Does The Foreclosure Moratorium Affect Short Sales?

 You more than likely have heard that many banks nationwide are placing a moratorium on foreclosures while they and the government work out the legal issues in judicial states*. I have had a lot of inquiries in regards to short sales. The number one concern REALTORS have is does this affect short sales and how does it affect those that are currently in the negotiation process with the banks?

Of course when the moratorium was announced this was one of my concerns as well.  I have done a lot of research and made a lot of phone calls to all the banks that we work with (Chase, Bank of America, GMAC, Wells Fargo, CITI Group, Wachovia and other banks) that may be participating in the foreclosure moratorium and the answer is NO.

Foreclosures and short sales are two different processes used by a bank to complete a similar outcome.   However, since the short sale is initiated by the home owner and NOT the bank and does not involve a legal process, short sales will not be affected.  In fact, due to the frustration that the moratorium places on those who want to be out of their home quickly, we may see more short sales on the market. 

This moratorium is not surprising. The banks are overwhelmed with the high volume of transactions and will continue to be unless they have the systems in place and properly trained employees ready to handle this volume. What is more disappointing is knowing that many homes could have been saved if the paperwork was read thoroughly and processed accordingly . This is not okay. This only frightens homeowners and stops them from reaching out for help. Who can they trust? Maybe some of these homeowners could have been processed as a short sale if they had the right real estate professional to guide them.

 * California is a non- judicial state however to date, Bank of America is the only lender that has extended its foreclosure moratorium to California, where the vast majority of foreclosures are conducted without a court order.

How can I do my part as a Real Estate professional?

I believe short sales are still the best alternative to avoid foreclosure for homeowners that simply cannot qualify for a loan modification. Here are some tips that will help you moving forward:

a)      Arm yourself with the most up to date short sale information so that you are able to give informed answers to questions that a homeowner in pre-foreclosure might have. Homeowners need someone to tell them what to do. They need to know all the options available to them.

b)     Gain their trust. LISTEN to them. Offer them some hope. Offer to help them find a rental and get them enrolled in a credit recovery program at the end of the transaction. This will make them feel that you truly have their best interest in mind and are here to help them achieve their goals.

c)      Have them talk to a Real Estate attorney and a CPA to understand the tax ramifications and possibility of a deficiency judgment. 

d)     Make sure your client has been thoroughly pre-qualified and have all your documents collected and paperwork completed with no holes.

e)      Actively list the property creating a listing history to support the value of the offer.

f)       Submit a complete package and follow up tenaciously.

It is our job to ensure proper procedure has been followed and all paperwork is true and complete. Whoever is on the other end at the bank may not be looking as deeply into your transaction as you are and therefore not giving you a fair chance to negotiate the transaction, so the goal is to know your transaction inside and out and educate the person receiving it at the bank.

I believe if we can do our part and help as many people as we can in their time of need we will persevere under any set of circumstances.

(Quote) "All of the great leaders have had one characteristic in common: it was the willingness to confront unequivocally the major anxiety of their people in their time. This, and not much else, is the essence of leadership." --John Kenneth Galbraith

LOTUS REALTY GROUP

PROFESSIONAL SHORT SALE NEGOTIATORS 

At Lotus Realty GROUP, helping people ethically succeed is at the forefront of who we are...

Call today to find out how Lotus Realty Group can assist you in closing your short sale transactions or go to WWW.LotusRealtyGroup.com

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Getting Listings With Post Cards and Door Hangers

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Short Sales: Let the Agent Beware

