Martin Kalisker, WEICHERT, REALTORS®- Synergy: Metrowest's Preferred Realtor

Per the Wellesley DPW, the Recycling and Disposal Facility (RDF) will be open for six Sundays during the busy fall leaf season as follows:

• • • October 25, 2009

November 1, 2009

November 8, 2009

November 15, 2009

November 22, 2009

November 29, 2009

SUNDAY HOURS OF OPERATION: 11 am to 3 pm

All contaminants should be removed before disposing leaves in the Grass and Leaf disposal area. Plastic bags, plant pots and other non-compostable material are common contaminates.

Brush, bushes, tree wood must be disposed of in the Brush disposal area, which is separate from the Grass and Leaf area.

The RDF will accept Wellesley residents' recyclables, solid waste and yard waste. The Reusables Area will also be open.

(photo cc courtesy of Rich Eye)

No sooner than when you thought you knew everything there was about how to navigate the often choppy Short Sale Waters, does the government come up with a new plan that will drastically change the way that short sales are going to be looked at by lenders. The new Making Home Affordable (MHA) program will require home homeowners, Realtors and lenders to do things differently. Very differently.

The Making Home Affordable program, which is being managed by the US Treasury Department and Fannie Mae covers the great majority of all loans underwritten in the United States (by some estimates, more than 85% of eligible delinquent mortgage loans will be covered), including loans owned or guaranteed by Fannie Mae or Freddie Mac, FHA loans, and loans managed by 63 of the major servicers as of September 30, 2009. For these loans, the new MHA policies and processes are mandatory.

The Good, the Bad and the Ugly
The good news is that the MHA guideline are aimed to standardize and simplify the short sale process, rules and paperwork for lenders. The bad news is that there are literally thousands of loss mitigators out there who need to be trained and taught how to implement the new guidelines before the new program can be viewed to be successful and being applied on a consistent basis throughout the country. As can be imagined, this is a monumental chore. However, to speed up the implementation, Freddie Mac has been selected to audit servicers' files and to issue fines to servicers who haven't fully complied with the MHA process. It is hoped that this approach will increase timely compliance and adherence to the new guidelines.

Why it's Ugly for Realtors
Realtors who want to close short sales must be familiar with the new MHA rules, guidelines and use the new standard forms. Although the intention is that this will make things easier for all involved, because procedures amongst lenders will be addressed on a consistent basis and handled in a consistent manner, the Making Home Affordable program will require Realtors to be at the top of their game and know their way around the program rules and guidelines, not only to counsel potential home owners, but to actually educatethose Realtors that have short sale listings that don't seem to understand the impact that this legislation will have on them.

In general, there are three key changes to be taken note of; although there are likely to be some small differences based on whose loan it is:

How MHA will affect you

• There are clearly defined steps which the servicer's loss mitigator must follow when a loan is in default (or imminent default ). Homeowners must first attempt to approach the lender with a request to refinance or modify the existing loan. If the lender is unwilling or unable to refinance or a modify the terms of the loan then and only then will a loss mitigator consider the possibility of a short sale. This is the only time during the loss mitigation process when the approval for a short sale can be considered. The loss mitigator will apply a specific net present value formula to determine if the lender/investor will net more from a short sale than from a foreclosure. The decision is strictly a financial one. This means that the request for short sale approval will be considered only if it is financially to the lender's advantage.
  
• The seller will still sign all listing contracts with the Realtor, but the loss mitigator sets the price and the listing term which can can be as few as 90 days to as long as 365 days. In all cases, the servicer/lender still must accept the contract which your seller has approved.
  
• With regards to commission structures, Fannie Mae's Servicing Guide Announcement #09-03 clearly states there will be no negotiation of short sale commissions. "...closing of pre-foreclosure sales may not be conditioned upon a reduction of the total commission to be paid to real estate agents to the level below what was negotiated by the listing agent with the borrower, unless the fee exceeds 6% of the sales price of the property in aggregate." In other words, if the Realtor has negotiated a listing fee with the seller, the servicer/lender may not ask you to reduce that fee.

