In many states, it is standard practice for an SBA lender to ask a loan guarantor to pledge their home as collateral in connection with their unconditional guaranty. If the business loan you guarantee goes into default, your homestead could be at risk of foreclosure. However, the SBA may not always urge a lender to foreclosure on your home, even if the SBA and the SBA Lender have a legal right to do so. Here are a few factors that may impact this decision:
Do you have a first mortgage on your home ahead of the SBA loan? This may help you.
The general rule in property law is that liens have priority in the order that they are filed in the county records office. This is known as the first in time, first in right rule. Based on this principle, a recorded interest has priority over later recorded interests. If your first mortgage is ahead of the SBA loan, it will make foreclosure less attractive to the SBA Lender since foreclosure proceeds must first be applied to payoff the first mortgage entirely, plus the costs of foreclosure before the second mortgage holder receives anything.
If your home equity is zero or very low, it may be that the SBA lender will choose to do nothing for now and wait hoping the home will increase in value over time. In many cases, if this occurs, a foreclosure may not be initiated for years and then only if the value of your home has substantially increased and some factor has brought this to the attention of your SBA Lender or the SBA.
What is Home Equity?
Home equity is the market value of a homeowner’s unencumbered interest in their real property, that is, the difference between the home’s fair market value and the outstanding balance of all liens on the property. For example, if your home is worth $225,000 and you have a first mortgage to Bank X for $100,000, then you have $125,000 of “Equity” in your property and, in an SBA default situation, that might tempt the SBA Lender or the SBA to foreclose. However, if you add a second mortgage of $75,000, then you only have $50,000 of equity in your property and, in a foreclosure setting, this may not be enough for the SBA Lender (in a third position behind your second mortgage) to foreclose. Be sure to review all your mortgage debt with your attorney if you are discussing the consequences of an SBA loan default.
Can I make the SBA or the SBA Lender an Offer to Release My Home as Collateral?
Yes, you can make the SBA Lender an Offer in Compromise to settle your total liability associated with your personal guaranty or you can just make an offer for the release of the lien on your home. But, use caution. If you obtain a release of SBA Lender’s lien on your home without also completely settling your liability under your personal guaranty, you might later be sued by the SBA Lender. If the SBA Lender obtains a judgment, and then places a judgment lien on you real property, your home may be at risk all over again.
Handling the release of an SBA lien on your home correctly may require professional assistance. It is important to consider this action as a part of your overall strategy. In many cases, it may be possible to combine the release of the lien on your home as part of your complete offer in compromise settlement package. But, many variables can affect the outcome, so be sure to discuss your goals completely with your attorney and/or CPA.
In general, you will need permission to sell your home if the SBA lender placed a lien when you took out your SBA loan. There are many circumstances under which you may need to sell a home with an SBA lien on it. Here are a few:
I am changing jobs and must move out of state and buy another home.
If you are not in default of your SBA loan, then you should talk to your SBA Lender about “Substitution of Collateral” and “Replacement Liens”. In certain circumstances, the SBA Lender may be willing to allow you to essentially swap collateral if, in doing so, its rights are not adversely affected. In some cases, the replacement property may, in fact, have more equity making the arrangement even more attractive to the SBA Lender.
Another common scenario is the need to sell a rental property which is simply not making money and provide the SBA Lender with a lien on another property you own that was not previously pledged as collateral. Again, if this arrangement will not adversely affect the SBA Lender, they may allow you to do so and thereby permit you to liquidate non-performing investment property in order to use the capital more effectively elsewhere.
I will lose my house to foreclosure if I don’t sell it, but there is not enough money to pay off my mortgage and the SBA.
Under certain circumstances, the SBA Lender may be willing to accept a short sale if not doing so would likely result in a worse recovery or perhaps no recovery at all. If you are in this position, be sure you determine what it will take to payoff all tax liens and prior mortgages on your home, then approach the SBA Lender with the best offer you can obtain for the property and an appraisal of the property. In many cases, if the deal makes economic sense, the SBA and the SBA Lender will agree to it.
The answer to this question depends on a variety of factors. In Texas, a borrower’s homestead may not be pledged as collateral for an SBA business loan and the lender will not seek to do so. However, in many other states this can and does occur. But, generally speaking, while there is no statute of limitations applicable to a foreclosure action by the government, the SBA cannot obtain a judgment to collect any deficiency remaining on the delinquent loan, post-foreclosure, if the six-year statute of limitations for suit on the loan has passed.