Avoiding short sale lawsuits
There is no question that in this economic down turn we have experienced over the last five years or so that short sales and foreclosures have become part of our everyday Real Estate landscape.
Every week there are countless new short sale listings that hit the market in Massachusetts. In many of these short sales the seller, not understanding there is a big difference between a traditional Real Estate transaction and a short sale hires any ole Realtor® they happen to come across to represent them.
On the other side of the coin, there are also plenty of Real Estate agents that see the growing number of short sales coming available for sale and realize there is a lot of money to be made.
The problem however, is that many of these agents are flying by the seat of their pants and have done nothing to educate themselves on the ins and outs of closing a short sale.
As a Realtor® who has been successfully closing short sales for almost five years, this is one of my biggest pet peeves! How anyone can look a desperate seller in the face and take on a listing to sell their home with no short sale expertise is just beyond me. It pisses me off when I see a new short sale listing hit the market and know the agent has no track record with this type of transaction.
There are many Realtors® that are putting the noose around their own neck. In desperate times people do desperate things. The end result is that on many occasions consumers get very poor advice that can cost them dearly.
Realtors® that do not have short sale expertise could really do themselves a favor by referring the business out to an agent that is qualified to get the job done.
You may be wondering why this has become such a passion of mine? The answer is simple. Short sales have become stigmatized because there are numerous Real Estate agents and buyers that have been involved in deals where the listing agent did not know what they were doing. The end result for a number of different reasons is a sale that didn’t happen. This leaves a bad taste in everyone’s mouth. Going forward it makes it harder for the agents that do know what they are doing to find buyers for the short sales they are marketing.
Below I am going to touch on all the things you should look out for in trying to successfully complete a short sale whether you are in Massachusetts or another state.
Properly pricing a short sale
When you are short selling your home there is a good chance that you are not able to afford the monthly mortgage payments any longer. You may be just scraping by and know that next month you won’t have enough to pay your lender. When you decide to short sell your home and are no longer paying your mortgage pricing the home properly becomes critical.
The last thing you want to do is either over price or under price the home. For obvious reasons if you over price you will more than likely not be able to procure a buyer in a timely fashion.
If you under price the home and receive a contract from a buyer, the lender is going to reject the short sale after reviewing the appraisal or broker price opinion that they order.
Both of these scenarios can leave you with nothing and that much closer to a foreclosure. A short sale should be aggressively priced such that you will find a buyer in a timely fashion but not so low the lender is going to reject the short sale contract.
The short sale contract
There are numerous Realtors® that are clue less when it comes to giving sellers advice on the short sale Real Estate contract. Lets get one thing straight right off the bat….. When a seller signs a Real Estate contract it is almost always legal and binding as to the terms and conditions in the agreement.
Here are 4 short sale contract issues you need to be aware of:
- Realtors® submitting multiple unsigned offers to your lender
- Realtors® submitting low ball offers to the lender
- Realtors® allowing home inspection contingencies after short sale approval.
- Realtors® allowing an investor to negotiate the short sale
- When a Realtor® submits an unsigned offer to your lender YOU do not have a legal and binding contract. The buyer can walk at any point in time with no consequences to them! Does this benefit a seller in anyway? The answer is NO NO NO! The Realtor® you hire should be looking to lock up the most qualified buyer who stands the greatest chance of getting to the closing table.
- If you sign a low ball offer you stand an equally strong chance that the lender is going to reject your offer and send it back. If you accept an offer that is no where near the market value do you really expect the buyer is going to agree to the price the lender wants? Not likely and again you will be back at square one after being off the market for an extended period of time.
- Allowing home inspections after the short sale approval is another big mistake. Do you really want to have your home off the market for months, get a short sale approval from your lender and then find out the buyer wants to back out due to inspection items? Don’t let the blind lead the blind. There is no reason for letting a buyer have home inspections after short sale approval. I find most buyer’s agents think they are protecting their client by trying to save them from spending a few hundred dollars. WRONG – what the buyer’s agent is preventing is the buyer from negotiating a pricing discount if there were issues discovered. Lenders DO NOT negotiate home inspections issues after short sale approval.
- Letting a buyer negotiate for a seller is clearly foolish. The investor only cares about the seller if they get the terms THEY want. An agent who lets an investor take over a short sale transaction is asking for a lawsuit. Realtors should not let investors negotiate a short sale!
Short sale negotiations
This is clearly an area where you will see most of the lawsuit’s against Realtors®. There are agents who are engaging lenders in the negotiations of short sale approval but don’t have the knowledge and understanding of either short sale debt release and/or short sale tax ramifications.
