The real top reasons that short sales are not approved or do not close

By
Services for Real Estate Pros with TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com

Kenneth R. Lawson, J.D.

I often find agents mistaken in their beliefs why short sales are not approved, or do not otherwise close. While I certainly applaud successful short sale agents, there is widespread misunderstanding and misinformation about this topic.

 

As an attorney who has not only sold real estate (well, for a year and a half, that is), and has represented and dealt with servicing lenders and secondary market investors (SMI) over the last 20 years, I have a unique understanding of these entities and relationship with them. A number of those institutions have managers and executives who are friends of mine, and we have on numerous occasions discussed the issues causing short sales to not be approved.

 

So, here are the top reasons that a short sale does not close as I experience them with the agents who work with our firm and confirmed by my contacts in the mortgage lender/SMI industry.

 

6. Not submitting multiple offers. I'm sorry, but I must respectively disagree with those who hold contrary Multiple offersopinion.  My contacts tell me that providing multiple offers have indeed helped them to see that the agent is doing all they can do to get the home sold. When there is a borderline case, the multiple offers can make the difference.  However, the servicing lenders generally do not like them.  There is also a side benefit: if the selected buyer walks, there is another purchase contract that can carry the deal to close.  However, in some areas, multiple offers are not permitted.  Some say they are not legal.  Wrong!  They are legal, however, both the listing and the purchase contracts must be drafted properly.

 

5. Not submitting a proposal.  Many short sale instructors merely teach to send in a complete short sale package. It is true that you must have complete documentation, but it is important to draft a full proposal, as well. Organizing your request to approve a short sale has often made the difference between success and failure with the agents who work with our firm. The proposal should contain specific features and I outline them at length in both of our publications. My SMI contacts state that properly drafted proposals are given very careful consideration and they have approved our format.

 

Short sale offer rejected4. Causing the proposal to be tanked. Many agents still think that the servicing lender is the one who approves the short sale and that they can actually negotiate with that lender's "negotiator".   However, most loan notes are actually owned by the SMI and either they, or an MI insurance carrier if they have paid off a claim, approve or reject the short sale. The servicing contracts provide limited authority to servicers and it is very common for servicer employees to cause the proposal to be tanked if they can get away with it. Any excuse may trigger this behavior: incomplete or mistakes in drafting proposals, getting them angry, etc, can cause your proposal to be tanked.

 

 

3. Not communicating adequately with parties. Buyers are patient...to a point. Same with Communicating cooperating agents. We provide weekly updates to all parties, more often when things happen. Buyers must be part of the process and be motivated to hang in there when approval takes a long time.

 

 

 

 

Hardship2. Not meeting the definition of "hardship". Like a criminal case wherein each element of the criminal statute must be proved, in short sale cases the hardship letter and financial documents must prove each element necessary for a secondary market investor to render a finding of "hardship", and approve the short sale. The hardship metter must contain certain elements, without which, the case will be rejected.

 

 

 

1. The most important reason that a short sale is not approved is not meeting the net to lender minimum Calculating the minimum thresholdthreshold percentage of the fair market value. In the past, secondary market investors utilized the short sale versus REO comparison analysis to approve or reject a short sale. However, almost all SMIs have changed over to the minimum threshold analysis. That analysis ignores the amount of the debt and focuses on proof of the current fair market value of the property. For different SMIs and even different products, there is a set minimum threshold percentage of the fair market value that must be received in order for the proposal to be approved.  Many agents eroneously believe they are still using the old comparison analysis.

 

So, the bottom line is this: if a proposal meets the definition of hardship, that hardship is supported by the financial documents, you do nothing to cause the servicing lender to tank the proposal, and the offer meets the net to lender minimum threshold percentage of the fair market value, the short sale will be approved and if a qualified buyer remains, the transaction will close. 

 

Best wishes,

Ken Lawson, JD

TheLawsonGroup Mediation Services

Comments (139)

Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

Noel,

Hence the need to have good legal disclosures to cover all situations.  That is why we published our Short Sale Business Manual, to make sure agents are covered. That and in our book we describe what needs to be in the MLS listing, and What to make sure is added to purchase contracts.  We try very hard to keep abreast of current lawsuits and make sure we have your back.

Ken

Aug 25, 2009 01:57 PM
Bernard Johnson
ZipRealty, Inc. - Glen Allen, VA

Great info Ken. Thanks!

Aug 26, 2009 12:00 AM
Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

You're welcome, Bernard.

Ken

Aug 26, 2009 02:27 AM
Dennis Erickson
Berkshire Hathaway Home Services Montana Properties - Bozeman, MT
My Best..., Always!

