Nevada Mortgage Laws About Deficiency Judgment

In this session, we are going to discuss in somewhat greater details the Nevada Mortgage Laws and how to handle the looming foreclosure crisis which has made state of Nevada in the highest ranks in USA. Once we are educated in these laws, our next step should be how to fight and fight back vehemently because banks are not changing their ways and tactics. An educated borrower is the best defense against foreclosure and its aftermath.

NRS 40.430 Action for recovery of debt secured by mortgage or other lien; “action” defined.
Nevada has only One Action Law for the recovery of any debt, or for the enforcement of any right secured by a mortgage or other lien upon real estate. That action must be in accordance with the provisions of NRS 40.430 to 40.459, inclusive. In that action, the judgment must be rendered for the amount found due the plaintiff, and the court, by its decree or judgment, may direct a sale of the encumbered property, or such part thereof as is necessary, and apply the proceeds of the sale as provided in NRS 40.462.

What is One Action Rule of Nevada?
This section must be construed to permit a secured creditor to realize upon the collateral for a debt or other obligation agreed upon by the debtor and creditor when the debt or other obligation was incurred. A sale directed by the court pursuant to subsection 1 must be conducted in the same manner as the sale of real property upon execution, by the sheriff of the county in which the encumbered land is situated, and if the encumbered land is situated in two or more counties, the court shall direct the sheriff of one of the counties to conduct the sale with like proceedings and effect as if the whole of the encumbered land were situated in that county.

What this One Action Rule Does Not Include?
(a) To appoint a receiver for, or obtain possession of, any real or personal collateral for the debt or as provided in NRS 32.015.(b) To enforce a security interest in, or the assignment of, any rents, issues, profits or other income of any real or personal property.
(c) To enforce a mortgage or other lien upon any real or personal collateral located outside of the State which does not, except as required under the laws of that jurisdiction, result in a personal judgment against the debtor.
(d) For the recovery of damages arising from the commission of a tort, including a recovery under NRS 40.750, or the recovery of any declaratory or equitable relief.
(e) For the exercise of a power of sale pursuant to NRS 107.080.
(f) For the exercise of any right or remedy authorized by chapter 104 of NRS or by the Uniform Commercial Code as enacted in any other state.
(g) For the exercise of any right to set off, or to enforce a pledge in, a deposit account pursuant to a written agreement or pledge.
(h) To draw under a letter of credit.
(i) To enforce an agreement with a surety or guarantor if enforcement of the mortgage or other lien has been automatically stayed pursuant to 11 U.S.C. § 362 or pursuant to an order of a federal bankruptcy court under any other provision of the United States Bankruptcy Code for not less than 120 days following the mailing of notice to the surety or guarantor pursuant to subsection 1 of NRS 107.095.
(j) To collect any debt, or enforce any right, secured by a mortgage or other lien on real property if the property has been sold to a person other than the creditor to satisfy, in whole or in part, a debt or other right secured by a senior mortgage or other senior lien on the property.
(k) Relating to any proceeding in bankruptcy, including the filing of a proof of claim, seeking relief from an automatic stay and any other action to determine the amount or validity of a debt.
(l) For filing a claim pursuant to chapter 147 of NRS or to enforce such a claim which has been disallowed.
(m) Which does not include the collection of the debt or realization of the collateral securing the debt.
(n) Pursuant to NRS 40.507 or 40.508.
(o) Which is exempted from the provisions of this section by specific statute.
(p) To recover costs of suit, costs and expenses of sale, attorneys’ fees and other incidental relief in connection with any action authorized by this subsection.

How Mortgage is Defined Under Nevada Laws?
NRS 40.433 “Mortgage or other lien” defined. A “mortgage or other lien” includes a deed of trust, but does not include a lien which arises pursuant to chapter 108 of NRS, pursuant to an assessment under chapter 116, 117, 119A or 278A of NRS or pursuant to a judgment or decree of any court of competent jurisdiction.

The Judicial Proceedings Are An Affirmative Defense
1. The commencement of or participation in a judicial proceeding in violation of NRS 40.430 does not forfeit any of the rights of a secured creditor in any real or personal collateral, or impair the ability of the creditor to realize upon any real or personal collateral, if the judicial proceeding is:
(a) Stayed or dismissed before entry of a final judgment; or
(b) Converted into an action which does not violate NRS 40.430.
2. If the provisions of NRS 40.430 are timely interposed as an affirmative defense in such a judicial preceding, upon the motion of any party to the proceeding the court shall:
(a) Dismiss the preceding without prejudice; or
(b) Grant a continuance and order the amendment of the pleadings to convert the proceeding into an action which does not violate NRS 40.430.
3. The failure to interpose, before the entry of a final judgment, the provisions of NRS 40.430 as an affirmative defense in such a proceeding waives the defense in that proceeding. Such a failure does not affect the validity of the final judgment, but entry of the final judgment releases and discharges the mortgage or other lien.
4. As used in this section, “final judgment” means a judgment which imposes personal liability on the debtor for the payment of money and which may be appealed under the Nevada Rules of Appellate Procedure.

How Surplus Money is Distributed?
NRS 40.440 Disposition of surplus money. If there is surplus money remaining after payment of the amount due on the mortgage or other lien, with costs, the court may cause the same to be paid to the person entitled to it pursuant to NRS 40.462, and in the meantime may direct it to be deposited in court.

I have been asked about deficiency judgment many times. In Nevada, the time period for filing a deficiency judgment by your lender is only 6 months. Recently the Nevada legislature also reduced the time period to six months of any HELOC or second trust deed. Now, these folks cannot file any deficiency judgment if the right has been accrued more than six months. Also, if a collection agency buys any of these loans, they cannot collect more than what they paid for.However, they can file this deficiency judgment and can enforce it later against you. This is a concise summary of all of the laws of deficiency judgment. Please read carefully and seek the help of a licensed attorney before doing anything or filing any action.

What is an Indebteness?
NRS 40.451 “Indebtedness” defined. “indebtedness” means the principal balance of the obligation secured by a mortgage or other lien on real property, together with all interest accrued and unpaid prior to the time of foreclosure sale, all costs and fees of such a sale, all advances made with respect to the property by the beneficiary, and all other amounts secured by the mortgage or other lien on the real property in favor of the person seeking the deficiency judgment. Such amount constituting a lien is limited to the amount of the consideration paid by the lienholder.

NRS 40.453 Waiver of rights in documents relating to sale of real property against public policy and unenforceable; exception. Except as otherwise provided in NRS 40.495:
1. It is hereby declared by the Legislature to be against public policy for any document relating to the sale of real property to contain any provision whereby a mortgagor or the grantor of a deed of trust or a guarantor or surety of the indebtedness secured thereby, waives any right secured to him by the laws of this state.
2. A court shall not enforce any such provision.

How Deficiency Judgment is Awarded?
NRS 40.455 Deficiency judgment: Award to judgment creditor or beneficiary of deed of trust.
1. Upon application of the judgment creditor or the beneficiary of the deed of trust within 6 months after the date of the foreclosure sale or the trustee’s sale held pursuant to NRS 107.080, respectively, and after the required hearing, the court shall award a deficiency judgment to the judgment creditor or the beneficiary of the deed of trust if it appears from the sheriff’s return or the recital of consideration in the trustee’s deed that there is a deficiency of the proceeds of the sale and a balance remaining due to the judgment creditor or the beneficiary of the deed of trust, respectively.
2. If the indebtedness is secured by more than one parcel of real property, more than one interest in the real property or more than one mortgage or deed of trust, the 6-month period begins to run after the date of the foreclosure sale or trustee’s sale of the last parcel or other interest in the real property securing the indebtedness, but in no event may the application be filed more than 2 years after the initial foreclosure sale or trustee’s sale.

What is the Procedure for a Hearing of a Deficiency Judgment in Nevada? NRS 40.457 1.

Before awarding a deficiency judgment under NRS 40.455, the court shall hold a hearing and shall take evidence presented by either party concerning the fair market value of the property sold as of the date of foreclosure sale or trustee’s sale. Notice of such hearing shall be served upon all defendants who have appeared in the action and against whom a deficiency judgment is sought, or upon their attorneys of record, at least 15 days before the date set for hearing.

2. Upon application of any party made at least 10 days before the date set for the hearing the court shall, or upon its own motion the court may, appoint an appraiser to appraise the property sold as of the date of foreclosure sale or trustee’s sale. Such appraiser shall file with the clerk his appraisal, which is admissible in evidence. The appraiser shall take an oath that he has truly, honestly and impartially appraised the property to the best of his knowledge and ability. Any appraiser so appointed may be called and examined as a witness by any party or by the court. The court shall fix a reasonable compensation for the appraiser, but his fee shall not exceed similar fees for similar services in the county where the encumbered land is situated.
NRS 40.459 Limitations on amount of money judgment. After the hearing, the court shall award a money judgment against the debtor, guarantor or surety who is personally liable for the debt. The court shall not render judgment for more than:

1. The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale; or
2. The amount which is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lesser amount.

