Fannie Mae and Freddie Mac (Streamlined and Standardized) Short Sale
- While the property is on the market and while the transaction is being negotiated, the foreclosure process may move forward.
- The servicer will determine if the foreclosure process should be suspended based upon how much time prior to the foreclosure sale date the package is received. The listing agent or the borrower’s/seller’s attorney should verify whether the foreclosure sale is being postponed.
- Once the short sale has been approved, the servicer must suspend the foreclosure sale to allow the short sale to close.
Non-GSE Traditional Short Sale
The foreclosure process may move forward while the property is on the market or offer is being negotiated. The timeline could continue even after the short sale has been approved. It is imperative that the listing agent or the seller’s attorney work with the servicer to stop the foreclosure clock from reaching the point of a forced sale (foreclosure) to allow the short sale to close.
FHA Pre-Foreclosure Sale (PFS)
Once the borrower has been approved to participate in the PFS program, FHA will allow a postponement of the foreclosure sale for 120 days.
VA Compromise Sale
It is imperative that the listing agent or the borrower’s/seller’s attorney work with the servicer to stop the foreclosure clock from reaching the point of foreclosure to allow the short sale to close.
Some of the short-sale programs have guidelines for assisting the borrowers/sellers with relocation expenses along with caps on what the servicers can require from them as cash contributions.
Fannie Mae and Freddie Mac (Streamlined and Standardized) Short Sale Contribution Requirements
The servicer must not request cash contributions and/or promissory notes where applicable law prohibits a borrower/seller contribution or if a borrower/seller:
- Qualifies for streamlined documentation, or
- Is an active duty military service member of the U.S. armed forces with PCS orders relocating the service member from the subject primary residence purchased by the borrower on or before June 30, 2012.
Cash Contributions, Incentives, and Subordinate Liens
When the short sale is done under the imminent default standard, the servicer will evaluate the borrower/seller for the capacity to make a cash contribution if triggered by the borrower/seller cash contribution test described in the following section.
- The servicer will evaluate the borrower/seller for the capacity to contribute only if triggered by the borrower/seller cash reserve levels or future debt-to-income ratio tests described in the following section.
- If the servicer concludes that a borrower/seller has the capacity for either a cash and/or promissory note contribution, the servicer must use the guidance described in the next section for setting an initial request. The borrower’s/seller’s total cash and promissory note contribution must not exceed the total amount of the deficiency.
Borrower Cash Contribution Test and Formula
The servicer has the ability to ask for cash contributions if assets such as cash, savings, money market funds, marketable stocks or bonds (excluding retirement accounts) stated on Form 710 are:
- In excess of the greater of $10,000 or;
- Six times the contractual monthly mortgage loan payment including principal, interest, and tax and insurance escrows (PITI).
If a borrower/seller has cash reserves of more than $50,000, the servicer will request written approval from Fannie Mae for the contribution amount. If the servicer determines that the borrower has the capacity to make a cash contribution, the servicer must initially request a contribution of 20% of the borrower’s cash reserves, not to exceed the deficiency. If the servicer has any thought that the borrower/seller has moved money to another account, e.g., a friend or relative, it will automatically stop the short sale.
- Promissory Note Test and Formula
- The servicer will evaluate a borrower/seller for a promissory note if the borrower’s/seller’s future debt-to-income ratio (“back-end ratio”) is less than 55%.
- The borrower’s/seller’s debt-to-income ratio is based on the borrower’s/seller’s future housing expense, which is calculated at 75% of the current payment.
- Relocation Incentive
- Owner-occupant borrowers/sellers who have no financial contribution requirements at closing will receive a $3,000 relocation incentive (unless there are employer or state funded assistance for moving).
- If the borrower/seller is 90+ days’ delinquent, no financial contribution will be required (owner occupied, second home or investor) and the borrower/seller will receive $3,000 incentive.
- Subordinate Liens
- Second mortgage payouts cannot exceed $6,000 total.
- If the second mortgage holder accepts payment, the second must release the borrower/seller from liability.
- Subordinate lien holders may not require a contribution from the agent or borrower/seller.
Non-GSE (Government-Sponsored Enterprise)
Traditional Short Sale
There are no specific guidelines on cash contributions, borrower relocation incentives, or subordinate liens.
FHA Pre-Foreclosure Sale (PFS)
- Cash Contributions
- Relocation Incentives
- Subordinate Liens
- All additional liens against the property must be released.
- A lien holder that demands a payment to release its lien must submit a written statement, and an agreement to release the lien if that amount is paid.
- HUD will allow an amount up to $1,500 for the discharge of junior liens.
VA Compromise Sale
- A borrower/seller who occupies the property as a principal residence and is required to vacate as a condition of the short sale or deed-in
-lieu may be eligible for $3,000 in relocation assistance.
- A tenant in the property may be able to claim the $3,000—no amount may be retained by the borrower/seller if the borrower/seller isn’t the one living in the property. (The tenant would have needed to be residing in the property as the principal residence as of the date the borrower/seller requested HAFA short sale or DIL or resided in the property on the date the executed real estate contract was approved by servicer.)
- If the property is owner occupied, the borrower/seller may use the $3,000 payment to pay for transaction costs that the borrower/seller has instructed the settlement agent, in writing, to pay on his or her behalf, such as the cost of legal representation in connection with the transaction, overdue utility bills on the property, or minor repairs made as a result of being identified during a property inspection.
- Borrowers/sellers may not use the relocation assistance payment for release of subordinate mortgage or non-mortgage liens recorded against the property and may not be required as a condition of the sale to utilize any portion of the relocation assistance to pay any transaction expenses.
- Subordinate mortgage lien holders with subordinate liens may be paid no more than an aggregate cap of $8,500.
- This cap does not apply to non-mortgage subordinate lien holders with subordinate liens not secured by a mortgage on the subject property, i.e., mechanics liens and HOAs.
- Subordinate lien holders must release the borrower from financial obligations relating to liens.
- Subordinate mortgage holders may not require contributions from either the borrower or real estate broker as a condition for lien release.
- All payouts must show on the HUD-1.
If you are working a Fannie Mae short sale and you have one of the following issues you will need to escalate the short sale:
- The offer has been submitted more than 30 days prior and there is no response.
- A problem arises with a contract and you are in negotiations with the servicer.
- There is a policy issue with the handling of your short sale.
- If you need to contest value (if no offers are being received OR there is an accepted agreement and there are value issues).
The escalation process is outlined at homepathforshortsales.com.
You will need the same information that was required under “Contesting a Value Assigned by the Servicer or Fannie Mae.”
Freddie Mac requires that all servicers dedicate a toll-free number that is published to borrowers/sellers for the purpose of escalation.
For non-GSE traditional short sales, FHA Pre-Foreclosure Sales (PFSs), VA Compromise Sales, there are unofficial processes in place for escalation of the file to someone who can attempt to resolve the stalemate.
- Do not escalate the file prematurely. Work with the negotiator until there is obviously no way to resolve the issue.
- If the escalation is due to pricing, have your comparables, repair estimates, and justification for an increase in price ready prior to escalation.
Escalation can slow down the process. Be sure there are no other alternatives and that your borrower/seller has the time to work through the escalation process.
When servicers approve a short sale, they will notify the borrower/seller in writing. The borrower/seller and his or her finance, tax, and legal professionals should review the approval letter closely both for the terms disclosed and for items not mentioned. The approval letter should also be reviewed for any items requiring clarification.
Sample Servicer Approval Letter #1
This letter will serve as Bank C’s demand for payment and advises you that Bank C and its investors and/or insurers have agreed to accept a short payoff involving the above-referenced property (the Short Sale transaction). This demand should be used by the closing agent as our formal demand statement. No additional statement will be issued. This approval is exclusive to the offer by the buyer referenced in this letter. The conditions of the approval are as follows:
- Closing must take place no later than February 5, 2017 or this approval is VOID.
- The approved buyers are Bob and Carol Smith and the sales price for the property is $260,000.
- Another buyer cannot be substituted without Bank C’s prior written approval.
- Proceeds to Bank C to be no less than $230,733.51.
- Total closing costs, including real estate commission, not to exceed $29,266.49. This figure includes $1,000 for second lien and $3,000 for third lien.
- Termite reports and repairs not to exceed $0.00.
- Real estate commission not to exceed $13,000.00.
- This property is being sold in “AS IS” condition. No repairs will be paid for out of the proceeds unless specifically stated otherwise.
- The sellers will not receive any proceeds from this short sale transaction. If there are any remaining escrow funds or refunds they will not be returned to the seller, they will be sent to Bank C to offset the loss.
- Bank C or its investors will not pursue a deficiency judgment if the short sale closes on the referenced loan. If the short sale does not
In approval letter #2, note:
- The bank is forgiving the deficiency on this.
- The approval date and closing date.
