Extension of the Mortgage Debt Relief Act

Following is a great piece published in the Washington Post earlier today with commentary from attorney Scott Weitz. The rumor going around is that there is something in writing to extend the law discussed, but Congress hasn’t put it to a vote yet. Be sure to check our blog for future updates.

There’s a tax break for struggling homeowners that Congress shouldn’t have let expire just before the new year. If not extended, some people selling their homes could get big tax bills.

As the housing crisis drove people into foreclosure, many borrowers were not aware that forgiven debt, including on mortgages, is considered income.

In 2007, Congress passed the Mortgage Forgiveness Debt Relief Act to help people who were down on their luck financially because of the loss of their homes. The concern was well placed. If people couldn’t afford to keep their homes, getting a large tax bill just seemed cruel.

The tax exemption played an important role as borrowers who were unable to refinance their mortgages ended up selling them through short sales, in which the lender allows the borrower to accept a price that is less than the amount owed. Often, borrowers trying to get out from under a mortgage can negotiate to have the remaining balance forgiven.

The tax break was supposed to end in 2009. But it was extended twice through Dec. 31 because many people still needed help. It was a decent thing to do. Up to $2 million of forgiven debt qualified for the exclusion ($1 million if married but filing separately). In addition to foreclosures or short sales, debt reduced because of a mortgage restructuring also qualified for relief.

It might not make sense to have to pay taxes on forgiven debt because it isn’t money that was earned. You aren’t taxed on borrowed money because you have an obligation to repay it. But money you borrow that is then canceled as a result of a foreclosure or short sale counts as income. If the debt is forgiven, the lender is required to report the amount because you no longer have an obligation to repay the money. Let’s say someone owes $200,000 on a home but can only sell it for only $125,000. The difference, $75,000, would be considered taxable income.

Critics argue that it’s time to move on. Allowing the tax break means less revenue for the federal government.

Additionally, some taxpayers may still be able to get around owing taxes on forgiven debt if they qualify under what’s called the insolvency exclusion. You may not have to include forgiven debts as income if you can show that your total liabilities exceed your total assets.

An exception to the tax break is either filing bankruptcy or insolvency (debts exceed assets), or even foreclosure in some states (including Washington). The reality is that we will push many more clients toward bankruptcy or foreclosure (rather than short sale), which won't be good for the economy.

— Scott Weitz

Yet let’s get real here, folks. This is a tax break that needs to be restored — immediately.

Yes, things are a lot better than at the height of the housing crisis. In many areas, as housing prices increase, fewer owners are underwater, meaning they owe more than their homes are worth.

The housing market, however, hasn’t fully recovered. Things are better, but not great. In November, the number of properties that received a foreclosure filing was 37 percent lower than in the same month a year before, according to RealtyTrac. But a lot of people still may lose their homes.

More than 1.2 million properties are in some stage of foreclosure, RealtyTrac reports. And some states hardest hit by the housing crisis are still seeing high foreclosure rates.

RealtyTrac’s November foreclosure report found that five states posted year-over-year increases in bank repossessions — Delaware (179 percent), Maryland (41 percent), Connecticut (9 percent), Maine (6 percent) and Iowa (2 percent).

More than 1.2 million homes in foreclosure status? This is still staggering. And yet, we don't think this real estate rally will persist?

— Scott Weitz

In a letter to congressional leaders in support of an extension, the National Association of Attorneys General pointed out that an estimated 7.1 million homes with mortgages, or 14.5 percent nationally, are still in negative equity.

“We continue to believe that this relief is crucial to both the homeowners struggling to regain their financial footing and to the battered housing market whose recovery is slow and still uncertain,” the attorneys general said.

As part of JPMorgan Chase’s $13 billion settlement with the Justice Department and other federal and state partners stemming from misrepresentations about mortgages that were sold, the bank agreed to include consumer aid in the form of forgiveness of portions of people’s principals.

Certainly borrowers who might get some of their mortgage debt forgiven as part of that settlement or others because of misconduct by financial institutions shouldn’t face a tax bill.

Extending the mortgage-forgiveness tax break is the right thing to do.

Agreed! Wake up, Congress! Let’s extend this law. We bailed out the banks with real government money. All you are doing is adding insult to injury for folks who lose their primary residence.

— Scott Weitz

The original article, authored by columnist Michelle Singletary, can be found at www.washingtonpost.com.

Have questions regarding the foreclosure process? Contact one of our Kirkland short sale attorneys.