What is a deficiency judgment?
A deficiency judgment is a judgment obtained by the lender in court against the borrower for the difference between the unpaid balance of the secured debt and the amount produced by sale or the fair market value of the security, whichever is greater, in a judicial foreclosure. (Cal. Code Civ. Proc. § 726 (b).) A lender may obtain a deficiency judgment only with a judicial foreclosure. With a trustee’s sale foreclosure, the lender cannot go after a deficiency judgment.
Can a real estate lender obtain a deficiency judgment against a defaulting borrower following foreclosure?
It depends. California has “anti-deficiency statutes” that protect certain borrowers from deficiency judgments. Under those circumstances, a lender would opt for a trustee’s sale foreclosure which is quicker and less expensive than a judicial foreclosure. A trustee’s sale foreclosure does not involve the courts. Generally, there are five situations in which a deficiency judgment is prohibited:
1) Purchase Money. If the loan is obtained to purchase a residential 1-4 unit dwelling all or part of which is owner occupied and the loan is secured by that property, the lender may not obtain a deficiency judgment against the defaulting borrower. This loan is entitled to “purchase money” protection. (Cal. Code Civ. Proc. § 580b.) Note, however, that should the buyer refinance the home, the new loan is no longer “purchase money.” Thus, the buyer would lose the protection against a deficiency judgment in the event of a default.
2) Seller Carryback. If the purchase money loan for any type of real property is financed by the seller and secured by that same property, the lender/seller may not obtain a deficiency judgment against the defaulting borrower/buyer. (Cal. Code Civ. Proc. § 580b.)
3) Trustee’s Sale. A lender may not pursue a deficiency judgment against the borrower should the lender opt to foreclose by a trustee’s sale foreclosure (a non-judicial action). (Cal. Code Civ. Proc. § 580d.)
4) 3 Month Time Limit. An action for a deficiency judgment must be brought within 3 months from the time of judicially-ordered sale. (Cal. Code Civ. Proc. § 580a.)
5) Fair Value Limitations. A deficiency judgment is limited by the difference between the amount of the indebtedness and the fair market value of the property, unless the actual sale price exceeds that value. (Cal. Code Civ. Proc. §§ 580a, 726 (b).)
When a deficiency judgment is permitted, the lender may obtain one only following a judicial foreclosure, or when the security has become valueless (such as when security for a second trust deed loan is wiped out when the first trust deed lender completes its foreclosure). Holders of a junior deed of trust (second, third, etc.) should note that if the “wiped-out” junior lien is not purchase money or seller carryback, then the junior lien holder may sue on the note and the borrower on the junior loan may be personally liable. (Roseleaf Corp. v. Chierighino, 59 Cal. 2d 35 (1963).)
Can a lender avoid the foreclosure process and just sue the borrower on the note (i.e., treat it as an unsecured note)?
No. A lender cannot sue on a debt secured by a mortgage or trust deed except for a judicial foreclosure. This is called the “one action rule” or “one form of action rule.” (Cal. Code Civ. Proc. § 726.) One exception to this rule is if the security for the loan has become “valueless” after the lender’s security interest was recorded (e.g., a “wiped out” junior lien holder). In this case, the lender can sue directly on the debt (note) unless the borrower’s loan is a purchase money loan or a part of a seller-carryback.
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