Short Sale Nightmare

Short Sale Nightmare

Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes

My friends daughter came to me with the following story asking for help.

Seller is approved for Citi short sale. Listing agent finds buyer who submits offer.

Buyer wants to lease prior to completion of approval by bank. Listing agent recommends this and tells seller to move out. Listing agent does lease agreement, takes deposits, rent and option fee, even though lease agreement has no provision for option.

Realtor holds checks for 15 days. During which time, buyer/renter begins unauthorized rehab. Puts utilities in their name, etc.. But, never occupies the property.

Buyer decides to exit the deal ten days later. But, buyer has caused $1,500.00 of unfinished rehab, cut of water so all landscape is dead, pool has now turned green.

Total damages over $10K.

Realtor who had the checks totalling over $2,500.00 never put them in escrow. Buyer stopped payment on all of them. No money for seller!

Seller receives letter from Citi stating that if they have vacated, they may not qualify for short sale.

What are your comments?

How can I help this person?

What recourse does this seller have?

Never heard of anything like this!

0Reply
31 views

Most Popular Reply

Joel OwensBusiness Member
Moderator
Real Estate Broker · Canton, GA · Member since 2010 · 15k+ posts · 11k+ votes
15y

I am not in this transaction but sounds like gross negligence on the part of the agent giving advice which had adverse consequences.

Time to call the main brokerage who has the listing and tell the qualifying broker the seller will sue if the broker doesn't immediately pay damages.

Short sale or no short sale the damage is almost the same anyways.Could just do a DIL if no other liens are present to the bank.

No legal advice.

See this reply in the discussion

28 Replies

Jump to latestLatest
  • Joel OwensBusiness Member
    Moderator
    Real Estate Broker · Canton, GA · Member since 2010 · 15k+ posts · 11k+ votes
    15y

    I am not in this transaction but sounds like gross negligence on the part of the agent giving advice which had adverse consequences.

    Time to call the main brokerage who has the listing and tell the qualifying broker the seller will sue if the broker doesn't immediately pay damages.

    Short sale or no short sale the damage is almost the same anyways.Could just do a DIL if no other liens are present to the bank.

    No legal advice.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Thanks Joel.

    I thought it was illegal to have any type of arms length transaction with a seller in a short sale?

    Disclaimer - All comments, advise. etc... will be verified by an attorney so no need advise that each time on this thread.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    I don't think there would be a problem with the seller leasing the place to the future buyer prior to close. Problems arise when the seller want's to lease a short sale back after the close.

    That said, the biggest problem I see with this pre-leasing arrangement is that the inevitable "buyer's remorse" gets to start sinking in prior to closing. When you spend a few weeks in a house in find problems and issues and just things you don't like that you don't when you're walking through it. Even an inspection won't reveal what two weeks living in the place will.

    I think the target of the lawsuit here is the buyers. A lease doesn't give them the ability to start wrecking the place! Just the opposite, it requires them to maintain the place. Treat this just like any other tenant who pulled this BS. They broke the lease (left after ten days), the did damages. Their deposit check bounced (NEVER EVER let anyone take possession of your house without having the deposit and a FULL month's rent IN CASH or money order.) The seller should write up an accounting of their deposit. And all the damages and charges against the property. And improper lease termination fees. Send this to the seller right away. Give them a few days to pay. If they don't, immediately pursue them in court. If they're serious buyers, they will not want this to show up on their credit record at this point in time.

    Meanwhile, listen to Joel and have a heart-to-heart with the broker. And, get the placed fixed up and back on the market with a different agent.

    What about the earnest money? If there was an offer, there should have been earnest money. At the very least, that sounds like a keeper. If the agent was personally holding a now-voided check for the EM, then that would certainly seem to need to come right out of the agents pocket.

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    15y

    As Joel said, definitely start with the qualifying broker. But, I wouldn't stop there. When it comes to negligence this bad, I would also file a complaint with the Real Estate Commission.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Apparently, the agent refunded the earnest money. Seems silly,but so does all of it.

    I believe in Texas that any real estate agent (acting as a normal agent or property manager) must deposit any received funds within 3 days.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Thanks J Scott

    Good point.

  • J ScottPro Member
    Moderator
    Investor · Sarasota, FL · Member since 2008 · 17k+ posts · 17k+ votes
    15y
    Originally posted by Chris Colvard:
    Apparently, the agent refunded the earnest money. Seems silly,but so does all of it.

