Thursday, February 28, 2013

Short Sales, Fraud, and the FBI


Short Sales and Fraud

    Yesterday was quite a news day in our local area for Real Estate and short sales. Unfortunately, the news was not necessarily great. A somewhat well known broker/lender/accountant was the target of a search warrant and raid by the FBI and HUD. The warrant was sealed, and at this point the allegations are only allegations, so that story will have to play itself out. Many of you will remember though that just recently, former Michigan Supreme Court Judge Diane Hathaway plead guilty to bank fraud and concealing assets in connection with a previous short sale.

    I did get some calls from past clients with questions about the breaking news. Some of them had gone through a short sale; some of them are right now in the midst of trying to undergo a workout with their lender. One thing they all had in common was an uneasy feeling. When stories such as these steal the headlines, they cast a long, grey shadow over the entire process. This shadow brings additional uncertainty to those homeowners already facing an uncertain future.

    I decided to write this today to hopefully restore a little certainty to both my clients and anyone else may have questions. As a licensed Real Estate Agent and a Realtor, I always strive to be part of the solution and not part of the problem.

    This is a quick and dirty guide to what a short sale is and what it is not. The Department of Housing and Urban Development uses the term ‘Pre-Foreclosure Sale’ (HUD – PFS Faq’s). A pre-foreclosure sale is a mechanism through which a lender will agree to allow a borrower to sell the home for less than the amount owed. The lender will participate in this process when the borrower demonstrates they have a qualified hardship. A ‘qualified hardship’ is generally defined as a hardship that will result in an eventual foreclosure and was not intentionally orchestrated by the borrower.

    A short sale is not a method for someone to buy a bigger and nicer home and then ‘dump’ their current home just because they want too – referred to as a “buy and bail” by Fannie Mae. A short sale is also not a process for someone to sell a home because it is not worth what it once was, unless they have a qualified hardship. A short sale is also not a method for someone to sell their house to a third-party and then buy it back or rent it cheaper than their current mortgage payment (unless this is disclosed in writing to the lender and the lender agrees in writing).

    During the course of a short sale, the seller will be asked to disclose a number of things. These will generally include: bank statements (all accounts that all mortgagees have an interest in or access too), pay stubs, w2’s, tax returns, IRS form 1056-T, a detailed list of monthly household expenses, a narrative explaining the hardship, and other information as requested by the lender. The seller will also be instructed to list the home for sale with a real estate broker who will provide listing documentation, assist the seller in communicating with the lender, and market the home according to highest and best practices, including listing the home at market value to attract a market value offer.

    Short sales can be a difficult process to maneuver; sometimes there are three or four stakeholders that all must agree on the terms before a final approval can be issued. The negotiation process is not overly complicated, but it is tedious and protracted. There are no shortcuts, magic bullets or ‘secret’ telephone numbers. The keys to short sale success are patience, persistence and perseverance.

    The short sale process does have a negative effect on the seller’s credit. This is the result of the missed or late payments that led up to the short sale and the manner in which the short sale is reported to the credit rating agencies. These factors can result in a reduction in not only in a FICO score reduction, but limit the seller’s ability to secure other loans, have an effect on security clearance ratings, cause an increase in insurance premiums and have other collateral effects. A short sale has less impact overall than a foreclosure, but the seller does not walk away unscathed.

    The important points to remember from this brief update are:
"Trust Me"
  1. 1.      Short sales are a voluntary resolution agreed to by the seller and their lender based on the mitigating circumstances.
  2. 2.      A qualified hardship is a necessary component of a short sale.
  3. 3.      You will be signing disclosures and affidavits stating that all representations made are true and accurate and the sale is an Arms-Length transaction.
  4. 4.      Any professional (be they a Realtor, accountant, lawyer, title company, or otherwise) who advertises an easier, softer, quicker or cheaper process without disclosing all the options and ramifications upfront is obscuring the truth by omitting facts. 
  5. 5. You should always consult an independent attorney and CPA for legal and tax related questions when undergoing a short sale.

    For more information on Short Sale acceptable practices and fraud, be sure and check out these short sale related web pages from Fannie Mae, Freddie Mac, HUD and FHA.

    For any additional questions, you can find my website "here"

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