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Reports of Short Sale Fraud

It is no big secret that in  the recent post real estate boom market there have been great deals for investors and end-use buyers in the foreclosure and short sale arena.  Many buyers know exactly what a foreclosure is but many are not familiar with short sales. Well, a “short sale” is a sale in which a lender agrees to allow a property to be sold in a sale which will produce proceeds insufficient to clear the actual loan amount / balance, in laymen terms the lender will take a loss on the loan.  This type of sale although considered cumbersome by most real estate practitioners are an essential part of a recovering market.  Therefore, as real estate brokers and agents we should do our best to help buyers find the best deal on the market; and if the best deal is a short sale we should certainly educate the buyer on short sales and work the deal and on the other side if we have the short sale listing we should educate the seller and work closely with the lender involved on the short sale to ensure a successful transaction.  However; buyer, seller and real estate practitioners BEWARE!!!!

I read a recent CNBC report which was a bit disturbing. This report depicted fraud when it came to these short sales.  Although, as a brokerage we have not experienced or witnessed this type of activity, the report did place me on guard and as a broker I have passed on the information to the associates working with us.

The allegations go something like this: There is a short sale listing which goes under contract. There are two mortgages on the property. The primary lender or first lien position accepts the contract and negotiates with the secondary or second lien holder a reduced amount, usually a small fraction of what they are actaully owed.  The buyer and seller all sign.  This is all perfectly legal and good until the secondary lender does one extra step. That extra step is that the secondary lender contacts either one of the real estate agents (seller or buyer agent) or the seller or buyer directly and states that they want additional funds paid outside of closing (POC) or wants fund paid which will not be depicted on the closing statement (HUD).  This is a violation of RESPA (Real Estate Settlement Procedures Act), which clearly states that all monetary transactions must be depicted on the HUD.  However, secondary lenders are allegedly ignoring this fact and asking for funds outside of closing disregarding the law; and going to the extent as to threaten to block or kill the short sale and allow the property to go into foreclosure.  The irony of all of this is that although it may harm the seller and buyer and the real estate licensee it still doesn’t help the secondary lender as the fact is that if the property goes to foreclosure the second loan will subordinate to the first lien position anyway.

In conclusion, our advice to sellers buyers and all of our counterparts is to not participate in this type of activity.  No commission or deal is worth a license being revoked or to be accused of aiding in fraudulent activity.

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South Florida Brokers & Associates, Inc.