- Termite issue.
|Date: July 1, 2017|
|Servicer A agrees to release its security interests in the above collateral upon receipt of $1,000 in certified funds. This amount is for the release of investor A’s security interest only. Please contact your tax advisor regarding any tax ramifications from this transaction.|
|Servicer A requires that we approve a final settlement statement prior to closing that shows a balance to be paid to Servicer A of no less than $473,285, which will show a real estate commission of no more than $28,397 which is to be included in closing costs not to exceed $52,412.75. Closing shall take place no later than July 10, 2017.|
|In approval letter #1, note:|
|• The servicer is releasing security interest only (mortgage).|
|• There is no mention of releasing the promissory note.|
|• Clarification is needed to determine if the seller has to pay the deficiency.|
|• The date of the approval and date of closing.|
It is important that the borrower/seller take responsibility to be certain there is a written waiver of deficiency from the servicer when closing on the short-sale transaction. Although a borrower/seller may be bringing funds to closing to contribute to the investor’s bottom line, there still remains a deficiency, and to protect the borrower/seller from receiving a judgment of that deficiency, a written waiver may need to be in place. All of this depends on the recourse debt laws of the state in which the property is located. Here is a sample deficiency waiver from Fannie Mae.
Why Short Sales Fail
Historically, short sales were failing primarily because the servicers were not prepared to deal with them. They took too long to respond and did not have enough manpower to process these transactions, nor did they have a desire to do so. Although there is no guarantee that the servicer will approve the short sale, listing agents have a responsibility to create a contract that has a reasonable chance of closing and to monitor the transaction throughout the approval process. In today’s market, short sales are failing because agents are not aware of the process and forms needed, and because buyers and sellers lack qualification and do not understand the negotiation considerations. It is imperative that agents take responsibility for the success or failure of short sales to the extent that we have control.
- The borrower/seller did not have valid financial hardship.
- The buyer didn’t do his or her due diligence.
- The buyer wasn’t qualified.
- The contract did not have a reasonable chance of closing. Did the buyer:
- Offer fair price?
- Tender earnest money?
- Complete inspections?
- Make mortgage application?
- Improper document submission (Equator)
- The BPO came in high and the servicer thinks the offer is too low.
- The servicer took too much time and the buyer walked.
- Junior lien holders or PMI refused.
Problem: Junior Lien Holder Says “No”
The listing agent needs to assess the plan for repayment of debt to the junior lien holders prior to acceptance of an offer. This area of negotiations is a major battlefield. If you know the holder of the junior lien and you can ascertain what they are willing to accept to release their lien, then resolving this prior to seller acceptance of the contract is best.
The payment of what the junior lien holder wants to release the lien does not always have to come from the primary lien holder. Once it is determined how much the lien holder wants, the payment can be made by the seller (if funds are available) or the buyer, or both.
Problem: Short-Sale Package Not Submitted Properly
This is one of the most common reasons why short sales fail. If the package is not complete, servicers typically will not call immediately and tell you what is missing. They will simply set the package aside until they have the time to start making such calls. Other servicers may attempt to communicate with you on the missing pieces, but that alone slows down the process. And still others will terminate the file without informing you.
Submit a complete short-sale package as required by the servicer.
Problem: Offer Too Low
Each servicer has its own formula for what price it will accept on a short sale. There are no hard-and-fast guidelines on what the servicer will approve. This is why the buyer’s representative should have done a thorough CMA for the buyer prior to writing the offer and why the listing agent should have counseled the sellers to counter any offers to establish the best price and terms possible prior to accepting it.
Solution for buyer’s representatives:
Do an accurate CMA and counsel your buyer on making an acceptable offer.
Solution for listing agents:
Have sellers negotiate the best contract they can prior to acceptance and submission to the lender.
Problem: Buyer Not Strong Enough
A pre-approved buyer has a much better chance of getting their contract approved by the lender than one who is only pre-qualified. A cash buyer will need to submit proof of funds. The servicer wants to see a contract that has a strong chance of closing.
Submit thorough buyer qualification information and a strong contract with as few contingencies as possible. From the servicers’ point of view, a contract that stipulates that the buyer will be doing his mortgage application, home inspection, etc., after servicer approval has less of a chance of closing than one where the buyer has already taken the appropriate steps.
Problem: Inaccurate BPOs
As discussed previously, if the BPOs and/or appraisal of the property was inaccurate and the lender has a distorted picture of the fair market value of the property, this could influence the servicer’s approval.
If the contract is not approved, ask the negotiator how the BPOs compared to your CMA and see if there is a problem that can be resolved. Be certain to have interior photos that further support the buyer’s contract terms.
Although length of lender approval is not tracked for all mortgage servicers in the United States, anecdotal feedback from real estate practitioners is that many short sales fail because the buyer simply got tired of waiting.
Solution for buyer’s representatives:
Counsel the buyer on the frustration of time delays.
Solutions for listing agents:
- Recommend the seller negotiate sufficient earnest money to keep the buyer from backing out as well as negotiate a realistic time frame for the buyer to wait for lender approval in the contract.
- Keep the lines of communication open between the listing agent and buyer’s representative. This, in turn, keeps the buyer in the loop of communication.
- Know the process and escalate it when appropriate.
Problem: Doesn’t Meet Servicer or Investor Criteria
Many of the loans we are attempting to do a short sale on have been securitized and sold to investors. The securitization agreement the servicer has with the investor often gives specific parameters of how much the investor can discount the loan in a short-sale situation.9
Submitting a thorough CMA can show the value of the property, but this is where logic sometimes fails and it becomes a “because they said so” situation. You might ask the negotiator how the BPOs compared to your CMA and see if there is a problem that can be resolved.
Many of the loans we are attempting to do a short sale on have been securitized and sold to investors. The securitization agreement the servicer has with the investor often gives specific parameters of how much the investor can discount the loan in a short-sale situation.
- Follow all servicer requirements
Contract and the HUD-1
What to highlight in your CMA
Submission and servicer approval
Postponement of foreclosure proceedings
Incentives, cash contributions, and subordinate liens
Servicer short-sale approval letters
Fannie Mae deficiency waiver
Why short sales fail
Listing agents must submit short-sale contracts exactly as the servicer requires. Many of the servicers use Equator short-sale processing software, and you will be limited to submitting only those documents that Equator accepts.
Equator is a web-based software program that is being used by many of the larger banks servicers to process their short sales. Equator was originally designed to assist REO agents in the submission of offers and now has become the portal of choice for many of the servicers with short sales as well. Equator.com allows anyone to create an account that then allows you to be able to submit offers to the servicers using the system. The benefit of Equator is that it facilitates and expedites the process. The downside of the system is that if it is not used properly, it can actually slow things down. Here are tips to ensure your short sale gets processed properly.
- Follow the instructions exactly as they are spelled out by the servicer. Each servicer has its own process, and its requirements may vary. Although you may have submitted an offer through Equator on a loan serviced by Wells Fargo, that does not mean that the next short sale you submit when serviced through a different entity, for example Bank of America, will be handled in the same way.
- The information submitted must match exactly the information on the mortgage documents:
- The names, addresses of the owners, and the property must be an exact match. For example, don’t enter Bill Smith if mortgage documents list the borrower’s name as William Smith. Include middle initials if applicable.
- The address must be exactly as shown. If the documents show Drive, do not submit as Dr.; if it shows West Elm, do not use W. Elm.
- Always use your information, not the borrowers’/sellers’ information. For example, when entering the phone number and email address, list your number and e-mail address, not the borrowers’/sellers’. The borrowers/sellers, in many cases, have not responded to the servicer’s calls for months and they tend not to respond now.
- If you can’t read what you are submitting, neither can the servicers. Be absolutely sure that what you are transmitting is legible:
- Contracts should be computer generated rather than handwritten whenever possible.
- Please be sure the scanning and copying equipment you are using gives you a clear, legible image.
- Be specific in the naming of the documents. Different servicers have different names for the documents, e.g., Sales Contract or Purchase Agreement. Be sure to name your documents appropriately.
Follow All Servicer Requirements
If the servicer does not use Equator, it is imperative that you determine the process the servicer wants you to follow. Failing to submit all the documents in the proper format will cause unnecessary delays in the approval process.
If a servicer normally uses a fax or general e-mail for submitting documents and the assigned negotiator requests that you use a direct e-mail address, a best practice is to e-mail documents to your negotiator and also e-mail the documents to the general e-mail address or fax it to the number indicated. There are two reasons for this:
- The turnover rate for negotiators is extremely high. If you have been e-mailing the negotiator and he or she quits, there is a possibility that all e-mail communications may be inaccessible by the new negotiator.
- When you e-mail or fax the “general line,” there is a department that automatically places it into the file. There is less of a chance for the negotiator saying that he or she didn’t receive it.
