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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.
You Can Keep a Short Sale Off Your Credit Report
There are short sale sellers in Sacramento who do not know that if they fit the guidelines, it is possible to do a short sale, be current on your mortgage payments, and NOT have a short sale show up on your credit report after closing. In fact, there can be no ding to credit whatsoever and a seller can go out the next day and buy a new home, if she so desires. They don’t know this because a) their Sacramento short sale agent doesn’t know it, or b) their short sale agent doesn’t want to bother with it because the agent just wants to close the deal the fastest and easiest way possible.
Everybody knows that if a seller is in default, that short sale has a greater chance of being approved, even if there is no hardship. That’s the easy road for lots of agents with short vision. They tell their sellers to stop making mortgage payments so they can do the short sale, but that is not always necessary.
Granted, I don’t have a lot of sellers who fit the parameters to be current, but when it’s a possibility, it’s often worth it to give it a shot. I have to do what is best for my sellers — as hokey as that might sound to some of you, it’s the truth.
Sometimes, it doesn’t work out. When it doesn’t, then the alternative is to go into default. Of course, the bank won’t tell you that. The bank will almost always never directly say that a seller needs to stop making her mortgage payment. Think about being a shareholder of that bank. Do you want that bank telling customers to go into default? No, you don’t. A bank will instead say there is no hardship.
You will look at the hardship letter you wrote and say yes, there is a hardship. What is wrong? The key is the seller is not in default. Stop paying at that point and, when the seller is 30 to 60 days in arrears, that short sale will most likely get approved. But if you want to try to do a short sale while you are current, hire a smart Sacramento short sale agent who knows how to do it.
Tips for Your Short Sale Hardship Letter
When I originally wrote How to Write a Hardship Letter, I did so as a link that I could use to send to my clients as well as creating a useful article for others contemplating a short sale. Whenever I find myself repeating a scenario, I figure it’s probably worth writing an article about. That way I no longer repeat it, and I can just send my clients a link to read.
A seller emailed that she laughed and laughed when she read my article. I was snuggling into bed with my husband, about to read an eBook on my iPad when I noticed the email, so I clicked to read my hardship letter piece. It is rather amusing, I suppose; I was focused. Especially the part about not getting waylaid and fooled into writing that things will get better. Not only will they most likely not improve for sellers who are severely upside down, but the bank doesn’t want to hear that they will improve. If the bank thinks a seller’s situation is temporary, the bank will not approve the short sale.
Another seller called to say she could afford to make her mortgage payments, and her lender, upon review of her financial statements, most likely would also agree that she could afford to make her mortgage payments. This seller apparently enjoys disposable income and makes a good living. She’s just tired of her home being upside down. That’s not enough of a reason to do a short sale through her particular lender.
There are a few lenders that will let a seller do a short sale without a hardship, but most of them want a documented hardship through a hardship letter. This doesn’t mean you make up crap, but there are ways to prove a hardship, which a seller might not be aware about. For example, if you’re retiring and moving away, that’s a hardship. On the other hand, paying for your daughter’s ballet classes and French lessons are not valid hardships.
If you want to know if you qualify for a short sale, call an experienced Sacramento short sale agent to discuss it. I always offer a free consultation to potential short sale clients. You can call Elizabeth Weintraub at 916 233 6759. But don’t call me to pick my brain and then hire another agent. That’s not cool.
The Seller’s Hardship in a Short Sale
I can often spot a Sacramento buyer’s agent who is new to short sales. They are the guys who start firing off questions the minute they get this short sale agent on the phone. It’s like they are reading from some list of questions to ask a short sale agent, and maybe they are. There is a lot of goofy information online, written by people who are not short sale agents. You can’t blame buyer’s agents for thinking that it’s true because, after all, it’s online, man, it’s on the Internet, it must be true. A smart reader would consider the source before absorbing the data. Sometimes, it’s just an opinion and not fact. And sometimes, it’s a stupid opinion at that.
