Special offer

I told you not to do that, I don’t know how to help you

By
Real Estate Agent with eXp Realty LLC 200311024

 photo courtesy of dailabAs a listing agent, I often have to educate buyers' agents, which I have no problem doing, but if you don't listen, it may cost you and your client time and money.

A couple months ago, I took a listing on a short sale. It was a good property and we quickly got an offer, my buyers accepted and I advised the buyers' agent to NOT deposit any money into escrow and write an addendum to the contract so that the inspection period and the earnest money didn't need to be deposited with title, until the contract was accepted by the banks.

Fast forward two months when the 2nd bank wasn't working with my seller either and it didn't look like the bank was going to budge and the house was going to go in to foreclosure. My sellers, tired of the calls, letters, and the non response when it came to trying to get the negotiator to work with them on the short sale, packed up their stuff in the middle of the night one night and moved away. (Unfortunately I didn't know where to and had no way to contact them.)

So, I call the other agent and inform them what was going on and that if they wanted to they could send over the cancellation notice and I would mail it to the sellers address and hope that they decided to forward their mail. This is when the buyer's agent asks me "How do we get our money out of escrow?"

WHAT? You deposited the money in escrow? I told you not to until the bank accepted it. It turns out the title company didn't want to release the funds until the seller signed the termination agreement for liability reasons since we were still technically still under contract, despite the bank not responding and the seller was no where to be found. It now has been 1 month since that first call and the buyer still doesn't have their money because the buyer's agent didn't listen to my advice.

I was saddened when the buyer called me directly and said, "We want our money, why didn't you tell us that this could happen?" I had to say to them, "Your agent did know about this. I told them on the phone and via e-mail. You need to contact your agent. I'm truly sorry, if I knew where the seller was, I know I could get that signature for you, but I don't."

So, buyers agents, if the listing agent gives you some advice on how to do something that is in you and your clients best interest, I suggest you listen and maybe it will save you some sleepless nights trying to figure out how to fix something. By the way, this also can apply to listing agents getting advice from a buyer's agent, but this story wasn't that.

Comments(25)

Chip Jefferson
Gibbs Realty and Auction Company - Columbia, SC

Good one. I dont work short sale so I wouldnt have thought of this as well. You are doing your job just she wasnt doing hers.

Feb 04, 2009 09:10 PM
Morgan Evans
Douglas Elliman Real Estate - Manhattan, NY
LICENSED REAL ESTATE SALESPERSON

I'm sure that buyer's agent is spinning something to their buyers about that earnest money.  The great thing about selling real estate in New York City is we have attorney's who handle all of the paperwork once the buyer and seller agree on a price.  

Feb 04, 2009 10:47 PM
Gail Szeluga & JoAnna Siminerio
Coldwell Banker Realty - Manalapan/Marlboro - Manalapan, NJ
Fostering Community Spirit Through Real Estate

This post highlights TWO important issues.

First - Too bad for those clients that their agent just slipped up.  We have to remember that what we do for our clients isn't always about CYA, we really have to remember their best interests, everyday.

Second - I want to forward this post to all the people who contact me regularly with the ... "We want to find a short sale, or We only want to look at foreclosures"  These transactions are not for the faint of heart.

Feb 04, 2009 11:27 PM
Holly Weatherwax
Associate Broker, Momentum Realty - Reston, VA
A Great Real Estate Experience

I have that situation right now. While I don't relish holding on to my buyer's check, the duty of protecting their interests requires that I do the right thing. Without a ratified contract, there is NO CONTRACT and no need for earnest money to be deposited.

Feb 05, 2009 01:17 AM
Missy Caulk
Missy Caulk TEAM - Ann Arbor, MI
Savvy Realtor - Ann Arbor Real Estate

The seller can't be found? Now what? To say nothing of the buyer agent NOT listening to you. I think you did the wise thing by telling them not to put it into escow until the offer was accepted. I will use this in the future.

Feb 05, 2009 01:23 AM
James Downing - Metro DC Houses Team REALTORS®, CRS, GRI, ABR,MRP, MilRes
Real Living | At Home - Washington, DC
When Looking to Buy or Sell - Make the Right Move

Well I think we all have different definitions of what makes a contract a contract.  Here is the way I see it...The contract is between the buyer and seller.  While the bank must approve the sale; they are not a party to the contract.  Thus if both buyer and seller have entered into an agreement - then there is in fact a "ratified" contract.

Bottom line - the should have listened !

Feb 05, 2009 04:34 AM
Tom Braatz Waukesha County Real Estate 262-377-1459
Coldwell Banker - Oconomowoc, WI
Waukesha County Realtor Real Estate agent. SOLD!

Todd

Sounds like good advice to me.

Sincerely

Tom Braatz

Feb 05, 2009 05:31 AM
John Walters
Frank Rubi Real Estate - Slidell, LA
Licensed in Louisiana

Thanks Todd you probably saved me from some embarrassment down the line.  This could happen to anyone.  Better to listen to someone who knows.

Feb 05, 2009 05:47 AM
Jesse Clifton
Jesse Clifton & Associates - Fairbanks, AK

The other agent definitely should have listened... yikes.  Hopefully the seller will show up or call you so the buyers can get their funds back.

