A deed in lieu of foreclosure (deed in lieu) is a loss mitigation option, along with short sales, loan modifications, and forbearances, which may be available to borrowers who are in financial distress and facing foreclosure. Specifically, a deed in lieu is a transaction where the homeowner voluntarily transfers title to the property to the holder of the loan (the bank) in exchange for a release from the mortgage obligation. In most cases, completing a deed in lieu will release the borrowers from all obligations and liability under the mortgage.
The Deed in Lieu Process
The first step in obtaining a deed in lieu is for the borrower to request a loss mitigation package from the loan servicer (the company you make your mortgage payments to). The application will need to be filled out and submitted along with documentation pertaining to the borrower’s income and expenses including:
- proof of income (generally two recent paystubs or, if the borrower is self-employed, profit and loss statements);
- recent tax returns;
- a financial statement, detailing monthly income and expenses;
- bank statements (two recent statements for all accounts); and
- a hardship letter or hardship affidavit.
A hardship is a circumstance that is beyond the borrower’s control that results in the borrower no longer being able to afford to make mortgage payments. Hardships that qualify for loss mitigation consideration include, for example, job loss, reduced income, death of a spouse, illness, medical expenses, divorce, adjustable mortgage loan interest rate reset, and a natural disaster. (Sometimes, the loan servicer requires the borrower to attempt to sell his or her home for its fair market value before it will consider accepting a deed in lieu.)
Next, the loan servicer will order a title search. The bank will generally only accept a deed in lieu of foreclosure on a first mortgage, meaning there must be no additional liens, such as second mortgages, judgments from creditors, or tax liens exist on the property. An exception to this is if the same bank holds both the first and the second mortgage on the property. Alternatively, a borrower can choose to pay off any additional liens (such as a tax lien or judgment) to facilitate the deed in lieu transaction. If the loan is insured by the U.S. Department of Housing & Urban Development (HUD), HUD will cover up to $2,000 to pay off second liens when determining eligibility for a deed in lieu. If the title is clear, then the loan servicer will arrange for a brokers price opinion (BPO), which will determine the fair market value of the property.
Once the bank agrees to accept the deed in lieu, the borrower will be required to sign a grant deed in lieu of foreclosure, which is the document that transfers ownership of the property to the bank, and an estoppel affidavit. The estoppel affidavit sets out the terms of the agreement between the bank and the borrower and will include a provision that the borrower acted freely and voluntarily, not under coercion or duress. It may also include provisions addressing whether the transaction is in full satisfaction of the debt or whether the bank has the right to seek a deficiency judgment.
Deficiency Judgments Following a Deed in Lieu of Foreclosure
A deed in lieu is generally considered to be in full satisfaction of the mortgage debt and, as such, there can be no action for a deficiency judgment since there is no deficiency. So, with most deeds in lieu, the bank can’t obtain a deficiency judgment for the difference between the property’s fair market value and the debt. However, if the bank wants to preserve its right to seek a deficiency judgment, in most jurisdictions the bank can do so by explicitly and clearly negotiating that a balance remains after the deed in lieu. The bank would need to specify the amount of the deficiency and include this amount in the deed in lieu documents or in a separate agreement.
See Deficiency Judgments for more information.
Whether or not the bank can pursue a deficiency judgment following a deed in lieu is also dependent on state law. For example, Washington has explicit case law that states a loan holder may not obtain a deficiency judgment after a deed in lieu, even if the consideration is less than a full discharge of the debt. Thompson v. Smith, 58 Wn. App. 361 . The Washington court ruled that because the deed in lieu was effectively a nonjudicial foreclosure, the borrower was entitled to protection under Washington’s anti-deficiency laws. Additionally, certain states, such as California, have laws prohibiting a deficiency following a short sale, which could potentially be interpreted by courts as analogous to prohibiting a deficiency following a deed in lieu. Cal. Code Civ. Pro. § 580[e]. While the California statute does not technically apply to a deed in lieu, a court could potentially view this as evidence of a legislative intent to prohibit deficiency judgments following all loss mitigation transactions.
Deed-For-Lease Program Under Fannie Mae
If Fannie Mae owns the borrower’s mortgage, he or she may be eligible to participate in its Deed-for-Lease program. Under this program, a borrower who is eligible for a deed in lieu and who indicates an interest in remaining in the property as a tenant following the deed in lieu may lease it from Fannie Mae for 12 months at market rate. For more information on requirements and how to partake in the Deed-For-Lease program, go here.