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The Ethical Dilemma with Short Sale Option Contracts.

My recent articles on this very subject have initiated a firestorm and, I am sure this next article will only throw nitro glycerin on the flames.

Before you read this blog, understand that I have not been appointed as some ethical, moral guardian and, I know that. By no means, do I believe I am going to change your opinion or win you over, that is not my intention. Take what I have written and do with it as you please, I really don't care if you think I am wrong, right or anything else for that matter. This is my opinion and if you don't want to know it, then stop now and don't read any further.

Know this, I feel I am right not because of some statutory legislation or common practice but because I believe in a certain way of doing business and that is what I hope is exemplified in this blog.

First let me explain what I believe a lie is. This will be important to keep in mind when you read the rest of this article. I believe a lie is when someone makes a statement or presentation that they know is false with the intent to deceive.

I believe a lie takes place when an "investor"; as it pertains to Short Sale Option Contracts, tells the bank they will offer them "X" amount of dollars for a property, passing it off as true market value, when they are holding behind their backs higher and better offers with no intention to disclose them to the bank.

I have heard others contend, that as long as you disclose the fact that the "investor" is going to resell the property expeditiously after the closing with the bank, then it's not a lie but, in fact it's full disclosure.

My problem with this argument is that it's based on the premise that the bank knows and agrees to the investor promptly selling the property for a profit from bids that were legitimately the banks but, the bank never had the option to consider. The bank was never able to consider the other higher and better offers because the investor intentionally withheld them. In many ways, I see this as equivalent to a bank heist.

The investor stole money directly from the bank not because of what he said however, because of what he intentionally failed to mention. The investor engages in deception when he misleads the bank into believing the only offer on the table is the investor's offer and it was the only offer received therefore it must be true market value.

This is a lie of omission. Let me explain, for the investor to remain silent and withhold from the bank vital information such as the additional higher better offers, is deceptive in that it gives a false impression to the bank. Basically, this lie subverts the truth with the hope to manipulate the banks decision to the benefit of the investor and not the bank who is already coming up short on the sale of the home.

If we really wanted to have a serious moral and ethical discussion about this type of lie, we need to understand that a lie of omission infringes or maybe even violates the banks right to self determination but, that is a totally different conversation for a different time.

This is also a lie based on misinformation or in other words, the investor is perpetuating a falsehood with the intent to mislead the bank into believing something that just isn't true. The investor is misinforming the bank by claiming they only received one offer and that offer is the one presented by the "investor". This is a falsehood because the investor knows he has higher and better offers but is concealing them.

In closing, I think I have made my points loud and clear. I really don't think any educated counter argument can be presented. I do believe however many "spin doctors" or "investors" are going to come out of the wood work and speak only on bits and pieces of the truth with the purpose to get support for their seriously questionable and in my opinion illegal business practice however, be that as it may.

The truth is, each and every one of you reading this far have to make a decision. I only hope that each of you make the right decision.

Posted by Jesus (Jesse) Gonzalez, RDCPro on 05/15/2009 05:46 PM

Comments (28)

short sale ethics

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28 Comments on The Ethical Dilemma with Short Sale Option Contracts.

MAY

You know, it seems to me that in the end the bank has the decision as to what they feel the fair market value of the home is.

So if they have someone who is presenting a viable offer, and they feel it is a good offer, then who's to say investor or no investor what the buyer can or cannot do with the property.

They're going to pay capital gains anyway, right?

Jesse, You have my vote. I list and sell short sales. On many occassions I have had investors try to convince me the selling price doesn't matter to the seller. Well...it does. We want to get the bank as much money as possible not only because it is the right thing to do but because it is in the best interest of my seller.

Sellers and short sale lenders need the most money they can get - they (the seller) may be liable for the difference so that right there should be one, but not the only reason for the best price...I think it is wrong and lieing when they are backdooring these and turning around and making a profit on them is WRONG. I had clients in a situation where this was happening and AFTER our offer was signed around with the seller we found out there was an "option to purchase" with an investor and the next thing we know there was a counteroffer to our already SAR P & S ( a counter offer on an already signed around contract??) telling us the investor was going to be the seller to us in a simultaneous closing.....(I DON'T THINK SO)!!! they also can't do conventional FHA USDA loans because of the 90 day flip rule.... our offer was never even presented to the short sale lender but the option to purchase one was... Our buyers basically got screwed (they were FHA qualified) out of the house and there were too many red flags running up the pole for our comfort. We ran so fast it wasn't funny.. The house ended up sitting and is now pending at a list price of 20k less than our offer because they couldn't get anyone to "play" in their simultaneous closing. It also showed the owners name listed as the investors name at that point and still said it was a short sale.... gee how can that be if they bought it legitimately or did they ask the seller for a quit claim and how wrong is THAT????? Obviously this is a very touchy subject for me.... sorry for hogging your blog with my comments!

