By Gary M. Singer
QUESTION: I completed a short sale on my home, and the agreement didn’t address whether I still was on the hook for the forgiven debt. I was just served with a lawsuit from a mortgage insurance company that wants me to pay the deficiency. What’s going on?
ANSWER: I’m seeing more of these lawsuits. A common misconception about private mortgage insurance is that it protects the borrower. In reality, while the borrower pays for this insurance, it actually is designed to protect your lender if you default on the mortgage. Not all loans have PMI. But if yours does, and you complete a short sale or lose the home in foreclosure, your lender can make an insurance claim with the PMI company. The company then can stand in your lender’s shoes to try and collect the money back from you, a legal concept known as “subrogation.“
The theory is that because your actions resulted in the insurer having to pay the claim, the company can seek repayment from you. You can respond to this lawsuit by making the company prove it has the right to collect the deficiency, just as you would make the lender prove it has the right to foreclose.
You may be able to settle with the insurer for less than the full amount you owe. Of course, if the deficiency had been previously waived by your lender in the short sale or foreclosure, you don’t have to worry about any of this. That’s why it’s so important to make sure the lender forgives the debt.
Gary M. Singer is a Florida attorney and board-certified as an expert in real estate law by the Florida Bar. He is the chairperson of the Real Estate Section of the Broward County Bar Association and is an adjunct professor for the Nova Southeastern University Paralegal Studies program. Send him questions online at http://sunsent.nl/mR20t7 or follow him on Twitter GarySingerLaw.
The information and materials in this column are provided for general informational purposes only and are not intended to be legal advice. No attorney-client relationship is formed. Nothing in this column is intended to substitute for the advice of an attorney, especially an attorney licensed in your jurisdiction.