- The listing agent should provide the servicer with:
- A copy of the purchase contract
- The buyer’s pre-approval letter
- A statement that the buyer is not related to the current homeowner
- It is critical that the preliminary HUD-1 reflects all costs the investor will incur. The following may be areas of concern:
- Tax prorations
- Seller concessions
- Accurate broker compensation must reflect final contract price
- Unpaid municipal expenses
- Transfer stamps (if required)
- Attorney fees
- Make sure that nothing is labeled “bill.” In many municipalities when the homeowner is late, it is recorded as a water lien or lawn mowing lien, etc., so be sure you call it a lien, not a bill.
Also, nothing should be labeled as “Prep” or “Preparation,” as in “Doc Prep” or “Deed Prep.” On the preliminary HUD-1 these fees need to be stated as payable to the name of the person doing the work. These costs are generally the attorney fees.
If the servicer has not previously requested the borrower’s/seller’s hardship and financial information and no price guidance was given, you will need to submit additional information to the servicer at the time of submission of the offer:
- The borrower’s/seller’s hardship letter, sometimes referred to as RFD (Reason for Default)
- The borrower’s/seller’s financial information from the Form 710
- Updated CMA, including marketing history and repair estimate, if needed
- Preliminary HUD-1 showing all expenses
- Completed sales contract
Even if the hardship and financial information was submitted and the price was previously set, you will still need to submit the preliminary HUD-1 with the contract.
The listing agent should create a comparative market analysis (CMA) using the most current comparable sales. This will be an update of the information you have been supplying to the servicer since you listed the property.
Highlight such data as:
- Average time on market—cumulative market time is critical
- Number of short sales and REO listings in the area
- Price trends
- Recent economic data
- Absorption rate
What To Highlight in CMA
The absorption rate is the mathematical formula used to establish the relationship between supply and demand in a given market. Used in conjunction with other pricing variables, the absorption rate helps to gauge the time it is likely to take to bring about a sale.
When doing the market absorption portion of a CMA for a servicer on a short sale, the servicer may ask for a one-month base, a three-month base, and then a six-month base for comparison, which will indicate pricing trends in a given market. Servicer representatives are not local pricing experts, and they need to understand where pricing is headed in order to make the appropriate decision on a short-sale contract.
As a reminder, the servicer will order one or two broker price opinions (BPOs) after it receives the short-sale submission package from the listing agent. Listing agents should not mislead the servicer as to the fair market value when updating the CMA and providing it to the servicer. If the CMA ends up being too far below the BPOs, the servicer may view the entire short-sale package in a negative light.
Servicers should be presented with a complete history of showings, feedback, price reductions, and advertising—in short, all the marketing efforts that brought about the contract that is being submitted to the servicer. Listing agents need to show servicers that they’ve done a thorough job of attempting to get the best price possible. For a sample of a market activity report, see Figure 5.1.
Any MLS printouts from when the property was priced should be included as well. The importance of the CMA and marketing history cannot be overemphasized. The servicer is most likely in another state and will not necessarily understand what is happening in your market. The listing agent’s CMA and marketing history are more thorough than a BPO and should include MLS printouts of all property in the area as well as pictures of comparables and on-market properties that are in competition with the subject property.
Repair Estimate for the Property
Providing the servicer with a detailed repair estimate from a reputable (licensed) contractor will assist greatly in getting the short sale accepted. The servicer doesn’t want to own property—and especially not property that needs a complete overhaul.
Some servicers have been known to make some repairs. However, they would much rather sell “as is” and have the buyer make the needed repairs. Two offers netting the servicer the same bottom line—one where the buyer will do their own repairs (buying “as is”) and one where the servicer is asked to do them—usually result in the “as is” buyer being successful.
Many listing agents have created a form (see Figure 5.2 for an example) that they require the buyer and the listing agent to sign to be sure everyone understands the short-sale process.
Each type of short sale has different parameters for contract submission and approval, what closing costs are acceptable (or not acceptable) as well as response times.
Fannie Mae and Freddie Mac (Streamlined and Standardized) Short Sale
- Arm’s-length transaction
- Your submission to the servicer must include:
- Fully executed purchase contract.
- Seller net sheet or preliminary HUD-1.
- Borrower authorization form.
- Listing information, including an MLS sheet showing (1) that the property was on the market a minimum of 5 days (two of which were weekend days) and (2) showing “Active” in the MLS.
- The borrower/seller may not remain in the property as a tenant or later obtain title or ownership of property. However, if there is currently a tenant in the property, they may stay.
- Neither the buyer nor the borrower/seller may receive commissions from the sale of the property.
- All agreements and sales contracts must be disclosed to the servicer.
- All funds that change hands must be reflected on the HUD-1 and approved by the servicer.
- Deed restrictions will prohibit re-selling of the property within 30 days at any price or selling property for greater than 120% of short sale price within 31 to 90 days.
Submitting Contract to the Servicer and Registering Offer with Fannie Mae
The listing agent submits the signed contract to the servicer and Fannie Mae now requests that listing agents register accepted offers with Fannie Mae, the investor on the mortgage. Registering the offer with Fannie Mae allows them to proactively work with the mortgage servicer to facilitate faster communications and decisions.
Acceptable Short-Sale Closing Costs
- Brokerage fees may be up to 6%.
- Typical and customary local and state transfer taxes and stamps.
- Title and settlement charges typically paid by the borrower/seller.
- Wood-destroying pest inspection and treatment, if usual and customary.
- HOA fees past due, if applicable.
- Real estate taxes and other assessments, prorated to the date of closing.
- Seller’s attorney fees for settlement services typically provided by the title or escrow company.
Unacceptable Short-Sale Closing Costs
- Fees paid to a third party by the borrower/seller to negotiate the short sale with the servicer.
- Real estate sales commission paid to the borrower/seller or purchaser.
- Buyer’s discount points or mortgage loan origination costs.
Servicer Review of Offer and Decision
- The servicer must acknowledge the executed contract within 30 days and provide a decision within 60 days.
- The borrower/seller must be evaluated and determined to be eligible for a short sale before the offer can be reviewed (710 or “streamlined”).
- The servicer may choose to counter the buyer’s offer.
- If the offer meets Fannie Mae’s minimum net proceeds, the servicer has the authority to approve the offer. If it is less than the minimum, Fannie Mae must review it.
- Once all information has been reviewed and approved, you will receive a final written decision on your submitted contract from the mortgage servicer. If approved, Fannie Mae will provide the borrower with a deficiency waiver.
The short-sale affidavit is a required form that must be signed and serves as a protection to Fannie Mae and Freddie Mac to pursue any party/parties that create a fraud as a result of participating in the short-sale transaction.
Non-GSE Traditional Short Sale
- Consult with the servicer for its protocol for reviewing and approving short-sale contracts.
FHA Pre-foreclosure Sale (PFS)
Acceptable Closing Costs
- HUD allows all reasonable costs of the sale, including up to 6% sales commission, local/state transfer tax stamp fees, and other customary seller’s closing costs.
- HUD allows up to 1% of the buyer’s mortgage amount for closing costs to be included in the “Seller’s Costs” on the HUD-1 for all transactions that involve a new FHA-insured mortgage.
Not Acceptable Closing Costs
- Repair reimbursements or allowances
- Home warranty fees
- Discount points or loan fees for non-FHA financing
- Lender’s title insurance fee
Appraisal at the time of contract
The servicer/lender will order a standard as-is FHA appraisal to be completed within ten business days. After the appraisal is received, the file will be reviewed. If it falls in the required parameters, it can be approved by the servicer. If it does not, it may need approval by the investor and/or FHA, which may take more time.
Required Net Salkes Proceeds
Tiered net sales proceeds required during the 120-day marketing period are applicable as follows:
- For the first 30 days of marketing, the sales contract must equal a minimum net sale proceeds of 88% of the as-is appraised fair market value.
- During the second 30 days of marketing, the sales contract must equal a minimum net sale proceeds of 86% of the as-is appraised fair market value.
- For the duration of the marketing period, the sales contract must equal a minimum net sale proceeds of 84% of the as-is appraised fair market value.
VA Compromise Sale
Upon receipt of an acceptable offer, the listing agent and/or the borrower/seller should contact the servicer and advise that they are in the process of submitting a compromise package.
This package should contain the following information:
- The sales contract signed by all parties with a contingency that reads: “This offer is contingent upon approval of a VA compromise sale.
- Good faith estimate projecting closing costs. This document is usually prepared by the listing agent to facilitate processing (e.g., estimated HUD-1).
- Letter to the servicer requesting consideration of a compromise sale.
- Financial data and supporting documentation.
- Compromise Sale Agreement Application.
- On loans that originated on or before December 31, 1989, the borrower/seller should be prepared to sign a promissory note at closing agreeing to repay VA for the difference between the sales proceeds and the total debt. This may be waived in order to process the transaction and avoid a foreclosure sale (per state laws or other circumstances).
- A current VA appraisal must be obtained. If the buyer is obtaining a VA loan, the buyer’s VA appraisal can be used provided the buyer will agree to the same. Otherwise, the borrower’s/seller’s servicer will have to complete a VA appraisal.