Feb 05, 2009 06:35 PM
Jesse Clifton
Jesse Clifton & Associates - Fairbanks, AK

Featured in Ethics & The Realtor Group

Feb 05, 2009 06:37 PM
Jon Wnoroski
America's 1st Choice RH Realty Co., Inc. - Green, OH
Summit County Realtor

Hi Todd - as a matter of standard practice I will never deposit an escrow check until I have an accepted offer.  I will send a photo copy of the check along with my offer and will only send it on to the escrow agent once the offer is accepted.  I'm not sure how this is done in other parts of the country but in Ohio that is standard practice.

Feb 06, 2009 12:55 AM
Sandy Blanton
Pensacola Real Estate - Team Sandy Blanton Realty, Inc. - Pensacola, FL
Pensacola Real Estate- #1 in 07null- 09null

Todd, great post! We sell a lot of short sale listings and deal with uneducated agents all the time. While we don't mind steering them in the right direction, they do need to learn the basics in order to represent their client well.

Feb 06, 2009 01:50 AM
Pat Tasker
Shorewest Realtors - Germantown, WI
Your Milwaukee Metro Area Agent (WI)

these short sales and reo's are nightmares!  This is just one more chapter...

Feb 06, 2009 01:06 PM
Bill Schwent
Casa Tierra Realty - Santa Fe, NM
Santa Fe Broker

Todd,

So how did the "selling broker" know who the title company was?  And why did that title company accept the earnerst money without your knowledge?  It seems to me from your narrative that you might have been equally responsible for the deposit of the earnest money.  In our market, it is the listing broker who is responsible for the earnest money since it goes with the offer.  You need to give us a better scenario of the circumstances but, as presented, I point my finger at you as well as at the cooperating broker.

Feb 08, 2009 03:28 PM
Todd Clark - Retired
eXp Realty LLC - Tigard, OR
Principle Broker Oregon

Steve - Those are the kind of agents that are portraying us to the public as all dishonest and just like used car salesman and then they get mad when they aren't trusted later.

Katerina - Right there with you, approved buyers only!

Grace - Never heard of your site? Is it new?

Lenn - I agree, but apparently that isn't the way the title company was seeing it. I am just thinking it would have been a lot easier had they listened to me in the first place.

Randall - I agree and I wish it would have worked out for them, the house is a great house, but sometimes the banks just aren't ready to play with others.

Laura - I think she thought that by depositing the money it would hurry the sale as the bank already new the money was there and they were ready to close.

Feb 14, 2009 06:36 PM
Cyd Weeks
Palmcoasting.com Real Estate Corp - Palm Coast, FL
Realtor Palm Coast, Fl

Bill.. In my neck of the woods the standard approved Florida forms has right on the contract who is the escrow agent as well as their address and phone number.  Here it is the selling agent that is responsible to make sure the escrow check is delivered.  Actually it's the buyer but it's generally handled by the Realtor®.    At the same time, after delivery it is the responsibility of the selling agent to forward over confirmation of the receipt by the escrow agent.    Our contracts also state WHEN the escrow deposit is to be made, so the seller's agent would know what the deadline is.  

The whole situation is a little confusing.  I don't know why someone would make an escrow deposit if it's not due.  And I don't know if the title company could really continue to hold it if an escrow deposit wasn't due yet.  

 

Feb 15, 2009 03:22 AM
Michael S. Mackey
CENTURY 21 All Islands - Mililani, HI
REALTOR ABR, CRS, GRI, RSPS

Thanks for posting this lesson. As agents, i have heard it said that everyday, we head out the door carrying a suitcase full of liabilities. Mis-handling the cients earnest money deposit is one of them. The Buyer's agent blew it on this one.

Feb 15, 2009 04:18 AM
Todd Clark - Retired
eXp Realty LLC - Tigard, OR
Principle Broker Oregon

Morgan - I can certainly see where that would be helpful here, but it was just a case of not listening.

JoAnna - GO FOR IT! I have no problem with you forwarding this to your clients as long as you keep me as the author at the bottom and my phone number.

Holly - Technically we have a ratified contract that is just waiting third party approval.

Missy - Feel free and I hope more and more buyer's agents realize that we are not your enemy.

James - That is exactly the way it is here. The buyer and seller have the contact and the bank must agree to it.

Feb 18, 2009 02:07 PM
Todd Clark - Retired
eXp Realty LLC - Tigard, OR
Principle Broker Oregon

Tom - Sometimes I think some agents try to make a battle out of everything.

John - Just don't go in to a situation with a negative attitude and if the other agent gives you some advice, listen to it.

Jesse - It has been fixed and the buyer now has their money, but it wasn't easy and we did end up doing it without the seller's signature. (Thanks for the feature)

Jon - It was an accepted offer, but it wasn't an accepted sale. Two very different things in a short sale!

Sandy - I have no problem teaching others! We all have to learn somehow and if no one is willing to teach, then we are at the risk of damaging the public and that is not what we are there for. WE ARE HERE TO PROTECT THEM!

Feb 21, 2009 11:43 PM
Todd Clark - Retired
eXp Realty LLC - Tigard, OR
Principle Broker Oregon

Pat - Yes it is.

Bill - The title company was on the contract. They accepted the contract because the buyer's agent gave them the contract and they set up escrow. They sent me the receipt and I sent an e-mail to the buyer's agent of his mistake, but he never responded to my e-mail, so I just dropped the matter. I'm sorry you are pointing the finger at me as well, I can only instruct the parties what to do, I can't control them.

Cyd - You are right on the whole situation and that is actually how we finally got the money removed from escrow. We showed that the money was supposed to be deposited within 3 days of bank acceptance of the sale and since that never happened they released the money.

Michael - That is a huge one that many people make!

Feb 21, 2009 11:43 PM