Notes About Business

Arizona’s anti-deficiency statue goes into effect September 30, 2009. The Federal Law prohibits lenders from recovering assets against borrowers, such as autos and bank accounts, after the lender forecloses on the borrower’s property. There are key requirements that apply, to fall under this new statue.

The law which takes effect September 30, 2009 prevents a bank from going after the borrowers assets, such as cars and bank accounts once the home is foreclosed upon. The statue addresses two major factors, the type of owner-occupancy and the type of loan. Based on these two type will determine if the law applies.

If the property is completed and is held as an investment and only used occasionally, this would qualify under the anti deficiency statue and the homeowner would not be liable for any deficiency arising out of a trustee sale. Once the trustee sale is complete, the deed of trust does not allow the bank to look for other assets to satisfy the remaining debt.

Let’s talk about “recourse” loans verses “non-recourse” loans. A loan is “recourse” if the borrower or homeowner is personally liable for the entire amount due even after the home is foreclosed. A lender can pursue for the deficiency after foreclosure including a judgment or a lawsuit.

A “non-recourse” loan means the lender cannot pursue a deficiency against the borrower or homeowner. The only recourse the lender has is to repossess the property.

A bank only has the option of repossessing the property if the guidelines don’t meet the Arizona anti-deficiency law. Under this circumstance, it would be a “non-recourse” loan. The bank only has one option, and that is foreclosing on the home and cannot go after any assets of the homeowner.

A “purchase money” loan would also be considered a “non-recourse” loan. This is a 1st position loan and the entire loan was established and secured a Deed of Trust at the time of initial ownership.

A good analogy of a “recourse” loan would be a line of credit from the bank. The bank loaned the homeowner money and used their home as collateral. This loan was acquired AFTER a Deed of Trust was initially established. Therefore the bank could pursue a judgment or lawsuit against the homeowner. One of the main reasons this law was re-addressed after being in effect since 1990, was the 2nd mortgages that were being borrowed by the homeowners and the today’s market value on a home is substantially less than what is owned of the 1st mortgage, meaning the 2nd is not getting a dime in return.