- Title is reviewed. In situations where there are second liens or other liens, the borrower/seller can request that the lien holder consider releasing the lien and converting it to a personal loan.
- A compromise assumption will not be processed without first receiving a statement from the servicer that they are willing to have their guaranty amount reduced by the amount of the claim payment.
- If it appears a compromise assumption is feasible, the buyer must qualify.
- Should the VA agree to pay the difference between the sales proceeds and the total debt to complete the compromise sale process, the portion of the homeowner’s entitlement used to guaranty this loan will remain tied up until the VA is reimbursed in full.
Considering the hundreds of properties an asset manager may be actively marketing, it isn’t possible to know all of the details about a particular REO property. For this reason, asset management companies typically do not provide a seller’s disclosure and the property is sold “as-is/where-is.” However, known environmental hazards and any material defects found in an earlier inspection (that caused the buyer to cancel the deal) must be disclosed to the next buyer. In addition to federal regulations regarding lead-based paint, state and city regulations may require certain point-of-sale inspections, such as for radon, mold, Chinese drywall, and termites.
Check the remarks in the MLS listing comments for any repairs that need to be done to bring the property up to code or restore it to habitable condition. Additional escrowed funds may be needed to cover the cost of required point-of-sale inspections and correct problems. When point-of-sale inspections uncover issues that need to be corrected, a contractor’s line item job estimate will likely be required (at the buyer’s expense) as an addendum to the sales contract.
Writing the Short-Sale or REO Offer
Let’s say a buyer you are representing has decided on a short-sale property and is ready to make an offer. Before writing the offer, you should:
- Prequalify the listing agent, the borrower/seller, and the short-sale property by asking the following:
- Has the borrower’s/seller’s hardship been verified? If yes, by whom?
- Has the borrower/seller submitted the necessary short-sale documentation to the servicer/investor; for example, if this is a Fannie Mae short sale, has the borrower/seller submitted the Borrower Response Package?
- Has the listing agent received a response from the servicer/investor?
- If the short sale is a Fannie Mae short sale, has the servicer/investor established the price?
- How many liens are on the property?
- If more than one lien, what are they? IRS tax liens, something else?
- Has a foreclosure sale date been scheduled?
- Are there any other offers on the property?
- Have any other offers been executed and submitted?
- Check in the MLS or with the listing agent for specific instructions on submitting an offer.
- Provide a CMA to the buyer client to ensure that the client can make an informed decision on the price to offer. When creating a CMA, buyer’s representatives should include comparable properties that are distressed—short sale, REO.
- Be certain that the buyer’s lender understands the buyer is intending to purchase a short sale. The buyer’s agent should only refer a buyer to lenders that are familiar with short sales. If the buyer has chosen his or her own lender, a phone call from buyer’s agent to the lender would be appropriate.
- Counsel the buyer to have the lender order an appraisal after the property inspection has proved satisfactory.
- Have written repair estimates, if needed, from licensed contractors.
Buyer’s agents also need to educate their buyer clients on the elements of a good offer. Writing an offer on a short-sale property is not like writing an offer on a property that is not distressed. The buyer’s representative needs to be aware of what makes a good short-sale offer that has a reasonable chance of being accepted by the seller and approved by the investor.
Making Offers on Multiple Properties at the Same Time
Often buyers believe the best strategy in “getting”a short sale is to put offers on several short-sale properties at the same time. If those offers are accepted by the sellers, the buyers have entered into contracts to purchase more than one property. Buyers should be cautioned that this is a risky practice (unless they intend to purchase both properties). If your buyer client insists on pursuing this strategy, seek adv
Buyers also may be tempted to make a lowball offer on a short-sale property. An exceptionally low offer runs at least two risks if the offer is accepted by the borrower/seller and the contract is sent to the servicer for investor approval:
- For some borrowers/sellers, the foreclosure clock will continue to tick away (which may put the borrower/seller in imminent danger of foreclosure) while parties wait for the servicer to review the contract and ultimately not approve it.
- Buyers may miss out on other properties that would have been suitable and available while waiting for the servicer’s response.
- Remember, it is the duty of both the buyer’s agent and seller’s agent to protect and promote the interests of their clients. Both agents have a duty to negotiate the best price and terms for their client prior to the contract being submitted to the servicer for approval.
Length of Time for Investor Approval and Closing
- The approved short-sale addendum to the sales contract that is used in your marketplace to make the contract subject to investor approval should stipulate how long the buyer will wait for short-sale approval.
- If the time allowed for investor approval is too short, it will weaken the buyer’s contract. Note that the time allowed for investor approval will depend upon the type of short sale. For example, you may be able to have 30–60 days’ waiting period for approval from Fannie Mae or Freddie Mac. However, for non-GSE short sales, you may need 90–120 days’ wait time for approval.
- As with any real estate contract, the earnest money on a short sale is due according to the terms of the written agreement.
- Earnest money should be deposited as required by state license law based on the date the contract was signed by the buyer and seller—not based on when the contract is approved by the servicer.
- If the buyer does not want the earnest money deposited before the servicer has approved the contract, the buyer’s representative should note that on the contract. Accordingly, the buyer should not tender the earnest money before the date for agreed to for deposit.
- It is important to know your state laws on earnest money or deposits. Some state laws stipulate that there cannot be a valid contract without earnest money. This would, obviously, affect how the offer was written.
- Listing brokers should be wary of accepting personal checks for earnest money too close to the closing date. Many servicers do not allow more than ten days to two weeks for closing after they have approved the short sale. If the check does not clear, there could be problems.
- Without sufficient earnest money, a buyer may not hesitate to walk away from the transaction. The greater the amount of the earnest money, the greater the chance of the buyer being committed to the contract.
- If the contract calls for the home inspection to be done in five business days after the contract has been executed, the five days would start from the time of signing by the buyer and seller—not from the time of lender approval.
- The buyer will have little success negotiating any costs or repairs if the home inspection is completed after the servicer’s approval. The servicer’s approval is based on a minimum dollar amount to be realized at the closing, and servicers generally do not allow for further negotiations.
- Most often, a short sale is an as-is transaction. The seller doesn’t have the money to make the repairs and the servicer is unwilling to make repairs. That stated, the buyer still has the right to know what as-is means and withdraw the offer or reduce the offer based on the home inspection.
- Buyers may end up wasting valuable time on a property that they may not want to purchase as a result of a home inspection that reveals less-than-acceptable defects in the property.
- Although the short-sale approval process takes more time than a non-distressed sale, once approved, the closing date stipulated in the approval letter may not allow the buyer sufficient time to complete a property inspection.
Mortgage Application and the Appraisal
➢ The buyer must submit the mortgage application according to the contract as well. There is often a quick turnaround between lender approval of the short sale and the lender’s required closing date. The buyer must be ready, willing, and able to meet the specified closing date without asking for more time to get their financing in place.
➢ Often the buyer’s appraisal does not get ordered until the home inspection and possibly attorney modification periods have been satisfied or waived. For this reason, it is essential that enough time be allowed on the contract for the buyers’ loan commitment.
- Either party could back out without penalty if the offer is not signed.
- There is no contract until the contract and short-sale addendum are signed by the buyer and the borrower/seller.
- Typically, servicers will not accept digital signatures. Best practice is to have the buyers and borrowers/sellers sign in hard copy.
- The fact that the borrower/seller accepts the contract contingent on servicer approval does not guarantee servicer approval. The approval by the servicer is an additional contingency, like a home inspection, mortgage approval, etc., and should be treated as any other contingency.
- The borrower/seller may choose to continue to market the property looking for back-up contracts.
MLS rules and the NAR Code of Ethics require that the listing agent disclose the existence of an accepted contract, including those with unresolved contingencies, to any broker seeking cooperation. Once a short-sale contract has been executed, it should be reported to your MLS as the MLS rules require. Servicers do not require that the property remain on the market after an offer has been accepted. A borrower/seller would not be able to accept another contract unless it was made “subject to release of prior contract,” and servicers generally do not want back-up offers submitted.
The NAR Code of Ethics requires that all offers must be presented to the seller all the way to closing. Howe
Purchasing a home that needs substantial repairs presents a predicament because a bank won’t approve a mortgage on a home until repairs are complete, and the repairs can’t be accomplished until the purchase closes. The FHA 203(k) mortgage program offers a solution. The program allows a buyer to purchase or refinance a property plus include in the loan the cost of making the repairs and improvements, so there is just one loan and one closing. Two types of FHA 203k renovation loans are available, standard and streamline. The standard loan is typically for more extensive rehab projects, while the streamline loan covers a maximum of $35,000 of repairs. The FHA requires just a 3.5 percent down payment, based on the purchase price and total project cost. The buyer must plan to live in the property he or she is buying.
For detailed information on 203(k) mortgage programs, visit https://www.hud.gov/ and search for “rehab a home with HUD’s 203(k).”