NRS 40.462 Distribution of proceeds of foreclosure sale.
1. Except as otherwise provided by specific statute, this section governs the distribution of the proceeds of a foreclosure sale. The provisions of NRS 40.455, 40.457 and 40.459 do not affect the right to receive those proceeds, which vests at the time of the foreclosure sale. The purchase of any interest in the property at the foreclosure sale, and the subsequent disposition of the property, does not affect the right of the purchaser to the distribution of proceeds pursuant to paragraph (c) of subsection 2 of this section, or to obtain a deficiency judgment pursuant to NRS 40.455, 40.457 and 40.459.
2. The proceeds of a foreclosure sale must be distributed in the following order of priority:
(a) Payment of the reasonable expenses of taking possession, maintaining, protecting and leasing the property, the costs and fees of the foreclosure sale, including reasonable trustee’s fees, applicable taxes and the cost of title insurance and, to the extent provided in the legally enforceable terms of the mortgage or lien, any advances, reasonable attorney’s fees and other legal expenses incurred by the foreclosing creditor and the person conducting the foreclosure sale.
(b) Satisfaction of the obligation being enforced by the foreclosure sale.
(c) Satisfaction of obligations secured by any junior mortgages or liens on the property, in their order of priority.
(d) Payment of the balance of the proceeds, if any, to the debtor or his successor in interest.
 If there are conflicting claims to any portion of the proceeds, the person conducting the foreclosure sale is not required to distribute that portion of the proceeds until the validity of the conflicting claims is determined through interpleader or otherwise to his satisfaction.
3. A person who claims a right to receive the proceeds of a foreclosure sale pursuant to paragraph (c) of subsection 2 must, upon the written demand of the person conducting the foreclosure sale, provide:
(a) Proof of the obligation upon which he claims his right to the proceeds; and
(b) Proof of his interest in the mortgage or lien, unless that proof appears in the official records of a county in which the property is located.
 Such a demand is effective upon personal delivery or upon mailing by registered or certified mail, return receipt requested, to the last known address of the claimant. Failure of a claimant to provide the required proof within 15 days after the effective date of the demand waives his right to receive those proceeds.
4. As used in this section, “foreclosure sale” means the sale of real property to enforce an obligation secured by a mortgage or lien on the property, including the exercise of a trustee’s power of sale pursuant to NRS 107.080.
NRS 40.463 Agreement for assistance in recovering proceeds of foreclosure sale due to debtor or successor in interest; requirements for enforceable agreement; fee must be reasonable.
1. Except as otherwise provided in this section, a debtor or his successor in interest may enter into an agreement with a third party that provides for the third party to assist in the recovery of any balance of the proceeds of a foreclosure sale due to the debtor or his successor in interest pursuant to paragraph (d) of subsection 2 of NRS 40.462.
2. An agreement pursuant to subsection 1:
(a) Must:
(1) Be in writing;
(2) Be signed by the debtor or his successor in interest; and
(3) Contain an acknowledgment of the signature of the debtor or his successor in interest by a notary public; and
(b) May not be entered into less than 30 days after the date on which the foreclosure sale was conducted.
3. Any agreement entered into pursuant to this section that does not comply with subsection 2 is void and unenforceable.
4. Any fee charged by a third party for services provided pursuant to an agreement entered into pursuant to this section must be reasonable. A fee that exceeds $2,500, excluding attorney’s fees and costs, is presumed to be unreasonable. A court shall not enforce an obligation to pay any unreasonable fee, but may require a debtor to pay a reasonable fee that is less than the amount set forth in the agreement.
5. A third party may apply to the court for permission to charge a fee that exceeds $2,500. Any third party applying to the court pursuant to this subsection has the burden of establishing to the court that the fee is reasonable.
6. This section does not preclude a debtor or his successor in interest from contesting the reasonableness of any fee set forth in an agreement entered into pursuant to this section.
7. As used in this section:
(a) “Creditor” means a person due an obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.
(b) “Debtor” means a person, or the successor in interest of a person, who owes an obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.
(c) “Third party” means a person who is neither the debtor nor the creditor of a particular obligation being enforced by a foreclosure sale conducted pursuant to NRS 40.451 to 40.463, inclusive.


NRS 40.465 “Indebtedness” defined. As used in NRS 40.475, 40.485 and 40.495, “indebtedness” means the principal balance of the obligation, together with all accrued and unpaid interest, and those costs, fees, advances and other amounts secured by the mortgage or lien upon real property.
NRS 40.475 Remedy against mortgagor or grantor; assignment of creditor’s rights to guarantor, surety or obligor. Upon full satisfaction by a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, of the indebtedness secured by a mortgage or lien upon real property, the paying guarantor, surety or other obligor is entitled to enforce every remedy which the creditor then has against the mortgagor or grantor of the mortgage or lien upon real property, and is entitled to an assignment from the creditor of all of the rights which the creditor then has by way of security for the performance of the indebtedness.
NRS 40.485 Interest in proceeds of secured indebtedness upon partial satisfaction of indebtedness. Immediately upon partial satisfaction by a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, of the indebtedness secured by a mortgage or lien upon real property, the paying guarantor, surety or other obligor automatically, by operation of law and without further action, receives an interest in the proceeds of the indebtedness secured by the mortgage or lien to the extent of the partial satisfaction, subject only to the creditor’s prior right to recover the balance of the indebtedness owed by the mortgagor or grantor.

NRS 40.495 Waiver of rights; separate action to enforce obligation; available defenses.
1. The provisions of NRS 40.475 and 40.485 may be waived by the guarantor, surety or other obligor only after default.
2. Except as otherwise provided in subsection 4, a guarantor, surety or other obligor, other than the mortgagor or grantor of a deed of trust, may waive the provisions of NRS 40.430. If a guarantor, surety or other obligor waives the provisions of NRS 40.430, an action for the enforcement of that person’s obligation to pay, satisfy or purchase all or part of an indebtedness or obligation secured by a mortgage or lien upon real property may be maintained separately and independently from:
(a) An action on the debt;
(b) The exercise of any power of sale;
(c) Any action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby; and
(d) Any other proceeding against a mortgagor or grantor of a deed of trust.
3. If the obligee maintains an action to foreclose or otherwise enforce a mortgage or lien and the indebtedness or obligations secured thereby, the guarantor, surety or other obligor may assert any legal or equitable defenses provided pursuant to the provisions of NRS 40.451 to 40.463, inclusive.
4. The provisions of NRS 40.430 may not be waived by a guarantor, surety or other obligor if the mortgage or lien:
(a) Secures an indebtedness for which the principal balance of the obligation was never greater than $500,000;
(b) Secures an indebtedness to a seller of real property for which the obligation was originally extended to the seller for any portion of the purchase price;
(c) Is secured by real property which is used primarily for the production of farm products as of the date the mortgage or lien upon the real property is created; or
(d) Is secured by real property upon which:
(1) The owner maintains his principal residence;
(2) There is not more than one residential structure; and
(3) Not more than four families reside.


  1. I have read in several places that a deficiency judgement had to be filed in 90 days, in your article you state 6 month. Which is currently correct?

    My home went to auction on August 31st, and I’m sure it sold for less than what it was worth. I’m guessing its about 200k underwater. Does this mean the time clock started ticking on August 31st and the lender has until the end of November to file for a deficiency judgement?

    Finally, how often are deficiency judgements pursued in Nevada. I’ve read in a couple places that they only go after the debtor if they have sufficient assets to warrant the effort.

    • It is six months in Nevada for a non judicial foreclosure and one year for a judicial foreclosure. Nevada is a non judicial foreclosure state. Your lender can request deficiency judgement within 6 months. It is a simple judicial process. As to how often a deficiency judgement is pursued? I had seen in innumerable cases. Basically, there are no hard and fast rules. Your lender is swamped with all kinds of foreclosure issues, and truthfully, they are tired of spending insurmountable amount of money on these things. First, they did not get paid for many many months, then they have to pay cash for keys or take care of the empty property, or defend themselves in a foreclosure suit. Each one cost money, and banks despite having lots of moeny cannot afford it for too long. They also paid for the attorney fee, and intends to pay 3% commission to the brokers and the remainders of HOA fees and other expenses. Small banks, who are somewhere in Florida or Bahamas have done enough of that and teetring on the brinks of a disaster. There are some 400 troubled banks in USA and 89 of them are already kicket the bucket. The word foreclosure would stay in your credit report for some 8 years or so. It is very unpredictable what the lenders can do. There is no general trend in Nevada.

  2. Can the lender get a deficiency judgement after 6 months?

    For which amount lender can get a deficiency judgement?

    (A)Difference between the actual reamining mortgage and the amount house sold for?
    (B)Difference between the current market value and the amount house sold for?

    What will happen after getting a deficiency judgement?
    Can the lender come after wage garnishment in state of nevada?

  3. If the lender is a private individual and the property is a rental held in a Nevada LLC, can the lender pursue a judgement only against the assets of the LLC or can they come after the shareholders/partners in the LLC?

    • The legal reason behind incorporation is limited liability. If the judgement is against an LLC, and they have no asset, the judgement holder can “pierce the veil” of the corporation and come after the individual for satisfaction of judgement. The reasons is that the law assumes the corporation was made for deceptive purposes to avoid creditors, or it was made with less funds to avoid legal liability. This is a tricky area of law, and I advise seeking help from a qualified attorney only.

  4. I am negotiating a short sale now and while the lender has agreed to the amount, they do not want to give up their “right to pursue for a deficiency judgment.” Any suggestions of how I can negotiate with the lender to relinquish this right? Also, if they are warning of taxable consequences (1099), are they showing their “intent” to write off the debt? I had someone tell me that they must retain their right in order to be able to write off the debt and issue the 1099.

