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This article in today’s NY Times makes reference to banks being reticent to approve short sale because of a fear of fraud. This is not the first I have heard the concern, and while any fraud is wrong, the argument is a straw man excuse to not streamline the process. Are there fraudulent short sales, where a family member buys and rents back, or an investor is flipping the house at a below market purchase? Yes. Should that ruin it for the 99% of the rest of the people? No, of course it shouldn’t. It is like being against health insurance because there are hypochondriacs out there.

A very small percentage of short sales are fraudulent.

Per the Times:

Concerns about fraud are one of the reasons lenders are so careful about short sales. Sometimes well-off homeowners want to portray their finances as dire and cut their losses on a property. In other instances, distressed homeowners try to make a short sale to a relative, who would then sell it back to them (a practice that is illegal). A recent industry report estimates that short sale fraud occurs in at least 2 percent of sales and costs banks about $300 million annually.

So 98% of the people should suffer? You’ll probably see the similar percentages on shoplifting. Should we close the malls?

It is just another excuse to not do the right thing.

$300 million is a drop in the bucket compared to the massive amount of wealth that has been plundered by the banks’ own fraud and deception. I’ll say it again: In the New York area, and Westchester county, where I am based, the property values are enormous and the dollars at stake for the regular borrowers facing foreclosure are enormous. They need to be treated right and presumed innocent.

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Recently, a listing brokerage instructed one of my agents to include a HUD-1 as part of our client’s offer on that brokerage’s short sale listing. To say that it was a peculiar request is an understatement; The HUD-1, which is a mandatory form in any transaction involving a mortgage financing, itemizes and documents all expenses for both buyer and seller. In New York, especially Westchester and the Metropolitan area, it is prepared by the seller’s attorney in a short sale, with approval from the bank approving the short sale, the  buyer’s attorney, their bank attorney, and the title company. Aside from the real estate commission line item, there is no involvement of the real estate agent.

While the request was for a “preliminary” HUD-1 and not the final form, the instruction for us to provide one was ill advised and questionable to my thinking. A I said, the form includes the seller’s expenses as well. How can the buyer’s agent possibly know the seller’s mortgage amount, mortgage payoff, back taxes, back payments, or other liens and expenses? The answer is that they can’t, unless the seller provides it. Why the seller would provide such information to the other side in a transaction is beyond me. They have their own fiduciary in their listing agent and attorney.

Maybe they had a great, innovative point; if so, I didn’t glean it from their Kramdenesque stutter when I inquired. We had an offer. They needed to present it and crunch the numbers on behalf of their client.

Upon occassion, I am contacted by “short sale investors” who promise my full commission, will buy my listing for cash, and re-list the house with me after they close. Tantalizing, huh? Oh, just one little thing: They want to negotiate the short sale themselves. In other words, they want to be an authorized third party designated by my seller client to deal with my seller’s bank.

No deal. You know who deals with my seller’s lender? Myself and the seller’s attorney as their fiduciary advocates. The bank won’t even talk to us for reasons of confidentiality without a signature authorization from the client. For a seller to authorize the purchaser to negotiate on their behalf with the bank for the short sale is antithetical to any agency rule on a listed home I have ever known.

As I said, it is the seller’s broker and lawyer who negotiate a short sale in New York. There are some outside companies who are paid by the seller to do so for a fee, but I do not hire them. I refer my short sale clients to an attorney who can do short sales in their sleep.

The point here is that everyone needs to play their position in a short sale transaction, and that our fiduciary responsibilities and duties to be an advocate don’t go out the window when a short sale is involved.

Who negotiates for the seller? It should be the people the sellers hire, preferably their agent and attorney, not the people they sell to.

Originally posted on my Westchester Real Estate Blog.

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Being a businessman I seldom delve into politics in this platform, but it is clear to me that part of the problem in affecting a sustainable recovery is a lack of political will in our current leadership, including the White House, after reading this gem in the Times on the foreclosure fraud crisis:

the Obama administration has resisted calls for a more forceful response, worried that added pressure might spook the banks and hobble the broader economy.

So we’ll just spook the borrowers, who are already hammered and traumatized. Protect the banks. Look, I am a brazen capitalist and this is insanity. Insanity! And both parties are culpable.

In our local elections, state Senator Suzi Oppenheimer has been devoting the bulk of her campaign to going negative on challenger Bob Cohen, accusing him of being a slumlord, among other things. Cohen, who apparently owns  a number of buildings in the Bronx, is having tenant complaints and other dirty laundry aired by Ms. Oppenheimer in her bid for re election. This skirts the real issues. Cohen, a real estate guy, for all his blemishes might actually have more insight into our problems than the Senator, who has been in Albany since 1985. This is not an endorsement. It is conjecture. But neither candidate is addressing the issues facing the electorate while we discuss the man’s apartment buildings.