The TILA-RESPA Disclosure Rule for Short Sales
- In 2015, the Consumer Financial Protection Bureau (CFPB) finalized the Truth in Lending Act (TILA) Real Estate Settlement and Procedures Act (RESPA) Integrated Disclosure rule, or TRID, also known as “Know Before You Owe” mortgage initiative. Because borrowers were struggling to understand the overlapping information and complicated terms in the existing federal mortgage disclosures, TRID consolidated them into two simplified documents:
- The Loan Estimate, which replaces the Good Faith Estimate document
- The Closing Disclosure, which replaces the HUD-1 Settlement Statement
- The Loan Estimate giver borrowers mortgage details in concise, easy-to-understand language. It must be provided to borrowers within three business days of receipt of their loan application. The Closing Disclosure details mortgage closing costs and other loan details. It must be provided to the borrower at least three business days prior to closing. TRID implemented this three-day waiting period to give consumers time to review their Closing Disclosure and ask questions before closing. Agents should keep this in mind to avoid any delays at closing time.
- To best prepare their clients for financing a home, the CFPB recommends that agents take following five steps:
1. Encourage clients to think through their mortgage choices first. 2. After they have found a property, encourage them to apply for Loan Estimates from multiple lenders. Loan Estimates no longer require written documentation. 3. Make sure your clients indicate their intent to proceed. 4. Provide clients with accurate and timely information about the property and transaction. 5. Find out who provides the Closing Disclosure.
- Although in the past a settlement agent, attorney, or closing company usually provided the HUD-1 Settlement Statements, lenders might deliver the Closing Disclosure directly to your client. The CFPB recommends checking with the lender and with state regulations, as practices can vary.For more information, consult the CFPB’s Real Estate Professional’s Guide at
IF your client has decided on a short-sale property and is ready to make an offer, you should take the time to “prequalify” the listing agent, the borrower/seller, and the short-sale property before writing the offer. This can be accomplished by asking questions such as “Has the borrower’s/seller’s financial hardship been verified?”, “Are there any other offers on the property?”, and “How many liens are on the property?”
REO stands for real estate owned. It is the term that lenders—bank and government—use to describe property that they come to own because a borrower can’t keep up with mortgage payments. When a lender reclaims a home and wipes out any money due on the mortgage, it offers the property for sale as a REO. The property is usually sold as-is, even if it needs repairs.
How does a property go from a family home or place of business to a bank-owned asset? As the following diagram illustrates, the most common path begins with a default on mortgage payments leading to foreclosure.
Who Owns and Buys REO Properties?
Government Sponsored Enterprises (GSEs) own millions of REO properties. Other government entities—such as HUD, the VA, the USDA, and the Department of Treasury/IRS—also own real estate as a result of loan defaults, unpaid taxes, or criminal activity. Small and large banks own portfolios of real estate as a result of mortgage defaults. In particular, three big banks—Bank of America, Chase, and Wells Fargo—own large portfolios of REO properties.
Now, let’s take a look at the other side of the transaction—the REO buyer. There are three types of REO buyers:
- Investors: Investors buy and hold REOs in hopes of future value appreciation, fix and rent them for an income stream, or fix them and flip them in hope of making a profit.
- Home buyers: Discounted property prices offer opportunities for first-time and repeat home buyers and second-home buyers, too.
- Communities and non-profits: Community groups and non-profit organizations may purchase REO properties and fix them up to put in a new owner or sell as a fundraising opportunity. In fact, some non-profits now have real estate licensees on staff to handle the property investments.
- Considering the number of properties that must be recycled into the housing stock, the REO market is likely to be with us for years to come, particularly in the hardest hit areas. But is the REO business a good fit for you personally and professionally?
- If you decide to make REOs part of your real estate business, it is essential to understand that REO transactions follow different time frames, procedures, and sequences compared to traditional transactions. For example, the REO listing comes to an agent by assignment from the asset manager; no listing presentation involved. REOs are an as-is/where-is, bottom-line business. Successful asset managers are very detail and deadline oriented, and they expect the same of their listing agents.
- Be prepared to roll up your sleeves and get dirty. If you are squeamish about dirt and disorder, working in the REO market may be a struggle. You will encounter some properties in very poor condition: dirty, moldy, trash filled, stripped of wiring and pipes, or vandalized. You must have the fortitude to go into difficult situations and troubled neighborhoods or come face-to-face with distressed and/or angry homeowners. REO agents need to be confident in what they are doing but not confrontational. Be respectful and acknowledge homeowners’ hardship, but stay focused on your responsibilities. And if a situation feels unsafe, leave and call for help—law enforcement or your teammate.
REO service activities can easily cross the line between sales and property management. Before you start working in the REO market, do the following:
- Check with your state’s real estate licensing authority to make sure your license covers all the activities you’ll be performing on behalf of asset managers
- Make sure your firm’s errors and omissions and other insurance policies like personal liability and workmen’s compensation adequately cover your REO activities.
- You’ll need a start-up capital fund. Asset managers will expect your firm to advance payments for expenses like utility hookups, minor ($300–$500) repairs, and required point-of-sale inspections. Be prepared to wait up to 60 days for reimbursement after you submit the claim. How much capital will you need? Experienced REO professionals advise a start-up fund of about $5,000 or $1,500 per property.
- Consider whether the REO business is a good match with your broker’s business strategy, value proposition, and management systems. Without the support of your broker, sales team, and back office, you could struggle to succeed.
In order to make it in this business, I think the agent needs to have a certain soundness of mind, persistence, tenacity, and a strong constitution. In some properties, just the sight of the conditions could turn you off. If you’re not one to take good orders or follow instructions, you want to do it yourself, or you think you have a better way, working with asset managers might not be for you. Good communication skills, computer skills, and follow-up skills–these are what you need in order to make this business work.
Courage and empathy
When you go out to do an occupancy check, what is on the other side of the door is probably fear. But many times, people have said to me, “We’ve been waiting for someone to contact us and you are the first one who talks to us as a person. We’ve had people come to our door and threaten us. Why are you being so nice?” I’ll say, “There’s no reason not to be nice. What’s happening to you and your family is a horrible situation. I’m sorry for your hardship.” The seller wants them out of the house, but I have to give them the respect and dignity they deserve and let them make a dignified exit. If you don’t know what it’s like to lose everything you own, don’t say “I know what you’re going through,” because you really don’t.
You have to make it happen
You just can’t sit and wait for something to happen in this business. You have to make it happen. Years ago, we used to do homebuyers seminars, now we do investor seminars. This is how we actually make the business work for us. We present our portfolio and let investors know what’s available. We collect names and e-mail addresses so that when we get a listing that meets an investor’s criteria, we get in touch. Our investor seminars also attract home buyers who might be able to purchase the property with a 203(k)-rehab loan. So, our advertising says “investors and 203(k) buyers welcome.”
Work with REO buyers
When agents ask how to get involved, I say that it might not be involvement as the listing agent, but as a buyer’s agent. Working the buy side usually won’t get you the contacts with asset managers. But the agents I know who are strictly buyer’s agents for REOs like it that way.
Building Your Network
Asset managers need to know their listing agents better than the properties, because, with responsibility for a few hundred properties, the asset manager can’t possibly keep tabs on the details of every property. Depending on the size of the territory and number of properties, an asset manager will probably maintain a go-to network of 12–15 real estate agents on whom they can rely. In contrast, in active markets, real estate professionals need to cultivate working relationships with the asset managers at the companies that do most of the REO business in the market area. That handful of (3–5) asset manager contacts will be the source for most of your REO business.
Many of the major asset management companies, including the GSEs, enable online registration for real estate agents. Fill out the application and attach a résumé if possible. Some of the major asset management companies that provide REO outsource services for major lenders and the GSEs include:
- 24 Asset Management
- Atlas REO
- Advent REO
- First Preston Management
- Keystone Asset Management
- Old Republic Default Management Services
REO conferences, such as those sponsored by The Five Star Institute (www.TheFiveStar.com ) and REOMAC (www.reomac.com ), provide a place for outsource companies, asset managers, and real estate professionals to meet face-to-face and make network contacts. Attending a conference means an investment of time and money, but for some real estate professionals, the payoff is worth it in terms of education and contacts.
Educating the Buyer Client
In previous modules, we concentrated on the list side of the short-sale transaction—the role and responsibilities of the listing agent and how agents should take a short-sale listing. What are the buyer’s agent’s responsibilities in short-sale transactions? And what if the buyer client is interested in an REO property and not a short sale? Since the purchase of short sales and REOs are subject to different constraints, not all buyers are good candidates for both types of distressed transactions. Buyer’s representatives should counsel their clients on the differences between these types of transactions during their initial needs assessment. A counseling session not only sets parameters but also closes the potential gap between buyers’ perceptions and market realities. In addition to talking about needs, wants, price, and location parameters, buyers need to be realistic and understand what they could be getting into.
Whether the buyer is considering a short sale or REO property, these transactions share the following:
- Buyers must understand the process and realize they are not in control.
