Arizona Deficiency Judgments
Arizona’s anti-deficiency statue goes into effect September 30, 2009. The Federal Law prohibits lenders from recovering assets against borrowers, such as autos and bank accounts, after the lender forecloses on the borrower’s property. There are key requirements that apply, to fall under this new statue.
The law which takes effect September 30, 2009 prevents a bank from going after the borrowers assets, such as cars and bank accounts once the home is foreclosed upon. The statue addresses two major factors, the type of owner-occupancy and the type of loan. Based on these two type will determine if the law applies.
If the property is completed and is held as an investment and only used occasionally, this would qualify under the anti deficiency statue and the homeowner would not be liable for any deficiency arising out of a trustee sale. Once the trustee sale is complete, the deed of trust does not allow the bank to look for other assets to satisfy the remaining debt.
The law addresses two types of loans: “recourse” and non-recourse”. A bank or lender has “recourse” if the homeowner is liable for the entire amount due on all liens after the homes is foreclosed upon. That means the banks or lenders can aggressively pursue the homeowner for the unpaid debts through a judgment or lawsuit.
A “non-recourse” loan means the lender cannot pursue a deficiency against the borrower or homeowner. The only recourse the lender has is to repossess the property.
Typically, a first position “purchase money” loan is a non-recourse loan. In English, this means the loan on the home was originated at the time the home was purchased and the property was secured by a deed of trust.
Some types of “recourse” liens or loans might be a Home Equity line of credit. Possibly a second position loan when the borrower received a loan for a pool. Usually second position loans use your home as collateral and were applied for by the borrower after they first purchased the home. They closed escrow originally and then at a later date borrowed money for home improvements, vacations, etc. The bank or lender then has “recourse” to pursue the homeowner for the unpaid lien through a judgment or lawsuit.
A good analogy of a “recourse” loan would be a line of credit from the bank. The bank loaned the homeowner money and used their home as collateral. This loan was acquired AFTER a Deed of Trust was initially established. Therefore the bank could pursue a judgment or lawsuit against the homeowner. One of the main reasons this law was re-addressed after being in effect since 1990, was the 2nd mortgages that were being borrowed by the homeowners and the today’s market value on a home is substantially less than what is owned of the 1st mortgage, meaning the 2nd is not getting a dime in return.
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