Short Sales - Bargain Or Trap For The Unwary?

An Environment Ripe For Failure

By Mikey and Steven Hall

Throughout most of the recent real estate boom buyers would regularly choose to use what we call, "stated income" borrowing. Instead of having to fully document their income these buyers would simply state how much they earn in their loan application. Sometimes those buyers who were less than sophisticated would simply let their loan broker state their income. The potential for both intentional and inadvertent abuse was great.

The widespread use of Adjustable Rate Mortgages (ARMs) further complicated matters because of their provision which called for a low introductory rate (usually for the first one to three years) to be later replaced by a higher interest rate set by some indicator or index. Many times the buyers were qualified to pay the lower teaser rate, but not a higher rate to be established later.

To make matters even more dangerous a large percentage of buyers were making "no money down" purchases. A 5% down was considered good while 10% or 15% down was considered great!

Why were people setting themselves up for disaster like this? Simple. Real estate prices were skyrocketing at a truly astounding rate. The real estate inventory in some areas was barely enough to cover 10 days worth of sales. It was quite common for a home to be listed and sold with multiple offers in the same day. In such a market it didn't matter if a buyer couldn't afford his home payments so long as the price continued to rise. The buyers felt secure in the knowledge they could always sell for a quick profit.

As prices continued to rise owners found themselves with large amounts of equity in their homes which they pulled out (refinanced) and spent. Best case, the funds were used for improvements; worse case the funds were used for vacations and SUVs.

The Perfect Storm

Then in 2006 the market began to cool and, like a roller coaster approaching the summit from which it would begin its terrible fall, prices stopped going up and the summit was reached.

In 2007 the roller coaster began to pick up speed as it plunged downward. All of the elements were now present for the perfect storm. The ARM rates began to tick upward at the same time prices were falling. The falling prices began to eat the equity windfalls and owners found they could no longer refinance to cover their lifestyles. Houses began to flood the market. Rapidly dropping prices were a self fulfilling prophecy.

The Short Sale And Its Issues

Suddenly, sellers found themselves trying to sell homes whose market value was below the amount owed to the lenders. Enter the "short sale" or "short payoff", as it is sometimes called. Sound like a great opportunity? Maybe not.

Because Realtors® with short sale listings are facing stiff competition they will many times list the properties at an extraordinarily low price. Not good. Why? Because the lender is being asked to absorb a loss and as such has a right to approve the purchase. In a large percentage of cases the listing price of the property is far below the amount the lender is willing to approve. As a result the majority of offers made are not approved by the lender(s) involved.

Most lenders will not consider a short sale unless the homeowner has a true "hardship" and is at least 30 days late on their mortgage payments. Moreover, most lenders won't even consider a short sale unless there is an offer on the table. In today's market, offers are few and far between. This means that before the lender even begins to think about possibly approving a short sale the property is dangerously close to the 90 day point when lenders record their Notice of Default (NOD).

All of this can create problems, but for the experienced realtor they aren't necessarily fatal:

1. While the seller is usually excited to take the offer, the lender's approval is generally very slow in coming. Sometimes months can go by without a word from the lender(s). This potential problem can be addressed in the purchase offer and addendums.

2. Typically the lender(s) will not approve the buyer's offer which tends to be below the asking price which was already far below what the lender would consider anyway. A good realtor should have already begun working on this problem before the offer is even made.

3. There is also real possibility the lender will not grant a stay of the foreclosure, and unless the buyer can close the escrow before the trustee sale the deal may fall through. This is always a possibility, but simple communication can work wonders.

4. Unless the buyer writes in the appropriate conditions and sets an approval deadline he runs the risk of being tied up in an escrow with no way out. Again this is a matter of experience and expertise.

Are there reasons why someone (a non-investor) would want to buy a short sale?

Absolutely! By definition a short sale is being sold for less than the total debt on the property. Moreover, the lender knows that its loss will very likely be even larger if it goes through the entire foreclosure process. As large as its loss may be, a short sale will probably be the least expensive strategy for the lender. At the end of the day, the discount passed on to the buyer can be substantial.

Why investors need to be careful.

If the buyer is an investor (the property is not going to be their residence) then there can be a serious danger to both the buyer and the buyer's Realtor®. This occurs if the lender records an NOD while the owner is living in the property as his primary residence.

When this happens an "Equity Purchase Contract" is created which is closely controlled by the laws set forth in the California Civil Code. This set of complex laws was intentionally created by the California legislature to protect people who are losing the family dwelling in a foreclosure.

As originally conceived, the first effect of the law was to make it impossible for any Realtor® to represent the buyer by requiring that the agent acquire a bond which wasn't available in California. This requirement was held to be unconstitutional and unenforceable in the case of Schweitzer v. Westminster Investments (2007) 157 Cal.App.4th 1195, when the California Supreme Court denied review on March 26, 2008.

Unfortunately, the other requirements of the home equity sales contracts law remain in effect. For example, special notice requirements are triggered, as well as, a myriad of other requirements. In essence, all mistakes are construed against the investor and it is actually possible for a seller to come back a year later and attempt to set aside the sale. Long story short. Investors are at risk when it comes to Short Sales. Investors should consult legal counsel before becoming involved in an Equity Purchase Contract.

Find an experienced Realtor and you're good to go

It has taken some time for the Real Estate profession to adjust to the changing market place, but the California Association of Realtors (CAR) is now providing Realtors® with the contractual tools necessary to deal with the complex issues involved in Short Sales. Buyers (we haven't addressed the issues facing sellers) are well advised to be sure their Realtor® has experience with Short Sales and is familiar with the issues and the current approved CAR forms.

mailto:AskMikeyHall@gmail.com

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