- Buyers must be willing to get pre-approved.
- Properties are sold as-is.
- Lenders/servicers will not approve an offer to purchase that contains a home-sale contingency.
- It can be difficult to get closing costs covered or cash back for the buyer.
- The worksheet and checklist later in this module can be used in addition to any standard buyer qualification worksheet currently used.
- Contact the servicer or visit https://www.homepathforshortsales.com and select “Request List Price Guidance.”
- Expect a BPO and appraisal to be performed on your client’s home. The BPO and appraisal results will help set the recommended list price.
- Fannie Mae now requires both a BPO and an appraisal, which may take up to three weeks to complete. Let the borrower/seller know that a BPO agent and appraiser will need access to property. Any delays in homeowner response or inability to gain access to the property will delay receipt of a recommended list price.
- List the property at the low end of the fair market value determined by your comparative market analysis (CMA) as “Active” in the MLS.
- Although you may have the property listed at a price you believe to be accurate based on your CMA, advise your client that an agent and appraiser will need access to the property to complete the BPO and appraisal. Any delays in homeowner response or inability to gain access to the property will delay receipt of a recommended list price.
- Fannie Mae or the servicer will provide a recommended list price in accordance with maintaining property values using a BPO and an appraisal.
- After completion of a BPO and appraisal, contact your client’s mortgage servicer for the recommended list price. The price may be where you have it currently listed or the price may need an adjustment. If you believe the property price is too high or too low, you may escalate your concern to Fannie Mae through https://www.homepathforshortsales.com.
Contesting a Value Assigned by the Servicer or Fannie Mae
If you believe that the recommended list price Fannie Mae has given is inaccurate, you will need to contest the value. Before you submit an inquiry about an active short sale to Fannie Mae, make sure you have all the information you need:
- Your name, phone number, and e-mail address
- Real estate brokerage name
- Borrower’s/seller’s property address
- Loan number(s) (servicer and/or Fannie Mae’s)
- Servicer name
- Signed Borrower Authorization Form (authorization to release financial information)
- Property foreclosure sale date (if known)
- Your point of contact at the mortgage servicer as well as the contact’s phone number and e-mail address
- Gross offer amount, if you have an offer*
- List significant value-related issues (e.g., the property has a septic system, foundation problems, and/or defective drywall)
- Your recommended value
- 3–6 comparable properties sold within the last six months with listing history and agent comments—traditionally the servicer does not want short sales or foreclosures to be used
- Any additional documents from this list to support the case:
- Borrower’s/seller’s appraisal
- CMA report with comp photos, descriptions, and listing history
- Inspection report with color photos of repairs
- Contractor estimate(s) with color photos
If you have a borrower/seller who has not made initial application with Fannie Mae for a preapproval (i.e., submitted the Form 710), you may submit a Borrower Response Package with the short-sale offer.
- Freddie Mac Standardized Short Sale
- The steps in the Freddie Mac Standardized Short Sale listing process are very similar to the Fannie Mae process with the exception of setting a list price. Freddie Mac is not involved in setting the price. It is up the listing agent to prepare a CMA and discuss list price with the borrower/seller. Once the servicer receives the short-sale contract, a valuation will be obtained electronically by the servicer. The valuation will include the Freddie Mac minimum net proceeds amount. If the proceeds of a sale meet or exceed the Freddie Mac minimum net proceeds amount, the servicer will be able to approve the short-sale contract price and proceed with the transaction.
- Non-GSE Traditional Short Sale
- Have the borrower/seller complete the appropriate Authorization to Release Information form.
- Contact the lender or servicer to determine its protocol for doing short sales.
- Generally, you will list the property at fair market value and the lender or servicer has no more involvement until there is a signed contract with a buyer.
If the lender/servicer does not get involved in setting the price at the time of listing, one of the listing agent’s primary goals is to price the property so the seller receives an offer from a qualified buyer with a realistic chance of closing. Some agents advertise short sales at unbelievably low prices with the hope that a buyer will be enticed to submit an offer. Other agents set the list price too high to attract an offer. Still others list the property at what the seller needs rather than what the property is worth. The proper price should be fair market value. Fair market value is the price a buyer will pay and a seller will accept for a property under reasonable and ordinary conditions. This definition assumes an arm’s-length transaction; meaning that the buyer and seller are not related to one another and neither is under any pressure to complete the transaction. However, when under pressure, such as the need to immediately relocate, either the buyer or seller may entertain a price that differs substantially from what would be considered otherwise.
- FHA Pre-Foreclosure Sale (PFS)
- The borrower/seller must submit the Request for Pre-Foreclosure Sale and Affidavit to the lender or servicer. The lender or servicer will also require financials and other documents to allow them to approve the borrower/seller for a short sale.
- The borrower will receive an Approval to Participate form, which will state the price the home is to be listed for as well as the net amount that will be acceptable for approval of the short sale.
- The investor delays foreclosure to allow for the pursuit of the short sale for four months from the date of the Approval to Participate letter.
- The borrower/seller can list the property at any time during the process. They do not need to wait for the Approval to Participate to be issued.
- The property must be listed by a licensed real estate broker, in a local MLS if one is available for that area, and the broker cannot be related to the seller.
- VA Compromise Sale
- VA does not require any paperwork prior to the time a contract is accepted on the property. However, it does have requirements for doing a short sale:
- The property must be sold for fair market value.
- The closing costs must be reasonable and customary.
- The compromise sale must be less costly for the government than foreclosure.
- There must be a financial hardship on the part of the seller.
- On loans that originated on or before December 31, 1989, the lender must be willing to write off any debt above the max guaranty.
- There must be no second liens or other liens (unless the amount is insignificant).
- In situations where there are second liens or other liens, the seller can request that the lien holder consider releasing the lien and converting the loan to a personal loan.
- VA does not require any paperwork prior to the time a contract is accepted on the property. However, it does have requirements for doing a short sale:
- U.S. Treasury HAFA Short Sale
- The property must be listed with a licensed real estate professional who regularly does business in the community where the property is located.
- Either a list price approved by the servicer or acceptable sales proceeds will be stated in Short Sale Notice to the borrower/seller.
- The property must be listed for not less than 120 days and may be extended for up to a total term of 12 months.
- The borrower/seller is responsible for property maintenance and repair.
- The servicer must have a policy on re-evaluation of value and reconcile any discrepancies between the servicer’s independent assessment of value and the market value data provided by the borrower/seller or the borrower’s/seller’s real estate broker.
- If the new value determination is less than the value determined by the initial Short Sale Notice (SSN) to the borrower/seller, the servicer must notify the borrower/seller and real estate broker in writing and confirm the new list price or acceptable net proceeds based on the new value. Servicers may not increase the minimum net proceeds required until the expiration of the terms of the short-sale notice (120 days).
- Servicer response times:
- The servicer must consider the borrower/seller for HAFA within 30 calendar days of receiving the request.
- If the servicer is unable to respond within 30 days, the servicer must send a written status notice to the borrower/seller on or before the 30-calendar-day deadline.
- The servicer must then follow-up with written updates every 15 calendar days until the servicer is able to provide a short-sale notice or DIL agreement.
- The borrower/seller has 14 calendar days from the date of notification to contact the servicer by verbal or written communication and request consideration.
- The servicer must notify the borrower of HAMP if the servicer determines that a loan modification could be an option.
- If an executed contract is submitted with request for short sale, the servicer must respond within 10 business days along with the Hardship Application or request for mortgage assistance (RMA). The servicer must approve the request for short sale within 30 days or notify the borrower/seller with written status updates every 15 days until the request is approved or not approved.
For Fannie Mae and Freddie Mac Streamlined Short Sales, borrowers/sellers are not required to be delinquent. At a minimum, they must be at risk of imminent default, which is defined by Fannie Mae as a loan that is not yet in default and where there is a very high probability of being in default soon. This option is available on owner-occupied housing only.
Examples of imminent danger of default could be:
- Other payments are being missed, but mortgage payments are current.
- All accounts are in good standing, but credit cards are maxed out due to living expenses.
Hardship requirements on the Form 710 are met.
Taking the Short-Sale Listing
Non-GSE Traditional Short Sale
The required paperwork to verify financial hardship will vary, depending on the servicer. If you cannot download the paperwork required from the servicer’s website, you can begin the discussion of financial hardship using the Form 710. The information is very similar and can be easily transferred to the servicer’s form from the 710.
FHA Streamlined Pre-Foreclosure Sale (PFS)
Principal residences, second homes, and investment properties are potentially eligible for FHA’s Streamlined Pre-foreclosure Sale (PFS) program, which does not require verification of financial hardship, provided that borrowers/sellers meet all program requirements. Note that such properties may be vacant but cannot be condemned.
For non-owner-occupants (borrowers/sellers who do not occupy the home):
- The borrower/seller is 90 days or more delinquent on their FHA-insured loan as of the date of the initiation of the short sale (the servicer’s review);
- The borrower/seller has a credit score of 620 or below.
