BILL ANALYSIS Ó SENATE JUDICIARY COMMITTEE Senator Noreen Evans, Chair 2011-2012 Regular Session SB 458 (Corbett) As Amended April 4, 2011 Hearing Date: April 12, 2011 Fiscal: No Urgency: Yes BCP:rm SUBJECT Mortgages: Deficiency Judgments DESCRIPTION Existing law prohibits a lender from receiving a judgment for a deficiency after a short sale on a first mortgage or deed of trust, as specified. This bill would expand that anti-deficiency protection for all mortgages or deeds of trust, provided that the holder of the mortgage or deed of trust consents to the short sale. This bill would also restate the above prohibition to clarify that the provisions do not impact multiple collateral loans. BACKGROUND California, as well as the nation, is facing an unprecedented threat to the economy and housing market due to the high number of foreclosures occurring throughout the state. While the initial increase in foreclosures was confined to borrowers with risky sub-prime mortgages, the subsequent economic downturn has spread defaults and foreclosures to all types of loans and borrowers. Those defaults and foreclosures have many causes, including loss of employment, decreased income due to furloughs, and increases in payment amounts for certain types of mortgages. Some borrowers who are unable to make their loan payments and unable to get an affordable loan modification may attempt to sell their home as an alternative to going through foreclosure. As a result of a significant decline in housing values, borrowers who owe more on their home than their house is worth (more) SB 458 (Corbett) Page 2 of ? must attempt a "short sale" if they want to sell their home. (A short sale is a real estate transaction in which a lender permits a borrower to sell their home for less than is owed on the mortgage.) While the lender receives less than the full value of the loan in a short sale, the lender avoids the costs of both the foreclosure and resulting expenses if the property ends up becoming bank-owned after foreclosure. Short sales are becoming increasingly popular - up from a few thousand in 2008 to approximately 110,000 in California in 2010. Although borrowers may be under the impression that after a short sale there is no additional liability for the unpaid balance of their loan, some lenders are requiring borrowers to agree that the lender can pursue them for the difference between the sale price of their home and the unpaid balance. In response to concerns about this practice and that borrowers could have greater liability after a short sale than after a foreclosure, SB 931 (Ducheny, Chapter 701, Statutes of 2010) prohibited a lender from receiving a judgment for any deficiency as to the first mortgage or deed of trust following a short sale. Since SB 931 only applied to first mortgages, those homeowners with more than one mortgage (typically a first and a second) could still be liable to a junior noteholder after the short sale. To address that issue, this bill would apply the protections of SB 931 to all mortgages, thus, providing full liability protection for homeowners who receive approval for the short sale. The bill would also rewrite a portion of the language of SB 931 in order to clarify that its protections do not apply to multiple collateral loans. CHANGES TO EXISTING LAW Existing law provides for procedures by which a money judgment (a "deficiency judgment") can be sought for the balance due on an obligation for the payment of which a deed of trust or mortgage was given as security. A court may render judgment for not more than the amount by which the entire amount of indebtedness due at the time of sale exceeded the fair market value of the real property or interest therein sold at the time of sale, with interest from the date of sale, as specified. (Code Civ. Proc. Sec. 580a.) Existing law prohibits a deficiency judgment after the sale of real property under a deed of trust or mortgage on a dwelling for not more than four families. That provision applies to SB 458 (Corbett) Page 3 of ? loans that were used to pay all or a part of the purchase price of the dwelling that was occupied by the purchaser. (Code Civ. Proc. Sec. 580b.) Existing law prohibits a deficiency judgment on a note secured by a deed of trust or mortgage in any case in which the property has been sold by the mortgagee or trustee (lender) under a power of sale contained in the mortgage or deed of trust. (Code of Civ. Proc. Sec. 580d.) Existing law prohibits a deficiency judgment on a note secured by a first deed of trust or first mortgage on a dwelling of not more than four units where the dwelling is sold for less than the remaining amount of indebtedness due at the time of sale with the written consent of the hold of the first deed of trust or mortgage. Written consent of the holder obligates that holder to accept sale proceeds as full payment and to fully discharge the remaining amount of indebtedness. (Code Civ. Proc. Sec. 580e(a).) Existing law provides that if the mortgagee commits fraud with respect to the sale, or waste with respect to the real property, the above provision shall not limit the ability of the holder of the first deed of trust or mortgage to seek damages and use existing rights and remedies. (Code Civ. Proc. Sec. 580e(b).) Existing law provides that the above protections do not apply if the trustor or mortgagor is a corporation or political subdivision of the state. (Code Civ. Proc. Sec. 580e(c).) This bill would revise the above provisions by striking reference to "first," thereby applying the protections to all of the mortgages or deeds of trust secured by the property. This bill would revise the above language to clarify that following the voluntary transfer of title, the rights, remedies and obligations of specified parties shall be treated and determined as though the dwelling had been sold through foreclosure under a power of sale contained