As discussed in previous posts, strategic default is an intentional decision by a borrower to stop making their mortgage payment. What’s interesting with a strategic default is-the borrower can usually afford to make their payment but strategically choose not to because they believe it’s better for their finances. Strategic default usually happens when there is a substantial difference between what is owed on the home and what it’s actually worth, commonly known as being “underwater”.
The process that is Strategic Default is not thought of kindly because of the effect it has and continues to have on our and many other housing markets.
In an effort to stop (or at least get some to think again) Fannie Mae announced policy changes on Wednesday 6/23/10 designed to encourage borrowers to work with their lenders/servicers and explore alternatives to foreclosure. Under these changes, defaulting borrowers who walk away from their homes that had the capacity/ability to pay or did not complete a workout alternative in good faith will be ineligible for a new Fannie Mae-backed mortgage loan for a period of seven years from the day of foreclosure. In addition, Fannie Mae said it “will take legal action to recoup the outstanding mortgage debt from borrowers who strategically default on their loans in jurisdictions that allow for deficiency judgments.” According to DSNEWS.com, an announcement is expected next month, where the company said it will be instructing its servicers to monitor delinquent loans facing foreclosure and put forth recommendations for cases that warrant the pursuit of deficiency judgments.
“We’re taking these steps to highlight the importance of working with your servicer,” said Terence Edwards, executive vice president for credit portfolio management. “Walking away from a mortgage is bad for borrowers and bad for communities, and our approach is meant to deter the disturbing trend toward strategic defaulting.”
Conversely, Edwards said borrowers facing hardship who make a good faith effort to resolve their situation with their servicer will preserve the option to be considered for a future Fannie Mae loan in a shorter period of time.
According to Fannie Mae, troubled borrowers who work with their servicers and provide information to help the servicer assess their situation can be considered for foreclosure alternatives, such as a loan modification, a short sale, or a deed-in-lieu of foreclosure. Fannie Mae said borrowers with extenuating circumstances (attempt to lessen the magnitude or seriousness of) who work out one of these options with their servicer could be eligible for a new mortgage loan in three years and in as little as two years depending on the circumstances.
So, what does this mean to anyone “underwater” considering a Strategic Default? Well, that remains to be seen. There are arguments that Arizona is an anti-deficiency state-preventing lenders from pursuing a deficiency judgment.
A deficiency judgment is a judgment lien against a debtor, defendant or borrower whose foreclosure sale did not produce sufficient funds to pay the mortgage in full. This option may or may not be available to the lender, depending on whether they have made a recourse or non recourse loan.
So, what should you do?
Although many are considering a strategic default here in Arizona, before executing one you might consider talking to a Real Estate Attorney to discuss your loans and whether deficiency protection applies. You may find that a short sale would be a better option for you.
As a marketing representative for a national title insurance company, I work with some of the best and brightest Real Estate Attorneys and Realtors in the Phoenix Metro area. Please feel free to contact me for a referral to a local Attorney or short sale Realtor to guide you through the process.
