If a  transaction is a short sale, the real estate agent handling the sale might  be liable to the buyer if that fact is not disclosed up front. This week a  California Court of Appeal issued a decision which imposes a duty upon a  seller’s agent to disclose that the seller’s existing loans far exceed the  contract purchase price. Holmes v. Summer, __ Cal.App.4th. ___  (2010 Daily Journal D.A.R. 15614) (filed October 6, 2010).  In this case the seller’s agent listed for sale  a residential property for $749,000. The property was subject to three  deeds of trust totaling debts of $1,140,000, thus the sale would have to  be a “short sale.” No disclosure of the existing loan amounts were made in  the MLS listing or to the buyer prior to executing the purchase  contract. The purchase contract provided that the buyer  would purchase the property free and clear of any liens. After entering  into the contract the buyer sold the buyer’s existing home in order to  purchase the property. The seller was not able to get the three lenders to  agree to a 35% reduction in the existing loans, and then defaulted on the  obligation to sell the property free and clear of liens. Instead of suing  the seller for a breach of the contract and failure to disclose the  problem with the loans up front, the buyer sued the seller’s agent. The  trial court surmised that the seller was broke and thus the buyer went  after the agent’s “deep pockets.” The trial court dismissed the buyer’s case,  holding that the agent had no duty to disclose the loan information. The  Court of Appeal reversed that decision. It held that in this instance the  listing agent had a duty to disclose to the buyer the existence of deeds  of trust of record and the extent to which the property was “underwater.”  Furthermore, the disclosure had to be made before the buyer signed the  purchase contract. The Court of Appeal indicated that where there was such  a substantial over encumbrance of the property “there is a duty on that  agent or broker to disclose the state of affairs to the buyer, so the  buyer can make an informed choice whether or not to enter into the  transaction that has a considerable risk of failure.” This conflicts with another duty of real estate  agents, i.e., the duty not to disclose clients’ confidential information.  The court stated that both the “duty to disclose and the duty to maintain  client confidentiality is clearly involved [in this case].” The court  opined that deeds of trust, being in the public record, are not  “confidential information” and that the basic duty of an agent to treat  each party to the transaction “honestly and fairly” trumps the agent’s  duty of confidentiality to the seller. To avoid the conflict, the court  suggested the agent must obtain the seller’s permission to disclose such  confidential information to a buyer before the buyer enters into a  contract to purchase the property. Otherwise, the agent would be  proceeding at his or her own “peril of liability in the event the  transaction goes awry due to the undisclosed risks involved.” This case involved facts about existing loans  that made a short sale extremely unlikely to succeed. What if the loans  were smaller? What if there were fewer lenders? What if the seller has a  pending divorce or bankruptcy? Is a listing agent required to disclose  such confidential information to the buyer? This decision might open the  floodgates to other claims against listing agents for failure to disclose  confidential information about a seller’s financial situation or other  relevant circumstances that might make it difficult for the seller to  consummate the sale. It is going to be important for agents to carefully  assess the risks and rewards when selling distressed properties, and to  beware of this disclosure obligation. For additional assistance in this area of  law please feel free to contact us:
Luce Forward's Real Estate Transactions  Group. <http://contactus.luce.com/rs/ct.aspx?ct=24F76918D0AE4EE0CCD189A9D629981991B04C81E0B42EEC7AC6476C5FCEFD35E9412>     Joseph S.  Stuart
Partner
949.732.3711
jstuart@luce.com
Attorney Bio <http://contactus.luce.com/rs/ct.aspx?ct=24F76918D0AE4EE0CCD189A9D629981991A84693E9A135EB6FC743414AC65>  Robert J.  Bell
Partner
619.699.2533
rbell@luce.com  

Attorney Bio <http://contactus.luce.com/rs/ct.aspx?ct=24F76918D0AE4EE0CCD189A9D629981991B04682E9A329FA7EDE4E4FA>  Real  Estate Transactions <http://contactus.luce.com/rs/ct.aspx?ct=24F76918D0AE4EE0CCD189A9D629981991B04C81E0B42EEC7AC647474CDBE73FFB5E0B89D0C407994>  Printer-Friendly  PDF Version <http://contactus.luce.com/rs/ct.aspx?ct=24F76918D0AE4EE0CCD189A9D629981991B1418FFEA52EF977D7516C4EDEEF309> 

B of A halts foreclosure sales in all 50 states

(Re-blogged - this article was written by Kathleen Pender)

Bank of America has decided to temporarily halt foreclosure sales in all 50 states.
In a statement, spokeswoman Dan Frahm said, "Bank of America has extended our review of foreclosure documents to all 50 states. We will stop foreclosure sales until our assessment has been satisfactorily completed. Our ongoing assessment shows the basis for our past foreclosure decisions is accurate. We continue to serve the interests of our customers, investors and communities. Providing solutions for distressed homeowners remains our primary focus."

