What Is a Deed in Lieu of Foreclosure?

A deed in lieu of foreclosure is a document which transfers the property's title from the owner to the lender in exchange for mortgage debt relief.

Choosing a deed in lieu of foreclosure can be less financially damaging than a traditional foreclosure.

• A deed in lieu of foreclosure is an option taken by a mortgagor—typically a homeowner—to avoid foreclosure.

• It is typically a last resort, when the property owner had also exhausted all the other options, such as a loan modification or a short sale.

• There are benefits for both parties, including the chance to avoid costly and time-consuming foreclosure proceedings.

Understanding About the Deed in Lieu of Foreclosure

A mortgagor or homeowner may choose a deed in lieu of foreclosure as an alternative to foreclosure.

In exchange for the release of all obligations under the mortgage, the mortgagor conveys the collateral property, which would be typically the home, back to the lender acting as the mortgagee. Both parties must enter the contract willingly and in good faith. The document is signed by the homeowner, notarized by a public notary, and entered into the public record.

This is a drastic measure that is typically taken as a last resort when the homeowner has exhausted all the other options (like loan modification or a short sale) and has accepted that they will lose their home.

Although the homeowner will be required to vacate and relocate, they will be relieved of their loan obligations. This procedure is typically less public than a foreclosure, so the property owner may be able to minimize their embarrassment and keep their situation more private.

If you reside in a state where you are liable for any loan deficiency — the difference between the value of the property and the amount you still owe on the mortgage — it is better to ask your lender to waive the loan deficiency and get it in writing.

Deed in Lieu vs. Foreclosure

Although the terms sound similar, deed in lieu and foreclosure are not identical. In a foreclosure, the lender reclaims the home after the owner defaults on payments. State-by-state foreclosure laws can vary, and there are two methods of foreclosure:

Judicial foreclosure

 Wherein the lender sues to recover the property

Nonjudicial foreclosure

In which the lender can foreclose without court involvement

The largest differences between a deed in lieu of foreclosure and a deed in lieu of foreclosure are the effects on your credit score and your financial responsibility after the lender has reclaimed the property. A foreclosure can be more detrimental to credit reporting and credit scores than a deed in lieu of foreclosure. Up to seven years, foreclosures and other negative information can remain on credit reports.

When you return a home's deed to the lender through a deed in lieu, the lender typically releases you from further financial responsibilities. This means you are no longer required to make mortgage payments or repay the remaining loan balance. In the event of a foreclosure, the lender may take additional measures to recover any remaining mortgage balance or legal fees.

After foreclosure, if you still owe a deficiency balance, the lender can file a separate lawsuit to collect this money, which could result in wage and/or bank account garnishments.

The benefits and drawbacks of a Deed in Lieu of Foreclosure

A deed in lieu of foreclosure benefits both the borrower and the lender. The most attractive benefit for both parties is typically the avoidance of lengthy, time-consuming, and expensive foreclosure proceedings.

Moreover, depending on how this process is handled in the borrower's region, the borrower can often avoid some public notoriety. Because both parties reach a mutually agreeable agreement that includes specific terms regarding when and how the property owner will vacate, the borrower avoids the possibility that officials will show up at their door to evict them, as can happen in a foreclosure.

In some instances, the property owner may even be able to negotiate a lease-back agreement with the lender. Frequently, the lender saves money by avoiding the expenses they would incur in the event of a lengthy foreclosure process.

In assessing the potential benefits of agreeing to this arrangement, the lender must evaluate the risks that may be associated with this type of transaction. These risks include, among others, the possibility that the property's value is less than the remaining mortgage balance and that junior creditors may hold liens on the property.

The major disadvantage of a deed in lieu of foreclosure is that it will negatively affect your credit. This results in increased interest rates and future difficulty obtaining a mortgage. You can dispute a foreclosure on your credit report with the credit bureaus, but this does not guarantee removal.

Deed in Lieu of Foreclosure

Pros

• Eliminates or reduces mortgage debt without a foreclosure

• Lenders are permitted to lease the property back to the owners.