Hi Mr. Ralph Gorgoglione:

You are absolutely right, in the end, the bank does have the right to decide what they feel is fair market value however; as I outlined above, by the investor witholding vital information, such as higher and better offers, the bank never gets to consider what true market is or is willing to do. In fact, they are only able to consider what one person is willing to do.

This is exactly where the lie of omission as I describe above takes place. This intentional omission on the part of the investor is misleading the bank to believe something about the market which is obviously not true. This untruth or lie is fraud and theft. See my above blog for further explaination.

MAY

When I see listings like that, it makes me nervous. It doesn't seem ethical. And as Valerie stated above - the Seller could still be liable for the difference. Where's the fiduciary responsibility to the Sellers? And the bank?

JUN

Thanks for putting it out there, Jesus.

I spoke to an agent (a CDPE) today that was doing this with an investor, and she said it was kosher as long as the listing contract was with the investor and that the seller was just part of the transaction.

My escrow officer said that their company would not do any double closes as it was mortgage fraud.

It seems as though there are some different takes on it. A lack of case law?

Thanks again! :) PS

AUG

Oh, you guys mean ethics like when you realtors buy bank owned properties for yourselves without full exposure to the market or when a seller lists and you steal it right away for yourselves without it being on the open market for say 30 days.

These banks have mulitple BPO's and sometimes a full blown appraisal. They have net sheets and they run the numbers through full foreclosure, hold time and disposition including maintenance and repairs. They also figure in the declining market. They know what they are doing.

Why is it our obligation to get the lender the most money? The lender is NOT your client. The seller in most cases has no tax consequence since Bush passed legislation relaxing the issue on a primary residence.

If ANY of you got a great deal on the open market say divorce, probate, relocation, whatever, and you negotiated a great deal, then had a buyer waiting, what obligation do you have to tell that seller. NONE. Why then are you guys so dedicated to the banks. I don't get it.

Under any other scenario you would not have any obligation whatsoever to tell the bank your future plans. What country is this again? We have to tell our future plans in a deal? Where is that in the contract? Where is that in ethical guidelines. Once I buy a property it is mine.

It would be nice to think that the bank rolls over and takes the investors word for value. That is totally naive.

Short sale investor flips can be done ethically. We do them. BUT, there should be NO obligation to tell the shorting lender my future plans. Just as every other sell has no right to know a buyers future plans.

Many agents fell an obligation to the shorting bank. Why, THEY ARE NOT YOUR CLIENT, THE SELLER IS. AND THEY RECEIVE NO PROCEEDS ANYWAY. IF IT IS THEIR HOMESTEAD, THEY MOST LIKELY HAVE NO TAX CONSEQUENCE EITHER.

I am baffled at what people feel is their responsibility to the lender, who again is NOT their client.

AUG

Mr Jesse is jealous because he doesnt have an investor he can trust! You like to spit out information to appear as if you know.. But.. The fact that you state this is fraud and hilariously say the FBI will investigates.. Shows that you are a dangerous agent who can do a lot of harm to uninformed clients. Agents like you who claim they know and in fact are wrong, should be cashiers at a gas station. You definetely look that part!

AUG

Allen, I am with you.

Nothing spells L-O-S-E-R more succinctly than sending multiple signed offers to the bank for the bank to "approve".

The bank is not the owner of the property and the contract is solely between Buyer and Seller. Nuff said..if you are an agent who is screwing things up by doing this, then it explains in part why your closing ratio on short sales is so low.

My choice is the option contract, negotiating a short sale payoff and flipping with a double closing for a nice profit. How smart would it be to send multiple signed offers. DUH

The banks screwed everbody with their bad loans and screwed up the real estate market and the economy. Who is paying for that. YOU ARE. The value of my properties is 50% of what it used to be.