in the deed of trust or mortgage for a price equal to the sale proceeds, as specified. This bill would additionally state that the section shall not apply if the trustor or mortgagor is a limited liability company, limited partnership. The section would also not apply to any deed of trust, mortgage, or other lien given to secure the payment of bonds or other evidence of indebtedness SB 458 (Corbett) Page 4 of ? authorized or permitted to be issued by the Commissioner of Corporations, or which is made by a public utility subject to the Public Utilities Act. This bill would provide that any waiver of the anti-deficiency provisions in the bill by a covered person shall be void and against public policy. COMMENT 1. Stated need for the bill According to the author: As the economic crisis continues to impact Californians, short sales offer an opportunity for a homeowner to avoid foreclosure. However, current law only affords "anti-deficiency" protection for the first note or first deed of trust in the event of a short sale. Current law does not extend this anti-deficiency protection for junior notes when a short sale occurs (i.e. second mortgages)? SB 458 (Corbett) builds upon the protections laid out in Section 580(e) of the Code of Civil Procedure by protecting homeowners from deficiency judgments in all loans on a home, not simply the first note. The California Association of Realtors, co-sponsor, further notes that "SB 458 will bring together the desired clarification of last session's bill Ýregarding multiple collateral loans] which is currently found in SB 412, Vargas, and adds additional protections against post-short sale deficiency liability to junior note holders (seconds) when those lenders approve a short sale. It is important to note that the short sale process remains voluntary on every participant's part - only lenders that actually agree to the sale will be affected, and sellers that cannot put together an acceptable sale may still go to foreclosure or even bankruptcy." 2. Applying anti-deficiency short sale protection to all mortgages Under existing law, borrowers who lose their home in foreclosure receive "anti-deficiency" protection under several different statutes. Those statutes generally prevent a judgment for the deficiency on the note that has been foreclosed upon, and for SB 458 (Corbett) Page 5 of ? purchase money (nonrecourse) loans that have not been refinanced. (See Code Civ. Proc. Sec. 580b, 580d.) As a result of those statutes, concerns were expressed that borrowers whose homes are sold in foreclosure would receive greater protection from deficiency judgments than if they were to proceed with a short sale - most notably from Code of Civil Procedure (CCP) Section 580d which precludes a deficiency judgment on the foreclosed loan (generally the first mortgage or deed of trust). SB 931 addressed that issue by protecting the owner from a deficiency judgment on their first mortgage or deed of trust, a step that made short sales arguably equivalent to the protection provided in non-judicial foreclosures. From a practical standpoint, limiting the scope of that bill to only first mortgages had the effect of leaving homeowners with more than one mortgage (commonly a first and a second) with potential liability after the short sale. This Committee's analysis for SB 931 noted: Since many borrowers do have a first and a second mortgage (and potentially a HELOCÝ(home equity line of credit)]) - the limitation of the bill's anti-deficiency protection to first mortgages or deeds of trust would not relieve all borrowers of all future liability after short sale. If not precluded by the short sale contract or other existing anti-deficiency statutes, those other lenders may be able to pursue the borrower for any deficiency that may exist with regards to their additional loans. Despite that potential liability, which may come as a surprise to an unsavvy borrower, ÝSB 931] does serve the goal of ensuring that borrowers are no worse off when choosing a short sale over foreclosure. From a public policy standpoint, it is favorable to have a home sold to a new owner who will upkeep the property as opposed to potentially reverting back to the lender at a foreclosure sale. By removing the language limiting application to first mortgages, this bill would provide complete liability protection for owners who successfully complete a short sale. That protection could, in turn, encourage some owners to proceed with short sales who may have been hesitant to do so out of concern about liability to junior lienholders. From a policy standpoint, encouraging short sales would be beneficial to the owners of the property (a short sale is perceived as less damaging to one's credit than a foreclosure), financial institutions (who do not incur expenses associated with selling SB 458 (Corbett) Page 6 of ? the property if it goes back to them after a foreclosure sale), and the surrounding community where neighboring homeowners benefit from having an actual person buy the property as opposed to it being sold at foreclosure and remaining vacant for months as the financial institution attempts to sell the property. Staff notes that the proposed language would apply the deficiency judgment protection only after the holders of all the mortgages or deeds of trust have agreed to the short sale. The bill is silent on whether a holder can require some sort of out-of-pocket payment from the homeowner in exchange for his or her agreement to the short sale. For example, while the holder of a second mortgage would be unable to go after a former owner for a deficiency as the result of a short sale, that financial institution could arguably demand that the homeowner pay $10,000 (outside of the sale proceeds) in exchange for their agreement to the sale. It should be noted that concealing additional payments from a senior lender may constitute mortgage fraud