Email Elizabetharms length
Selling a Short Sale to a Person You Know Could be Short Sale Fraud
A potential short sale seller in West Sacramento called a few days to ask questions about selling her home to a relative. Friends told her she could sell the home to a Living Trust, which her son controls, and then she wouldn’t really be selling the home to a relative — what bunk. This type of short sale transaction could very well violate an arms-length agreement. I can’t believe any lawyer would suggest that idea, but it’s possible because lawyers are not infallible. They make mistakes. Plus, they can then charge a client even more money to build a defense. Pretty good racket. Just think: Better call Saul.
This seller said she read in some of my blogs that it’s not a good idea to try to pull the wool over the lender’s eyes because it can come back to bite you. Hard. Right on the butt. I realize people get emotional about their homes and want the real estate to stay in the family, but if you’re doing a short sale in which you have to sign an arms length agreement, it’s not worth the consequences. The lender could say it’s mortgage fraud and reverse the seller’s release of personal liability, not to mention, prosecute everybody involved.
If you want to read about what recently happened to a seller and his real estate agent regarding short sale mortgage fraud, you should read this article in the Modesto Bee. There were so many alleged wrong doings, it made my head spin. The federal prosecutors say the agent and seller conspired. Here are some of the allegations:
- The agent wrote the short sale hardship letter for the seller.
- The hardship letter misrepresented the seller’s ability to make the mortgage payments.
- The seller and agent made false statements about the seller’s assets.
- The agent and seller misrepresented knowing the buyer.
- The seller sold to the buyer, which was the listing agent’s son, as a straw buyer.
- The seller gave the buyer the money to purchase the home in exchange for the buyer giving it back to the seller.
The buyer’s agent also gave the listing agent 75% of the buyer’s agent commission, which makes me wonder — what about the buyer’s agent in all of this? Is that agent’s broker liable? What about the listing agent’s son? Sounds like a group effort.
At this point, the seller apparently has pleaded guilty and is awaiting sentencing. If the agent is convicted, she could face 30 years in jail plus a $1 million fine. This might be a good time for the agent to watch the Netflex series Orange is the New Black.
Before you judge that listing agent too harshly, consider the fact that it’s possible she doesn’t really sell much real estate and just happens to hold a real estate license, like about 80% of the agents out there. It explains why she might not know any better but it doesn’t relieve her from responsibility to have known.
How the Short Sale Arm’s Length Can Backfire on a Seller
Some Sacramento short sale sellers could be headed for a big surprise down the road after signing an arm’s length. I know this because I’ve talked with a Sacramento short sale agent here and there who see nothing wrong with letting the parties to a short sale make agreements outside of the closing. They can agree to all sorts of things that are against the law and without the bank’s knowledge, but a common happenstance is over possession. Sellers sometimes have a hard time moving so they want to rent back, but most of the short sale arm’s length agreements prevent a rent back. Therein lies the problem.
Now, you can ask the bank for an extension but a short sale extension is not always possible. Especially if the bank has already issued an extension. A bank is not always eager nor willing to issue a second extension. I’ve had banks say they would close the file and start the short sale over. In some instances, that solution would be OK with a seller because not every seller is in a rush to move — especially if the seller isn’t making a mortgage payment. Free rent doesn’t come along every day.
I can tell my sellers we are closing on a certain day but that doesn’t necessarily mean they understand that they have to move out. Doing a short sale is an overwhelming process for many people. Each is different and can be convoluted, so it’s sometimes difficult to predict what a seller may or may not understand. But one thing is for certain. If a seller violates an arm’s length agreement and works out some kind of rent-back with the buyer, it might seem innocent but it can cost the seller big-time. If the parties agree to a lease back, for example, and the arm’s length prohibits such a lease back, it’s possible the bank could rescind the deficiency waiver.
There is a little clause in CA Civil Code 580e that says the deficiency waiver does not apply in the event of mortgage fraud. If a seller intentionally defrauds the bank, the bank might demand that all of that forgiven debt be repaid. Apart from the ethical implications, there could be legal ramifications and consequences to violating the arm’s length. My advice is just don’t do it. Don’t go through the headache and heartache of a short sale just to end up with the deficiency back in your lap.
It’s in a seller’s best interest to plan to move out on or before closing in a short sale. The agents don’t set the closing date, the banks do. And right now, because of the expiration of the mortgage debt relief act, many approval letters are coming in with fewer than 30 days to close. Everybody and their uncles are trying to hit that December 31 closing date.
