About Kendall's West Kendall

The rave that seems to be making the rounds in the Real Estate community is the short sale option contract. It goes something like this: A Realtor gets a call from a prospect to list a property for sale which is worth less than owed (Short Sale Scenario). The agent does not want another short sale listing but reluctantly takes it and turns to an investor for help. The investor makes an extremely low offer with an option to sell. He then takes over the short sale negotiation from the agent who has agreed to let him do so.

The hitch is that the property is then actively marketed for a higher price while under contract. A buyer is found and a contract is written with the investor as the seller. Once it closes it is immediately sold to the buyer. Of course there are other variables and scenarios painted in different lights to try and masquerade what is going on but this is essentially what is happening. Oh by the way the listing agent is promised the second listing as well along with a reduced commission, but who cares the agent is getting two commissions days apart, nice!

The problem with that is the little thing called code of ethics. A Realtor has a fiduciary responsibility to get the highest and best price for the seller. The other wrinkle is this other little thing called fraud. If the agent knew full well he could get a higher sales price, why didn't the bank receive those funds? Especially when he listed it for the investor and sold it a few days later.

If this scheme is properly disclosed to all parties, I doubt the bank will accept the first offer, especially when they do their homework and find out what the property is worth. Most of the time it is not even called an option contract because that phrase raises red flags. You can see why the "investor" wants to control the negotiation process. This way he controls the information to the lender. He probably manipulates the BPO as well to get the sales price accepted. This is why the Realtor has to be in on the scam.

Most option contracts require either one of two elements to make them work ethically. The first is time, and the other more practical one is buying low with all parties aware of what is going on. The property needs to have enough equity and the seller needs to be sophisticated enough to know he is leaving money on the table in exchange for a quick sale.

Common sense should prevail here. Think about it, if the property can be sold at that much of a discount don't you think you can find plenty of buyers? Why use a middle man?

What I see happening is a bunch of Realtors being duped to buy a course that packages this type of transaction in the form of books, cd's and webinars in exchange for putting their license and freedom on the line. Heaven forbid an agent actually gets involved in a short sale option contract. The ones making the money are the endless amounts of gurus, so called investors and overnight experts. If it sounds too good to be true it usually is.

See this article for an actual case. http://www.nationalmortgagenews.com/fraud/stories/?id=289

Recently I received an unsolicited e-mail (spam) from someone named Sally Larabee about a very interesting subject. She claimed that Realtors all over the nation will be getting sued for calling themselves experts in short sales, when in fact they haven’t completed not one. It went on to list how this would take place and the only way to avoid it is to take their course (probably at a hefty price). It also states that if you really want to call yourself an expert you need to take their course and prepare yourself. I thought to myself now wait one minute you just said if I don’t do a bunch of short sales and gain “experience” that I can’t call myself an expert, now you tell me if I take your course you can call yourself an expert. Which one is it? Expertise is not measured by how many times you perform a task, that’s called experience.

Although the argument is very compelling, it’s fairly easy to protect ones self with the proper disclosures without taking another short sale course. If you are doing short sales and haven’t had an attorney write a disclosure for you, shame on you. Get it done today and have all parties sign it.

Finally what I found interesting is that when I surfed the Real Estate Radio Blog, low and behold I found the exact same article written by Barry Cunningham, I thought the e-mail had Barry’s tone. I also wrote a post to that blog and somehow it was never published. I just wanted to let Barry know that his stuff had been plagiarized-or vice versa.

It’s taken me a few days to absorb what happened Sunday and read the articles by the ‘experts’ as to there take on the bailout of Freddie Mac and Fannie Mae. The consensus seems to be that the bailout will help stimulate the real estate market, albeit minimally. They seem to think that lower interest rates will help buyers on the fence get in the game. Although this may help, I feel their train of thought is skewed because high interest rates are not what are keeping buyers away. Affordability and tighten lending criteria are the true obstacles (As was always before the banks’ self imposed boon). Fear about decreasing property values is another important factor. The bailout does nothing to address these issues.