• Often preferred by lenders

Cons

• Lowers your credit score;

• Makes it more challenging to obtain another mortgage in the future;

• The home may still be underwater.

Reasons Acceptance or Rejection of a Deed in Lieu of Foreclosure Agreement by Lenders

Whether a lender accepts or rejects a deed in lieu depends on a number of factors, including:

• Your payment arrears;

• The amount owed on the mortgage;

• The property's estimated value; and

• General market conditions.

A lender may agree to a deed in lieu if there is a high probability that they can sell the property relatively quickly and for a profit. Even if the lender must invest a small amount to prepare the home for sale, that expense may be outweighed by the price at which they can sell it in a hot market.

A deed in lieu may also appeal to a lender who would rather not spend time or money on the legalities of a foreclosure proceeding. If you and the lender can reach an agreement, the lender could save money on court costs and other expenses.

On the other hand, a lender may reject a deed in lieu of foreclosure if reclaiming the property would not be in their best interests. For instance, if there are existing liens on the property for unpaid taxes or other debts, or if the home requires extensive repairs, the lender may not see a significant return on investment by reclaiming the property. Similarly, a lender may be discouraged by a home whose value has plummeted relative to the amount owed on the mortgage.

If you believe a deed-in-lieu-of-foreclosure may be in your future, maintaining the home in the best possible condition could increase your chances of lender approval.

Other Methods to Prevent Foreclosure

There are other options to consider if you're facing foreclosure and want to avoid getting in trouble with your mortgage company. These alternatives include loan modification and short sale.

Loan Modification

With a loan modification, you rework the terms of an existing mortgage loan to make it more manageable to repay. For instance, the lender may concur to adjust your interest rate, loan term, or monthly payments, which could enable you to get and remain current on your mortgage payments.

If you wish to remain in your home, you might consider a loan modification. However, keep in mind that lenders are not required to agree to a loan modification. And if you cannot demonstrate sufficient income or assets to bring your loan current and continue making payments, you may not be approved for a loan modification.

Quick Sale

A short sale may be an alternative to a deed-in-lieu-of-foreclosure or a foreclosure proceeding if you do not want or need to keep the home. In a short sale, the lender agrees to allow you to sell the property for less than the amount still owed on the mortgage.

A short sale could allow you to leave the property with less damage to your credit score than a foreclosure would. Nevertheless, depending on your lender's policies and state law, you may still be responsible for any remaining deficiency balance. It is essential to check with the lender beforehand to determine if you'll be responsible for any remaining loan balance when the property is sold.

Is There any Chance Lieu of Foreclosure Hurt Your Credit?

Yes, a deed in lieu of foreclosure will affect your credit score negatively and remain on your credit report for four years. Experts estimate that your credit score will drop by 50 to 125 points as a result (which is less than the 150 to 240 points or more resulting from a foreclosure).

Which Is the Better Alternative: Foreclosure or Deed in Lieu?

Typically, a deed in lieu of foreclosure is preferred over actual foreclosure. This is due to the fact that a deed in lieu allows you to avoid the foreclosure process and may even permit you to remain in the home. While both processes have a negative impact on your credit, foreclosure remains on your credit report for seven years, while deed in lieu of foreclosure remains for only four.

When could a lender reject a Deed in Lieu of Foreclosure offer?

A lender may reject an offer of a deed in lieu of foreclosure for a number of reasons, despite the fact that a deed in lieu of foreclosure is frequently preferred. If the property's value has continued to decline or if it has extensive damage, the lender may find the deal unattractive. Additionally, there may be outstanding liens on the property, which the bank would prefer not to assume. In some instances, your original mortgage note may expressly prohibit a deed in lieu of foreclosure.

The Bottom Line

If you are unable to make your mortgage payments, a deed in lieu of foreclosure might be a viable option. Before committing to a deed-in-lieu-of-foreclosure, it is essential to understand how it may affect your credit and future ability to purchase a home. Considering alternative options, such as loan modifications, short sales, and mortgage refinancing, can help you determine the best course of action.