I owe them nothing....they owe me

Nothing spells L-O-S-E-R more succinctly than caving in to a reduced commision on short sales. Hold tough. Never let 'um see you sweat.

SEP

The Short Sale Option Contracts are by nature legal, but in a VERY gray area that can lead to serious later issues with contentions that the Realtor failed in his/her fiduciary responsibilty. Agents in my office have been approached by 'investors' trying to pressure them into these deals and I expressly forbid it.

Let me put it this way; if an investor approaches you to list a home that he doesn't own and convey an offer below what you know is the FMV to the seller, then interface with the lender to 'sell' the less than FMV price, only to turn around, sometimes on the very same day that the transaction from A to Investor takes place and then to represent the Investor, and in some cases to represent the new Buyer transactionally for a B to C transaction. Don't you think someone in the 'chain of title' is going to question who you, as the Realtor, really represented? Not to mention, what about the lender who comes out the loser; your credibility for future transactions is now lost. In addition, very soon and I do hope VERY soon, the lender/banks will get wise to this and either refuse these deals, or just 'sit' on investor offers waiting for a realistic offer from a buyer shopping for a primary home.

All this, and not to mention, you will be seeing more default judgments against the original seller(A) for the deficiencies on the note. Then guess what happens? That's right! Short Sales will no longer be a viable alternative to foreclosure for distressed sellers. The public will question the value to the Realtor. Banks will no longer cooperate with Realtors. And on and on. The entire process will deteriorate!

Now who did you owe the fiduciary responsibility to originally? You guessed it! The Seller(A) and you are not going to be looking defending at serious ethics complaints and perhaps even civil suits for damages when sellers are pushed into foreclosure because you were greedy along with the carpetbagger investors and wanted to 'rake it in.

We as Realtors are facing too many obstacles to our success today, without injecting a new twist that will further 'gut' our profession.

I say, "Take the High Road"; you will sleep much better knowing that you did the right thing for your principal, you and our profession!

Norm Padula, J.D., P.A., GRI

Florida Gulf Realty, LLC.

The Short Sale Option Contracts are by nature legal, but in a VERY gray area that can lead to serious later issues with contentions that the Realtor failed in his/her fiduciary responsibility. Agents in my office have been approached by 'investors' trying to pressure them into these deals and I expressly forbid it."

The only fiduciary duty of a listing broker is to the seller. The only fiduciary duty of a selling broker is to the buyer. If the seller can not receive any funds from a short sale and there is no deficiency pursued how can you not be doing your job?

Arizona has a non deficiency statute. This statute does not cover the non foreclosing lender. The non foreclosing lender can pursue a deficiency judgment. I have only seen two judgments in the past three years and they were on foreclosures where the borrower did not qualify for a short sale and had easily attached assets. All short sales I negotiate will not have a deficiency judgment on the first or junior liens. The approval letter from the lenders must state "lien released and satisfied" or the deal does not go through.

The banks are not stupid. They know the negotiated price of my offer will net them much more than a foreclosure. Buying and selling property has been a way of life for the smart investor for ages. Whether you sell it the same day or years later it make no difference.

My recored option contract legally gives me the right to list the property, make offers, receive and submit offers, negotiate offers with lenders and to resell that property for a profit. The "A" to "B" transaction is fully funded by "B". The second transaction "B" to "C" is funded by "C". Disclosure to all parties including the lender make this perfectly legal and ethical.

I see a bit of pea green from those who are not making big money in this market and therefore are strictly forbidding others to do so.

I refuse to have a battle of wits with someone who is unarmed

What Charlie has stated may very well be true for Arizona, but I can tell you that in Florida, if you are acting as a transactional agent. you had better be sure that you are working for both parties equally. And I don't know how many short sales you have done in the last few months, but the solid trend from lenders is now holding the seller's note for the deficiency. It is indeed now the rule, rather than the rarity.

I don't forbid my agents from making money, but when my broker's license is ultimately on the hook for what my agents do, I make sure that everything is on the up and up.