under federal law (18 U.S.C. 1014), and that omitting any charges paid at settlement by either a buyer or seller from the HUD-1 Statement could also violate Real Estate Settlement Procedure Act. If the Committee elects to address the above situation, the following amendment would clarify that a holder of a deed of trust or mortgage shall not receive any compensation from the homeowner, aside from any proceeds of the sale, in exchange for the holder's written consent to the short sale. That amendment would still allow lienholders to negotiate regarding compensation for consenting to the short sale - for example, a junior lienholder may want some portion of the sale proceeds received by the senior lienholder in exchange for consenting to the sale, or the senior lienholder may opt to pay an additional amount to the junior lien holder to allow the sale to proceed. On page 3, line 9, after the period, insert: A holder of a deed of trust or mortgage shall not require the trustor or mortgagor to provide any compensation, aside from any proceeds of the sale, in exchange for that written consent. 3. Clarifying amendments contained in SB 458 Existing Code of Civil Procedure Section 580e, enacted by SB 931, provides that the written consent of the holder of the SB 458 (Corbett) Page 7 of ? first deed of trust or mortgage to a short sale obligates the holder to accept the sale proceeds as full payment and to fully discharge the remaining amount of indebtedness. Although the provisions of SB 931 were limited to residential properties with one to four units, concerns have arisen that the provision requiring a full discharge of indebtedness could have the unintended effect of impacting the ability to collect on other properties in a multiple collateral business loan where a residence is included as one of the encumbered properties. To address that issue, this bill includes clarifying language that would replace the "fully discharge" language with alternative language treating the deficiency as though the property were sold through foreclosure. The following example illustrates the issue: A commercial lender may require a borrower to provide multiple items of collateral to secure a business-purpose loan. Some of the collateral securing the loan may be residential real estate, and, pursuant to the language of SB 931, if the lender agrees to a short sale with regards to that residential property, the lender may technically be required to "fully discharge" the remaining amount of indebtedness. The potential result of that interpretation of SB 931 is that a commercial lender may seek to foreclose on the borrower instead of agreeing to a short sale out of concern that they may lose their ability to collect on the remaining amount of the multi-collateral loan. Staff further notes that the clarification is consistent with the letter to the Senate Daily Journal by Senator Ducheny on October 8, 2010. That letter, sent in response to a request from the California Bankers Association, stated: Senate Bill 931 is meant to apply to loan transactions with individuals and is therefore not intended to apply to commercial loan transactions with legal entities which were not created as part of an individual's estate planning. As such, the bill is not intended to apply to residential subdivision loans and other commercial loans to legal entities where a single note is secured by multiple collateral, such as multiple residential 1-4 unit properties, or a residential 1-4 unit property and a commercial property, or a residential 1-4 unit property and a parcel of vacant land. As such, the bill is not intended to extinguish that portion of the debt obligation that is secured by another residential, commercial, or vacant land property, or other personal property related to or used in SB 458 (Corbett) Page 8 of ? connection with the property. Although not objecting to the clarification regarding multiple collateral loans, the Center for Responsible Lending (CRL) and Housing and Economic Rights Advocates (HERA) have expressed concern about the removal of the language requiring a full discharge because it could arguably permit collection efforts to be made even where no deficiency judgment is available. CRL and HERA further state: Under California's related anti-deficiency statutes such as Cal. Civ. Pro. Code § 580b, mortgage servicers, collection agencies and debt buyers are currently using abusive tactics to collect deficiency debt from borrowers even where the borrower is not legally obligated to pay. Debt collectors have repeatedly argued that the language prohibiting deficiency "judgments" in other anti-deficiency statutes means only that a debt collector is prevented from getting a court judgment against a borrower. It does not, they argue, prevent a debt collector from using other means to bully former homeowners into paying a debt for which there is no legal recourse. The prior language of § 580e specifically prevented these abusive practices by clarifying that debts covered by the statute were not simply barred from deficiency judgments, but were completely eliminated. Currently, any collection efforts on this discharged debt would be prohibited under state and federal law. As we have seen with debts subject to § 580b containing parallel language, the proposed amendment to § 580e(a) would widely expose consumers to improper collection efforts on the remaining debt following a short sale. Staff notes that the CRL and HERA are working with the author and sponsors to resolve the above issue. Support : None Known Opposition : None Known HISTORY Source : California Association of Realtors; California Bankers Association SB 458 (Corbett) Page 9 of ? Related Pending Legislation : SB 412 (Vargas) is substantially similar to SB 458. This bill is current in this Committee. Prior Legislation : SB 931 (Ducheny, Chapter 701, Statutes of 2010), see Background. **************