The only ones thrown a life preserver are the investors (like they really need it). I understand why it’s important to keep the security aspect of package mortgages relatively stable, but what’s wrong with throwing a few hundred billion to aid those on the brink of foreclosure? After all, the banks are the ones who encouraged this whole mess. They knew exactly what was going to happen-they went through it just a few years ago-SNL scandal.

The real estate market is like any other market: There are only so many customers we are all vying for and there are only so many products to sell. When one of those is out of whack you have a problem-in this case they both are out of whack, no buyers & too many homes.

Neither of these will be solved by this bailout. Worse yet we are in store for a tsunami of foreclosures just around the corner and if nothing is done we may see property values down to what they were 20 years ago or lower.

Noel Padilla

"Doing Business Right"

Kendall Short Sale Foreclosure Specialist

This question is asked more and more on a daily basis. It is advisable that before you rent, you should ask the landlord how long he or she has had the mortgage, and whether they have borrowed against it. If it is an old mortgage and the owner has not borrowed against it, chances are better that he is in a good financial situation.

It is also advisable to check the county clerk's records (for Miami-Dade County, www.miami-dadeclerk.com or for Broward County, www.Clerk-17th-flcourts.org) and see whether or not any foreclosure action has been filed against the landlord. Another idea, is to ask the landlord for his or her credit report. However, you can probably expect great reluctance on their part, since this is confidential information which may be abused by a potential renter who is not even serious about renting the dwelling. You may also consider asking for a clause in your lease which requires the landlord to pay moving costs if you are forced to move because of foreclosure or other financial problems of the landlord which may relate to repairs or conditions that may make the unit uninhabitable.

If you are served with a copy of a foreclosure action because you are a "tenant in possession," you must send back an Answer so that you will be kept updated on hearings and other developments. The form of the responsive pleading should include the case number, style and caption, along with your name, address, and phone number. You don't have to panic, you will have several months of notice before eventually having to move, assuming that the foreclosure proceeds. If you want to stay in the rental, it may be advisable to ask the lender if it is willing to let you remain there and pay subsequent payments to them. You might be able to work out an agreement, at least temporarily.

If the foreclosure forces you to move before your lease expires, you should ask the landlord to pay any moving and related expenses. If he or she refuses, consider suing them in Small Claims Court. Of course, even if you win, the landlord may not be collectable on what he or she owes you, at least not right away. After all, they cannot afford the mortgage or the upkeep on the rental, and it is doubtful that they will have these extra sums.

If the foreclosure is costing you a lot of money, because you paid a lot of advance rent or an extraordinarily large deposit, you should consider hiring an attorney. Under Florida law, your landlord may be forced to pay your attorney's fees. This is only if you win, only if he or she is collectable, and only if the lease provides for attorney's fees and/or you can use a statutory basis, such as Florida Statute 57.105 in order to assert your claim for fees.

With the passage of time, the issue of whether to continue to make regular monthly rental payments may arise. Many lawyers and even judges differ in their opinion on how to handle this issue. Some think that you should stop paying your landlord as soon as you are notified that there is a foreclosure action. Others say that it is better to keep paying. The answer may depend on the details of your case. It may be a good idea to talk to professionals, such as lawyers, realtors, or property managers. Typically, I always say as long as a contract is in effect and the landlord is providing you with a dwelling, that your obligation to pay that landlord continues until such time as that dwelling may not be available to you, or the Court issues a mandate to the contrary.

Also beware that many attorneys may not be interested in handling or getting involved in cases of this nature due to the fact that there is the potential for complications on a case-by-case basis, and there is very little compensation for a large expenditure of time.

I hope that you find that this e-mail has been informative. I am not explaining anything new, but may have provided a new wrinkle or way of looking at an old, but new problem.

*This article was reprinted with the permission of Joseph M. Dobkin, Esquire. All rights reserved. I advise anyone who might need legal help to consult the services of an attorney, such as Mr. Dobkin.

Regards,

Noel Padilla

Kendall Short Sale Foreclosure Specialist