    • It is difficult to negotiate when your hands are tied. Here, the deck is stacked against you. Deficiency judgement has six months statutory period. Banks are swamped with other extra curricular work. If they forget getting this judgement against you, nothing can happen after the expiry of the statutory period

  5. As I understand it, there is a six month window if the property goes to foreclosure but that window gets extended to six years (same as a second) if that property is sold as a short sale. Is that correct?

    • The six months is the statutory period for the bank to get a deficiency judgment which is a judicial process. No deficiency judgment can be without a judicial process. Once bank or lenders gets this deficiency judgment, they have six years to enforce. However, if they don’t or unable to get this deficiency judgment within 6 months, then they are out of look for any such enforcement.

  6. My in-laws have only social security and disability income and no assets other than an old car. Are the banks still able to get a deficiency judgment when there are no assets like this? If so, would it be able to attach their incomes as stated above?

    • Social security pension is granted pursuant to federal laws and cannot be garnished because federal law supersedes state local laws. Disability income is similarly protected. Your in-laws are more than likely “judgment proof” meaning that even if someone gets judgment against them, cannot execute against them.

      • Please see my reply above. Retirement income by itself is not judgement proof. Retirement checks cannot be garnished if they belong from the federal government like social security pension. Only social security pension because of its federal status may be judgment proof. All judgments, if any, are obtained under the state laws, and federal laws prevails upon state laws under our consitution. Again, there is no laws that you are, or not judgment proof, it is your status which can be judgment proof. The opposing counsel assesses it because even if they get a judgment against you, how are they going to execute it? That is the crux of the problem. They do or should do the cost-benefit analysis of going after you. This money is akin to throwing good money after bad money. They can’t attach your federal income, and more than likely, cannot attach your pension. Again, all this hypothesis comes after they got a decree which without execution is just a piece of paper.

  7. I received the below letter from the Ocwen Ombudsman with their stance on deficiency judgments. Does this mean that they are giving up their right to pursue for the deficiency?? Sorry…legal speak to me.

    Thank you!

    The Office of the Consumer Ombudsman for Ocwen Loan Servicing, LLC (Ocwen) has received your email regarding the above referenced loan. The Consumer Ombudsman was created to provide Ocwen’s customers with a resource to assist with unresolved concerns and issues.

    If a short sale is approved and a Discount Payoff Agreement Letter is provided, Ocwen will not alter the verbiage on the Agreement. If a discounted payoff is approved, the Agreement will specifically state that upon Ocwen’s timely receipt of the entire payoff amount (stated on the Agreement) and a copy of the letter (Agreement), properly signed by each of the named Borrower(s), Ocwen will execute a release and a discharge of the Deed of Trust/Mortgage. If necessary, Ocwen will file a withdrawal in connection with any legal action it may have in process to collect this obligation. The loan will then be considered, and reported to the credit reporting agencies, as “Paid in full for less than the full balance”. A 1099-C form will be mailed to the borrower(s) for the cancellation of debt.

    Please note that any short sale offer is based on many items including the status of the loan and the guidelines by which Ocwen is servicing the loan. There is no guarantee that Ocwen will approve a short sale or offer a short sale with terms requested. The short sale offer submitted to Ocwen in the amount of $55,000.00 was not accepted by Ocwen, and a counter offer is pending. As this office has no influence in Ocwen’s decision to approve a short sale request, if you have any further questions or concerns regarding this matter, please contact Ocwen’s Home Retention Department at 1-877-596-8580.

    The Office of the Consumer Ombudsman is your advocate in ensuring that Ocwen’s servicing of the loan remains fair, reasonable and proper. If you still have unresolved issues, please feel free to contact this office at (800) 390-4656.


    The Office of the Consumer Ombudsman

  8. bank of nevada forclosed on my commercial building and come this july 25th it will be the 6 months period. they have yet to bring an law suit but i am wandering if residential and commercial have the same laws here in nevada. we had an sba second which we have successfuly negotiated but i am still wandering if the first will go after us for the near $150,000 defeciency, i was told that since it was a personal guarentee they have years to pursue me…thanks

  9. Hi, my mother owns a home in california that is about to be paid off in about two months. The home has four owners, my mother and three other relatives. she also owns a home in Nevada which is about to go into foreclosure, can they come after her home in California? Even though there are more owners? can they garnish her wages? Whats the worse that could happen????
    thank you

  10. If you are married and your husband ownes an rental property as seperate property and he cant afford it so he defaults and there is a deficiency judgement issued, am I liable? Is it possible to divorce and avoid liability for the debt?

    • It all depends on the state you are living. For instance, Nevada and California are called community states where husbands and wives are responsible for each other debts and each one’s assets can be used to pay the other’s liability. However, a real estate if acquired prior to the marriage, then it would be the exclusive responsibility of the individual spouse. Again, in many cases deficiency judgment is awarded only against the person who owns it. Some of the state is waiving deficiency judgment in case of a primary homeownership. Deficiency judgment is a legal process and you would know ahead of time who is responsible as it is started with a litigation. It is a short process though in a court of law. However, a bankruptcy wipes out deficiency judgment as it becomes an unsecured debt. It is always wise to meet and consult an attorney in these matters.

      • Interesting! I am in Nevada. So the lender may not be able to pursue me for my husbands “separate rental property” mortgage default if there was a deficiency judgement issued? Even if I have other assets? I guess they could probably pursue community property assets so it would be important to keep everything separate. We just got married. Let me know any further feedback! I love your site! Great ideas!

  11. Good Morning,

    If my loan was non recourse type can they still pursue the deficiency judgement?
    I owed a rental property in Fernley and just last week it was forecloused. The loan was the original purchase loan.

    Your answer will be greatly appreciated.

    • I don’t know what is a Non Recouse Type means? If this a rental property, it is the prerogative of your lender to come after you. The statutory time period for getting deficiency judgment is 6 months in Nevada. I have extensive material on this website for you to read. Once your lender get a judgment against you, it is good for 6 years for enforcement. A small lender is taking more time to sue compared to big lender like Wells Fargo, BOA who has teams of attorney working on a productive basis. Some attorneys files hundred of suits everyday on almost identical pattern. Yes, collections suits are filed everyday and courts are swamped with these suits. They also increase the bankrutpcy court work because each collection suit is not litigated but in turn give rise to a Chapter 7 or Chapter 13 proceedings.

  12. I have a foreclosure question. Let’s say that I find a lender willing to sell me the note and trust deed. If I have to foreclose on the property and the lender had already sent out and recorded a Notice of Default and Election to Sell, do I have to start the whole process over or can I just take over where they left off?

  13. Hello,

    I went through a divorce 12/08 and our home was too far underwater to sell. My loan is with boa. I attempted to get an assumption to remove my ex and was told I didn’t qualify with just my income and rental income from a roomate wouldn’t be considered. My roomate ended up moving out a few months later and I struggled to stay current on my payments. After months of calling the bank daily, working with naca, and reaching out to my local politicians I was finally apporved for a temp hafa mod. After making submitting my documents multiple times and making my three trial payments I was told that I needed to start the process over since naca had previously represented me. I sent an e-mail to the CEO explaining my situation and stating that I could no longer continue making payments. A few days later I received a call from the “office of the CEO” claiming to look into my file. That was in February and to this day I have never been contacted again by the bank. I am ready to relocate and move on but I’m not sure how to proceed. Any advice would be greatly appreciated.

    • Send them a reminder. Enclose a copy of the email and refer to the phone call. Unfortunately, it is a repetitive process. Banks have shortgage of qualified personeel and they gets 100,000 of phone calls, faxes etc. Each new employee takes time in traning and of course shedding his bad habits and attitude. Lot of them shows attitudes. Afterall, it is a tought job. Be persistent and keep on calling. There is no other magic I know other than persistency.

  14. I had six properties three went to foreclosure and they never pursued deficiency. Can the seconds still go after me. Also, I wish I had let the remainder go to foreclosure as I have one left but Indymac claims that it is only a HELOC but it is 900K should I just let go to foreclosure and see if they seek deficiency. No one else has.

    • There is no hard and fast rules about deficiency judgment at this time. It all depends on each bank and their mercurial attitude. They would pull out a credit report on you and see if you bought a second property from the HELOC. If you did, they may file for deficiency judgment. Again, all deficiency judgments are subject to settlement with their attorneys. Banks are swamped with other more important work and using a wait and see attitude toward second loan and HELOC. Also, they are selling these notes to collections agencies who are suing as successor-in-interests for a big profit. It is a lucrative business as most of the people settle it because basically there is no defense short of doing bankruptcy.

  15. I am working with a couple who went through a divorce and also filed bankruptcy. As soon as the bankruptcy was completed, the bank has once again resumed the foreclosure proceedings on the property. The divorced couple would now like to proceed with a short sale rather than let the property go to foreclosure and have both a bk and foreclosure on their credit. My question to you is if we negotiate the shortsale, will that somehow jeopardize anything with the bank being able to later pursue for a deficiency? Is it better to let them go to foreclosure? They really have nothing.