    That tells me that the agent either didn't submit the funds to the broker or the broker is an idiot as well.

    I'm assuming it works similarly in most/all states, which means to refund the earnest money to one party will generally require a contract addendum signed by both the buyer and the seller. Only after a specified period of time (30 days in my state) can the broker unilaterally decide to award the EM to one party without the written consent of both parties.

    So, if the seller didn't agree in writing to allow the buyer to get the EM back, and the agent still refunded it, then most likely the agent never submitted the funds to the broker. Or again, the broker could have been acting completely irresponsibly.

    Given this information, go to the broker and ask if the EM was ever submitted. If it was, is there proof that both parties agreed to release the EM back to the buyer. And if not, why was it authorized.

    You'll either find out the agent was acting alone (and again, should certainly be reported to the Real Estate Commission) or the agent was acting with the help of the broker, in which case they both need to be reported.

    I guess it's possible that the laws are different in your state, and brokers can do whatever they want with EM...if that's the case, I would suggest finding a new state... :D

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    This is such an unbelievable story that I wonder if you're really getting the whole story, Chris. Assuming this is all correct, your friends daughter really needs to find a good lawyer. Either the listing agent is an absolute idiot or is in cahoots with the "buyer" to somehow defraud your friend's daughter. Something just doesn't add up here.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    I will have all the docs, plus email communication between agent and buyer/buyers agent in the morning.

    I have been able to verify everything except the whereabouts of the earnest money. I have pics, estimates etc...

    Today, I had the daughter send a email requesting all of the docs. This was followed up by a phone call. The agent agreed to send them.

    I received a call back from the daughter that the agent was trying to settle the with the buyer and asked her permission to do so.

    I advised that she tell her to do nothing until we have all the docs, plus emails between the agent and the buyer/buyers agent.

    I have already retained an attorney. Not going all the way on this until we have everything. Some how the buyer is now trying to settle up.

    My deal is to wait and see everything, then see what the agent and buyer are actually trying to settle.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    What? The agent is trying to "settle with the buyer"? I don't think I'd trust this agent to do anything on my behalf and certainly wouldn't give her permission to agree to anything on my behalf. If this short sale is withdrawn because of the recommendations this agent has made the consequences to the sellers become much more serious than earnest money and damages. They will be stuck with a house that is somehow a burden to them. You certainly don't want the agent agreeing to some nominal amount of money to "settle" the situation.

  • Anaheim, CA · Member since 2011 · 4 posts · 1 vote
    15y

    I work in real estate and have never herd of anything this bad

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Jon:

    I totally agree!

    I am making sure that no further communication happens from the agent.

    What I am doing now is free discovery.

    The attorney will move forward once the agent turns over emails and docs.

    Right now there seems to be a settlement offer on the table from this buyer.

    Now I have in my possession a settlement offer prepared by the listing agent and submitted to the buyer.

    HOW DEEP DOES THIS RABBIT HOLE GET???

    Sorry for yelling, but I am in total disbelief.

  • Developer · Hollywood, CA · Member since 2011 · 81 posts · 29 votes
    15y

    I've done boat loads of short sale flips so I know a thing or two.... so here's my humble opinion and 2 cent

    Now... Jon, I don't know you from can of paint so please don't take it the wrong way... But I do have a question for you Jon...

    What does this "discovery" do for the seller!??!?

    Seems like you're in TX so it's a non-judicial foreclosure state... and on top of that it's shorter than any other state to foreclosue... this means seller is at high risk of foreclosure...

    What's the seller doing about the foreclosure?

    Are they currently in negotiations with a new offer? same offer? or did the bank flat out deny the offer?

    If I'm reading this corretcly.. the ss bank said "no ss because it's vacant"... that maynot be the "full answer"...

    Is this SS a HAFA short sale? If so... the seller will get up to $3k in relocation fee AND it must be primary resident..

    If the seller moves out prior then HAFA is out the window.. but it doesnt mean you cant SS.

    Also...

    Let's really look at this... EMD for $2,500... lease it to the "buyer" first... the buyer started rehab and/or wrecked the place.

    Now... at the end of the day.. what is all of this going to do for the seller?

    Nothing... other than "he might" get $2,500 but now you have the daughter searching and finding evidence like Sherlock Holmes... Is $2,500 really worth the seller facing foreclosure?

