Q: Will I have to pay federal taxes on the money my lender loses in the short sale?

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1 Q: What is a Short Sale? Answer: In a short sale, the lender agrees to settle the debt owed on the property for less than the full amount. Settled means that the lender is writing off the debt (which is why you get a 1099 after a short sale for the amount of debt forgiven) and that they are not going to go after you for the money they lost by filing a deficiency judgment in the future. Q: How will I know if I will qualify for a short sale? Answer: Call our office and we can tell you over the phone whether you will likely qualify. We have former underwriters from major national lenders who work in our office on our short sale team. The overwhelming majority of our clients are approved for a short sale because 1) we know how to submit the short sale package in such a way that the lenders will approve them and 2) we have a tremendous amount of experience with short sales and negotiating with the lenders. Q: How will a short sale affect my credit? Answer: This is a great question as there is a lot of misinformation on the internet about this topic. A short sale is recorded on your credit report as debt settled for less than the amount owed. This typically will result in a relatively minor hit on your credit compared to a foreclosure or late payments on your mortgage. I say typically because it affects everyone s credit differently. The more established your credit, the less of an impact it will have on your score. The reason you often hear and read that a short sale will drop your credit 100 points or more, is that, many people, when they do a short sale, stop making their mortgage payments. If you stop making your mortgage payments for 4 months, regardless of whether you do a short sale or not, 4 months of missed mortgage payments will have a significant negative impact on your credit. In other words, it is the missed mortgage payments that have the big impact on your credit, not the short sale itself. With this said, if you are already behind on your payments, you have already incurred the majority of the hit that a short sale will have on your credit. Doing a successful short sale at this point will insure that your debt is settled with your lender. If you are current on your payments and can stay current throughout the short sale process, you will save your credit to a large extent. Finally, if you do stop making your mortgage payments, there are various credit repair agencies that can repair your credit by removing late payments from your credit report after a short sale. Q: Will I have to pay federal taxes on the money my lender loses in the short sale? Answer: There are several different scenarios with regard to whether or not you will owe federal income taxes on the loss the lender takes in a short sale. When you do a short sale, your lender is agreeing to settle the debt on the property for less than the amount they are owed. The IRS therefore allows them to write off this loss, which is why your lender will send you a 1099-C after the short sale.

2 The IRS considers debt relief to be income for tax purposes. In other words, if your lender writes off $50,000 on your short sale, they will send you a 1099-C for that amount, and you would include that when you file your income taxes. The C stands for Cancellation of Debt and the law says cancelled debt is taxable as income. There are however a few exceptions that most people who do a short sale qualify for that exclude them from having to pay taxes on their short sale. Thanks to the Mortgage Tax Debt Relief Act that George W. Bush signed into law in January of 2008, homeowners who do a short sale on their primary residence, and have a purchase money loan (in other words, they have not pulled cash out of their home with a cash-out refinance) pay no taxes on the loss that their lender incurs in a short sale. Homeowners who have pulled out cash from their home but have put that money back into their home to substantially improve their home, also are excluded from taxes on the short sale. All other short sale scenarios if you pulled cash out on your primary residence but spent it something other than upgrading your home or if you are doing a short sale on a second home or investment property result in a taxable event unless you qualify for the Insolvency exclusion. The IRS does not require you to pay taxes on the loss the lender takes in a short sale if, at the time of the short sale, you are insolvent. Insolvency means your debts (including your mortgage) exceed the value of all your assets. In other words, if, at the time of the short sale, you have more debt than you do money or assets, you are considered insolvent. Many people who find themselves facing a short sale are in exactly this situation and are thus excluded from paying taxes on a short sale. We recommend you check with your CPA or accountant or go to the IRS website and look up IRS Form 982, which is the IRS form for debt relief and short sales. The IRS gives an explanation of Insolvency on this form. Finally, the time period for The Mortgage Tax Debt Relief Act was originally only slated to go until the end of 2008; however it has now been extended to the end of Q: Will I have to pay CA state taxes on the money my lender loses in the short sale? Answer: California has passed its own version of the federal Mortgage Tax Debt Relief Act. It is Senate Bill 1055, which conforms to the federal law described in detail above, but applies to California state income taxes on a short sale. There are differences between the state and federal law. For example, the term of the California law was only until the end of As of Jan 2009, this law is no longer in effect. However, CA Revenue & Taxation Code Section provides that, unless there is some specific California statute to the contrary, California law tracks federal law on what income is excluded from taxation. Since there is currently no specific California law on this issue, short sales do not produce taxable income under California law as long as the Federal Mortgage Tax Debt Forgiveness Act is in effect (until the end of 2012). With this said we recommend you review your specific tax scenario with your CPA or accountant and have

