The article is written for the purpose of educating the public on anti – deficiency legislation and whether it is possible to simply stop paying on your real estate loan if is is “underwater.”
The first thing you must do is check with a local real estate attorney to make sure that your state legislature has enacted laws that prevent banks from suing homeowners for deficiencies. These laws protect single family owner occupied residences.
In most states the legislature has enacted legislation that prevents banks from suing homeowners on their mortgage debt that is secured by single family owner occupied residences.
“No deficiency judgment shall lie . . . . . for failure of the purchaser to complete his or her contract of sale, or under a deed of trust or mortgage given to the vendor to secure payment of the balance of the purchase price . . . . .or under a deed of trust or mortgage on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of that dwelling occupied, entirely or in part, by the purchaser.”
In California, the pivotal part of a strategic default is that the loan is a “purchase money” loan used to purchase his home. Thus a HELOC, home equity line of credit, does not typically fall within the California statute and to default on a HELOC will likely result in a lawsuit against the homeowner for non – payment of the balance.
Like most states that have such legislation, California limits its anti – deficiency laws to residences i.e., “dwelling of not more than four families.” Thus commercial real estate properties do not fall within the consumer protection statutes of most states.
This type of statute has been adopted in many states across the country. You should check with an attorney in your state to find out the exact language of the statute in your state and whether or not it applies to you.
While this type of statute has been adopted in many states not all states have such consumer protection statutes and you should check with an attorney in your state to find out whether or not it applies to you.
Once you made this determination, that you are in an anti – deficiency state and that the anti – deficiency statutes apply to you, your next decision really is one of personal choice. Do you love the house? Do you think the market will recover? Can you afford your mortgage payments?
It is certainly nice to know that you do have choices. However, be clear not everyone can simply “walk away” from their mortgage. It is best that you seek legal advice from a competent real estate attorney in your state before you make the decision to “walk away.”
Author Mitchell Reed Sussman is a California real estate attorney specializing in real estate, foreclosure and bankruptcy.
Looking to find the best deal attorney to help you with your strategic default, then visit www.palmspringslitigationattorney.com to find the best advice on strategic real estate defaults.