    In CA we have a arbitration clause in our standard board of realtor contract... if the buyer says F' you (if that same scenario in CA)... then he can tie up the property for months. Does this mean the bank won't foreclosure? Absoutly not...

    So I guess my question is... what's the purpose of all of this?

    Also...

    My opinion... if the house is all jacked up... you can get a KILLER BPO and REALLY get a discount... which means... you'll be able to sell the house that much quicker...

    Just MHO.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    If it's not already obvious.

    The seller needs to get paid from either the buyer, agent or both or they will have additional liability to the lender.

    Not sure if this is a HAFA deal, but if it is, the realtor's advice certainly blew that up.

    Free or voluntary discovery just costs less and is faster than filling a lawsuit to get it.

    If this buyer is admitting liability (which I have seen an email that proves it) and is willing to settle, then it is in the sellers best interest to take the money and get the house in salable condition.

    Listing agent is not an attorney and should not be negotiating a settlement, period. Especially in this situation!

    Seller has been advised to contact the back directly to be in compliance and hopefully get another offer and complete a short sale.

    The killer BPO only results in sellers breach of the agreement to maintain the property until a short sale is complete.

    I don't want the bank to actually sue the seller for these damages.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Jon,

    What's your take on this latest development?

  • Investor · Reston, VA · Member since 2011 · 683 posts · 191 votes
    15y

    What a mess! This is why you NEVER let a buyer pre-occupy; forget the nuances of short-sales. Also, no phone calls - everything said should be in writing via e-mail.

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Prefect advice Cheryl.

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    Not sure this question was really meant to be addressed to me.

    I think the listing agent realizes they have royally screwed up and are trying to get a "settlement" that makes their errors go away. I wonder if he or she had a chat with their broker and now realizes they are facing some significant cash out of their own pocket as a result of the mistakes.

    Seems good for the seller to talk to the lender and try to find out what they can do to get the short sale back on track. Perhaps if they explain the advice they were given they can move back in or otherwise take action to satisfy the lender and allow them to proceed with the short. Jeff's right, from my understanding, that foreclosures can happen very quickly in TX. So, if behooves the seller to try to get the lender on board with continuing with the short seller to avoid them starting the foreclosure.

    Can you share the terms of the proposed settlement? Are they good enough to make the sellers whole? What if the property does end up being foreclosed as a result of this bad advice from the listing agent?

    May need to be made crystal clear to the listing agent that they are not to be negotiating a deal with the buyer.

    Keep in mind that I'm not in your shoes and neither me nor anyone else here fully understand this situation. My advice may be just as bad as this listing agent's advice.

  • Rehabber · Tucson, AZ · Member since 2008 · 1k+ posts · 802 votes
    15y

    Settlement offer on the table?

    1. The agent/broker are clearly negligible and as I see it, the listing agent perpetrated this event. The buyer's actions in damaging the property were a direct result of the LA's facilitation of the deal.

    Hence, I am confused as to why your attorney is allowing for the negotiating of any settlement at all. In the end, the seller's claim is with the LA/broker for all damages and they can only help offset the loss by getting the $2500 in EMD back to the seller. Let the broker pursue the buyer for breach and for damages.

    2. This matter will likely end-up in arbitration so I hope the damages were filed in a police report. If the seller's loses access to the house or further damages occur, your claim may be more difficult to prove. Though it is a civil matter, the police can still issue a report.

    3. Complicating things is the seller is in default and potentially any proceeds may be subject to being returned to the lender and/or credited to the deficiency. After all, the seller is also in breach and may not be entitled to any proceeds

    4. Make sure any attorney you hire knows that he must clearly be paid by the defense. Because loser usually pays, having a strong case also matters.

    Good Luck!

  • Developer · Hollywood, CA · Member since 2011 · 81 posts · 29 votes
    15y

    Jon.. message was for Chris... sorry.

    Also Chris..

    "The seller needs to get paid from either the buyer, agent or both or they will have additional liability to the lender."

    "Not sure if this is a HAFA deal, but if it is, the realtor's advice certainly blew that up."

    "The killer BPO only results in sellers breach of the agreement to maintain the property until a short sale is complete. "

    You should like a dam politician... LOL

    I've done over 70+ (lost count) short sale flips and did have done enough kitchen table sit downs with seller to know...

    that the seller usually dont give a ****... they just want to avoid foreclosure...