For owner-occupants (borrowers/sellers who occupy the home):
- The borrower/seller is 90 days or more delinquent on their FHA-insured loan as of the date of the servicer’s review.
- The borrower/seller has a credit score of 620 or below; and
- Except for military service members with permanent change of station (PCS) orders who meet the requirements for an FHA Streamlined PFS, owner-occupant borrowers/sellers must have been reviewed for loss mitigation home retention options. Servicers may only offer an FHA Streamlined PFS or deed-in-lieu of foreclosure to owner-occupant borrowers/sellers when one or more of the following conditions have also been met:
- The borrower/seller has defaulted on a trial payment plan within the last six months;
- The borrower/seller has defaulted on an FHA-HAMP or standard (rate-and-term) modification within the last two years.
- The borrower/seller has been deemed ineligible for a permanent home-retention option.
- The borrower/seller received a special forbearance but did not otherwise qualify for a permanent home-retention option by the end of the forbearance period.
FHA Standard PFS
- Only owner-occupied properties are eligible for the standard pre-foreclosure sale, no “walk-a ways” or investment properties.
- Exceptions: when it is verifiable that the need to vacate was related to the cause of default (job loss, transfer, divorce, death), and the subject property was not purchased as rental investment, or used as a rental for more than 18 months.
- The servicer must verify the borrower’s/seller’s monthly net income and monthly expenses in order to calculate the Deficit Income Test (DIT).
- The borrower/seller must provide documentation substantiating a reduction in income or an increase in living expense, and documentation that verifies the borrower’s/seller’s need to vacate the property (if applicable).
VA Compromise Sale
VA will consider a Compromise Sale when one of the following financial hardships exists:
- Veteran/seller experiences employer or financial situations that requires him/her to relocate
- Decrease in income
- Major medical expense
- Death of a principal wage earner, spouse, or family member
The seller/borrower must first obtain a sales contract in order to be considered for the program. Again, for the purpose of verifying the borrower’s/seller’s financial hardship, listing agents can start with Fannie Mae Form 710.
Regardless of whether the servicer uses the Form 710 or something similar, they will almost always require a hardship letter be submitted. The goal of the hardship letter is to have the borrower/seller explain their situation. Note that borrowers/sellers should not say that they “wish we could keep the house.” (This could trigger the servicer to try to do a loan modification and delay the short-sale process.) The hardship letter should communicate three key points:
- I’m sorry.
Here are my circumstances (such as job loss, medical issues, divorce, health issues, damage to the property not covered by insurance).
I have exhausted all of my options and the only next step is letting the property go to foreclosure.
Verify the Payoff Amount and Estimate Equity
Distressed borrowers/sellers may be reluctant to volunteer any information about their financial position. It is critical that you have an accurate assessment of what their equity position is or isn’t.
Additionally, there are times where borrowers/sellers have no idea of the costs involved in the sale of the property and they may think they have enough equity but they do not. It is important for you to verify with the servicer what their payoff is to accurately estimate the borrower’s/seller’s costs. If the property is in a homeowners’ association, listing agents must verify whether the borrower/seller is current with their association fees or what may be owed.
When you do an estimate of equity for your borrowers/sellers, there may be situations where borrowers/sellers may choose to bring cash to the closing to avoid the ramifications of doing a short sale. If this is the borrower’s/seller’s choice, caution should be taken to ensure the borrower/seller will bring all the funds to the closing. In most states, there are no lien rights for unpaid brokerage fees on a residential sale. A borrower/seller could have enough money to cause the transaction to close (bring enough to pay off mortgages and other expenses of the sale) and not have sufficient funds to pay brokerage fees. The transaction would still close and the listing office would owe whatever compensation was published in the MLS to the selling office. A brokerage should have a company policy on how to ensure funds will be at closing in these situations.
It is important that the listing agent have a frank conversation with the borrower/seller about all liens on the property as well as a discussion about available assets as a condition of short-sale approval may require the borrower/seller to contribute some cash at closing. Consider using the Pre-Listing Worksheet and the Seller’s Equity Calculation Worksheet, on the following pages.
Borrower’s/Seller’s Willingness to Submit All Information and Documents
According to a member of Freddie Mac’s Fraud Investigation Unit, short-sale fraud is “any misrepresentation or deliberate omission of fact that would induce the lender, investor or insurer to agree to the terms of a short sale that it would not approve had all facts been known.”
Examples of potential short-sale fraud may include:
- Valuation manipulation
Less than an “arm’s-length” transaction
Abuse of the “pending” status in the MLS
- The borrower/seller causing harm to the property by trashing the property. Often the term used for this is creating “waste”.
Reporting potential fraud:
1-800-2-FANNIE (1-800-232-6643) Or complete the Suspected Fraud Submission Form at: https://fims.secure.force.com/MortgageFraudReport/
Each non-recourse state has its own anti-deficiency statutes that prohibit lenders from seeking judgments. In some states, non-recourse laws apply only to purchase-money loans (i.e., original home loans that are used to purchase property). Almost all home equity lines of credit (HELOCs) and home equity loans are considered recourse loans and lenders may sue borrowers to recoup their losses.
Listing agents should have knowledge of the recourse laws in their state and counsel the borrower/seller to speak with their accountant or attorney about the specific issues surrounding their situation.
Borrowers/sellers who are pursuing a short sale may want to know how a short sale or foreclosure will affect their credit score. The answer is impossible to specify the exact number of points by which a short sale or foreclosure will lower their credit score.
Credit-scoring algorithms are complex and take into consideration a number of factors, including, but not limited to, the following:
- Payment history
- Amount of debt compared to credit limits
- Length of credit history
- Number of credit inquiries
- Number of credit accounts
- Types of credit accounts
When calculating an individual’s credit score, agencies compare the information to the loan repayment history of consumers with similar profiles. Figure 2.3 is a general guideline and is not intended to predict how an individual borrower’s/seller’s credit would be impacted by any of these events.
Note: Estimates assume all else held constant over time (e.g., no new account openings, no other delinquencies, similar outstanding debt)
Waiting Period to Finance the Purchase of Another Home
- If you’re the listing agent and your borrower/seller client is pursuing a short sale. Your clients may want to know how long they need to wait before they can finance the purchase of another home.
- Please note that this information is subject to change and you should always keep yourself up-to-date on any changes made by the GSEs, FHA, VA, or individual lenders/investors.
The answer depends on a number of factors. The following list shows the current waiting times for different types of mortgages.
Determine whether or not there is a valid financial hardship
- Whether the borrower/seller has missed payments or not, having a valid financial hardship is a requirement for lien holders to accept less than what is owed on a property. Many real estate professionals have made the mistake of taking a listing and marketing it as a short sale only to find out later that the investor will not approve the transaction due to the borrower/seller not having a valid financial hardship..
- Some borrowers believe that walking away from the financial mortgage obligations without a valid financial hardship is in their best financial interest long term. Strategic default is a term used to describe the situation when borrowers choose not to make their mortgage payments even though they are financially able to do so. If borrowers/sellers indicate that they are considering a strategic default, real estate professionals should NOT become involved in the transaction. As stated in the previous chapter, real estate professionals should NOT counsel borrowers to stop making payments on their mortgage.Walking away from one’s mortgage and debt obligation and allowing the home to go to foreclosure may have serious consequences for the defaulted borrower’s credit and the potential for a deficiency judgment, depending on the state where the borrower resides, not to mention the real estate values of neighboring homes.
Determine who owns the loan(s)
- Determining the investor that owns the loan (or investors if there is more than one loan) is important because the investor establishes how the servicer will process the short sale.
- Depending on the investor, the short-sale process may be very orderly. With some investors, however, the short-sale process may be incredibly undefined and tricky for listing agents and borrowers/sellers to navigate.
- For example, on some short sales, the short-sale approval process doesn�t begin until the seller has a contract on the property.
- Note that the investor�s servicer may have processed a previous short sale one way does not mean the next short sale will be handled the same way; it all depends on the investor and the guidelines the investor has set into place to process the short sale.
Don’t Forget to Contact the Private Mortgage Insurance (PMI) CompanyIt is important to determine if there is PMI on the loan at the time of taking the listing to factor in the time it will take to obtain the PMI company’s approval of the short sale. Some of the lenders/investors have delegated authority from the PMI companies to proceed with the short sale. Just as each servicer has its own process and time frame for short sales, so do PMI companies.Therefore, the listing agent must determine with the servicer what their arrangements are with the PMI company. The original loan documents will show if there was PMI at the time of the purchase. If there was not and the original down payment was less than 20%, the listing agent should ask the servicer if there is MI since the investor/lender could have taken out the insurance. In a recourse state, the PMI company has the ability to pursue a deficiency for the amount that is 20% of the loan amount less the down payment.
listing agents should alert borrowers/sellers to obtain a release of deficiency from the PMI company at the time of seeking approval of the short sale.