Is it business as usual?
No one knows for sure how this is all going to pan out. But there are definitely some positives for the distressed homeowner and their Realtor because there will no longer be an uncertainty as to price and whether the short sale will be approved - or how long it will take to obtain the shorts sale approval.

Lenders will probably still require that delinquent taxes and other liens be addressed by the buyer unless these items are considered as part of the short sale approval. Therefore it is also incumbant on the listing agent to work proactively with the homeowner in presenting a complete summary of the homeowner's true financial position.

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BORED WITH YOUR CURRENT JOB?

Do you feel like your office is holding you back from your true potential? Is your broker competing with you for new business? Do you sometimes wish that you could work with an energetic and fun team of seasoned and new agents that enjoy the benefits of being affiliated with an office that provides superior technology; a lucrative compensation package, including profit sharing; company generated buyer and relocation leads; and office management that does not compete with agents for new business?

Come see what WEICHERT, REALTORS®-Synergy has to offer.

Interested? Contact us now at http://synergy-metrowest.com/contact.career

http://www.synergy-metrowest.com

WEICHERT, REALTORS®-Synergy located in Wellesley Hills, MA and a member of the Weichert REO Network, is looking to add experienced loss mitigation and REO agents to our rapidly expanding businesss. Opportunities to mentor and train new agents in the areas of loss mitigation, REO sales and BPOs. Prior experience useful, as your relationship with the asset managers and lawyers will help to expand this business line.

Weichert Realtors is known nationally for its excellent systems, training and tools. Extremely competitive compensation is offered.

Call me for an interview today. Martin Kalisker, Broker/Owner (781) 237-3102 or email me at martin@synergy-metrowest.com. All discussions will be held in the strictest confidence.

We used to have great sports teams in Boston, and that was what all the news was about. But recently, Boston has moved behind Pittsburgh and Chicago as the number three sports town in the country. So, it didn't come as much of a surprise when I started to see people griping that our Registry of Motor Vehicles stopped sending out automatic renewal notices for drivers licenses and car registrations. In fact, in the 11 months since the RMV stopped sending out notices, it has saved something like $800,000. Not a bad thing. But people in our "entitiled" society don't like it when someone isn't there to hold our hands and remind us to get a new drivers license.

So, to address public concern, the RMV has created a system which will send you one alert via email, phone or text message (you choose which) approximately 30 days prior to your license expiration.

To sign up for this free service, go to: https://secure.rmv.state.ma.us/RMVReminder/intro.aspx

I just love the political "spin" on this one.

". . . the Registry of Motor Vehicles newest customer convenience - safe electronic notification services that will help you remember to renew your MA driver's license or MA ID.

With this free service you determine how the RMV reminds you by email, phone or text (SMS) message. The RMV has partnered with Sendza, an outside firm that will deliver your automatic reminder * at no cost to you or the Commonwealth."

As for me, I'm going to forego the risk of submitting my information to a third party and will just send myself an e-mail reminder 30 days from the renewal of my drivers license. Heck, I already do this with my real estate license, why not my drivers license too?

Catchy title, right? Well, today I want to discuss something which I find to be either a) a commonly mis-used term in our industry; or b) something that the consumer needs to be educated about.

Let's start with A above. Dual Agency. "I work in a dual agency state." No, you actually work in a state that requires brokerages to act in a "designated agency" capacity. Practicing designated agency means that you work for a designated buyers' brokerage, a designated listing brokerage, or a firm that practices"disclosed designated agency." That is to say, two agents from the same firm may represent different sides of the transaction.

Are you with me? Okay, now here's where it gets tricky. "With your consent, licensees from the same firm may represent a buyer and seller in the same transaction. These agents are referred to as dual agents." (Source: Massachusetts Mandatory Licensee Consumer Relationship Disclosure).

To summarize, a fully disclosed designated brokerage firm offers services to both buyers and sellers. Any agent not specifically disclosed as working for the seller (the listing agent) and who is affiliated with the brokerage firm may represent a buyer in the transaction. When this happens, dual agency is created, however the obligations of a designated agent (namely, undivided loyalty, reasonable care, disclosure, obedience to lawful instruction, confidentiality and accountability) still exist on the part of the individual agents vis a vis their individual clients.