    Now... you probably got the bank freaked out... and that move alone may force your seller into a foreclosure...

    I'm just stating what happens in the trenches...

    And like Scott said...

    If i was the buyer (yes what he did was absoutly wrong)... I would say ******* to everyone and tell them to take me to arbitration...

    Then what? You're seller is really going to fight it? MHO is you're trying to be superman fighting the wrong villain... you're trying to step over dollars to make a penny...

    Help the homeowner... the fact that you dont know if it was a HAFA ss and you're getting this involved concerns me even more...

    Just saying...

  • Developer · Hollywood, CA · Member since 2011 · 81 posts · 29 votes
    15y

    also chris...

    It's your friend... how are you involved in this? Are an investor looking to wholessale this?

  • Rental Property Investor · Mercer Island, WA · Member since 2008 · 22k+ posts · 14k+ votes
    15y

    I'm working on the assumption Chris is just a friend who's trying to help his friend's daughter from being screwed by the listing agent and the "buyer".

    Looks to me like worst case here is the lender refuses to do a short sale, forecloses, and the seller is left with a deficiency judgment. And that deficiency judgment is larger than it would have been without the damage done by this "buyer". And the seller takes the larger credit hit from the foreclosure rather than the smaller hit from the short sale. So, the potential damages are considerable worse than what the earnest money would cover. Hence why, IMHO, the seller shouldn't just roll over and take a settlement the LA negotiations with the "buyer".

  • Rehabber · Tucson, AZ · Member since 2008 · 1k+ posts · 802 votes
    15y
    Originally posted by Jon Holdman:
    I'm working on the assumption Chris is just a friend who's trying to help his friend's daughter from being screwed by the listing agent and the "buyer".

    Looks to me like worst case here is the lender refuses to do a short sale, forecloses, and the seller is left with a deficiency judgment. And that deficiency judgment is larger than it would have been without the damage done by this "buyer". And the seller takes the larger credit hit from the foreclosure rather than the smaller hit from the short sale. So, the potential damages are considerable worse than what the earnest money would cover. Hence why, IMHO, the seller shouldn't just roll over and take a settlement the LA negotiations with the "buyer".

    That is one side of the coin and, while playing devils advocate, I would say that the foreclosure ball started rolling prior to the listing agent's involvement. Thus, proving damages beyond that which is tangible could prove very difficult.

    If the seller can prove the agent also coerced her to stop payment which then led her down the slippery slope she is now, then this would be a huge bonus.

    So, I agree with Jon, that this case, without some overriding cause, will be just about awarding tangible losses.

  • Specialist · MA · Member since 2009 · 858 posts · 306 votes
    15y

    @Jeff Coga - HAFA no longers a homeowner to occupy a property. The property can be vacant for up to 12 months now.

    I agree with everyone else..the listing agent is liable.

    NEVER allow a rental without iron clad contracts. What a bummer. GROSS negligence on the part of the listing agent. :cry:

  • Wholesaler · Dallas, TX · Member since 2009 · 308 posts · 92 votes
    15y

    Hey guys:

    Jon & Scott, you are both totally correct. I have no interest in this property as a wholesale deal or otherwise. Simply trying to help a friend's daughter.

    Jeff, while you may have 70 SS deals under your belt, when it comes to the legal stuff, let's just say I'll pass on your advise.

    I have under my employment, a Texas licensed attorney. We have researched this and it is a gross negligent case against the agent and the broker. In addition, the buyer breached 2 contracts.

    Buyer is willing to settle for $2,500.00 by admission. (2 witnesses listing agent and buyer agent, plus in writing) To anyone that does not not how to settle a case like this, it's a slam dunk. Damages far exceed this.

    I have proof of funds from buyer that exceeds $15K cash in bank.

    Attorney duties - demand letter to buyer - you owe $10K we'll let off the hook for &7K, if you sign affidavit and agree to testify against agent.

    Demand letter to agent & broker, you owe for negligence, breach of TREC rules # 1 - failure to deposit escrow funds, # 2 practicing law without a license, # 3 gross negligence.

    Pay before case filed or, agent looses license for items 1 & 2. Broker gets fined and has liability for 1, 2 & 3.

    How much do you think they will pay to avoid turning over to E & O?

    Case filed equals agent has no license & broker still liable.

    Please let me know what you think.

Join the conversationCreate a free account to reply, vote on answers and follow this thread.