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UPDATE: The Mortgage Forgiveness Debt Relief Act of 2007 may prevent any and all liable taxations on a foreclosure or short sale occuring before January 1, 2010.

Q: Will I have to pay capital gains taxes if I sell a property as a short sale?

A: No. If your bank suggested that, they are ridiculous. Capital gains would indicate that you are in some way "better off" financially because of money you have made. In a short sale, you lose and owe money. The only thing the bank could possibly mean is that the deficiency will be reported as 1099 income and you WILL have to pay taxes on that, but not as capital gains.

Q: If I pay mortgage insurance and default on my loan, why wouldn't that cover the deficiency amount?

A: In some cases it will and in some cases it won't. It depends on the amount of the deficiency. Usually the mortgage insurance only covers a certain amount. Moreover, the lender will try to collect from you before they file a claim with the mortgage insurance company. The mortgage insurance is not there for your protection, just the lender's protection.

Q: How long does the foreclosure process take?

A: Complicated question depending on what you consider the start of the "process" to be. There is also a factor of whether you live in a "judicial" or "non-judicial" state. Generally, the Bank will send and NOD (notice of default) to the title company and trustee after you've missed your third consecutive payment. From that point it takes somewhere between 3-9 months for the house to go up for auction, during which, you can pay the delinquent amount to "cure" the foreclosure proceedings.

Q: Will I still have to pay taxes if I do a short sale?

A: This is a broad question depending on whether we're talking about property taxes or federal income taxes. You'll always have to pay extra income tax if the bank sends you a 1099 for the deficiency. SOMEONE will always have to pay property taxes. Whether its you or the lender depends on their policies and the specific agreement you reach while negotiating the short sale. UPDATE: The Mortgage Forgiveness Debt Relief Act of 2007 may prevent any and all liable taxations on a foreclosure or short sale occuring before January 1, 2010. Although there are certain marriage and dollar amount requirements, the act is broad enough to protect most homeowners. Visit this article: http://www.homesalessandiego.com/blog/mortgage-debt-forgiveness-law/

Q: I owe more than my home is worth. Am I eligible for short sale or is my only option foreclosure or bankruptcy?

A: Always consult your lender as to what your options are. They are usually repayment, forebearance, short sale, deed-in-lieu of foreclosure (basically an accelerated voluntary surrender), and foreclosure. The banks like to prevent foreclosure when at all possible. They've even been known to lower homeowners rates and payments because of all the new defaults in '06 and '07. Either way, your first stop should be to get information from you lender on what options they provide.

Disclosure: The information provided on this website is not intended in any way to be legal advice, we always suggest that you contact a competant attorney or legal council for legitimate legal advice.

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