotiation).
Can you do short sales on second properties? Yes, these can be approved but consult your tax professional regarding tax consequences regarding second properties. While the Mortgage Relief Act of 2007 covers exclusions pertaining to primary residences, investment properties and second residences are treated differently under IRS code.
What happens to your credit score if you have a short sale? A short sale shows your payments as being paid or negotiated and could lower your score as little as 50 points as long as other payments are being made. A short sale can affect scores for as long as 12-18 months.
Will a short sale affect your credit history? A short sale is not reported on credit history, unlike what happens with a foreclosure.
Will short sale affect employment (current or future)? Since a short sale is not reported on a credit report, it will not be a challenge to employment.
How does a short sale affect your ability to get a future mortgage? Fannie Mae or Freddie Mac (government sponsored) loans allow a mortgage after 2 years. Currently, for applications for other loans, there are no questions on applications regarding short sales. Please consult a Mortgage professional.
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Proven 15 Steps To A Successful Short Sale
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PROVEN 15-STEP PLAN TO SELL A PROPERTY UNDER THE MORTGAGE BALANCE STEP #1: THANK YOU FOR CHOOSING ME TO BE YOUR REALTOR. It is recommended that you utilize a Realtor familiar with Short Sales because he/she will be responsible for not only preparing/collecting/ faxing required short sale documents (for example a preliminary HUD1 settlement statement) but he/she will assist you with Servicer follow up to ensure the successful completion of your transaction.
STEP #2: CLEAN, DE-CLUTTER PROPERTY AND PRICE AGGRESSIVELYFOR THE MARKET, NOT AT THE MORTGAGE BALANCE, unless the mortgage is the market value. Price for a 30-day sale! In most areas, the real estate market is experiencing sharp declines. It is critical, in a declining market, to price realistically, as market values will continue to decrease every month. After 3 weeks, a listing becomes stale. If the property has not received interest (offers) in 2-3 weeks, it is highly recommended that you drop pricing at realistic intervals weekly (consult your Realtor), until you receive an offer. Because there is an oversupply, the buyer - not the Realtor - determines the ultimate market value. CRITICAL: An overpriced property in this marketplace will not sell and will continue to decline in value. It is crucial to closely monitor the activity and drop pricing as necessary.
STEP #3: I will help you fill in a Letter of Authorization(one for each Mortgage Servicer) and fax it in to your Mortgage Servicer (one per servicer). This will give me the authorization to speak with your Servicer regarding documents required for the sale of property.
STEP 4: IT IS POSSIBLE TO OBTAIN AN OFFER IMMEDIATELY. I will call your Servicer to ask for the Documents required for short sale. IMPORTANT: MAKE SURE YOU DO NOT HAVE ANY HINDERANCES WITH YOUR SERVICER. For example, if you previously had requested a loan modification and were in process, make sure you tell the Servicer to CLOSE OUT / BACK OUT any request in the Loss Mitigation department. Ask the Servicer to notate your account that you intend to do a short sale. This is very important to avoid confusion and delays.
STEP #5: PREPARE ALL YOUR DOCUMENTS FOR ME. (Note: Although many Servicers will allow the Borrower or Realtor to fax some documents prior to obtaining a contract, it is highly recommended that the Realtor fax ALL documents, listed in this step, with the Contract to Purchase.) Please Note: A file will NOT be worked for actual processing until ALL documentation, including the Contract to Purchase, is confirmed RECEIVED.
Most common documents required from the Borrower(s)
> Financial Worksheet. (Not required by all Servicers) > Hardship Letter. > Hardship Affidavit. (Not required by all Servicers) > Most recent one (2) months of pay from all Borrowers on the mortgage. > Most recent 2 months of bank statements (Not required by all Servicers) > Most recent 2 years tax returns, or extension. (Some Servicers only require most recent year). > Letter of Authorization.
STEP #6: Completely fill in the Financial Worksheet. > Make sure all boxes, including 4 totals boxes, are filled in on Financial Worksheet. > Date 2 places and sign. > Some Mortgage Servicers require their own worksheet. STEP #7:Write a ONE-page HARDSHIP LETTER. Insert numbers you represented on the worksheet, showing that your financial situation does not make it possible to continue paying the mortgage for the subject property. Remain brief and use relevant (current) reasons for hardship. Sign, print and date. (Note:If letters are over 1 page, pages can get separated, and can cause file delays or closure).
STEP #8:Print and fill out Hardship Affidavit -- Include the Hardship Affidavit with your other documentation.
STEP #9: Collect 2 months most recent bank statements – ALL accounts, ALL pages. Important: Servicers are looking for 2 months of bank statements, not 60 days of transactional detail. We highly recommend that, if you do not have paper statements available, you choose online statements that will allow you -- in most cases -- to then "VIEW PAPER STATEMENTS" and retrieve an actual bank statement from online. STEP #10: Collect 2008 and 2007 FULL TAX returns and 2008 W-2's or 1099's. Warning: Make sure you sign and date tax returns before sending. Failure to do so could result in a denial or a file not being worked.
STEP #11: WHEN WE RECEIVE A CONTRACT, COLLECT YOUR MOST UP-TO-DATE PAPERWORK AND HAVE IT READY FOR ME TO SUBMIT TO THE LENDER.
STEP #12: Before documents are sent to the Servicer(s), I will have a title company prepare a HUD 1 settlement statement. This is mandatory and has to accompany the documents. The HUD1 shows the Servicer(s) how funds are being distributed.
STEP #13: I WILL CUSTOMIZE A FAX COVER SHEET FOR THE SHORT SALE DOCUMENTS
STEP #14: I will than fax all documents to your Servicer(s).
STEP #15: I will than Begin to follow up with your Servicer(s), regarding the short sale documents that were faxed.
Remember, if you are not paying your mortgage, you will continue to receive calls from the Collections area. If you do speak with them, please tell them to notate that you are under review for a short sale (that you have a contract on your property). They are trained (and are measured) to attempt to collect money from you. This will not stop the calls as this is an automated function with all Servicers. It is your choice to make a payment during the period of short sale review (and will help you from being further behind), but it is not required - no matter what is said. David Parker Real Estate Professional & Short Sale Expert |
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