- MakingHomeAffordable.gov is a useful government website for determining if a borrower’s loan was purchased by Fannie Mae or Freddie Mac. (This website also provides contact information for more than 100 mortgage companies participating in HAMP.)
- Although we will be covering the steps involved in doing a short sale following the Fannie Mae and Freddie Mac guidelines, most large lenders and many mid-sized and small lenders follow the same procedures. If you find the loan is not owned by either Fannie Mae or Freddie Mac, the listing agent or the borrower/seller will need to contact the servicer to determine how to proceed with the short sale. Each type of short sale is handled differently, and who the investor/owner of the loan is will determine how the transaction will proceed.
Determine whether or not there is adequate time to complete a short sale
- Determine whether or not you have enough time to get the short sale done.
- Verify with the borrower/seller whether a notice of default (NOD) has been issued and/or if a foreclosure sale date has been set. This will give you the time parameters you need to effectively meet the needs of the borrower/seller client.
- Remember, foreclosure timelines vary from state to state. There is no hard-and-fast rule as to how much time is enough time.
- Discuss with the servicer how they will handle the foreclosure timeline while the property is on the market.
Contact the servicer/investor and request or download all forms
- The names of the required forms may vary. For example, with loans owned by Fannie Mae and Freddie Mac, the required forms can be found in the Borrower Response Package. With VA loans, the required form is the Compromise Sale Agreement Application.
Have the borrower/seller sign an authorization to release information form
- As part of the initial paperwork that needs to be completed, be sure to ask the borrower/seller to sign an authorization to release information form, which is usually found on the servicer’s website. The servicer cannot discuss the borrower’s loan with you without this signed release. If a release form is not available at the servicer’s website, click “Download” for a sample form.What_Real_Estate_Professionals_Need_to_Know
Verify the borrower’s/seller’s financial hardship
- Verifying the borrower’s/seller’s financial hardship is a critical step in listing a short-sale property. The Fannie Mae Form 710 is an excellent tool for communicating financial hardship to your borrower/seller. Even if the servicer does not use the Form 710, the information the homeowner will have to submit is virtually the same for all short sales.Note that the listing agent should discuss with their borrower/seller what the borrower/seller will allow to be disclosed to the buyer relative to their financial hardship. Often, the listing agent will make page 2 of the Form 710 available to the buyer for this purpose. A diligent buyer’s agent should be determining whether the seller has a verifiable financial hardship since history has shown that many short sales have failed due to the borrower/seller not have a hardship.
After verifying the financial hardship, ask the borrower/seller to write a hardship letter
Determine the payoff amount and estimate equity
Fannie Mae and Freddie Mac will allow a streamlined short sale if the borrower/seller is more than 90 days’ delinquent, their mortgage is not secured by an investment property, and either (1) their FICO score is 620 or less or (2) their debt has been discharged due to Chapter 7 bankruptcy. With the streamlined process, the borrower/seller will not have to provide additional documents to prove a valid financial hardship, however, the borrower/seller will still need to complete the Form 710.
2. If the borrower/seller does not meet the streamlined criteria, the short sale will be processed with additional paperwork requirements of the Form 710. Note that submitting the Form 710 prior to having a contract on the short-sale listing begins the pre-approval process for Fannie and Freddie Mac. The pre-approval process will be either streamlined or standardized, depending on the borrower’s/seller’s current financial situation.
For Fannie Mae and Freddie Mac Streamlined Short Sales, borrowers/sellers are not required to be delinquent. At a minimum, they must be at risk of imminent default, which is defined by Fannie Mae as a loan that is not yet in default and where there is a very high probability of being in default soon. This option is available on owner-occupied housing only.
Examples of imminent danger of default could be:
Obtain a preliminary title report
- Obtaining a preliminary title report should show what types of liens are on the property that need to be cleared prior to closing such as:Note that ordering a preliminary title is a requirement for a VA compromise sale.
- Second mortgages
- HELOCs, municipal liens
- Homeowners’ association liens
- IRS or state tax liens
- Local property tax liens
- Mechanics’ liens
- Be certain to access any sources that can help you determine any liens or encumbrances on the property. This might be done through public records or your MLS system if it is connected to a database that has this information. If your MLS participates in Realtors Property Resource, RPR® is a valuable tool for determining liens and encumbrances.
- If there are multiple liens on the property, it can make it more difficult to complete the short sale. All investors must agree to the transaction and if just one of them says “no,” the entire transaction will fail.
- In lien priority, when a property sells in a short sale, the first lien holder gets paid before the second lien holder gets a penny. Most first lien holders will allocate some of the money from the transaction to be paid to the second lien holder. The problem is that often it is not enough to satisfy the lien holder in the second position.
- Although it seems that if the same servicer has both mortgages it would be easy to get the bank to agree, it is common for first and second liens serviced by the same bank to be controlled by different investors who have different negotiating positions.
- If the seller has an IRS tax lien, it will take time to get it released. All the IRS will do is release the lien on the property to allow it to sell. The IRS not release the judgment against the seller. Your seller will need ample time (often six to eight weeks) and may need their attorneys’ involvement to accomplish this.
Complete initial listing paperwork
- Borrowers/sellers should sign a listing agreement; a short-sale disclosure form; a listing agreement addendum, if one is available from either your association or your broker; and an authorization to release information form (as outlined earlier) that allows you to speak directly with the servicer as the listing agent.
- Borrowers/sellers are required to complete the federal lead-based paint disclosure on residential properties built prior to 1978 as well as any additional state-specific mandated disclosures that are required.
- Confirm with your client’s mortgage servicer that there is enough time before foreclosure to complete a short sale.
- The steps involved in taking the listing and the information required by the servicer at the time of listing will depend on the type of short sale you are doing. Some servicers require paperwork prior to listing, some require that you put the property on the market and adjust the price if needed, and others will not initiate the short-sale process until there is a contract on the property.
- Follow servicer protocol in completing additional documentation
- At the time of taking the listing, listing agents should submit a completed Borrower Response Package to the servicer. The Borrower Response Package consists of:
- Completed Mortgage Assistance Application (Form 710)
- Income documentation as outlined in Form 710 based on income type
- Hardship documentation as outlined in Form 710 based on hardship type
- Short Form Request for Individual Tax Return Transcript (IRS Form 4506T-EZ) or a Request for Transcript of Tax Return (IRS Form 4506-T) signed by the borrower
- With a Fannie Mae Standardized Short Sale, the servicer will be involved in setting the price for the short sale. With Fannie Mae Standardized Short Sales, you may be putting the property on the market at its fair market value before receiving the price from the servicer. The borrower/seller does have the option, however, of waiting until the servicer has responded with a price before putting the property on the market. If the borrower/seller chooses to wait, listing agents should:
- Have the seller sign a listing agreement and an MLS Exempt form. Ensure that the seller has sufficient time prior to any forced sale to wait to market the property
10. Commission concerns
Offer of Compensation
As in all real estate transactions, the commissions a brokerage company charges and the amount of compensation a listing office chooses to offer cooperating brokers is a business decision made by each firm, independent of each other. Although sellers are responsible for the compensation that has been agreed to in the listing agreement, investors that approve short sales are not legally responsible for payment of any commission.
If your MLS requires that listing brokers disclose a short sale or potential short sale in the MLS, the listing broker may also choose to explain to other MLS participants how any reduction in the gross commission, required by the investor as a condition of approving the sale, will be apportioned between listing and cooperating participants. As a reminder: The seller’s permission is required prior to disclosure in the MLS of the potential short sale—regardless of your MLS requirement for disclosure.
- Fannie Mae, Freddie Mac, and the U.S. Treasury HAFA Short-Sale programs provide that servicers will pay a commission as contracted in the listing agreement, up to 6 percent of the final sale price.
- When a real estate licensee is a party in a short sale, the transaction is not at arm’s length, so the licensee may not receive commissions.
- Real estate licensees may not have any side deals (including “gifts”) to receive a commission indirectly.
- A broker or agent may only earn a commission if the represented party is unrelated and unaffiliated.
In addition to these guidelines, many experienced short-sale agents and brokers have indicated that it is virtually impossible for a listing agent who also represents the buyer in the transaction to obtain both a listing and selling side of the compensation from the lender or servicer. However, lenders and servicers will generally allow both sides if two agents from the same brokerage are involved in the transaction. It is important that you make the servicer aware of the two agent/same brokerage situation if it occurs.
Borrowers/sellers who are in mortgage default or facing foreclosure may argue that they cannot afford to pay them. Real estate professionals should note:
- Attorneys who work with distressed borrowers/sellers may take into consideration their current financial constraints and allow for ways to navigate the process with little or perhaps no attorney fees upfront. In most cases, reasonable attorney fees can be included in the cost to close the short sale. Each short-sale program and/or servicer has their own guidelines.
- It is prudent for the borrower/seller to hire an attorney as legal issues often arise in a short-sale transaction and real estate professionals cannot advise the borrowers/sellers