Get Your Short Sale Package Upon Initiation
Did you miss the earthquake drill yesterday? We were sitting in the doctor’s office waiting room when 10:18 had come and gone. Darn it. But then, until my husband told me about the earthquake drill, I had not heard about it. That’s because I don’t hang out on social websites during the day. Nope, this little hamster on the hamster wheel is busy wheeling and dealing in short sales and Sacramento real estate. Nose to the grindstone and all of that.
Still, I managed to miss observing the drill. Because if I had known about it, I would have wanted to observe. Certainly, nobody in the doctor’s office was doing a duck-and-cover. You’ve got to ask yourself, though, did anybody really believe that diving under your desk with your hands over your head would protect you against a bomb? A nuclear bomb? No, in the 1950s, you just did what you were told and you didn’t question it. It’s life experiences like this, the duck-and-cover, that has prepared me for my career-turn to a Sacramento short sale agent. It takes a special kind of person, I’m convinced.
Take a short sale package, for example. Way back in the early years of short sales, like 2007, I used to hand out short sale packages in advance to my clients. Sometimes, I would email the packages. Mostly these were financial P&Ls like a 710. Today, we have a ton of options at our disposal, but I don’t routinely send out a short sale package before we open the short sale file. The reason I don’t is because I don’t want my sellers to do any more work than they have to do. I want to limit the pain.
Not only do the requirements change from day to day, but the forms change, too. There is a short sale in Lincoln that I’ve sold 4 times now. The first 3 packages did not include this particular financial, but the present sale does. You may wonder why did Wells Fargo not require this and now it does? Legal crap. Sometimes, it’s one word in a document that changes.
It’s not just a Wells Fargo short sale in which the required forms and documents can morph. Bank of America has changed its third party authorization more times than I can count. I’ve run out of fingers and toes. So, when I don’t give you a short sale package in advance to complete, it’s not because I’m failing to be proactive or shirking my duty. It’s because I don’t want you to have to fill out one package and then be told you need to complete a different package. Especially those arm’s length affidavits that require a notary. I’m trying to save you time and agony. Because heaven knows there is enough agony in a short sale as it is.
How to Time Your Sacramento Short Sale
Two things potential sellers tend to ask this Sacramento short sale agent. The first is whether the bank will do a short sale. The answer to that is generally yes, unless you just bought a new home in your name. If you’ve just bought a new home in your name, unfortunately, you’re pretty much hosed and you should probably talk to a lawyer about that bad advice. The second question is how long does it take to close a short sale? What a seller is really asking is not how long it takes to close but when the seller must move.
Closing hundreds of short sales give this Sacramento real estate agent a unique perspective. Based on a seller’s individual situation, I can pretty much predict when the seller will have to move out. In some short sales, a seller should not move out at all until closing. A little known and recent supplemental twist to the HAFA short sale, for example, withholds the $3,000 payment to the seller if the property is unoccupied.
I also ask sellers why are they in a rush to move out? If they are not making a mortgage payment, and most of them are not making a payment, it’s free rent to stay in the home. Why move elsewhere and pay two sets of utility bills? Plus, moving out leaves the home vulnerable to vandals. There are good reasons to stay put.
Timing the short sale is important. A seller’s convenience is the most important. A potential seller from Granite Bay called me last week. He wanted to know if he could rent back and close his short sale. I’m glad he called me and not somebody else because the answer to his situation is no. He needs to delay his short sale until he’s ready to move. His short sale will take 120 days and he needs 6 months. On top of this, few short sale banks will grant a short sale to a seller who intends to rent back. In fact, one of my team members brought a short listing in MLS to my attention last week. The listing agent had noted in the confidential remarks the seller would sell only to an investor who would let the seller rent back. The lender was Wells Fargo. Lottsa luck there, buddy.
In a Wells Fargo short sale, all parties sign an arm’s length. No exceptions. See, the thing is if a seller and listing agent commit mortgage fraud — and violating an arm’s length could be considered mortgage fraud — a seller has given the bank a potentially legal reason to set aside the deficiency waiver. That means the seller could end up owing the bank the difference between the sales price and the mortgage payoff after the short sale closed. Simply because the agent gave the seller bad advice. Legal advice, on top of it, which an agent is not allowed to do.
My time frame for closing a short sale is my seller’s time frame. I am in no rush. I won’t push a seller to put her home on the market. To do a short sale, a seller must be ready to move forward. I advise my sellers along the way and help them to adjust their moving plans depending on their particular short sale circumstances. Stuff happens. Are you ready to do a short sale? Timing that short sale is everything. Hiring the right Sacramento short sale agent is a close second. It’s OK to ask your agent if it’s time to put your home on the market based on your own personal situation. In fact, I insist.
