Short Sales - FAQs - Frequently Asked Questions

Short Sales - FAQs - Frequently Asked Questions - Mission Viejo
by John Alesi, Mission Viejo REALTOR®
Mission Viejo CA Real Estate

1. What is a short sale?  A short sale is a transaction where the seller is attempting to sell their home for less than what they owe on it.
2. Why would a bank forgive tens of thousands of dollars on a loan?  Because often the costs of unloading the asset short are less than the costs of foreclosing on it.
3. Can anybody sell a home short?  No.  In fact, many homes advertised as short sales ultimately are not approved as short sales.  The seller usually must demonstrate some sort of personal hardship such as medical issues, job loss etc. in order to qualify. 
4. Why would a home be listed as a short sale if the bank won't approve it being sold short?  In most cases, the bank will not begin the process of approving it as a short sale until an offer comes in.  This is because there are so many people attempting to sell short that they don't want to waste time on those that may not receive offers in the first place.
5. What is the response time when I make an offer on a short sale?  Typically it will be at least 6 weeks.  Remember, in most cases the bank does not even begin the approval process until an offer comes in.  From there, they require a complete Loss Mitigation Package from the seller to see if they qualify.  They will then order an appraisal or BPO of the home to see if the sale value is in line with current market value.  They also must obtain approval from the loan's investors, who often may be overseas.  They will review the estimated HUD in order to decide what costs they will or won't pay.  Then they must negotiate with other lien holders and attempt to get all to cooperate.
6. What is a Loss Mitigation Package?  This is a package the bank requires the seller to complete in order to be eligible for the short sale.  It typically includes recent pay stubs, 2 years back income tax statements, a Financial Statement, association information, property tax bills and a Hardship Letter explaining why they are in the position they are.  Without a complete package that meets all the bank's requirements, the short sale will likely not be approved.
7. What is a BPO?  This is a "Broker's Price Opinion", typically provided by a licensed Realtor.  The bank will order a BPO after an offer is made on the property to help establish if the value is fair.  If the BPO comes in higher than the offered price, the bank is not likely to accept that price. 
8. If there are two trust deeds against the property, doesn't the 2^nd get wiped out if the sale price is too far below the current value?  Yes.  But the holder of the 2nd has some leverage because they know the holder of the first will incur costs of foreclosure if they take back the home.  Therefore, the holder of the 2^nd generally will seek $1000 to $5000 from the 1^st in order to cooperate.  Without cooperation from the holder of the 2^nd, the short sale will not be successful.
9. What is the incentive for the holder of the 1^st trust deed to cooperate with the holder of the 2^nd trust deed?  They potentially can avoid other costs associated with foreclosing on the home.  On the flip side, if they believe that based on their appraisal or BPO that they can net more by foreclosing, there is little incentive to cooperate.
10. What if there are other liens such as unpaid income taxes against the property?  That throws yet another wrench into the deal.  Every potential lien cuts into what the holder of the 1^stmight net.  They do need to deliver the title free and clear, yet the concept of paying off other obligations for a borrower who has already defaulted on their obligation to the bank is not very enticing to the bank.  In these cases, the bank may ultimately elect to proceed to foreclosure based on principle.
11. If the seller won't pay costs towards the sale, who picks up back taxes, association fees, closing costs and other typical seller items in a short sale?  Most short sale sellers refuse to cooperate with costs.  Usually the bank will pick up those burdens.  It is during that 6 week period after the offer is made that the bank decides what they will or won't pay.
12. If my offer is accepted by the seller in a short sale, will I get the home at the terms the seller agreed to?  Not necessarily.  C.A.R. requires a Short Sale Addendum that stipulates that the bank may counter on all terms of the original offer, including price.  Therefore, when they do finally respond they will often do so with terms and prices that are different from what the seller may have accepted.
13. How big of a role does the listing agent have in making a short sale successful?  The competence of the listing agent is pivotal in a short sale.  The listing agent must be diligent in assisting the seller to compile a complete financial package, they must be able to make a valid case for the sale price to the appraiser and the BPO agent and/or the bank, and they are the key party who will negotiate between the holder of the 1^st and the holder of the 2^nd to bring about and agreement.  If any of these tasks are not performed, the sale is shot down.
14. How big of a role does the seller play in making a short sale successful?  The seller must also cooperate.  Without a complete Loss Mitigation Package, the bank will not approve the sale.  Unfortunately, many people in this position do not care anymore and have given up.  If they lack the motivation to cooperate, the sale will not move forward as a short pay.
15. Are there tax consequences for the seller in a short sale?  Sometimes.  Sellers are advised to consult their accountant and/or attorney.  Often, if they feel the potential tax implications of the short sale (forgiven debt may be considered ordinary income and often can be taxed as such) are greater than the benefits, they elect to take the foreclosure alternative.
16. Can the seller continue to offer the home for sale as "active" after they have accepted my offer?  Yes.  This is addressed in the Short Sale Addendum.  The reason is that the approval process is so long that most buyers find something else in the interim.  This allows the seller and the bank to stockpile offers.  It also allows them to solicit higher offers, which will usually be the case if the original asking price was too aggressive.  When the bank finally gets to the acceptance stage, they will then come back and ask for "the best and highest offer".  Whoever makes that offer will likely be the successful buyer. 
17. Can escrow be opened before the bank has formally approved the short sale?  Yes.  In some cases escrow is opened.  However, it may not be advisable as the buyer may incur expenses such as home inspection and appraisal on a sale that may never happen.
18. Is my deposit secured in that event?  Not necessarily.  If escrow is opened and tasks such as the drawing of escrow instructions, the ordering of HOA documents, appraisals and other items are performed on behalf of the buyer, there will likely be charges to the buyer should the bank not approve the short sale.  These costs may also occur if the seller elects not to cooperate based on the bank's expressed terms.
19. If there is bank approval and escrow is opened, should I be relatively certain that the transaction will proceed to a smooth close?  Maybe but not necessarily.  If the bank ultimately approves the short sale but the seller does not like the terms, the seller at this point could derail the deal.  This may be due to cost terms, tax issues and sometimes just mood swings of the seller.  The problem is that the seller has in most cases already elected to walk away from the house either via short sale or foreclosure, and therefore is not always motivated to cooperate.  In addition, it is also possible the seller could agree to modify the terms of the loan during this process.  If successful, they sometimes create a situation where they no longer need to sell.
20. Will the seller perform repairs?  Most likely, no.  Most sellers in a short sale situation consider themselves done with the costs of the home.
21. How many homes advertised as short sales ultimately sell as a short sale?  Statistics in Orange County at the time of this publication (March, 2008) are that just 1 in 5 homes advertised as shorts sales are ultimately successful in selling as a short sale.

This information is provided only as a guideline to the many possibilities of events that may occur in a short sale.  It is not intended as a legal opinion and may not be used for that purpose.  Additionally, this information may vary depending on location, date and other factors.  If you are considering a short sale as either a seller or buyer, please contact a local Realtor as well as your attorney and accountant.

If you are considering a short sale as a seller or buyer, I will be happy to discuss your situation in confidence.  Feel free to contact me by phone or email for additional information.

John Alesi, Mission Viejo REALTOR®
949-510-2154
John@YourOCHome.com
Search the MLS at:  http://www.yourochome.com/