Nevada has always been a non-judicial foreclosure state. If a borrower was past due, all the mortgage holder had to do was produce copies of the appropriate documents and file foreclosure notices, and within approximately 5 months the foreclosure sale took place at the county steps. There was no right of redemption for the borrower, and the new purchaser took possession immediately.
But in the wake of the robo signing scandals, the Nevada legislature passed a new amendment, AB 284, which included the requirement that an authorized representative of the current lien holder had to complete and sign an affidavit indicating they had “personal knowledge” of all previous transfers of interest in the note. Most notes are sold by the originating lender within weeks of the initial closing, and often they are sold several times during the life of the loan.
Since there is absolutely no way any authorized representative of the current lien holder would ever be able to affirm personal knowledge that each previous lien transfer was done correctly, no lien holder would ever be willing to sign the new affidavit. Because of this, foreclosure filings have almost ground to a complete halt in Nevada, active inventory on the real estate market has shrunk to less than a two month’s supply, and properties priced at less than $200k are receiving multiple offers in droves.
Past due borrowers, many of whom have been sitting comfortably in their homes for up to two years while not making any payments, celebrated the new amendment. No more new foreclosure filings meant they might be able to stay another couple of years “rent free,” right?
Well, that celebration is about to come to a screaming halt. Banks, sitting on large inventories of non-income producing assets, have started to “wise up,” and they are pursuing the judicial foreclosure process instead. A judicial foreclosure does not require signing off on the AB 284 affidavit.
This has serious ramifications for past due homeowners. A judicial foreclosure entails an actual lawsuit filed against the borrower. The filings include the entire amount of the past due note, all past due interest, and the lien holder’s attorney fees. In addition, the borrower will have to hire their own attorney to represent them in court.
Best case scenario: the borrower files bankruptcy to wipe out the debt, keeping in mind that any assets they have accrued will be used to reimburse the bankruptcy creditors. And they will still have to pay attorney fees for the both the court case and the bankruptcy out of pocket. And with both a foreclosure and a bankruptcy on their credit, it will be a long number of years before they will be able to qualify for home ownership again.
A much better alternative for the homeowner AND the bank is a short sale. Benefits for the borrower: in almost 99% of short sales any loan deficiencies are “forgiven” and in a few years the borrower can re-establish their credit and purchase another home. (In some cases owner occupants can even receive a credit from the short sale proceeds for moving expenses.) Benefits for the banks: a judicial foreclosure means the borrower has a one year right of redemption. So the banks would have to rent out and maintain the property for at least a year before putting it up for sale to recoup some of their losses. A short sale is less costly and gets the asset off their books much more quickly.
So, Las Vegas homeowners, unless the sheriff is already at the door changing the locks, call us immediately to find out about listing your home as a short sale. The banks WANT to accommodate short sales now. They will still make you jump through paperwork hoops to get an approval, but their ultimate goal is to make it happen. As long as you have a little bit of patience for the process, you will soon be able to put this house behind you and start fresh again.
Team Leader, The Tonnesen Team
Berkshire Hathaway HomeServices, Nevada
3185 St Rose Pkwy #100 Henderson, NV 89052
With over 30 years of experience helping families call Las Vegas "home!"
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