Who do you think will get sued if a seller receives a 1099-C or 1099-A at the end of the year or gets stuck with a deficiency judgment by their lender(s) at some later date in the future and they were not informed up front about it?
There are many Realtors® who have negotiated short sales that misrepresented to their client that the short sale approval letter removed the short sale deficiency when in fact it did not.
Realtors® are supposed to abide by the Real Estate Code of Ethics but clearly there are many who’s judgment is clouded by the almighty dollar.
The Code of Ethics clearly states:
Article 11 Realtors® are knowledgeable and competent in the fields of practice in which they engage or they get assistance from a knowledgeable professional, or disclose any lack of expertise to their client.
Article 13 Realtors® do not engage in the unauthorized practice of law.
Speaking of giving legal advice, there are Realtors® who are guilty of telling their client to stop paying the mortgage to complete a short sale. While this may be the proper advice in 9o-95% of most circumstances with short sales what if the sale falls into the 5-10% where stopping payment was not necessary?
Most major lenders may require payment stoppage but some of the smaller lenders do not have that guideline. Telling a seller to stop paying the mortgage could have serious consequences on their credit that could have been avoided. Again Realtors® should not be giving this kind of advice. It should come from a lawyer.
The take home message here is to make sure you do your home work when hiring a Realtor to represent you in your short sale!
I am successfully completing short sales through out the Metrowest Massachusetts area. As of this writing for almost four years, knock on wood, I have a 100% success rate for short sale approval! I work hand in hand with a local short sale Real Estate attorney who knows how to get short sales done! I will admit there is some luck involved in my success rate but the team I have put together does a stellar job.
If you are outside of the Metrowest Massachusetts area or even in another state and need to do a short sale please feel free to contact me and I would be happy to refer you to a Realtor in your location that handles short sales and has an understanding of the short sale process! I have referred numerous short sales to other Realtors all around the country.
About the author: The above Real Estate information on short sale lawsuits will Realtors® be next was provided by Bill Gassett, a Nationally recognized leader in his field. Bill can be reached via email at firstname.lastname@example.org or by phone at 508-435-5356. Bill has helped people move in and out of many Metrowest towns for the last 24+ Years.
Thinking of selling your home? I have a passion for Real Estate and love to share my marketing expertise!
I service the following towns in Metrowest MA: Ashland, Bellingham, Blackstone, Douglas, Framingham, Franklin, Grafton, Holliston, Hopkinton, Hopedale, Medway, Mendon, Milford, Millbury, Millville, Natick, Northboro, Northbridge, Shrewsbury, Southboro, Sutton, Wayland, Westboro, Whitinsville, Worcester, Upton and Uxbridge MA.
This is precisely the reason why I do not like taking a short sale to begin with – the liability!
Many short sellers here are doing it strategically to push off foreclosure (with no intention of closing) or simply do not understand the process. As you mentioned MANY of our colleagues are taking these listings without pre-qualifying the seller to make sure a short sale is right for them. The same colleagues are not pushing them in the right direction for legal and tax counsel. They are “turning and burning.”
With the mindset out here (and not saying it prevails in Mass or anywhere else) – it’s a ticking time bomb.
Our SOL in Nevada is 6 years for deficiency. We started seeing short sales heat up in 2007. The next two years will be telling with the hangover.
Great article Bill. Unqualified short sale expert. That’s what many agents need on their business cards!! Get the designation and put forth that you are an expert. NAR should not even allow their short sale designation unless the agent has closed at least 10 short sales. And don’t get me started on CDPE!!
There is only one way to learn short sales and that;s be experience. If you haven’t done any then team up with someone who has. And please let the seller know.
Renee – You are wise not to take on short sale transactions without having a complete understanding. I am sure you would do just fine if you did decide that it was the type of sale you wanted to handle. Unlike a lot of Real Estate agents I know you would take the time necessary to get educated.
Broker Bryant – Thanks for the compliments. Oh boy do I hear you on the CDPE designation. That is a worthless piece of paper. I have seen plenty of agents talk about that like it is some kind of diploma to Harvard! You are right about experience – there is nothing better than being in the trenches and closing on these transactions. Short sales are not for everyone and should only be handled by those that know what they are doing.
Bill – Another outstanding article you have written. I mostly represent buyers and having an inspection done upfront is negotiation power if something comes up. When I represent sellers, I also will get a real estate lawyer involved who will handle the negotiation with the seller’s lender. After all, we are experts in marketing and selling real estate and that should be our focus point. I don’t consider myself a short sale expert, although I’ve gone through training obtaining my SFR. Education is an ongoing task, especially with short sales.