    • I am treating your question as a general and academic question only. Any bankruptcy filed needs to show a statement of intention i.e. surrender, reaffirm, or redeem. In Nevada, however, BK attorneys use “Other” as well and “continue to make monthly payment”. Also, when someone files BK, everything is stopped by judicial action of injunctive stay, and the lender’s attorneys files motion to take it out of the stay. Here, apparently they had done it. Now, they can freely file for foreclosure proceeding. Now, I don’t know what your BK attorny has done in this situation. You may refer question about this directly to him for better answers. If your client had gotten help from a paralega, then good luck to them. If your client needed to surrender the property and waive deficiency judgment, it should have been done through the BK petition and a competent attorney should have advised you about that. Afterall, this is called fresh start. At this time, that is all I can say

    • Bankruptcy stops all foreclosure with its global injunction. However, a latest federal guideline came recently which mandates the bank to reconsider the borrowers again if they had filed for bankruptcy. Please contact your lender and ask them that you need to file for loan modification once again with revised data. I don’t know what your attorney had indicated as to the retention of home i.e reaffirmation, surrender, or other in your statement of intention. If you had shown intent to surrender, than the deficiency judgment should be waived. Bankruptcy is the worst drerogatory thing which can happen. A bankruptcy is the worst, and now if you have foreclosure also on your credit report it would not make any worst rating that this couple already had. It is good idea to file bankruptcy first and than file divorce. After the discharge, the line of demarcation of personal property of the spouses is easy to identify and demarcate.

      • I DON’T AGREE: “It is good idea to file bankruptcy first and than (sic) file divorce.”

        First, I question whether one can file for a divorce while an automatic BK stay remains in effect.

        Second, most debts adjudicated by a divorce court (other than alimony and child support) can be “discharged” in a bankruptcy proceeding, along with all your other debts. It makes no sense to defer the adjudication of marital and separate property debts until AFTER a BK if the debts you are awarded in your divorce are
        “dischargerable”. Delaying the divorce until AFTER the BK will result in your being saddled with debts you could have legally avoided simply by having them included in the BK. You should know what you owe (including what you owe your Ex) BEFORE filing the BK!

  16. After a foreclosure in NV, will a 2nd note holder (same bank as primary loan) likely charge off or resort to the courts? Also, will a 2nd holder typically generate a 1099C? My income consists only of SS and a company pension. I understand from a prior post of yours that retirement income is not attachable?

    • A second note holder (HELOC) can sue for deficiency judgment, and in fact, are suing these days. After the foreclosure, their security becomes unsecured and they have the rights like any credit holder. They can sue for the value of the note. Actually, they are selling these notes in the secondary market, and the next successor-in-interest who has bought these notes very cheap are suing in court. They original note holder may general a 1099-c. They don’t care if you are pensioner. If you are a pensioner, most likely you are judgment proof person meaning even if the note-holder sues you, cannot execute the judgment against you because of your pension. Also, please understand pension when once deposited in the bank is like any money in the bank and changes its denomination. It is not pension anymore. Pension while in the transit cannot be attached meaning before it is converted into regular account. Also, this has to be social security which is federal pension and because of the supremacy of federal law over state laws, cannot be attached. Attachments are basically under the state laws. Now, if this get more complex, you need to see a qualified attorney

  17. My boyfriend and I own property in Washington together, in both of our names. There are three years left on our loan on the property. We live in a rental in Washington. He owns a condo in Nevada that has lost more than 70% of it’s value. He had renters that recently moved out. He can no longer afford the mortgage and is going to stop paying and let it go to foreclosure. If a deficiency judgement is awarded on the foreclosure of his condo is the land that we own together at risk? Is there a risk that I will lose my land (because he owns half of it) even though my name is not associated with his condo mortgage? He has no other savings/assets/property.

    • Among all the home ownership, condos are mostly and very adversely affected in Nevada. I had seen condos being sold for $25000 (around UNLV and some for $10,000). Overall, they are sold for half of their prices. Homeowners cannot pay two loans and an escalating and very annoying home ownership dues (HOAs). Seems like all HOA’s were meant against the homeowners. Most of these laws are despicable and collection agencies are making hugh profits on the ever escalating miseries of the people. A short sale seems to be a good idea for you where you can hire a very knowledgeable sales agent who would inform you all the process of short sale. Truthfully, and I don’t want to discourage there is no light at the end of the tunnel here especially for condo owners. An intelligent agent can negotiate a deficiency in the process of short sale. Your lenders may ask you few thousands to drop your deficiency which is prudent to pay and get rid of the problem. However, there can be no deficiency without a judicial action and most of these deficiency judgment can be negotiated with small amount of money. Even if the banks gets a deficiency judgment, the enforcement against Washington property is difficult and cumbersome as you may not likely to have any equity in these properties. You are well advised to have homestead against these properties. You should contact your local real estate department for help in homesteading. Also, foreclosure is long process even if you don’t pay during this time, the place would be empty for quite long time. Lots of folks find a tenant and rent it cheaper than the market and try to pay the lender some money who insists on getting the full amount or nothing. Meanwhile you can start some loan modification process but only if you have an occupying tenant. Some lenders are doing modification on the rental property also. Result: You can keep the money legally and lawfully in your pocket and wait until the fat lady sings at the foreclosure auction some year and half later. Again, you are well advised to seek a local consultation also. There is six months for the lender to come after you and file lawsuit. The lawsuit is somewhat empty threat because no one has the money and the banks are tired of losing money for some two years first from non payment of mortgages, then paying lots of city dues, HOAS, attorneys fees, jumps on any reasonable offer and accept it and this chapter is closed. Lenders have hired lots of nincompoop people who has learnt the English word NO. These folks are ill-trained and after seeing many miseries in their lives, treat homeowners with disgust and frown and keep prolonging their miseries upon one pretext or the other.

  18. Sir, do I understand you correctly that no matter if a foreclosure occurs or short sale, the lender would have 6 months to file a def. judgement and 6 YEARS to enforce same. I ask because the attorney’s for the NV assoc. of Realtors is telling us the in the case of foreclosure it’s 6 months and in the case of the Short sale they have 6 Years to FILE on you since it’s contract law and they already have a prommissory note in the mortgage. Yes I am an agent and always advised my clients to seek legal counsel in these cases but I woud really like to get the info. straight. It seams that we get different answers from different attorneys. PLease respond to my e mail address. Thank you.

    • Six months is the statutory time period set under Nevada Revised Statutes for filing of a deficiency judgment for secured creditors like principal mortgagors. However, six (6) is set for any other second loan or HELOC. Now, this judicial decree has to be obtained through a judicial process. Once this judicial decree is obtained by a person aka judgment creditor, he has six years to enforce it. This six years can be refreshed for another or as many times as required more six years period. The attorney for NV association is telling right. Foreclosure and short sale are two different procedure with different set of deficiency and time period. Bluntly speaking, short sales and foreclosures are two different animals with two different set of deficiency periods inherent in them. One is covered under the Nevada Revised Statutes. Short sale is not protected but is authorized by your lender which is not protected under the Nevada Revised Statutes. Short sale is not mentioned anywhere in NRS so there is no statutory period associated with this. Only Foreclosure is mentioned. Any deficiency under short sale is different than any deficiency under NRS foreclosure clauses. I hope I had clarified it and not confused you. Again, attorneys have different opinions about construction of laws and both attorneys can be right and than judge intervenes and decides who is right. As usual, it is an academic answer and does not build an attorney client relationship.

  19. Hello. I’m hoping you can help me answer this question. We live in California, but purchased a condo at the Meridian Suites in Las Vegas for $414k. Our first mortgage was $339k. Our second mortgage was $72k. Both mortgages were with Countrywide, but were sold. The first was sold to Colonial Savings and the second was sold to Wells Fargo.
    The condo was sold on a foreclosure for $52k. It’s been over a year and we’ve heard nothing from the first mortgage, however there is an $84k (w/ interest) penalty against us for the second mortgage.
    Since the paperwork and refinancing was done in California, is there a possibility that the second mortgage would fall under the California precedent and they should not be able to come after us for the second mortgage?
    Also, how can we find out whether or not the lawsuit for a deficiency judgment for the first mortgage was timely filed? If the deficiency judgment for the first mortgage wasn’t timely filed, can they come after us for the first mortgage?

  20. My husband and I have a home in Las Vegas and we had gotten 3 months behind on the mortgage. We rec’d. a letter from the PMI (mortgage insurance company stating that they would pursue a judgment if we didn’t make arrangements with the lender. Can the PMI company pursue a judgement? It appears that the mortage company contacted the PMI company and told them we were behind and they were trying to collect the loan balance.

  21. Hi,

    I am from California, purchased condo in L.V. back in 2005. Have first and second mortgage. For over 12 months tried work on short sales with both banks and my agent over in L.V. The whole process has never been completed since none of the banks have ever reviewed my paperwork so eventual offer I had just walked away. Now, the second mortgage asking for lump-sum payment in amount of 21+K. I am sure they will go after and file deficiency judgment as they “promised” me over the phone, after I tried to work something out with them, and they personally “guaranteed” that they will get all money from me. So at this point i am consider anything that can prevent them of taking my personal properties ( home, cars etc ). i wouldn’t stop just paying mortgage. Lost my tenant and couldn’t afford payment, HOA etc any more. What are the odds that they can just take possession of any of my personal properties ? Thank you

  22. It is undestood that the first lender has six months to file for a deficiency judgement and has six years to execute after a trustee sale. When does the deficiency occur? Is it when the property reverts back to the lender after the trustee sale or when the lender resales for less than what is owed to them? After the lender takes possession of the property and is sold by the lender can they file a deficency judgment then or is it only within six months after foreclosing on this same property? I am having a little difficulty grasping the idea. I just lost a condo through trustee sale in LV NV. I am in the brink of filing BK but dont want judgements appearing after the fact. I am not sure whether I should wait to file BK after six months past the trustee sale.
    Any information is greatly appreciated

  23. It is understood that the first lien holder needs to file for the deficiency judgment within 6 months and execute within 6 years after the trustee sale. My question is, When does the actual deficiency occur? Is it after the bank takes possession and resales the property for less than what is owed? I am having a little diffilculty understanding the concept.