3 them answer any tax questions that you have. We are not tax advisors and do not dispense tax advice. Q: Can my lender go after me for the money it loses in the short sale? Answer: The point of a short sale is to get out from under the debt of the mortgage. This is why your lender will send you a 1099-C after the short sale. The C in 1099-C stands for Cancellation of Debt. Your lender cannot write off their loss on their corporate taxes, send you a 1099-C so you have to pay taxes on the loss, report the short sale as a settled debt on your credit and then turn around and go after you for the money. If you hire and inexperienced short sale agent or negotiator who does not negotiate a full release from your lender, then, yes, you could be liable for the money the lender loses in a short sale or end up being forced to sign a promissory note to close the deal. We do not ever recommend that our clients sign a promissory note or close escrow without a full written release from their lender(s). Q: What if I have a first and a second loan on my property with 2 different lenders (or the same lender)? Answer: Most people that we do short sales for have a first and a second loan, often with 2 different lenders. For the short sale to reach a successful close of escrow, both lenders have to approve the short sale and agree to settle the debt. It is important to note that both lenders have a vested interest in doing this. The lender with the first loan does not want to foreclose, and therefore is willing to give a little money to the second in order to get them to agree to the short sale. The second lender will get nothing if the first forecloses, so with the attitude that something is better than nothing, they will agree to take a fraction of what they are owed in order to avoid getting absolutely nothing. Q: What is the difference between recourse and a non recourse loan? Answer: In general, a purchase money loan is considered to be a non recourse loan, while a cash out loan is considered to be a recourse loan. The difference between these two loans is that in a recourse loan the lender technically has recourse to go after the borrower for the money they lose in a foreclosure. I say technically because, for this to happen, the lender has to file a judicial foreclosure, which is rarely done in California. The overwhelming majority of foreclosures in California are non-judicial foreclosures, where the property is sold at a trustee sale. Q: How will I know that I am being released from the debt? Answer: It will be stated clearly on the bank s short sale approval. Your lender will state in plain English (though in different verbiage depending on the lender) that they are releasing the lien, accepting a short payoff to satisfy the lien, reporting the sale as a settled debt to the reporting agencies, issuing a full satisfaction of the mortgage, not pursuing a deficiency judgment, or some other variation that states they are settling the debt for