I will only say one thing here…if us realtors do NOT help those who are in trouble in this market who will. If you do short sales then you know it can not be about the money…I am spending ours helping people avoid foreclosure on their home and in many cases eleminating any future liabilty. We have to try to help people in need.
Petra – Thanks for your compliments. I know you well enough that I can say I know you follow correct procedures in a short sale. Having a short sale attorney involved is a very smart move! I hear you about marketing and selling. Far too many Realtors give out legal advice when they shouldn’t be.
Larry – It is not a question of Realtors not helping. It is a question of Realtors who know what they are doing helping!! It is pretty hard to give someone advice on any topic unless you are a broad and deep understanding of it. There are MANY Real Estate agents that are trying to help those in need of a short sale but don’t have the knowledge necessary to properly do it. Why do you think the success rate is so low for short sales? It is certainly not just the lenders fault!
Don’t get me wrong Bill, I have an understanding. An understanding that I don’t want to do them to take on the liability. People do them for shady reasons here: Buy & Bail, Postpone Foreclosure, etc.
I believe that shady people also have a tendency to be litigious. I am not saying all short sale sellers here are shady – a good portion of them are.
Hearing some of the stories makes you sick. I don’t wonder why our gaming numbers were so high during the time of “good times.”
I ain’t in Nebraska no more 🙂
Timely and well written. I love this line, “many of these agents are flying by the seat of their pants”.
Until about 3 years ago I taught a class on short sales. Then came the crash. When I started teaching in 2001 barely a sole knew what a short sale was. Amazingly by 2007 there were hundreds of people with “decades of experience”. My biggest concern has always been the seller. Even as a lender my concern was – the borrower who truly found their situation to have placed them “in a pickle”.
I simply quit. Gave up.
In Georgia an attorney may not be enough since the state requires anyone negotiating terms of a loan to be a licensed Mortgage Loan Originator. I didn’t say it, THE Georgia real estate attorney did.
Bill, excellent article. I so wish there was some standardization as far as short sales go, but I also wish I were 10 years younger….
I have learned so much about short sales, from you, from Broker Bryant, from many others. From our conversations I have made changes to my procedures. The issue will be changing the mindset of buyers agents, which can be a momentous task. I will stand firm with this however.
1. inspections up front
2. make sure they follow through with mortgage app
3. no low ball offers, this I am firm on
4. I never tell them to stop paying the mortgage
Sometimes the buyers agent is the biggest problem of all….
Great reading! Thank you. However, I wish you had used “agent” rather than “Realtor” throughout your article. I’m especially sensitive to this as there is a real estate company near me that handles many short sales, and is not a Realtor member. This company is known for questionable practices under the guise of assistance. I hate when we give non-Realtors the benefit of the title and it’s no wonder the public is confused. Sorry, to go off on a tangent…. I drank the kool aid and I’m off to the MAR Board of Directors Installation today;-]
Well written and informative article Bill.
So true, there is no substitute for experience. Referring to an experienced team to partner up is a great way to get your licks in. Joining forums or networks is certainly advantageous to bounce ideas and issues and share tactics and contact info.
Bryant, and I guess Bill, because you agreed with him, what’s y’alls beef with CDPE? Bryant, I’m assuming you’ve attended the class?
When I started doing shorts in 2007 there wasn’t alot of “teachers” out there with the knowledge to deliver, certainly NAR didn’t step up like they should have early on-and I hear their short sale course is little more than a joke. My first class was a Floyd Wickman class sponsored by our local board…and a large handful of others along the way, each by someone claiming experience. Of course there was a nugget here and a nugget there. I didn’t take the CDPE class until Nov. 2009. I wish I started with that one. I have to say that Alex Charfen and the CDPE Institute has crafted one of the most informative teachings on the subject that I’ve seen yet. And with a network of over 20,000 agents, MOST of them Realtor’s, the information sharing is probably one of the largest, I’m pretty sure even larger than your SuperStars Bryant? Not that I’m knocking what you have created, but I want to understand why your knocking CDPE.
Disclose, disclose, disclose in all matters of our business is great advice, and, as you point out, IN the code of ethics….provided that an “agent” took the time to invest in their business and takes themself serious enough to be a “Realtor”, which, among many other classes I think should be minimum mandatory for our field…like GRI. If we are to be held in a higher regard we need to raise the barrier to entry alot higher. I know, at least here in Florida, the test is a joke.
Ken – very interesting about needing to be a licensed mortgage broker. That actually makes a lot of sense!
Andrea – Thanks you know when ever you have a short sale question I will be happy to provide a helping hand!