    My lender just foreclosed on a condo I owned in LV NV on 11-1-10. The property had a first and second. I am in need to file BK but dont know when is the right time. I am afraid of a deficiency judgement appearing after the lender resales the condo even after 6 months has passed from the trustee sale.

    Any comments to clarify is greatly appreciated!

    • My question is, When does the actual deficiency occur? Is it after the bank takes possession and resales the property for less than what is owed? I am having a little diffilculty understanding the concept.

      You are right here, it is when the deficiency is determined and it is determined only upon sale of the property. However, the time period would start after the sale and deficiency is obtained. In actuality, deficiency is deterimed at the auction blog and at the fall of the hammer. Your lien would be relinquished and either the trustee or bank’s sale takes place. If you have plenty of unsecured creditors and they are bothering you non stop, you can declare bankruptcy. If there are not enough creditors, you can wait for sometime unless the creditor or one of them file a lawsuit against you. Now, you have to defend a lawsuit and file bankruptcy—two expenditure on your head. I suggest, if you are in Las Vegas, you should meet a qualified BK attorney. We also do bankruptcy and advice our client. Now, if you live in another jurisidiction, you can file your bk in that jurisdiction only and it would still effect your LV property.

  24. Malik I would like to commend you and your company for developing this website.

    I dont live in LV but if I did, I wouldn’t think twice on retaining you for services. I do have multiple unsecured creditors. It hasn’t gotten to the point of a lawsuit. I will seek legal advice for all the particulars in my jurisdiction.


  25. Hi Once Again!

    One last post…..Is Nevada a “One Action Rule” state? If so, can you please briefly explain how it works in regards to deficiency judgements.

    Thank You Kindly

  26. Could you address the new subparagraph to NRS 40.455? It appears that Nevadans will be treated like California or Arizona if the homeowner satisfies the four conditions. The legislative link makes mention of October 1 2009… Does this refer to loans made after this date – or foreclosures after this date?

  27. Hi there. The note on our home is 630K…actually 650k now that we haven’t made the last 5 payments. Our home is currently valued in the 300’s. We started the loan mod process about a year and a half ago, only to get nowhere until we stopped making the payment. We finally got the mod, but of course it wasn’t enough to make a difference. We have been approached by someone we know personally to do a short sale with the intent on letting us be their renters. We do not intend to buy the home back from them in the future. We have been told that this would be illegal and that we as well as the buyers could get into trouble. We obviously dont want that. Also, we have some real estate assets that are free and clear and would like to hold on to them. What is a better route to take, short sale or foreclosure?


    • Short sale is just a short process, it does not give any money to you other than it solves a problem with a band-aid solution. Only real estate people get the money. The bank is reluctant to give you a loan modification but in short sale would gladly sell it under the market just to get rid of the loan and mortgage.

  28. Does the following the with a short sale deficiency judgement the lender can only get the difference between the fair market value and what they sold it for? or what you ow and the fair market value.
    NRS 40.459 Limitations on amount of money judgment. After the hearing, the court shall award a money judgment against the debtor, guarantor or surety who is personally liable for the debt. The court shall not render judgment for more than:

    1. The amount by which the amount of the indebtedness which was secured exceeds the fair market value of the property sold at the time of the sale, with interest from the date of the sale; or
    2. The amount which is the difference between the amount for which the property was actually sold and the amount of the indebtedness which was secured, with interest from the date of sale, whichever is the lesser amount.


  29. Hi Malik,

    One question regarding deficiency judgements. I understand that many smaller lenders/banks are overwhelmed with other legal matters and don’t get their lawsuits for deficiency judgements filed within the 6-month time period, however, what’s the chance that Fannie Mae and Freddie Mac, government operated lenders, are filing deficiency judgements? I’ve read that Fannie Mae made a statement this summer indicating that it would seek deficiency judgements against borrowers that were strategically defaulting on mortgages. Has this scenario actually played out, or is Fannie Mae just as overwhelmed as other lenders and just as likely to miss the 6-month period?

    Thanks for the information!

    • This is a good question. First of all, Fannie and Freddi are licking their own wounds as they have been kicked out from NY Stock exchange. They are white elephants on this hard pressed economy, and cannot in fairness sue anyone. It requires money which they did not have it. Six months time period is only for the first mortgagor and not for the second HELOCK loans. Again, filing deficiency judgment does not meaning collection of money and borrowers can file bankruptcy where this expenses of hiring and filing lawsuit becomes counterproductive.

      • Thanks Malik! I was aware that Fannie and Freddi have been hit hard financially, especially since they’ve bought up so many mortgages from distressed banks. What worries me about the scenario is that Fannie Mae has told its mortgage servicers, which might have more time and resources, to watch for strategic defaulters for possible future lawsuits. An important question I think might be: Can the servicers do all the paperwork and legal filings on behalf of Fannie as they have agreed to essentially become the trustee of the deed? And do the servicers have to request permission from Fannie to proceed with deficiency judgements, or does Fannie file these on their own? Who actually does the work? I’d worry more if I knew it was the servicers as they have the resources to process the filings more efficiently.

  30. I am 23 and helped my parents get their second mortgage on their home. Now they are getting divorced and niether one of them want the house. The strategic default has been thrown out there. I am only third party co-signer, if they follow through with this how will it affect me as 3rd party co-signer??? The house is in northern nv, in which the 2nd is through bofa, and the original is/was through chase. I understand the basic 50/50 chance of deficiency judgement is a possibility. Will it affect me as well if they do follow through on the judgement?? It sucks for me as I helped them out and now they are basically going to screw me over… Any advice/help would be greatly appreciated.

    • Well, it all depends if your lenders takes the route of filing deficiency judgment. I can tell you that there are reasonable chances that there would not be any deficiency judgment. Find a good local real estate agent and file for short sale and negotiate the deficiency judgment. More than likely, there would not be any deficiency judgment.

  31. Pingback: Deficiency Judgment Reviewed » Myrna Duran

  32. Hi,

    Was foreclosed 2 years back, I had two loans 80/20. Now 20% amount around $70k from the second lender went to debt collection agency. They are regularly calling me and affecting my credit on regular basis. For how long they can keep htting my credit score and can I stop them. I would appriciate your comments on this.

    Vinay Sindhu

    • Vinay:

      Your home was foreclosed 2 years ago, so your credit score has already taken a hit. Now, your second lien holder had sent it to a collection agency. The drerogatory remarks on your credit score stays on your credit report for 8 years and in some cases 10 years. It is a big body blow to your scores. I am afraid, if the second lien holder had sent to collection agency, there may be chances that they would sue you for collection because $70,000 is a hefty amount, and it would take good sense to sue you. If you have lots of other unsecured debts, it is a good idea to see a local bankruptcy attorney and discuss your situation.

    • Well, the second loan has become an unsecured loan. The debt collection agency would continuously call you unless you send them a letter requesting to contact you only via letters and not via phone calls. If after this letter (make it registered), they still call you, you can sue them. Your credit is not affected by their calls, it would be affected because of the non payment of second loan. Once they get tired of reaching you, they would try to make some settlement with you if not outright file lawsuit.

  33. We are currently 2 months behind on our mortgage. It is an 80/20 loan. My husband & I are on the loan. The 2nd mortgage holder has already offered a loan modification which is very good but the first mortgage doesn’t want to budge. If we short sell the property will the 2nd mortgage holder be able to come after us (garnish wages?) Is short selling better than foreclosure?

    Do we need a lawyer to help us with this?
    Sorry if you’ve already answered this before but I’m just confused reading through all the responses here.

    Thank you for your time.

    • If you are in Las Vegas, you are welcome to contact our office for a 30 minutes-no obligation free consultation. However, if you live in a different city, then the laws may be different from Nevada. It is the first loan which counts. Second loves to do loan modification because they would be crushed and get no money if the home is foreclosed or short-sold. I would say take the modification, if it is very good. The first may take its time, and if it is the notorious Wells Fargo or Bank of America, then it takes very long time. You don’t need a lawyer, but it is good to geth their wealth of information and be under their umbrella. Also, he/she can figure out your long term policy in reference to short sale, foreclosure, bankruptcy and any other option. It is your property which is in danger and attorney typically works on a flat fee in these matters.

  34. My home was sold at trustee sale on Jan. 7, 2011. Now 6 months later I think I am in the clear from a pursuit of the deficiency. However, I received two notices (one for 1st loan & one for the 2nd) via regular mail that BAC Home Loans Servicing was transferring the servicing of my two loans to Bank of America, N.A. The letters also noted that this was an attempt to collect a debt and listed the amounts due for each and that the debt is owned by FNMA ACT/ACT DEFAULTS & PICONS for the 1st and BONY (CWHEQ 2006-S8) for the 2nd. I have checked with both the Justice and Districts courts and no court judgment has been brought against me for the deficiency. Am I in the clear or can they still come after me?