Ken,

 

Thanks for an excellent post.  Your information is authoritative and rich with usable information!

Aug 26, 2009 07:28 AM
Kendall Aschoff
SecurityNational Mortgage - Las Vegas, NV
NMLSR ID: 372723 - Henderson Las Vegas, NV - Mortg

Love hearing the legal perspective and "insider" info on the short sales.  Let me ask you, has your organization tried negotiating any short-refis?  We are doing those here in Las Vegas with limited success.  Would love to talk with you about how your company might help us create stronger presentations to the lenders.  Our Congressional contingent here in Vegas is hoping Short Refis can stabilize our sinking market and asked me to pursue any avenues that achieve this end.  I even spoke with Barney Frank about it.  Do you have any experience with them?

Aug 26, 2009 09:18 AM
Dawn Pratt
Orlando, FL
East Orlando Real Estate

Thanks for the great post and congrats on the feature. You have provided a wealth of information, although I respectfully disagree with submitting several offers to the bank. A contract is a contract between seller and buyer. It is my understanding that it is unlawful for the seller to have more than one contract on their home.

Aug 27, 2009 02:37 AM
Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

Kendall,

Call me at (208) 360-8689

Folks,

It is ok to disagree with seeking and submitting multiple offers.  There are valid reasons for both sides.  Frankly the agents working with us who do obtain multiple offers are closing more of them.

However, it is not, I repeat NOT unlawful.  The legal reason is that the "subject to third party lienholder approval" language means that the contract is only binding if the lienholder gives their approval, and they can only approve one of the buyers.  Now, the caveat here is that some boards of realtors do not have a coding for accepting multiple offers, so effectively they can prevent it from happening.  Some boards do, most boards do not restrict them.  But, it is not unlawful.

So, it is ok to choose not to do them, and it is ok to submit multiple offers unless you are not allowed in your area.  I included it in my blog because it increases closings.

Let me add this.  There is another way to have sure closings.  That is to be so restrictive in your selection of short sales that you are not taking any risks.  That is ok, too, but I have ethical issues in not assisting sellers who may have a case but you know there is a risk that it might be rejected.

Ken

Aug 27, 2009 03:25 AM
Laura Levenson
APEX Properties - McHenry, IL

Ken (& all the other folks that have posted!),

This is GREAT information.  From one who does quite a bit of work with short sales, I can attest to many of your points, as I have PERSONALLY lived them.

You also made a KEY point in your last post about being "choosy" as to listing them.  I agree completely, and will be practicing this concept moving forward!  It is bad enough to work for free on many an occasion, but to take on a likely "loser" of a short sale that can consume several months of your time and energy is borderline insanity!!

Thank yo

Aug 27, 2009 05:54 AM
Laura Levenson
APEX Properties - McHenry, IL

Ken (& all the other folks that have posted!),

This is GREAT information.  From one who does quite a bit of work with short sales, I can attest to many of your points, as I have PERSONALLY lived them.

You also made a KEY point in your last post about being "choosy" as to listing them.  I agree completely, and will be practicing this concept moving forward!  It is bad enough to work for free on many an occasion, but to take on a likely "loser" of a short sale that can consume several months of your time and energy is borderline insanity!!

Thank yo

Aug 27, 2009 05:54 AM
Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

Laura,

Yes, you do need to be choosy enough to not waste precious time on cases that will not likely be approved.  That said, there is a line between the responsibility to your business and an ethical duty to sellers to not steer them away from a short sale if that is their last hope yet you are not certain it meets the minimum threshold or other reasonable factor.

Thanks for your comment.

 

Bill,

Thank you so very much for your phone call.  I indeed did not make it clear enough what makes the multiple purchase contracts legal.  I did make clear the legal theory behind it, but did not address what makes the contracts themselves legal.

So, folks, multiple contracts will only be legal, if IF IF there is wording in the Other Consideration section of your contract that multipe offers will be accepted.  There must be full written disclosure and the buyer must absolutely understand that disclosure by inserting it into the purchase contract.  This is what I failed to make clear in prior comments.

The question of whether to do so is another matter.  If your local board restricts it through MLS rules, you are bound by your Realtor association to those rules.  However, if not, then we have found that agents that accept multiple contracts close more.  However, you do not have to follow this plan.  But if you do, make certain that you have the properly written disclosure on the purchase contract inserted by the buyer or buyer's agent.

We provide to our agents all of the disclosures necessary including a Buyer Packet that goes to the buyer's agent before they make an offer.  This Buyer Packet explains everything from how it works, to how to calculate a reasonable offer likely to be approved, to the wording and disclosures that their offer must contain.  This makes it legal.  Without the proper disclosures, then you cannot accept multiple offers.