Chris – I hear you but most people have no idea there is a difference between a Realtor and a Real Estate agent. Even if they did there are many “Realtors” that are clueless when it comes to short sales. Unfortunately I don’t see much distinction between the two.
Dennis – I don’t have a problem with the CDPE course per Se it is the Realtors who take it and obviously don’t learn a thing! I am always a fan of more education. The public deserves it!
Great article Bill. Thanks for summarizing it in a nutshell. Our team is doing everything you referenced with one exception and that is the inspection timing. We will work hard to make that our new year’s resolution to have the buyer’s agents work hard to get those up front. Thanks for the wisdom!
Thank you for a great “head’s up”! I’ve been a Realtor for 20 + years and have had the joyful experience of being in a deposition or two throughout my career. Here’s what I’ve learned: A) when the deposition includes a buyer or seller vs. a Realtor, from day one, the Realtor is usually already way behind in the eyes of the court, B) even if “Mother Theresa” wrote the real estate contract, a good attorney for the plaintiff can generally tear it and her to bits…and that usually comes from the buyer or seller saying, “I don’t remember “that” (whatever “that” is) being explained to me”…which brings us to “short sales” and all that go with them and what will surely follow. My concern is, many Realtors are just trying to make a living wage right now, there have got to be just as many Lawyers out there looking for the next great opportunity…I really believe it is going to be the unfortunate Realtors that regardless of how well (or poorly) they performed on the short sale, that are going to get sued because the Seller will have get some sort of financial demand down the road and will have long forgotten all of the hard work and disclosing the Realtor did on their behalf during the short sale process. I too, am now referring out my short sales.
I’m new to your blog, so I ‘ve been reading to catch up. I’m currently working with an investor on a short sale. And I just read to never let an investor negotiate the short sale. He writes an option contract for the property and then we procure an “end buyer”. Can you please explain why I should not be involved with this type of transaction? He has all his disclosures done by a local attorney and with our attorney of our board. Doesn’t this make it all legal? Would like to see your comments.
Renee – What you are doing is fine as long as it is disclosed up front to all parties involved including the lender. My article was written from the stand point of a listing agent that is hired to complete a short sale for a seller should not let an investor (buyer) take over the short sale.
I do a lot of short sales and I LOVE your blog! That was about as “in your face TRUTH” that you can get. Everthing you said, are the things I deal with daily as well and I don’t understand why NAR does not require agents to be trained before handling something as important as a persons entire financial portfolio! I just put in an offer for some clients on a short sale, with an agent that does not even know how to use the spell check on his computer before sending an email…then has the NERVE to try to start a bidding war 2 days after my offer was sent to him??!!
I’ve been saying all along you are going to see a huge amount of lawsuits coming. Those 1099’s are right around the corner. I just had one bank send my client a “BILL” for 49k. (just a statement with a payment coupon, no letter, etc). I have heard that the banks are trying to get the sellers to accept the responsibility by responding before they HAVE to send the 1099’s & discharge the debt. Sadly, the sellers that have not been educated properly and completely……may make the mistake of sending in a payment….. thinking that they have no choice. It’s all case by case dependent, however…..it’s going to be interesting to see.
Happy Blogging & keep on helping!
Bill, it is great to see that you are spreading the good word- if you don’t understand short sales, refer them to an experienced professional. As someone who deals exclusively in short sale transactions, I always request (in writing) that the lender forgive the right to pursue any deficiency or unpaid debt against the homeowner. Despite this practice, however, I routinely encounter situations where the lender agrees to release all deficiency rights (in writing), yet still sends the former homeowner a demand for payment. Often times the lender states that their approval letters are a standard form letter and that they cannot agree in writing to forgive the deficiency. To me, this is unacceptable. If they are unwilling to put deficiency language in the approval letter, I demand that they put it in writing on a supplemental document or at the very least in an email from an authorized lender representative. That way, I have the written evidence to quickly overcome any deficiency claims a lender, or more commonly, a third party debt collector may allege following a short sale. As the above commenter Petra Norris points out, ” [Realtors] are experts in marketing and selling real estate and that should be our focus point.” As a designated short sale negotiator, I handle the negotiation with the lender which allows Realtors to devote more time to what they do best- obtain new listings and sell real estate. As you astutely point out, Realtors are bound by the Code of Ethics and given the amount of inexperienced Realtors handling short sale transactions, it is not a matter of” if” you will be sued, but rather a matter of “when”.
Very good and informative blog! I guess the “agents” that need to hear you are probably not! It’s incredible the level of incompetence! Keep up the good work!
Tasha, Sandor, Andrew and Manny thanks for all your comments on my short sale article. It sounds to me like you guys are doing well with helping home owners navigate the short sale waters. Keep up the good fight!