    • A deficiency can only come after a lawsuit has been entered against you. No lawsuit can be entered without a process of service of summon and complaint followed by a judgment (contested or uncontested). You probably never got that so there is no deficiency judgement entered against you. The letters you are mentioning are routine letters which are not originated from the foreclosure department of the bank. A bank has many sections and sometime each department does not know what the other is doing. The principal loan has a statutory time period of six months while the secondary loan (HELOC) has six years. The HELOC folks can come after you but again only through a lawsuit. No lawsuit, no deficiency judgment. This interpretation is only for Nevada. If you live in another state, check with your local attorney. This opinion is only given for basic understanding and not a legal advice.

  35. If the bank pursues a deficiency judgment, can I counter sue with the option of a jury trial. I can prove gross negligence on the banks part. The home has been vacant for over 2.5 years. Their neglect in not foreclosing in a reasonable time has allowed the home to depreciate in value not only because intrinsic values are decreasing but because the water was turned off six months ago and the landscaping is dead. This was in fact after a final offer (allowing for full principle payment-was not even responded to with so much as a form letter. If I can counter sue, is it a real estate lawyer or litigation lawyer of some special type that I should select? The home is in Henderson, NV. Why should I be held liable for the continuing decrease of value of my home because the bank will not foreclose even though I have offered the keys and have formally requested foreclosure? I have tried short sale with no luck and Deed in Lieu but the bank wanted 40K for the DIL.

  36. Is what I described be a meritorious claim? As the home sits longer the value continues to fall. At what point is gross negligence a valid claim. At some point it will be vandalized. The value will continue to drop. When is enough enough?

  37. We were denied modification and we went through the mediation process in Oct. 2010. BoA agreed to take the house with a deed-in-lieu. They then proceeded to come up with other terms after the mediation and didn’t do what they agreed to do in mediation. The mediator found BoA to be “lacking good faith” because they failed to have the all the proper documentation during mediation, they didn’t sign paperwork they were suppose to afterwards, and BoA tried to impose undocumented fees ($4,800.00). We now have the option of Judicial Review which we were informed would be a long process because we recently had a judge pass a away and another is retiring. There will only be one judge here. (Elko, NV) To retain our lawyer for a Judicial Review is going to be costly as well and we are unsure if we can come up with the money for retainer. We are considering letting BoA foreclose. Can they get a deficiency judgement against us since we did try everything we could to avoid foreclosure? And if so, can do we have enough to counter-sue?

    • The rules about deficiency judgment is that the lender can only file within six months in Nevada. I doubt it if your lender would file, as I had not seen it as a practice lately. Why would they not file? Basically, for a variety of reason.
      (1) The lender has not been getting any payments from homeowners for the last 12-24 or more months.
      (2) The lender has all of your financial information and knows that if they file deficiency judgment, you may file bankruptcy.
      (3) The lender needs to hire another attorney and pay him an upfront of $5000 to 10000, and still have no chances of seeing this money again.
      (4) There can be potentially issues of MERS, not having party of real interests, TILA, RESPA violations which the bank has to respond in a counter defense motion.
      (5) Banks have lost lots of money (especially Bank of America, look at their stock price. This year alone they lost 10 billion dollars). They got burnt, and are defending thousands of law suit, each suit cost them money.
      (6) Banks are tired of this fiasco, and any deficiency lawsuit bring them more hatred and bad publicity, and they are tired of it.
      (7) Even though they are banks (with supposedly lots of money) but basically they see as a financial decision and do their cost benefit analysis.
      They would rather be happy in giving you a cash for keys and a surety that a homeowner would not destroy their property and lender get back some of the money via short sale, deed in lieu or just money through auction. It is no win win situation for anyone.

  38. My wife and I had our home foreclosed upon, and it went to auction on April 25 2011. We had an 80/20 loan situation, but our second loan was not a HELOC loan. All our paperwork shows that it wasn’t defined as a HELOC and instead shows as a second conventional uninsured loan. Does the bank still have six years instead of six months to come after us for the balance?

    We received a call from BofA (both loans originated through CW) recently saying that we needed to start making payments on our HELOC, and I tried to explain to them that it wasn’t a HELOC.

    Also, we’re not sure if they have our current address (We’ve since moved to Seattle), so we don’t know if they’ve filed a deficiency judgement and we just haven’t heard about it. Is that possible?

    • Second loan does not have to be HELOC loan. A home line of equity loan can be used for any purpose, it can or cannot be part of your second loan. You can have a HELOC even if you have a 100 % principal loan. Under the new NV laws, the time period is changed to six months. I am not sure if this would be applicable to you because the legislation is just passed. Your current address does not make much difference as your lender and their collection department has the capability to trace you through skip tracing or through your credit record or any of the public record. A deficiency judgment cannot be filed without a judicial action which has to be first served upon you either personally or via publication.

  39. Wife and i divoced this year, we are both aware our bank WF will sue us for the defciency, we are trying to shortsale. What happens if we are not able to shortsale and or foreclose on property? Do we both get sued on the diff or just one of us. We are both on the note deed and we bought the house as husb and wife. Will each owe only half of the defiency? We will both get 1099c? Or does it depend on the lender as to which of us gets the deficiency. My understanding is NV is a community property state. Also if the house is up for a shortsale with a realtor and we start missing payments, can the lender start the foreclosure process anytime? Divorce is our hardship and neither of us can stay in the house with our payment of 1900.00 by ourselves.

    • Abner:
      Your are lucky, as I am in my office and replying your very early. It is always good to file bankruptcy together (if you qualify) and then file divorce, that is what I advice my clients). That way, you get a clean cut division and divorce court does not indulge in any harsh split of property and also you see a clean demarcation line of your assets, liabilities and debt obligation. However, since you already got divorce, check your divorce papers and see what the judge had decided in reference to your marital distribution of your assets. I hope you did not seek a paralegal to get a divorce because these details may be missing from the papers. The rules about deficincy has been changed. I am posting a recent legilsation in my blog today. Please read it as this would answer most of your questions. I am just replying you as an academic question only and for your particular needs, you should see a qualified attorney in your local jurisdiction. The responsibility of both husbands and wives are called “individually and severally”, that means the lender can sue either one of them or collectively both of them. They can elect to sue one or both, that is their choice. Basically, when you applied for loan modification or short sale, they have all of your financial documentation. One of their guru would evaluate your case to see if they sue you, would you have enough assets to be garnished to satisfy a judgment. Most of attorneys evaluate this thing before suing–not in every case. They take advantage of client’s emotion who are interested to sue and win only. The most important part of a lawsuit is not getting the judgment but finding out prior to filing lawsuit is if this judgment can be executed. If not, the filer has just wasted his money because he/she cant’s find enough assets or the borrower is now filing bankruptcy. At that time, the lender wished they had not spent $5000 to $10000 in attorney fees. The lender has already wasted enough money in not receiving 12-18 months of payments, (plus renovating the home if the last person damaged it, and paying the HOA), so it is a bad deal to file deficiency judgment which is basically filing a lawsuit. Again, there are not sure shot chances of winning because that can be defended also on the grounds of MERS (not being a proper party, TILA, RESPA Violations, or simply produce the note. Not every one has the note. Most of these collections accounts have been transferred to A, B, and then C who may or may not have the note and the promissory note. That is why most of the wiser lenders: how many of them wisers now?) are not filing deficiency. It is a double-edged weapon and lose lose position. Look at the bank’ s stock i.e Bank of America, they are pounded everyday because of these costly mistakes. Lately, I had not seen any deficiency judgment filed by any of the big banks. I think only small credit union are doing it, and facing tough time from attorneys like me. The big question is who at this troubling time has money to satisfy this deficiency judgment? Banks must be crazy to come after small people?

  40. It can be hard to face your mortgage company to ask for help. It can even be harder to negotiate a loan modification you can both live with. While it may seem at times as if your lender is playing hardball (and they probably are) remember, they are doing you a favor by even considering …

    • Yes, it is true they are playing hardball. But, just look at Bank of America, one of the most laziest when it gets to loan modification. Look at their stock, it was 6.61 yesterday. Despite the injection of some 15 billion dollar in last 3 weeks (5 billion from Warrent Buffet, selling of a Chinese stock of 3 bilion and other cash collection measures), still it is going down the hill along with 30,000 layoffs. Had they modified the loan which in effect means reaffirmation of the old principal mortgage instead of rapid foreclosure, paying back the HOA and fixing the home, hiring expensive attorneys to contest thousands of lawsuits, their financial picture would have been better. They did not listen to anyone, and kept going the same old rotten pace. They are not doing a “favor’, they had taken taxpayers’ hard money to ‘consider’. Unfortunately, Obama’s HAMP had no teeth.

  41. My house in Nevada was foreclosed on. My husband passed away and I lost half my income. I had no choice. I paid $430,000 when I left I owed $368,000 They sold it in May for $164,000. My question is can they come after my bank account? I am retired and all I get is social security. It was sold in May 2011 so I should be safe after Nov 2011? and is there a certain time of year that you get your 1099C?

