I own a three-family house. My family and I live on the top floor and rent out the main floor and the basement. We’re behind on the mortgage, since one of the other tenants moved out and one tenant isn’t enough to pay the bills. The bank’s collections department is telling us that they’re going to take the house and sue us for any unpaid amounts owing on the mortgage, but I thought they couldn’t do that if we lived in the home?





Answer: (1)
That’s right: the occupancy requirements in foreclosures shield resident homeowners from what’s known as “deficiency judgments,” or having to pay the bank any unpaid balance left over after the home is foreclosed upon and sold at auction.
Foreclosure laws vary by state; fortunately, you live in one of the states that is more protective of homeowners. The California Code of Civil Procedure, Section 580, says that “No deficiency judgment shall lie . . . under a . . . mortgage on a dwelling for not more than four families given to a lender to secure repayment of a loan which was in fact used to pay all or part of the purchase price of that dwelling occupied, entirely or in part, by the purchaser.”
Since you have a three-unit dwelling and you, the purchaser, live there, assuming you used the mortgage to purchase the home, the bank cannot come after you for any additional balance owed on the mortgage. The bank can foreclose on your home; but the most you can lose—and I recognize it’s still a lot—is the home itself.
Foreclosure law can be complex, and today especially—with all the concerns about innocent people being caught up by economic forces beyond their control—there are a number of laws, rules, and programs designed to help underwater homeowners and homeowners being foreclosed upon. It is important to consult with an attorney, familiar with your state’s laws, who can evaluate the totality of your situation and see what rights and assistance are available to you.
Posted by Steven Sweig on 22 Apr 2010