A spokeswoman elaborated that BofA will continue the foreclosure process on delinquent borrowers, but will not proceed to judgment or with a foreclosure sale at this time. Foreclosure sales scheduled for Saturday, Oct. 9 or later will be stopped and rescheduled at a later date. The bank estimates it will begin rescheduling foreclosure sales on Nov. 1 or earlier.

BofA was one of three banks, along with GMAC Mortgage and JPMorgan Chase, that halted certain forclosure activities in 23 states where foreclosures are handled in court. The banks made the move after it came out in testimony and depositions that some of their employees had "robo-signed" court documents they hadn't really read.

California, where most foreclosures are handled out of court, was not among the 23 states. However, Attorney General Jerry Brown had called on Chase and GMAC (part of Ally Financial) to stop foreclosing on homes in California unless they can immediately prove they are complying with a state law that requires them to try to contact borrowers to discuss modifications and other alternatives before foreclosing.

California Assembly member Ted Lieu, D-Torrance, this week called on the two state agencies that oversee banks (the Department of Corporations and the Department of Financial Institutions) to impose a 60-day moratorium on foreclosures so that they can investigate whether lenders in California are following that law and another that requires them to have and follow a modification plan.
This week, House speaker Nancy Pelosi and other California Democrats wrote a letter to U.S. Attorney General Eric Holder and others asking them to investigate to investigate "possible violations of law or regulations by financial institutions in their handling of delinquent mofigages, mortgage modifications, and foreclosures."

Some real estate experts say a foreclosure moratorium could cause home prices to rise temporarily as foreclosed homes, which are usually priced at a discount to homes not in foreclosure, are taken off the market.

"In the short term it will keep foreclosures from happening," and that could create an "artificial" boost in prices, says G.U. Kruger, chief economist with HousingEcon.com. But it also could "prolong the malaise" in the real estate market, says Brad Kemp, director of regional research at Beacon Economics.

Consumer groups have come out in favor of a nationwide moratorium to make sure that homeowners are not forced out of their homes based on faulty paperwork. Consumers Union said today that "lenders and servicers should be required to stop all foreclosures until they can demonstrate compliance with all laws, regulations, contract guidelines, and stated internal policies, related to foreclosure, loan modifications, and other forms of foreclosure avoidance."

For more on the subject, see my Tuesday column here.
Posted By: Kathleen Pender (Email) | October 08 2010 at 10:17 AM

Listed Under: Banking, Debt, Housing, Real estate

Read more: http://www.sfgate.com/cgi-bin/blogs/pender/detail?entry_id=74136&tsp=1#ixzz124UFCuy7

Need A World Class Team Member To Get Your Short Sales Approved? Cari Is Your Girl!

LOTUS REALTY GROUP

Setting expectation with buyers in a Short Sale

 Buyers who are putting offers on short sale listings have been a revolving door now more than ever. This is not good for all parties involved. When a lender issues an approval they want to close in 30 days and extensions are harder and harder to get approved. I recently had a short sale transaction that I had been negotiating for a REALTOR for 3 months. I obtained an approval within a month of submitting the package. A 6% commission and a credit to the buyer were also approved. However, while I was negotiating these terms the REALTOR had already lost the first buyer and buyer #3 was withdrawing their offer. The short sale negotiator was so frustrated with amount of times she had to change the numbers, fax over a new approval and postpone the sale date that she informed me that there will be no more extensions given regardless if there is another offer or not and she was firm on this. Where we stand as of now is we are forced to try and get another committed buyer and try not let a perfectly good approval go to waste. TBD….

