Short Sale of House

Q: My husband and I just had twins and the house that we purchased two years ago is way too small now.

We tried selling it privately but with the market today, the offers that we received were very low, about $35,000 less than what is owed on our current mortgage.

I know that walking away from our current home would be irresponsible on our part, but we are not able to sell for what the house is worth. (It seems like we are not the only people having this problem.)

What are the legal and monetary consequences of walking away? We have done a lot of research on this and we are so confused about what to do. We do not want to walk away and then get hit with a $25,000 judgment against us two years down the line demanding payment because when our house is auctioned off, or when the lender decides it wants its money.

We have also looked into selling our home through private investors and were told that they wouldn't even offer us $200,000 for our house. But we have $235,000 left on our mortgage. Any information that you can give us would be appreciated.

A: Congratulations on growing your family. It's unfortunate that you feel your house is too small for your growing family, but like many Americans, you're stuck in a position with no easy way to get out.

If you can't sell your home for at least the amount on your mortgage, then you have to be willing to come to the table with the missing money. In your case, that would be $35,000 plus the expenses of selling your home, including the broker's commission, transfer stamps, moving costs and other fees.

You'll be in the hole maybe $40,000 to $45,000. Your loan agreements require you to make the lender whole, which means reaching into your pocket for those costs. If you can't do that, then you'd have to ask the lender to do a "short sale."

A short sale means that the lender will accept whatever amount you get in the sale in full payment of the loan. The missing money, maybe $35,000 or more in your case, could be forgiven, if the lender doesn't believe you actually have cash available (or can raise it somehow). One way would be to liquidate your 401(k) accounts or IRAs.

(In times past, you'd also have to pay tax on that missing money, which the IRS would see as income, and which would push you into a higher tax bracket. The good news is that a recent change the tax code means the forgiven amount is no longer taxed.)

I don't know how small your house is, but even if it is just two bedrooms, I think it's foolish to try and leave now. You're just going to dig yourself into a serious financial hole from which you might never emerge.

Let's look at it: Once you sell your home in a short sale, you'll be broke and your credit will take a big hit. You won't be able to afford to buy a bigger home because you won't have any cash for a down payment and your credit might still be tarnished.

The way I see it, you have two choices: You can stay put and live cheaply, and hope that your neighborhood comes back in the next couple of years. Or, you can rent out your home and find a larger house to rent until the market stabilizes.

And by the way, you're right about one thing: It's irresponsible to think you can dump your house and move on without having any serious financial repercussions from this act. Trust me: This move may haunt you for the next 10 years.

Please talk to a real estate attorney who can help walk you through the financial realities of a foreclosure or short sale.

NOTE: Ilyce R. Glink's latest ebooks are "Credit Scoring Secrets" and "How to Find a Great Real Estate Agent," which are available at her new, all-video website, www.expertrealestatetips.net. If you have questions, you can call her radio show toll-free (800-972-8255) any Sunday, from 11a-1p EST. You can also write to Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact her through her website, www.thinkglink.com © 2008 by Ilyce R. Glink. Distributed by Tribune Media Services