BloodhoundBlog

There’s always something to howl about.

Tag: arizona foreclosure statutes (page 1 of 1)

June 14, 2008

Short Sale Trouble: How To Avoid It!

by

Realtor, Audio Engineer

Author website

So,

As the short sales go rumbling along in our various real estate markets, a question has arisen, and the answers are varied and contradictory. The question is: how do I, as the listing agent, handle a multiple offer situation on a short sale?

Make no mistake, however you decide to handle it, people are going to be upset. It’s just like any multiple offer situation. There are winners, and losers. There are essentially two views of how to handle this scenario with short sales. We’ll assume for the sake of clarity, that these multiple offers come in, not all at once, but successively, over a period of a few weeks. If they all come in at once, it’s a no-brainer. Your seller chooses the highest and best offer, with the most likelihood of passing lender scrutiny. However, even if a bunch of offers come in, and you pick the best one, another one is probably going to come in after this initial flurry, and what are you going to do with that one? Suppose it’s higher than the highest and best you have in hand?

 One group of agents will simply take the next offer that comes in, and submit it to the lender also. If any offers come in, each offer is simply passed along for the lender for consideration. Some agents will not even take the highest and best of the bunch of initial offers; they’ll just submit them all. As justification, they say that they are “serving the interests of their client”.

I personally believe that not only is this operating unethically, I also believe it is damaging to the interests of your selling client. Let me explain:

First, when your seller and a buyer sign a contract for purchase, it is LEGALLY BINDING. Just because there is a caviat that indicates the contract is subject to the ultimate purview of the lender does not make it any less valid as a contract. Remember in real estate school when your professors talked about “VOID vs VOIDABLE?” This contract, because it is subject to lender approval is voidable. And, it is not VOID Read more

May 5, 2008

Arizona Short Sales: Who Are You Working For?

by

Realtor, Audio Engineer

Author website

I, like some of you, have just received the AAR’s May newsletter, in which Christopher A. Combs, AAR’s “legal hotline” counsel, provides a legal treatise on a contractual issue regarding short sales in Arizona.  I direct your attention to Exhibit A (page 11, dab-smack in the middle of the page). 

In this article, Mr. Combs Esq. indicates that a “short seller” can accept as many offers as they can possibly get for their home, but that only the first one is “active,” will all subsequent offers being in a “back-up” position. 

Now, to me, what this means is that the first offer I get is the “active offer,” and only that offer can be sent to the lender. Any subsequent offers will be on hold, unless, and until, something goes wrong with the first offer.  If the buyer flakes out, or the lender rejects the first offer, we then send them our “next in line,” and hope for the best.

The way I see it, this is a clear breach of my fiduciary duty to my client. My duty is to sell the client’s property. Now, because of the nature of a short sale, my client, in fact, has very little to do with the process. He could care less how much I sell his property for, as he really has no control over whether it sells or not. Is it not in the best interest of my client to “accept” any and all offers, as they come in, and submit them to the lender, and let the lender decide which one, if any, they will accept?  By dragging out the process of “oh. . .you don’t like that one? Let me send you this one. . .,” am I not doing even more damage to my client’s credit? Am I not to act in a timely manner, and get the most money for my client’s property as I can, so that we have a greater chance of getting the deal done?

This nonsense from the legal hotline seems to hamstring me while trying to perform my fiduciary duty to my client. The only remedy I can see Read more

March 8, 2008

A Deficiency Judgement? In Arizona? Not Likely.

by

Realtor, Audio Engineer

Author website

Hello again!

Have clients asking you about short sales? I know I certainly do! In fact, it’s become a big part of my business. In fact, I am conducting short sale negotiations for 3 different REALTORS, as well as 5 different clients. Unfortunately, a lot of questions have arisen lately about Arizona’s Deficiency Statutes regarding foreclosure. I say “unfortunately” because I feel somewhat less than qualified to definitively answer these questions. Greater legal minds than mine (and mine is decidedly NOT legal) will be required to put the issue to rest. I will, in spite of the danger of blatantly misrepresenting the facts, case law, and statutes, attempt to answer one (NON-) simple question:

“If I do a short sale, or my property is taken from me by foreclosure, can the bank ‘come after me’ for the difference between what the property eventually sells for, and what I owe them, including sale costs, legal fees, etc?”

First, let me point the reader in the general direction of actual legal minds on this issue. Here is a rather esoteric treatise on the subject of getting sued for a deficiency judgement. Very good read, and fairly definitive on the issue.

Here is another article, that is more user-friendly on the same subject. Now, because I have a public education, and am somewhat literate, I will attempt to provide a synopsis of the above:

In Arizona, there are two types of “notes” given for real property: a “Deed of Trust” or a “Mortgage”. Despite the common parlance of the term “mortgage,” most people in most states do not actually have Mortgages. They have Deeds of Trust. I won’t go into the differences here, but suffice to say that a Deed of Trust has three parties to the agreement, and an actual Mortgage has only two. Actual mortgages are very uncommon in most states.

Now, the remedy of a lender for a home in default depends on what type of note was used to secure the property. If there is a true mortgage in place, the lender must sue in civil court in a process known as “judicial foreclosure.” The particulars of a Read more

Inventing Real Estate 2.0

Welcome to BloodhoundBlog, the national real estate industry marketing and technology weblog written by, for and about real estate professionals. Better yet, welcome to the wired world of real estate. We are busily inventing Real Estate 2.0 – technology, marketing, service and salesmanship. Like all Bloodhounds, we are smart, frisky and fiercely independent. We've built a spot on the earth – beloved over all – where each one of us can be who we are, no matter who that might be. We are committed to an idea of excellence that will flush the bums, the con-men and the crybabies out of the real estate industry. If you yearn to have your failures excused, your moral lapses absolved or your boo-boos kissed, seek elsewhere. But if you are sick to death of mediocrity – welcome home. Read all about us, subscribe to our feed and steel yourself for the hunt. We work hard, we play hard, we learn everything we can – and we bow to no one.

Media Contacts