    • For every action for deficiency judgment, your creditor (bank) has to file a judicial action, go to the judge, do service on you, and then if you don’t file answer, can get a default judgment. In Nevada, no deficiency judgment can be had without a judicial action. No one just can take money out of your bank account. Also, if someone get a judgment against you (you would be notified at each step, and if you snooze, ignore, may likely get a default judgment) and then needs to file execution of judgment. However, if you are on social security, you are called judgment proof. It means the social security is drawn from the federal government, and the judgment if awarded shall be under the state laws. The federal laws prevails upon state laws, and as such no judgment can be enforced against your social security income. However, you should be careful about comingling, that means don’t mix up your social security income with your other income if you have some. The proceeds of comingling can be attached. This answer is not meant as a legal advice. For legal advice, you should see a licensed attorney in your jurisdiction.

      • Its been well over six months, no calls or letters. I called the bank today to see where my 1099c was. they told me it was being mailed out this month. After I receive it my question is. Is it safe to open a saving account not related to pension deposits? The time has passed. No second was on this house and it was primary residence. It was to my understanding that in the state of Nevada they only had 6 months to come after you?

      • Why are you worried about 1099c? If you get that, you are liable to pay taxes on the accelerated part of income. Your pension should be “secured” exempt and non-garnishable as long it is not transformed and co-mingled with other money. If this is federal social security, of course, it is fully exempted from your creditors. Open safely a pension account. Also, read my above reply to another reader.

        Happy reading.

      • I received a 1099A in the mail today. I thought I would get a 1099C. I am really confused now. Will the C follow? I am retired 69 and on a pension no other money. I thought I was judgement proof. box 2 says $345,862.86 box 4 $167,650.00 box 5 is checked box 1 is 05/17/11. I have no idea of what I should do any suggestions. Is it normal that the A and C is not sent out together?

  42. So after 6 months its over? Is that from date of sale or date recorded? I wanted to know in case I wanted to take some of my pension out to put into another account?
    I only had one mortgage and it was my primary residence. When do they send you your 1099C?

  43. I went through a foreclosure recently in Henderson, NV. The 2nd mortgage holder had mortgage insurance and the insurance company is now coming after me for the amount they had to pay. They are asking to settle, which may be an option, but have threatened that if I do not settle they will pursue a judgment. I got married recently and am concerned that they could come after my wife’s assets or income. Is this possible? We didn’t even meet until after the loan became delinquent, so her name is not on any of the documents. I am also concerned about my SEP IRA…is that money protected from a judgment? Furthermore, your IRA is a protected asset and cannot be garnished.

    • A settlement is not a bad idea as this would stop any future action on the part of your lender. Further, this would have a lesser drerogatory impact on your credit compared to any deficiency judgment. Your wife is protected from any garnishment as Nevada being a community property state, each spouse is liable for her/his own debt. They cannot come after her because this was your separate property which was purchase prior to your marriage.

  44. I filed bankruptcy on July 6, 2011, and “surrendered” my house in the bankruptcy. If the house is sold in a short sale after the bankruptcy is discharged, can I still be sent a 1099 by the mortgage company? I was told I should try to short sale to prevent a foreclosure on my credit, but I also read that if I do nothing, my credit report will show “$0.00 balance, Bankruptcy.” I’m waiting for the discharge notice, however, now the mortgage company has filed for relief of the automatic stay. Should I go to the court hearing and hand them the keys, as the house is empty, and I’d rather give them the keys and be done then worry about receving a 1099 after the bankruptcy is done. Of course the real estate agent wants me to go thruogh the short sale but I don’t want a 1099 , espcially after i clear all my debts with my bankruptcy.

    • However, my general impression is that banks can still send you the 1099. There is nothing in the bankruptcy which can stop them after “surrender”. Bankruptcy can stop them sending deficiency judgment but not 1099. The surrender has nothing to do with the deficiency judgment, and most of these 1099 are considered ‘appreciation’ in income which means you are accountable to pay tax to the Fed. An intelligent strategy could have been a right negotiation via short sale and no deficiency judgment which could have avoided 1099 altogether. (without the filing of bankruptcy) Your credit report has no implication either on short sale, or on 1099. A credit report is only an educated guess and has no legal implications. You should speak to the attorney who filed your bankruptcy to give you a correct picture of all these things. Your automatic stay is only for your lenders to pursue any of the future actions like foreclosure etc. to finalize the status of the property. Your real estate agent should have guided you better in this matter. We have avoided 1099 through negotiation with the lenders in the past in conjunction with short sale. If they don’t waive 1099, we do not accept short sale, period.

  45. I did a refi back in 2007 and the loan documents cleary state that it is a non-recourse loan. However, now I understand that refi’s can ARE recourse loans in Nevada……

    Reading “NRS 40.453 Waiver of rights in documents …” above makes it sound like no matter what my loan documents say my loan is recourse… that true???

    I’m asking becasue I’m looking at HAMP and my refi again, but don’t want to lose my non-recourse status (if I actually have it to begin with)…..

    • Nevada laws prevails on any defects in documents. More than likely, it is a generic defect in the documentation. Better answer can be given upon seeing such documents. Nevada is a non judicial foreclosure state, however, AB 284 is bringing it closer to a judicial foreclosure. The full impact would not be known until after some time. However, it has delayed the foreclosure as only 280 or slightly more foreclosure happened in the month of October, 2011 compared to the month of September 11. Read today’s LVRJ in the business section for better data.

  46. My son and his wife live in Nevada and they had a arm mortgage. They had only one mortgage and a conventional one no second. Their house was foreclosed on last year and was resold 8 months ago. They were well past the six months. Yesterday they got a letter in the mail from a service that is representing their PMI and in short it states that it is very important that they contact them. I was wondering if the PMI can come after far they have heard nothing from the bank which was Chase. Can the PMI company file a judgement against them and if so what can they do to protect themselves.

    • Six months rule is for deficiency judgment which is a judicial action filed as a regular lawsuit. If someone files against your home, that can be a valid defense. However, six months rule does not stop the collection agency from calling you and attempting to collect from you. Lots of these notes are sold in the secondary market and now the collection agencies own them. However, there is a recent change in laws in Nevada that means they cannot charge more than what they paid for (not the original amount). Shocinkgly, most of the debts purchased by collection agenices are time barred but they can still collect it, and anyone sending them any payment does it on on their own risk. Sometime, if you enter into a payment agreement, that would become a valid agreement despite the statute of limitation. This is a complex area of law, and you should contact a licensed attorney in your jurisdiction.

  47. I’m being sued by the current note holder of the second mortgage on a house that went into foreclosure in October of 2010. Does the 6 month time period to get a deficiency judgement apply to second mortgages as well?

    • Yes, there has been recent changes. But it has some saving clause like the applicability would start from certain period, and if the creditor/lender has already filed case against you, then the statute of limitation ceases. It is good to talk to a licensed attorney. You are welcome to call us and make appointment with our office. 270-9100 and speak to Maggie, my paralegal.

  48. I short sold my home in June 2011. I had an 80/20 loan which was both purchase money. The second loan took 6,000 to release the lien. The remainder balance is 51,000 and they are calling constantly to collect the rest. I want to get rid of them, but they said in order to settle the debt, they want me to summit my financials. I don’t want to do this whole paper work all over again! How can I settle to debt? Also, do they even have a right to collect? The released the lien, it no longer reports on my credit report that I own a mortgage. My other option is to file bk. Advice? Thank you!

    • Submitting financials is a risky preposition because in essence you are supplying them with a rope to hang you. Forgive my choice of words, but that is what it is. Now, they would fix your amount to pay, and not you, and in case they legally proceeds, they already had all the tools to garnish and execute the deficiency judgment. When the second loan took 6,000 to release, they have done what in contract law means “accord and satisfaction”. They are done, and cannot come after you. This seems to be an apparent violation of FDCPA. If you are in Las Vegas, call us at 270-9100, make an appointment and see us.

  49. Hi – great site you have here! Thanks for all of the information. My husband and I did a short sale on two homes in Las Vegas, NV in 2010. One of the approval letters stated that they waived their right at a deficiency judgement, the other said that they reserve their right. If the bank has 6 months to file a deficiency judgement, but 6 years to pursue it, is there a way I can look up if a deficiency judgement on the one property has been filled? Thank you!

    • Kathy:
      Deficiency judgment can only be obtained through a judicial process by filing a regular lawsuit–no different than the commonly known lawsuit. It requires service, summons, complaint and seeks an answer from you. In other words, you would have notice and can defend yourself. However, if banks do not file these within the statutory time period, they lose their right to deficiency judgment or any other meritorious legal steps.

  50. My property was foreclosed in Las Vegas on Aug. 1sth 2011 with a first and second mortgage holder. The second mortgage lender is contacting me for collections. If the 6 months passes (Feb. 1st, 2012) without a deficiency judgement, is there any recourse the lenders have? Thanks for your service…Brent

  51. Hello,
    My house was foreclosed in Las Vegas on 1/7/2011. We are well past the 6 month statue of limitations for a deficiency judgement, and I have not received anything from the bank, BofA, stating that they are going to pursue me (I’ve called to make sure no judgement was filed against me). However, I just received a 1099-A for tax purposes and am a bit concerned. I thought that I was going to get a 1099-C, which is the tax form for reporting purposes, but also the “C” in essence is the way the bank is saying they are canceling or forgiving the debt. To my understanding both forms are for the same purpose, but the “A” form leaves the bank the right to still come after you for the deficiency judgement. Now the way I see it is that this form is a federal form needed to be sent to all who were foreclosed on to report the gains for their taxes. My question is, is this the bank’s standard practice to now send an “A” form so they can reserve the right for the deficiency, although it may not apply in certain states given each state’s statue of limitations? If that is the case, I am thinking I am still in the “clear” as I reside and the property was in Las Vegas. (Was also my primary residence).
    Thank you!