How frustrating. After putting together a perfect deal the deal is now in jeopardy because of a lack of commitment from the buyer. We cannot afford this kind of turnover. Lenders are tightening their standards and they are just looking for a reason to reject a file. We are not doing a good service for the homeowner in default if we can’t hold on to a buyer and we are wasting our time. I understand there are certain circumstances that are out of our control but there are things that we can do to minimize the risk of losing a buyer.

My goal is to help you succeed with the right tools so that everyone wins with the least amount of unnecessary stress and frustration. It has been my experience that if we set the proper expectation up front and then stand firm on those expectations, we have a better chance of minimizing our risk.  Following are some tips to bear in mind when accepting an offer on a short sale listing.  I am hopeful that these will help you become more effective and efficient, offering the highest level of customer service for all parties involved.

Tips to getting a committed buyer:

1.      The moment you get an offer submitted, send a counter and addendum explaining the following:

Counter:

a)      Buyer agrees to keep offer active for a minimum of 60 days from seller acceptance and that credits from seller to the buyer may not be approved by lender.

b)     Property to be sold strictly as is with no repairs or termite clearance to be provided by seller or lender.

c)      Seller to select all services except for termite and home inspection companies.

d)     Buyer to provide DU approval from their lender and proof of funds immediately.

e)      All parties to agree to extend original offer dated ( enter date)

Addendum:

a)      Buyer shall deposit a minimum of $1,000 into escrow within 17 days of seller acceptance. If buyer decides to exit this contract prior to the 60 day commitment period, buyer to forfeit $500 of good faith deposit.

b)     Buyer to remove all inspection contingencies within 17 days of seller acceptance.

c)      Seller shall deliver property disclosures and any reports in seller’s possession within 7 days of seller acceptance of this offer.

d)     All parties understand that this is a short sale. All terms and conditions are subject to lender approval, including but not limited to price, commissions and cost.

e)      Property being sold as is and buyer to pay for any third party fees incurred by seller but not paid by seller/short sale lender including but not limited to property taxes, title fees, liens, HOA fees, for a total amount not to exceed ( enter amount).

f)       Buyer agrees to close escrow 30 days after receipt of lender’s final approval of short sale. Buyer understands that the lender may charge per diem penalties to buyer should buyer fail to close within the 30 day time frame.

2.      Have a conversation with the buyer in addition to getting these signed.  Should the lender not approve seller credits is the buyer able to still proceed with the transaction?

3.      Once the offer has been accepted lines of communication need to remain open at least once a week informing the buyer and the buyer’s agent of any new break through. Even if there is no new news to report, still communicate with them so they know you are actively working on the file.

If we can set the expectation up front and lay it all out on the line for the buyer and they still sign the contract and follow our procedure, we have increased our chances by more than half of having a committed buyer in place.

Buyers have been this deals number one killer.  In short sales we must do all we can to find a solution. Though buyers may still remain a revolving door, I believe if we do our part we will minimize the chance of the deal falling through due to a weak buyer. If the old way is not working then we have nothing to lose so it may be time to try something different.

(Quote) Don't tell people how to do things, tell them what to do and let them surprise you with their results.

George S. Patton

LOTUS REALTY GROUP

PROFESSIONAL SHORT SALE NEGOTIATORS 

At Lotus Realty GROUP, helping people ethically succeed is at the forefront of who we are ...

Call today to find out how Lotus Realty Group can assist you in closing your short sale transactions or go to WWW.LotusRealtyGroup.com

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Cari Drolet - Founder
Lotus Realty Group

Certified Distressed Property Expert

400 S. Sierra Ave. Ste. 102
Solana Beach, CA 92075
(858) 764-7300 P.
(858) 755-7544 F.
(760) 707-3072 C. Cari@LotusRealtyGroup.com www.LotusRealtyGroup.com