So now, it's time for a quiz. You, the consumer, go to an open house and meet Johnny Newbie, agent. Johnny isn't the listing agent, that's Linda Listmonger. Linda doesn't work weekends and only works with sellers (her decision). So, Johnny is there by himself hosting the open house. You don't have a real estate agent because you just started your home search. As Johnny shows you around, you get a good feeling for the house and you like Johnny. Johnny, being hungry for business, says "would you like to make an offer on this house?"

So, after the open house, Johnny and you go back to his office to fill out the paperwork. Being ever diligent, Johnny has you sign the above mentioned Mandatory Licensee Consumer Relationship Disclosure (or whatever it is called in your state). Johnny checks the box that he is acting in the capacity of buyer's agent. Is this right or wrong?

Time is up. If you said that Johnny is a buyer's agent, you are....WRONG. Johnny is a sub-agent of the listing agent who represents the seller. Johnny has an obligation to protect the interests of the seller in this transaction. Can Johnny still write up the offer? Yes he can. But the buyer must be informed that they have an opportunity to have representation before they move forward.

What should Johnny have done? Johnny should have told you that since he represents the seller, there is an agent in the office that can help you put the deal together and they will work as your buyer's agent (Johnny, if he is smart, also ensures that he gets a "referral fee" from his colleague, the buyer's agent.)

Now, I'm not an attorney. I am a diligent broker/owner who has worked closely with legal counsel in formulating a policy for my office on the next tidbit.

In the first example, Johnny represents the seller. If he lets someone else in the office represent the buyer, then dual agency exists for the office, but each agent is still a disclosed designated agent for the buyer and the seller. Our office has built safeguards to ensure that information about the seller stay with the listing agent and information related to the buyer stay with his agent. Faxes are sent to the individual agent's private fax lines, all paperwork is completed and submitted individually and there is no discussion between the two agents about confidential information of their respective clients.

"So why then, did Johnny make me and the seller fill out all these extra forms of consent and notice of dual agency?" Well, he shouldn't have. Because Johnny isn't a dual agent. He still represents the seller because he hosted the open house. What if Linda Listmonger had been there? Well, assuming that the appropriate disclosures were made to the consumer during the open house, then Johnny could act as a designated buyer's agent because he is not showing the house to prospective clients on behalf of the seller, he is showing the house only to prospective buyers who do not have an agent.

But, let's look at another scenario. Sally Superstar has one goal. That is to make as much money in real estate as possible. So, she welcomes servicing both buyer clients and sellers. In one such situation, Sally has a buyer client, Ben, whom she has been showing homes to for about a month. Today, Sally was asked to come over to a home for a listing presentation. Being ever positive, Sally is awarded the listing.

Now, Sally knows that this home would be perfect for her client Ben Buyer. So she shows it to him and he loves it. "Sally", he says, "I want to make an offer on this home." What does Sally do?

Here we go folks. It's really not brain surgery. Sally has an existing relationship with both a buyer and a seller. With the informed consent of both the buyer and the seller, an offer is written up by Sally. Sally is now a dual agent. Sally has to be neutral with regard to any conflicting interest of hte seller and buyer. Therefore, she cannot satisfy fully the duties of loyalty, full disclosure, obedience to lawful instructions which is required of an exclusive seller or buyer agent.

What's the moral of this story? Agents need to be better informed about the laws of agency, and buyers need t be aware that the listing agent is not your friend!!!! The listing agent can only represent the interests of the seller. If the seller is willing to forgo the duties of loyalty, full disclosure and obedience to lawful instruction, then the listing agent could become a dual agent. But in no other case does an individual agent become a "dual agent." Dual agency only exists in the context of the brokerage which allows individual agents from the same firm to represent both the buyer and the seller.

With regards to point B from my introduction, I found a great memo from the NYS Department of State titled BE WARY OF DUAL AGENCY. I attach the memo below.

Legal Memorandum LI12
BE WARY OF DUAL AGENCY

With the growing number of very large and widespread brokerages, the issue of dual agency arises more frequently than ever before. Any purchaser, seller, lessor or lessee confronted with a dual agency issue by their real estate agent should not take the issue lightly. Parties to a real estate transaction, including real estate brokers and salespersons themselves, seldom realize the inherent problems of a real estate agent acting as a dual agent.