4 less than what they were owed. Further, your bank will issue a 1099-C to you, the borrower, after the short sale, confirming that the debt has been written off and is settled. Your lender cannot write off the debt, issue you a 1099-C & then go after you for the deficiency. Further, the loss that the lender takes in a short sale will be MUCH LESS than the loss the lender takes at the end of the foreclosure process. The foreclosure process takes months & months, at the end of which the lender has to process the property through its overwhelmed system (another 3-5 months) and then put the property back on the market, all while the market continues to drop. Finally, the impact on your credit from a short sale will be significantly less than with a foreclosure and you will be able to buy again within 2 years, compared to up to a 7 year waiting period to buy a home after a foreclosure. What are the advantages of a short sale vs. letting my home go to foreclosure? The primary advantage to doing a short sale vs. walking away and letting your home go to foreclosure is that in a short sale the debt is settled and you no longer owe the bank any money. If your home goes to foreclosure, you may still be liable for the deficiency in the event that the bank files a judicial foreclosure. A secondary (but still very important) advantage is that in a short sale, your credit takes much less of a hit compared to a foreclosure. The impact on your credit will vary depending on how established your credit is at the time of the short sale or foreclosure. Finally, Fannie Mae & Freddie Mac revised their guidelines in August of 2008 with regard to how they view borrowers who have filed bankruptcy, gone through foreclosure or done a short sale. Through these new guidelines, they are in effect severely penalizing those who go the route of foreclosure or bankruptcy, and rewarding or encouraging those who do short sales, which they view as the borrower doing the responsible thing in light of the circumstances. Per recent Fannie Mae / Freddie Mac guidelines, borrowers who file bankruptcy or go through foreclosure have to wait up to 7 years to buy another home. By contrast, the new guidelines stipulate only a 24 month waiting period after a short sale, so borrowers who do a short sale can buy again in just 2 years. Q: How much will a short sale cost me? Answer: A short sale costs the seller nothing the lender pays all closing costs, escrow fees, commissions etc. The lender may also pay any outstanding property taxes Q: How long will a short sale take? Answer: The short sale process typically takes about 4 months, start to finish. It can take longer depending on how backlogged the lender is. You can live in the property for the entire duration of the short sale or you can move out whenever you wish. Q: Do I need to be behind on my payments to do a short sale? Answer: No. This is a common misconception. You do not need to be behind on your payments or have been late on a payment to do a short sale although the lenders are more motivated to do the short sale if you are not

5 making payments. Q: Do I need to hire an attorney to do a short sale? Answer: It is our belief that you will be best represented in a short sale by a competent, experienced real estate agent who works every day in the real estate business, will market your property aggressively in order to attract buyers, and who is experienced at doing short sales and negotiating with lenders. In our view, an experienced short sale agent is one who has done at least 50 successful short sales in this downturn cycle (i.e. since 2006). If you have questions about the tax implications of a short sale, we recommend you seek the advice of a qualified CPA or tax accountant. If you want to explore filing bankruptcy, we recommend you seek the advice of a competent bankruptcy attorney. Call our office - we can recommend several. With this said a word of caution. Many attorneys seem to be preying on the fear and desperation of people facing foreclosure. Their websites use scare tactics to make people think that they would be crazy to do a short sale without first hiring an attorney that attorneys are the only ones qualified to interpret a short sale approval, and that hiring an attorney is a normal and accepted part of doing a short sale, like hiring an attorney for divorce proceedings. The bottom line is that this is just not the case. The overwhelming majority of short sales are conducted by real estate brokers who are experienced at negotiating with the lenders and charge NO UPFRONT FEES for their services. Finally, many of these attorneys do not even negotiate the short sales themselves, and instead subcontract out all of the short sale negotiations. In our opinion, these short sale negotiation companies (known in the industry as short sale mills ) are absolutely the wrong entities to entrust with the negotiation of your short sale. See the following FAQ. Q: I found an attorney's short sale website that talks about a new law in California that, as of July , supposedly limits negotiating short sales to attorneys ONLY. It says that from July 1 on, all short sales have to be negotiated by attorneys and not realtors. Is this true? Answer: No. There has been a good deal of misinformation put out of late regarding this law by attorneys looking to get into the short sale business. We recommend you be very wary of any attorney trying to distort or interpret the law for his or her advantage. The California Foreclosure Consultant Act (July ) applies to foreclosure consultants - those who collect an advance fee for modifying loans or helping borrowers avoid foreclosure in situations where a Notice of Default has been filed on the property. This Act has an exclusion in it for licensed real estate agents. Per CA Civic Code and the CA Assoc of Realtors, The California Foreclosure Consultant Act does not apply to real estate agents facilitating a short sale except in the extremely unusual event that an agent is 1) Making a direct loan for a residence in foreclosure, 2) Acquiring an interest in a residence in foreclosure, 3) Receiving an advance fee before performing services for a residence in foreclosure, or 4) Assisting an owner in obtaining the remaining proceeds if any from a foreclosure sale of an owner's residence. That's it. 99% of the short sales in CA have always been, and continue to be, negotiated and completed by licensed Realtors, not attorneys.