My absolute favorite question to get from a buyer’s agent is: What is the seller’s hardship? Even if I gave them that information — which I won’t — they wouldn’t know what to do with it. It’s like asking who is the lender; they don’t know what that means, either. They might hear it’s Bank of America and then cringe, because years ago Bank of America had received pretty bad press. However, nowadays, Bank of America short sales are, for the most part, pretty straight forward. So, unless that agent has closed a bunch of short sales herself, she would most likely be clueless about what’s involved or what she could expect to gain from obtaining that knowledge.
It’s none of the buyer’s business what kind of hardship the seller is enduring. That’s personal and private information. Any sensitive information shared by a seller with this Sacramento short sale agent remains confidential. In fact, it’s my fiduciary relationship with the seller that prevents me from disclosing information, apart from ethical reasons. The only thing a buyer or her agent needs to know about my short sales is whether I believe the short sale will close. They don’t get to see the hardship letter.
I’m not disclosing even if there is a hardship in a short sale because not every short sale requires a hardship. Some of my Bank of America Cooperative Short Sales have no hardship whatsoever but they close. If a buyer’s agent wants to know whether a Notice of Default has been filed, the agent can find that information in the property data available online to agents, right alongside the number of loans and identity of the original lenders.
A buyer’s agent is not squeezing the sellers’ personal and confidential information out of this Sacramento short sale agent.
An Investor Can Do a HAFA Short Sale
This week I am working on listing several investor-owned short sales in Sacramento, one of which will be a HAFA short sale. People think that an investor — a non-owner occupant — can’t do a short sale, but an investor can do a short sale. An investor can even qualify for a government short sale program such as the HAFA short sale, or my very favorite streamlined type of short sale: the Bank of America Cooperative Short Sale. Unfortunately, though, the HAFA Supplemental from last June removes the seller’s incentive portion, the $3,000 cash for a short sale that typically goes to the seller, so there’s not much of a reason to do a HAFA short sale for an investor in California. You have to live in the property to get the $3,000. Which means the tenant gets the cash.
There is a big reason to do a HAFA from a bank’s point of view. The bank gets paid from the government to do a HAFA. You might think so what, the money is insignificant. What is it? $1500? Until you stop to consider that $1500 times 1,000 short sales is one and a half million dollars. Put another way: $1500 times 10,000 short sales is $15 million. You wonder why Bank of America is pushing the HAFA short sale? Besides the National Mortgage Settlement, there’s that $15 million multiplied over and over. You can’t get past the first stage in Equator until the seller talks with the bank about a HAFA.
But not every HAFA is a nightmare to do. Some you’d rather poke out your eyeballs, some not. Sometimes, it is necessary to do a HAFA because a regular short sale has too much scrutiny. The government continually changes how it handles its HAFA short sales. I am a CHS, a Certified HAFA Specialist. I paid attention in class. It used to be that the investor needed a definite hardship to do a HAFA, but that’s not necessarily true anymore. I suspect part of the HAFA process was overhauled because nobody was doing them. People were shunning the HAFAs because the restrictions were difficult to meet. But they’ve loosened up.
It used to be you had to live in the home, and now you don’t. It used to be that the mortgage payment had to exceed 31% of your gross monthly income, and now it doesn’t. It used to be that you had to show an extreme financial hardship, detailed in your hardship letter and documented by tax returns, and now you don’t. It used to be you couldn’t have large sums of cash in the bank and now it doesn’t matter. I had a client complete a Chase HAFA short sale, and he supplied bank statements that showed $80,000 in his savings account. It wasn’t an IRA or a retirement account, it was cash. His financials reflected disposable income. Yet, the government gave him $3,000 and Chase approved his short sale. Yes, a Chase Bank short sale with no hardship.
If you’re worried that you don’t have much of a hardship, and your lender is Chase Bank or Bank of America, you can probably do a HAFA short sale. Investor guidelines will dictate. You just gotta have the story. I find that Wells Fargo will do strategic short sales as well as long as the investor is delinquent. Although, as a Sacramento short sale agent, it is against the law for me to tell an investor or any seller to stop making a mortgage payment. I can’t give legal advice nor suggest a seller become delinquent. I am required to say if a seller stops making a mortgage payment, a seller could lose his or her home. But if you’re gonna lose the house anyway, what the hey.