If you just jump at every chance to make a buck, then at whose expense is it at? And if you don't self-govern yourself with good sense, the government will do it for you and at a level that can jeopardize our industry. Virtually each and every one of these investors pushing this short sale vehicle wants to 'talk-down' to the agents and brokers who realize that there is something rotten in real estate when it has come to this. I have no envy (pea green, if you will). I will just be laughing when the hammer falls. There is pleanty of money to be made in this market doing things the right way, the fair way and without the vulture mentality.

We are all better than this and need to hold ourselves at a higher level of responsibility.

Norm Padula, J.D., P.A., GRI

Florida Gulf Realty, LLC.

Nothing spells L-O-S-E-R more succinctly than brokers and the agents who continue to work for them under the restrictions such as imposed by Norm. I know many run scared brokers that aren't making the money that they could because they are unable to fully digest the real facts. They use this moral excuse for not being up to speed.

If these same people could close one deal and net $100,000 or more they wouldn't be talking others down for being good investors. By the way, our record is $198,400. How immoral is that. I don't know if it is immoral but it sure is obscene.

As far as the government imposing restrictions; where were they with their regulations of the banking industry. The greed of the banking industry without regulation is what got us in this mess.

I refuse to have a battle of wits with someone who is unarmed

Wow! If this is the attitude investors are using to bully realtors into doing these shady deals, then I want no part of it!

Kudos for Norm for taking the high road. There should be more brokers out there like him.

I hope you all will notice that 'Steve' and 'Charlie' don't use their whole name, and I dare say that Steve and Charlie are not even their real names and are probably one in the same investor-scammer.

It says a great deal when a person will use their complete real name to effect some veracity to their position or argument.

As I have already said, these types will denegrate you and talk down to you if you don't agree with them, but it is your license on the line; they aren't even Realtors and probably former Madoff cronies looking for their next scam.

SEP

I can't believe how ingnorant the poster and the realtors making these comments are. It doesn't surprise me though..when getting a real estate license is the easiest thing and the ongoing education required is a joke. The poster is entitled to his opinions, but please don't take his word as facts. If this was not legal and investigated by the FBI, closing attorneys would not do double closings allowing investors to re sell immediately. Ask your title company about these and hear it from someone you know has the right knowledge, don't take the word of an angry biased little agent who likes to talk big and perform small.

SEP

Nothing has changed except the way we do business in this type of market. 10% of real estate agents make 90% of the money and the rest cry. There are winners and there are losers. Hang around with losers and agree with them and you will be a loser.

Birds of a feather flock together. Who are you flocking with?

OCT

Hi there Jesus! Excellent blog post! I couldn't agree with you more when it comes to short sale scams! I challenged these investors on the exact same topic on a blog post of mine the other day, I was very confrontational with them on purpose! If you have time, PLEASE come and help me out against them, I'm having to fight tooth and nail with them on here!!

http://activerain.com/blogsview/1291605/the-10-option-contract-short-sale-scam

I see another religious moral judgment here. Judge not least ye be judged. Your jealousy is reeking all over the page. You have to be a moron to think that the option contract is illegal. Attorneys do them, banks allow them and escrow companies close them. The transaction is totally transparent with disclosure to the seller, the buyer, the short sale lender and the mortgage lender,

Where did you go to school to even suggest an option contract is illegal. For $10 and other valuable consideration has been used on all types of contracts and deeds for ages.

I will complete the short sale even if I can't make a dime. My only fiduciary responsibility to to the seller.

Part of my disclosure that seller must sign is below.

I understand that the Buyer will attempt to negotiate a short sale with all my Lenders who have a lien (claim) on my property and that Buyer has not made me any promises, guarantees or representations about their ability to successfully complete this task.

I understand that my Lender(s), even after agreeing to a short sale, may require that the difference between the original balance and the negotiated balance be paid by me and hold me personally responsible to pay it back.

I understand that the short sale may result in my owing taxes. Since Buyer said he is not giving me any tax advice, I should see an accountant or tax preparer to discuss these taxes.

I understand that my Lender(s) may report this short sale to a credit bureau and this may negatively affect my credit score.

I understand fully and completely that, if Buyer is not able to negotiate discounted payoffs with the Lender(s), they may proceed with foreclosure.

I have not been promised any money if this short sale goes through. Whether or not the property sells, I don't expect any money at all. There are no unresolved issues and no "side agreements."

