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Question

I own a 2nd home in Hawaii that I purchased in 2007 for $679,000. We were planning on renting it out and using it as a vacation home. Since then my income has significantly decreased, the property is now worth $350,000, and I am having a very difficult time renting it out at all. I have looked into "short-selling" it, but do not qualify. Although my last option was Foreclosure, at this point I may have to let this property go or I will go bankrupt in the not so distant future. I am worried however that if let this property go to foreclosure that the lender will do a "Judicial Foreclosure" and hit me with a "Deficiency Judement" since Hawaii uses Mortgages not Trust Deeds. My question is: If I let this property go to Foreclosure will the lender pursue a "Judicial Foreclosure" and hand me a "Deficiency Judgement" for the balance owed to them? Or will they choose a "Non-Judicial Foreclosure" under the "Power of Sale" clause in the Mortgage instrument? and Why?

Submitted: 17 days and 15 hours ago.
Category: Legal
Value: $48
Status: CLOSED
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State/Country relating to Question: Hawaii

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Accepted Answer

Thank you for contacting our JA team for guidance.

Since it is not your primary home, it is more likely that a lender would through a judicial foreclosure and get a deficiency judgment against you. This is because the judgment would be an asset offsetting the liability on their books and make them appear more liquid.

The lender can then go after other property you have that is not exempt, including bank accounts and garnish your income for the deficiency as well as attorney fees and other costs connected with obtaining the foreclosure and judgment. They really have no disincentive for doing this unless you file for bankruptcy protection which most people try to avoid at all costs.

Please let me know if you need additional information.


Best regards to you,

TG

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Expert: Tina G, BBA, JD
Pos. Feedback: 99.1 %
Accepts: 
Answered: 11/4/2009

Lawyer.

licensed attorney for 12 years including employment, business, contract, domestic, and general civil

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