Late last night, in a post entitled Short Sales are the Answer, I said the following:

It is a shame that there is no political will on either side of the isle to hold lenders feet to the fire to affect meaningful change, and defaulted homeowners must contend with a mad race to work a miracle with an uncaring, unresponsive monolithic entity before that monster forecloses, repossesses their home, wrecks their credit and crushes their dreams. This is not progress.

In reading this morning’s NY Times on the White Houses sheepishness (Hey Mr, Obama, can you pretend that Bank of America is General Motors?) and reflecting on Ms. Oppenheimer’s electioneering in lieu of addressing her constituents’ pain, my words are all too sadly true. Forget Washington for a moment. This is Westchester County’s state senate seat. This is our representative in Albany.

Show me someone up for election with the guts to stand up to lender’s unwillingness to change their architecture against short sales, which are a huge part of the solution, and G.O.P., Democrat or Martian, they’ll have my vote.

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Now that Bank of America has joined Chase and GMAC in suspending foreclosures in 23 states (BoA is actually suspending them in all 50), including New York, the entire industry is abuzz with questions as to what the consequences are for the market, a recovery, and most of all, distressed homeowners. Now known as the robo-signing scandal, the issue is calling into question the legitimacy of thousands of foreclosures.

What’s more, with foreclosures halted, what will banks do to dispense with default properties and non-performing loans? The answer to my mind is clear: start paving the way for more short sales. Title is passed from one owner to the next with no interruptions or questions, the process saves the banks both time and money, and more borrowers can move on with their lives with dignity which is all to often a missing element of the current system.

The advantages are enormous:

  • In a short sale, the bank doesn’t have to take 1-2 years to repossess the home. They get their money faster.
  • In a short sale, there are no legal fees associated with a foreclosure.
  • In a short sale, the bank does not have to manage the property, put the utilities in their name, or winterize the property except in rare cases.
  • Short sales are seldom boarded up, vandalized, or vacant. They therefore net the lender more money.

This has always been the case, and made me wonder why banks are so difficult, but with foreclosures off the table short sales now appear to be their only option.  With New York among the states that more lenders are suspending foreclosures, this gives distressed sellers breathing room, and, more importantly to my thinking, dignity.

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When a question is asked of me more than once it is a good bet that it is a common one, so I’ll post briefly today on who pays the commission in short sale. The answer is simple: The lender pays the real estate commission.

In a regular sale, real estate commission is paid from the proceeds of the equity. In a short sale, sellers who cannot pay their mortgage and do not have the funds to cover a short fall cannot pay the commission, because there is no equity, no proceeds, and no outside resources. Therefore, as part of their loss, the mortgage company pays the real estate commission. They also wash away the past due payments, pay the back taxes, and anything else needed to pass the home to the new buyer with clear title.

No real estate broker should ever require a short sale client to deposit money in escrow, or take a fee in advance of an approved sale and closing. It is antithetical to the contingent nature of our business. The commission is an incentive to do your job, and I would be suspicious of anyone who asks for money up front.

Again, to be clear: In a short sale, the bank pays the commission. I have closed short sales in Yonkers to Suffern, Chappaqua to Poughkeepsie , and dozens of places in between. I have never taken a dime from sellers.  The bank has always paid the commission.

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I have listed two new short sale homes this weekend. One is just shy of $1 million, the other is around $200,000. One is in lower Westchester County, the other is in central Dutchess County. One is almost 3000 square feet, the other is closer to 1300 square feet. Although it doesn’t sound likely, the two clients have a great deal in common.

  • Both are responsible and hard working
  • Both are frugal and fiscally conservative in their management of money
  • Both are college educated professionals
  • Neither fits the profile of an irresponsible foreclosure candidate
  • Both are mortified at their situation, feel alone, and under considerable stress.

What is different about many short sales in the current market is that due to job loss, loss of income, or something else completely not related to their responsible behavior, otherwise good and accountable people are finding themselves needing to sell and not having the equity to cover their costs. These were not sub prime borrowers. They are stable. One had his business fail due to the recession, and the other has lost income. This is unfamiliar territory for both, because they have always watched their Ps and Qs and never overextended their credit.

In both cases, I have let them know that they are not alone, and that they are actually smart for getting proactive and contacting me. In both cases, I will get them out from under their upside down mortgage and get their short sale approved. They will not owe the lender anything after they close. They will get a fresh start. I will keep a roof over their head and help them repair their credit over time. In 2 years after they sell, if they want, I’ll help them buy another house.

The money is not the worst part of a short sale. No one starves or has no clothes. The worst part is the stress. Address the stress or find someone to help, and you’ll be lucid enough to help yourself. That goes for Scarsdale. And Chappaqua. And Yonkers. And New Rochelle. Everywhere.

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