  52. Between 3-4 years ago my property was foreclosed on in Nevada and after some time I stopped getting any correspondence from either the 1st or 2nd mortgages. Now I have started receiving letters from a collection agency regarding the 2nd mortgage. I don’t live in Nevada any longer, and I can’t pay off the $14,000+ they say I owe. I have no other credit problems, so bankruptcy is out of the question. I am preparing to move out of state again, and I will not even have a job for a while. What can they do to me and how long will they pursue me if I am unable to pay? Thank you for any advice

    • Nothing much they can do unless you settled down, have a job and a domicile. By the time, they trace you out, probably you would have moved again, or the statutory time period run out. However, if you are worried about your credits, than you may settle with them, and offer them something so there should be some accord and satisfaction. I agree, it is small amount for bankruptcy. However, you should talk to a local attorney in this matter to get the best advice.

  53. Im in a similar situation as many others here in Las Vegas. Rental property lost about 250K since 2005 and in Nov. 2011 was sold at auction after many, many months of failed deliberation with the banks. The house sat empty for almost 2 years while I tried to negotiate. If they (now collection agency) file suit and try to collect and go after assets, would it be a smart move to pay my primary residence mortgage off (before they file suit of course – I mean like tomorrow!) and quit claim deed the property to my son? Also I would like to empty my bank account and just keep enough cash in to pay bills. Or would these moves violate the fraudulent transfer act? My credit is already ruined and Im retiring in 2 years anyways so im not worried if they keep calling. Im going to cross my fingers and wait it out. But if they do file suit within the 6 months and they get a judgement and try to come after my assets, what would my best angle be here? I have already been denied bankruptcy for i have excess purchase cash, but I REFUSE to make payments on a 400K note that is now only worth 165K as this is what it sold for recently. Thanks!

    • No, it would not be prudent and smart. Let them come after you and you could be defended. There are lots of defenses even if you did not pay them. They had to find an attorney first who would charge them something like $5,000 to 10,000. They need to find your assets and see if a judgment can be executed against you. If not all that money would be wasted. You should talk to a licensed attorney, and if in Nevada, come and meet us. It is futile to speculate on facts which we don’t know, and which you have not mentioned. Please do not rely on the advice of your coworkers, friends and of course families. They may be telling the truth but the facts can be different in many cases which may not be applicable in your case.

  54. I am going to renew my property lien with clark co. Is it better to do a mechanics lien. Than having a property lien. It seems as I can’t. Get paid from the property lien. The owner keeps refinancing his home, and all the liens are being paid off except for mine.

  55. A foreclosure happened to us in early Sept on a investment condo. The deficiency is quite large and as yet we have not seen any notice of suit for defiency judgement, however have just gotten a call from a collection agency threatening that we “better cooperate or we’ll regret it”. Can collection agencies collect deficiency judgements? and if so what rights do they/we have, etc? Thanks

    • Collection agencies can call for deficiency and to collect a debt. They have to meet the Federal Debt Collection Practices Act (“FDCPA”) However, this should not be mixed up with a deficiency judgment. A deficiency judgment is given only after judicial proceedings where you are served with a summon, complaint and a hearing process. (This for Nevada in a non judicial foreclosure cases).

  56. Is there a website that I can go to see if there has been any deficiency judgement filed against me. ? I am in Clark County Nevada. I have been searching the Clark county website but can’t find it

    • There is no such website which can tell you the actual amount of deficiency. The Clark County site may tell you the name of the trustee, lien and foreclosure information etc. You may possibly get a 1099-c or b from your lender. Remember, this year is the last year for forgiveness of debt.I suggest, if you have more fact specific questions, you should consult a local attorney.

      • I already received a 1099A and did my taxes it was written off, Its been 10 months since the house was auctioned. It was my primary home and had no second mortgage. It is my understanding that they only have 6 months to come after you in the state of Nevada. I haven’t heard anything about a judgement. I am just wondering if it is over and if I am safe from them coming after me?

  57. I like many others have walked away from a home that was about 200k under water after being denied three times for a loan modification. I bought another home about a year ago and left the one that was under water. I received many letters from wells Fargo stating that they were going to auction my home off in january of this year. I looked on the Clark county website and saw that wells Fargo bought the loan for the original amount $346k. It looks like the loan went back to the bank. Wells Fargo claimed the entire time that they were servicing the loan and were not the holders of the note. In addition, I received a letter stating that Wells Fargo transferred the servicing of the note to BSI financial. I also received a letter from a attorney office in San Diego stating that I need to pay all back money in order to bring the note current, and that the creditor intends to enforce the note, if I don’t pay then the house will be foreclosed upon. I am soo confused. My questions are as follows:

    1. In order to auction my house off does it have to go through a foreclosue first?
    2. Why would Wells Fargo buy the note for over 200k of market value? On the Clark county website Wells Fargo is listed as trust deed 1/11/2012 for 346k
    3. The note that I received from the attorneys office that states that the creditor intends to enforce the note does this mean that they will pursue a deficiency judgement?
    4. How do I find out if my house has really gone through a foreclosure?

    I just found this website thank you so much for all the information. Reading the comments have been helpful

    • Your home is probably not foreclosed because they are still calling. You probably could have stayed until they auction the house. Anyway, it was a smart move on your part that you bought home before your credit was tarnished. Actually, it is not that Wells Fargo “bought” the loan at $346,000. The home is auctioned on the bloc and when no one steps forward to buy, the bank take it back without your lien. Legally speaking, it is still foreclosed. But no one had bought this mortgage including your lender. They just had taken this “back” which is considered “bought”. Maybe it is still there as they may have sold the mortgage for a smaller price to another lender i.e. BSI. Most likely, it may be their subsidiary.

      1. Answer to your question is Yes, unless you short sold, or surrender it with a deed in lieu of foreclosure.

      2. I answered that above.

      3. A deficiency judgment can only be procured via our judicial system through a regular complaint unless it is from a judicial foreclosure state. Nevada is different.

      4. Call them on phone, and nothing to be embarrased. Ask them if you can get a loan modification.

  58. Regarding the deficiency. How long does the lender have to pursue a borrower for a first loan, if the HOA was foreclosing party due to past due HOA fees and sold the home at auction and only received about 25% of FMV? The lender was notified of the HOA’s Trustee sale but failed to exert their interest in the house that was securing the debt. Further, the bank had taken physical possession of the home back in December 2011. So they have had the home for a year and half. The owner of the loan offered a Deed in Lieu at the banks request but then the bank declined it. Then successfully paid 5 months into an UNWRITTEN trial modification while being told the paperwork would be sent anytime before being kicked out of the program. Then attended the State of Nevada Supreme Court’s mediation program, the bank was found not to have negotiated in good faith, then the bank changed the locks, placed no trespassing signs on the property in December of 2011 and then let the HOA foreclose on it in May 2013. Does the 6 month time frame to pursue the deficiency still apply? THANK YOU!!! The bank also keeps adding missed payments and fees for 5 years since the Deed in Lieu was first offered. Is there ANY help for screwed over “homeowners” and I use the term loosely since there are no property rights anymore and as far being sovereign (meaning the same rights as a king) is a joke.

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  60. If short selling, loan mods, renting, etc. are out of the question and the borrower MUST vacate, may the borrower who defaulted on their underwater home quit claim the property to the lender/investor (there are no liens other than the single mortgage, borrower would even pay for a title policy) to clear his name as the owner of record? I already understand that quit claiming to the lender/investor has no effect whatsoever on the financial obligation. If the borrower vacates while still being the owner of record, he opens himself up to liability as his insurance will be void if the home isn’t occupied. But if the borrower removes himself as the owner of record through a quit claim, thus surrendering the collateral for the loan, is there any problem with that? It would seem ridiculous for the lender/investor to fight being given back a property that is already theirs, subject a a mortgage which hasn’t been paid for 7 months now…

  61. What if the HOA foreclosed on the property, sold it at a trustee sale, did not disperse the excess funds to the bank and now 3 years later a new recent servicer sends a Notice of Default and it includes 3 years worth fees added to the Note on a property that was already sold over 3 years ago. Can the new servicer still pursue the borrower for a deficiency? If so, for how much? The full Note? Plus fees added for 3 years the borrower didn’t even own the property anymore? Can they sue as unsecured debt,and if so for how long? The statue of limitations on a promissory Note in NV is 3 years. Thank you

  62. These are complex issues and needs lots of documentation and facts supporting them. Definitely, you are entitled to surplus amount minus what has been justly applied. I would strongly suggest that since this is beyond the scope of an academic discussion, you should see a qualified attorney.

  63. My house went into foreclosure auction by the HOA in July 2013. The House was upside down and learned that it sold for $25,000, which 300,000 was owed on it. The house is located in Nevada and wanted to know how long the bank can come after me for the deficit. Recently they sold the loan to someone else and was wondering how long can they pursue this? Any information I would appreciate it

    • I seriously doubt if they ever come after you. You probably would be issued a 1099 for appreciation in your income. Even if they come after you, you can always seek the protection of filing bankruptc and get it discharged. Again, the best situation is to discuss the whole issues with a local attorney in your jurisdiction.

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