6 Q: Should I file bankruptcy? Will it allow me to keep my home? I ve heard the lender cannot foreclose if I file bankruptcy. Answer: There are 2 types of bankruptcy commonly used by individuals Chapter 7 ( Fresh Start ) and Chapter 13 ( Wage Earner ). Chapter 7 can enable individual filers to wipe away debts such as credit card and medical bills so they can continue to make their mortgage payments. Chapter 13 involves setting up a 3-5 year repayment plan to repay your debts. Chapter 13 requires that you are earning a steady income, as you will be repaying all of your debt. Both have a very negative impact on your credit and remain on your credit report for 10 years. Because of the new 2005 bankruptcy law, which raised the bar for people to qualify for Chapter 7 "fresh start" bankruptcy proceedings, fewer and fewer people pass the means test to qualify for Chapter 7 and for this reason can only qualify for Chapter 13 bankruptcy (a 3-5 year repayment plan). While both Chapter 7 and Chapter 13 can temporarily delay foreclosure proceedings, neither will allow you to keep your home unless you can bring your mortgage current. If you would like more information on whether a bankruptcy is right for you, we recommend you consult a competent bankruptcy attorney, as we are not attorneys and do not dispense legal advice. Call our office we can recommend several. Q: Who will be negotiating my short sale with the bank? Answer: Our short sale team consists of 3 professionals who are experienced, dedicated, group who negotiate and close short sales every day. Pacifica Properties has years of experience negotiating and closing short sales. Real estate agents & bankruptcy attorneys are solicited on a daily basis by the many short sale negotiation companies that have sprung up on the web over the past couple of years. For the agents or attorneys that use these companies, it s a very attractive set up: they just take the listing and refer the file out to the negotiation company, and wait to see what happens. The agent has invested almost no time or effort into the deal, so if it closes, great, they pay a referral fee to the negotiator and keep the rest of the commission. If the negotiator tells them they couldn t get an approval, or that the bank wants an unreasonable amount of money for the property, or the bank wants the seller to sign a promissory note, well, the agent has invested almost no time or money into the deal, so who s next? Q: Can any agent do a short sale? Answer: Absolutely not. Many agents have no interest in doing short sales because they require a tremendous amount of time and expertise, and if you do not know what you are doing, they often go to foreclosure and then the agent does not get paid. If an agent is not extremely experienced at doing short sales in other words they have done at least 50 of them successfully in the past 2 years then I would not use them. Lest you think I am simply trying to toot my own horn, this site gets visitors from all over the country. In every market, there are agents who specialize in short sales and have a team of staff members assembled to work on them, and then there are agents who are inexperienced at short sales and just recently started trying to do them, learning as they go, because they ve realized they have no choice due to the state of current market. You get one shot at doing a short sale if your agent does not know what they are doing and has not learned the many tricks to the trade, you will likely find yourself being asked to sign a promissory note or worse, be denied by your lender or lenders and go to foreclosure.

7 In other words, let the inexperienced agents and/or attorneys learn the short sale process on someone else s property as the saying goes, don t allow yourself to be one of the surgeon s first patients. Answer: To put it bluntly, because, 1) I believe we will do the most effective job marketing your property (remember, we have to generate offers from qualified buyers & sell your property) and 2) I believe that we are the most experienced and the most effective short sale negotiators in San Diego and South Riverside County. I have assembled a team staff of experienced, dedicated, professional employees who negotiate and close short sales every day. We know how to negotiate short sales so that our clients do not sign promissory notes, are given a full release from the lender and walk away with an approval that states that the debt is satisfied and settled. Finally, I Rico Alexander consults with each and every one of our sellers, price & monitor each listing and am involved in the negotiation of every offer. I have sold many homes over the past several years San Diego or South Riverside County, and our team has negotiated numerous short sales in the past 12 months alone. If I were looking for someone to sell my home in a short sale, this is what I would be looking for.

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