I have entered into a sales agreement to sell the above property and that agreement states that I understand that it is a short sale transaction and that it won't go through if my Lender(s) doesn't agree to take less than what is owed and that I won't get any money after the property is sold.

The sales agreement also states that I am giving the Buyer the rights to immediately list for sale, market, negotiate and enter into a contract to sell the property immediately to a third party and that all documentation in connection to the sale will be made available at the request of all Lenders and Buyers involved in the transactions.

I understand that Buyer may make a profit from the resale or immediate resale of this property and that his only motivation is to make a profit.

I understand that the Buyer is not acting on my behalf as an attorney, accountant, counselor, adviser, consultant or non-profit agency.

I made $83,000 last month and have five more signed option contracts in my short sale files. How does that make you feel?

Remember ... Birds of a feather flock together. Who do you want to flock with? Hopefully not with a fanatic moralist loser.

OCT

Wow! Charlie, it is possible to make a SEVEN figure income doing short sales in an honest, ethical, and above board manor. Some people just can't be bought, and believe what you are doing to be unethical. Its always about money with people like you anyway. Thats the first thing I hear when the con artists try to "buy" me.

Frankly, I'm tired of my tax dollars going to pay for con artists skimming money from banks. And no, the banks and the REAL buyers have no clue what is really going on much of the time, the sellers don't understand what is going on, and the title companies HAVE REFUSED TO ISSUE TITLE INSURANCE ON THEM. Attornies arn't ecactly known for their ethics or values Charlie.

Do the homeowners understand that you are putting a cloud on their title, and what that REALLY means? That there is no way out for them if they choose not to work with you. That the bank has no choice but to work with you, or foreclose.

You do NOT have a fiduciary responsibilty to the seller. You CAN'T. It is impossible to when you are trying to steal their house a cheaply as possible. Only Realtors and Attorneys can have a fiduciary relationship, period. <>

OCT

Hey Norm,

Why do you think people don't use their real names? so they are not vindicated for their ideas. Just because someone doesn't want to put their suffix on some blog. "J.D., P.A., GRI" Graduate Realtor Institute really you bothe to put that? most attorneys put Esq. oh wait you didn't pass the bar. did you go to law school online? I heard University of Phoenix will be offering classes.

I really have to laugh at the idiots allowed to post on this site. The jackass that claims he made $83K last month, and all the other scammers. Then this last one to Norm from 'a NO Name'. He or she is probably the same one that continues to use multiple names to try to 'yell' over all the sane people trying to post contructive opinions and viewpoints. They may not always be correct, but at least they are voicing an opinion without the vitriolic vicious crap. All I can say, is when you are finally behind bars and doing time for your white collar crimes, I'll still be out here working on behalf of the public. I might not make $83K, but I sure can sleep well at night! I say kudos to all Realtors standing by their convictions. It is their choice if they do not wish to work in gray areas. And I can tell you, doing residential short sale options IS a gray area. It has been done for years in commerical, but you were dealing with principals who are expected to have a higher degree of understanding of the market. This NOT the case when dealing with residential principals.

Now I know dumbass is going to claim I am Norm, but frankly, unlike Norm, who by the way apparently doesn't feel the need to hide, I don't have the time for playing volleyball with dumbass No Name using dung(his brain) as the ball!

OCT

Would like to know if any the lenders that contributed to Mr.83,000 pot-o-gold knew there was money left on the closing table that went into Mr.83,000's pocket instead of the lender's, where it should have gone.

NOV

I'd love to hear these investors explain how I as an agent am representing the sellers best interests when there is the possibility the lender may ask that some or ALL of the money the investor is trying to skim off the deal be paid back by the borrower!

FHA and VA have wised up to this sort of thing, and they have title seasoning periods. That means a buyer CAN'T get FHA or VA financing in these types of transactions. Narrowing the pool of potential buyers is in direct opposition to the duties of any licensed real estate agent. I'm tired of all these short sale scams like this one.

Mike, the loser,is continuing to expose his complete lack of knowledge of real estate investing and his ignorance of financing. How do you exist and keep your license giving out false information. I hope you have a huge O&E policy. FHA has a 90 day seasoning policy which means you can't transfer title until the 91st day after closing. If you buy at a foreclosure sale the 90 day wait is waived. VA has no such seasoning. I just completed a back to back closing with VA financing for the end buyer. There was complete disclosure to the borrower, the short sale lender, the end buyer and the end buyer's mortgage company. The short sale lender and the new mortgage company asked how much the spread was and were informed of the amount. The borrower is not at risk because of the non deficiency statue in our state.