Thanks everyone for your great participation, excellent questions, and your support and appreciation.  It does take a long time to write these, but I have the heart of a teach and enjoy helping to correct some of the misinformation and mistaken beliefs.  This is great fun, and I have actually gotten some new clients out of it as well. 

Don't forget to read the next article I wrote about deficiency balances.  The next article I write will be how to predict when a promissory note will be required for approval of a short sale.

Best wishes,

Ken

Aug 27, 2009 09:10 AM
Mike Carlos
Keller Williams Town & Country Realty - Tallahassee, FL
Realtor, Tallahassee FL

I appreciate you sharing your insights, thanks for the helpful post Ken

Aug 28, 2009 06:21 AM
Tracy Milligan
Tarbell. REALTORS - Anaheim, CA

Thanks for putting it into prospective! I will surely pass this information on.

Aug 29, 2009 07:55 AM
Karen Crowson
Coldwell Banker Residential Brokerage - Rancho Bernardo, CA
Your Agent for Change

Hi Ken,

  I'm so appreciative of this post and the many respondents. I will take the advice about the "As-Is" condition.  Even though it's stated in the contract, most buyers of short sales understand that the seller won't be making repairs and the bank isn't likely to either if multiple offers are on the table. If that distinguishes my buyer's offer in the eyes of the SMI, I'm all for it!

Sep 01, 2009 01:07 AM
Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

Thanks for the nice comments.

Ken

Sep 01, 2009 01:23 PM
Nicholas Caron
Caron's Gateway Real Estate - Derry, NH

Ken,

Good article.  In my experience with the mortgage companies and banks it is your number one reason that makes short sales fail.  But I ask this question,  why would you not sell the house for a slight loss,

  • then foreclose have the house on the market with the millions of other homes
  • pay to maintain the home or allow the home to deteriorate
  • and finally sell the house much later and for less then you could have with the original short sale?
Sep 01, 2009 02:12 PM
Enat Halperin
Halperin Realty Corp - Weston, FL
Broker-Owner, CDPE

Thanks for your article, Ken

I feel the same. I have had many short sales closed, mostly because of the preparation and the fact that I make sure we present the bank with fair offers. Once an offer is signed we ask for back up offers, and get them.  Overall - the responses on the lender's side are pretty good.

Enat

Sep 10, 2009 04:50 AM
Ken Lawson
TheLawsonGroup Mediation Svcs www.LawsonGroupMediation.com - Idaho Falls, ID
JD, Short Sale Coach

Great, Enat, I wish you great success.

Ken

Sep 10, 2009 12:32 PM
Anonymous
Christine

Ken, I'm representing two different buyers who've put in offers on two different short sale properties. One offer was submitted in May and the listing agent told me there were several offers, that the "bank was really slow" and the last buyer remaining would probably most likely get their offer accepted. It has been 4 months and now the lender apparently sold the loan to a "bigger bank" which the listing agent won't disclose. Needless to say - will multiple offers in, the seller hasn't signed any contracts and the listing agent apparently has submitted all our offers to the bank for approval. My questions is: What could be causing the hold up? In May, I prepared my buyers to be patient explaining it may take a few months to get approved, but it's now just dragging and they would just like an agent. Is there anything I can do to help speed things along? The listing agent tends to avoid my calls and touches base with me maybe once a month to tell me nothing has happened using the excuse " the bank must have a lot of cases".

What is a reasonable amount of time that a buyer should expect to wait to hear back an answer?

My 2nd client just put in an offer, the seller accepted, and the lender said they won't look at the offer until we complete attorney review. Then they need 45-60 days to make their decision. What is the reason why they would wait to begin reviewing the offer? The listing agent said they haven't approved an amount  yet either?

Any agents/attorneys/lenders opinions are appreciated!

Thanks!

Sep 23, 2009 12:49 PM
#141
Angela Niece
REMAX Results - Eden Prairie, MN

Great Post.  I appreciate the time that you put into your posts. 

Nov 05, 2009 03:19 PM
Martin Kalisker
Greater Boston Association of REALTORS - Boston, MA
Professional Standards & Legal Assistant

I think it all boils down to communication with the servicer and determining what it is that they want to see, since they are the "gate keeper" to the negotiator or SMI.  While your comments regarding the submission of multiple offers is acknowledged, Realtors in general are NOT lawyers and should NOT modify contractual offer agreements by themselves!!

It is interesting that few, if any, of the AR Short Sale "heavy weights" have found their way to this blog post.  Maybe they are just to successful with their approach and did't want to join the fray.

Mar 09, 2010 01:21 AM

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