Dual agency arises when a real estate broker or salesperson represents adverse parties (e.g., a buyer and seller) in the same transaction.

Dual agency typically arises in the following way: a real estate broker employs two salespeople, one who works for the buyer as a buyer's agent and the other who works for the seller as a seller's agent. The real estate broker and his salespeople are "one and the same" entity when analyzing whether dual agency exists. As soon as the buyer's agent introduces the buyer to property in which the seller is represented by the seller's agent, dual agency arises.

Dual agency can also arise in a more subtle way: A real estate broker who represents the seller procures a prospective purchaser who needs to sell her property before she is able to buy the seller's property. The prospective purchaser then signs a listing agreement with the real estate broker to sell her property so that she can purchase the seller's property. The real estate broker is now a dual agent representing both parties in a mutually dependent transaction.

When you employ a real estate broker or salesperson as your agent, you are the principal. "The relationship of agent and principal is fiduciary in nature, ‘...founded on trust or confidence reposed by one person in the integrity and fidelity of another.' (citation omitted) Included in the fundamental duties of such a fiduciary are good faith and undivided loyalty, and full and fair disclosure. Such duties are imposed upon real estate licensees by license law, rules and regulations, contract law, the principals of the law of agency, and tort law. (citation omitted) The object of these rigorous standards of performance is to secure fidelity from the agent to the principal and to insure the transaction of the business of the agency to the best advantage of the principal. (citations omitted)." (Emphasis added) DOS v. Moore, 2 DOS 99, p. 7 (1999)

"A real estate broker is strictly limited in his or her ability to act as a dual agent: As a fiduciary, a real estate broker is prohibited from serving as a dual agent representing parties with conflicting interests in the same transaction without the informed consent of the principals. (citations omitted) ‘If dual interests are to be served, the disclosure to be effective must lay bare the truth, without ambiguity or reservation, in all its stark significance.' (citation omitted)

‘Therefore, a real estate agent must prove that prior to undertaking to act either as a dual agent or for an adverse interest, the agent made full and complete disclosure to all parties as a predicate for obtaining the consent of the principals to proceed in the undertaking. Both the rule and the affirmative [defense] of full disclosure are well settled in law.' (citation omitted)" Id. at pp. 9-10.

In a purchaser/seller transaction in which dual agency arises, the agent must not only clearly explain the existence of the dual agency issue and its implications to the parties, the agent must also obtain a written acknowledgment from the prospective purchaser and seller to dual agency. That acknowledgment requires each principal signing the form to confirm that they understand that the dual agent will be working for both the seller and buyer, that they understand that they may engage their own agent to act solely for them, that they understand that they are giving up their right to the agent's undivided loyalty, and that they have carefully considered the possible consequences of a dual agency relationship.

The fiduciary duty of loyalty that your real estate agent owes to you prohibits your agent from advancing any interests adverse to yours or conducting your business to benefit the agent or others.

Significantly, by consenting to dual agency, you are giving up your right to have your agent be loyal to you, since your agent is now also representing your adversary. Once you give up that duty of loyalty, the agent can advance interests adverse to yours. For example, once you agree to dual agency, you may need to be careful about what you say to your agent because, although your agent still cannot breach any confidences, your agent may not use the information you give him or her in a way that advances your interests.

As a principal in a real estate transaction, you should always know that you have the right to be represented by an agent who is loyal only to you throughout the entire transaction. Your agent's fiduciary duties to you need never be compromised.

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BORED WITH YOUR CURRENT JOB?

Do you feel like your office is holding you back from your true potential? Is your broker competing with you for new business? Do you sometimes wish that you could work with an energetic and fun team of seasoned and new agents that enjoy the benefits of being affiliated with an office that provides superior technology; a lucrative compensation package, including profit sharing; company generated buyer and relocation leads; and office management that does not compete with agents for new business?

Come see what WEICHERT, REALTORS®-Synergy has to offer.

Interested? Contact us now at http://synergy-metrowest.com/contact.career

http://www.synergy-metrowest.com