As for Andrea & Darrin the lenders are starting to order a full appraisal instead of a BPO. The lender knows they are recouping more with the short sale than with a foreclosure. The Value, The Offer and The Net. That's all they care about no matter what they tell you. Are you saying they are so dumb they don't know the numbers? Maybe you and Realtor Mike should go to work for them and get them straitened out.

I bought a 1997 BMW 740 with 51,000 miles last week for $8,000 and sold it the same day for $12,500. I guess I should return $4,500 to the seller. Duh

NOV

Charlie, your rude comment towards me and other posters you don't agree with speaks volumes!

Andrea & Damin

It is best to stay off the boards until you educate yourself. Out of touch comments need to be answered. We can"t deal with reality if we don't know the truth.

Because truth is necessarily conformed to reality, it follows that to deviate from truth is to run a very grave risk; the risk of being harmed by a reality which one has failed to understand, or of missing the opportunities which reality provides.

I thought this would be a great read for this thread. Take it for what it's worth to you.

BUYER BROKER SELF-CHANGE OF MLS LISTING PRICE This week a real estate broker came in to retain me on a complaint filed by a buyer on a flip and it is important enough to understand why the Department of Professional Regulation is going to prosecute this broker.

First I need to let you know that I am critical of non-disclosure issues regarding flips. In March I wrote about my buyer client who was the last bookend on a flip. See SHORT SALE FLIP - QUESTIONABLE METHODS. The client found me through that article, so fortunately (although belatedly) he understands his problem.

Now onto the facts.

User Buyer comes into realty office to see what properties are available. He is referred to Buyer Broker. Buyer Broker shows him some listings and one in particular for sale by another agency. The current owner is Anxious Seller. The MLS listing price has been manually changed by the Buyer Broker from $150,000 to $185,000. It is an active listing.

On Monday the Buyer Broker takes the User Buyer to the home and User Buyer agrees to make an offer of $180,000, which Buyer Broker prepares, and inserts as the Seller the words "Owner of Record". The User Buyer makes the deposit which is given to the escrow agent and is deposited on Tuesday. The offer is signed by Lady Love (not Anxious Seller) that day.

On Wednesday the Buyer Broker has an investor client whose name is Lady Love and had seen the home two weeks earlier, enter into a contract for the same unit with Anxious Seller with a contract price of $148,000.

Lady Love closes on the purchase at $148,000 and about 30 days later Lady Love closes with User Buyer on the $180,000 contract.

Buyer Broker took his commission on the first sale between Anxious Seller and Lady Love, and took no commission on the Lady Love to User Buyer transaction.

User Buyer finds out from the public records about the flipped transaction and files a complaint with the state licensing board.

Since this is a pending matter (the names and numbers have been changed for the story above) I cannot comment on what is the outcome - or what I think will be the outcome. Clearly there was not any disclosure to User Buyer that the home could have been purchased for no more than $150,000, nor was there disclosure to the Anxious Seller that there was an offer of $180,000 prior to there being the offer for $148,000.

In some areas (mostly other countries) this type of transaction is not only tolerated, it is expected. What do you think the decision of the Department of Professional Regulation may be in this case?

Be sure to contact your own attorney for your state laws, and always consult your own attorney on any legal decision you need to make. This article is for information purposes and is not specific advice to any one reader.

Richard Zaretsky, Esq., RICHARD P. ZARETSKY P.A. ATTORNEYS AT LAW, 1655 PALM BEACH LAKES BLVD, SUITE 900, WEST PALM BEACH, FLORIDA 33401, PHONE 561 689 6660 561 689 6660 RPZ99@Florida-Counsel.com - FLORIDA BAR BOARD CERTIFIED IN REAL ESTATE LAW - We assist Brokers and Sellers with Short Sales and Modifications and Consult with Brokers and Sellers Nationwide! Shortsales@Florida-Counsel.com New Website www.Florida-Counsel.com.

See our easy to understand articles at:

TABLE OF CONTENTS - SHORT SALE AND LOAN MODIFICATION ARTICLES

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