It’s obvious there is QUITE A BIT of thinking going on here… deservedly so.
In every Association meeting I’ve been to I’ve spoken with countless REALTORS® who don’t want to take Short Sale listings simply because of their litigious nature. What a shame that so many are sacrificing commissions!
CRISNET, CAR, DRE and most of the local associations are recommending- regardless of your expertise in negotiating- to have all of these performed by an attorney… COMPLETELY eliminating your liability when the class action suits begin. Not only do most attorneys have experience negotiating with the banks (and have established relationships with these officers) but they can provide INVALUABLE legal counsel to your sellers. Who, quite frankly, needed a legal consult before their Short Sale listing ever existed…
Bill fantastic post. This is inspiring me to write something similar on my own blog, I’ll refer back to your article. Good stuff. I hadn’t thought about the home inspection post short sale approval.
Beth I agree with you completely. Any issues regarding legal matters with short sales should be discussed with an attorney. I am fortunate to have a good one on my team. Knock on wood I have yet to list a short sale that was not approved. There are a lot of Realtors that will have gotten themselves into hot water.
Thank you again Bill for a great article. I always put in writing to my Sellers a statement indicating that they have been provided the opportunity to seek legal, tax or any other advise as to the terms of the short and short sale approval. I have them sign off on this for my file and so that they understand, right up front, that there will be issues regarding a short sale of which they will want to consider discussing with experts in law, accounting or otherwise. I continue to appreciate your expertise.
Your advice is spot on. One of the biggest challenges that we find when representing a buyer on a short sale is when the listing agent wants to submit multiple unsigned offers to the lender. As you state in your blog, without ratifying an offer, there is no deal.
Bill, great information to share with potential sellers. Too many try to underprice their property in an effort to get it under contract, without realizing that the bank will reject it based on comps anyway. RT’ing this post.
It’s obvious there is QUITE A BIT of thinking going on here… deservedly so. In every Association meeting I’ve been to I’ve spoken with countless REALTORS® who don’t want to take Short Sale listings simply because of their litigious nature. What a shame that so many are sacrificing commissions! CRISNET, CAR, DRE and most of the local associations are recommending- regardless of your expertise in negotiating- to have all of these performed by an attorney… COMPLETELY eliminating your liability when the class action suits begin. Not only do most attorneys have experience negotiating with the banks (and have established relationships with these officers) but they can provide INVALUABLE legal counsel to your sellers. Who, quite frankly, needed a legal consult before their Short Sale listing ever existed…
Yes, a great article. I made up my mind when the market crashed NOT to do short sales. I had many many people call me, and I gave them the phone numbers to people that were qualified, and to the free help organizations in our area. Besides that I have written about the scams and watching out for the unscrupulous people in our field.
The liability was the main reason I haven’t, and won’t do short sales. I may have lost a dollar or two along the way, but at least I felt good about myself that I never took advantage of a bad situation.
Kathy I think it is fantastic that you are so honorable. There are so many Real Estate agents in my area that could care less about the fact that they don’t know anything about short sales. As long as they have another listing that generate buyer calls they are happy. There are so many short sales that are getting foreclosed on because of agents that don’t have a clue about what they should be doing. I recently took over a short sale from another agent and stopped a foreclosure at the last minute. Of course the agent would not let the client out of the contract unless I paid them a referral fee! It is sad and frustrating at the same time when you see a Realtor listing a short sale and you know they don’t know the 1st thing about them!
Excellent post, Bill. I have my own relocation business and look for the right Realtor each and every time for each situation. I want you on my team!! If I have a short sale in your area, you guessed it! I’m calling you.
I couldn’t agree more that it is vital sellers and buyers work the right professionals. It takes hard work mixed with experience to be able to offer it. It sounds like you have focused on doing just that. High five!
Great advice, Bill. That’s why we encourage all our sales asssociates at Real Living All Florida Realty to get educated through the CDPE or SFR courses and designations.
I hope those sales agents and even attorneys who insist on sending unsigned contracts to the lenders read this. That’s one of our biggest problems.
Bill, as I have said before, your advice in regards to these things is priceless! I followed everything you said here to a tee, successfully completed two short sales, and have taken on a third. Thank you again for the expert advice! It is so helpful to new agents like myself.
Thanks Chris I appreciate the compliments. It is very frustrating when you see agents getting involved in short sales that have no business doing so. Far to many don’t think about the consequences to a seller and will take a listing thinking they will learn on the fly on what it takes to get to the closing table.
Can a Realtor keep their commission is they are the purchaser of the short sale?
Depending on the lender you may find they have an issue with you keeping the commission.