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Short Sales: Is It Strategic Default or Harsh Reality?



Determine the Source of the Hardship

Short Sale Hardship LetterThere has been a lot of information in the news lately about strategic default. Strategic default is the decision of a borrower to stop making payments (to default) on a debt despite having the financial ability to continue making those payments. Whatever your opinion might be about participating in a strategic default, it would be difficult to deny that it’s pretty darn stinky to see your property value decline significantly—especially if you have made a large down payment!

Many individuals question whether strategic default is ethical. Certainly it’s a lot more socially acceptable now than ever before.

A question that I am commonly asked is whether an individual who has financial means can sell his or her home in a short sale. It’s a great question, and the decision about whether to approve a short sale is solely determined by the seller’s lien holders. So, one mortgage lender may approve a short sale without a hardship, and another lender may not. It all depends upon the lender’s guidelines.

That being said, most lien holders request a hardship letter as part of the short sale package.

The hardship letter is a letter written by the seller(s) that outlines their hardship. It does not have to be long, but it does need to point out what has changed in the seller’s situation since the purchase of the property.

Here is an example of a hardship (totally fictitious):

I am a Realtor®. When I purchased my home in 2005, I had closed 42 transactions that year and my total income was over $400,000. This year I have closed only six transactions, which is why I cannot afford to keep my home any longer.

The harsh reality of a seller’s situation can be extremely tragic, and this is a perfect example how to convey information in the body of the hardship letter.

Here are some examples of common hardships: job loss, loan adjustment, illness, death, divorce, military deployment, incarceration, and job transfer.

Typically if the seller (borrower) has experienced one of the hardships listed above and can document that hardship, then the bank will have no trouble approving the short sale.

The topic of strategic default vs. harsh reality in our current economic climate is a tough one. When working short sales, it is important to always pre-qualify your sellers. After all, you want to get the job done and see a successful settlement, don’t you? And . . . you certainly do not want to be in the same position as the writer of the hardship letter shown above!

Melissa Zavala is the Broker/Owner of Broadpoint Properties and Head Honcho of Short Sale Expeditor®, and Chief Executive Officer of Transaction 911. Before landing in real estate, she had careers in education and publishing. Most recently, she has been able to use her teaching and organizational skills while traveling the world over—dispelling myths about the distressed property market, engaging and motivating real estate agents, and sharing her passion for real estate. When she isn’t speaking or writing, Melissa enjoys practicing yoga, walking the dog, and vacationing at beach resorts.

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  1. ColoradoHomeFinder

    February 10, 2010 at 6:52 pm

    This is a really tough question. I deal primarily with buyers so I haven’t found myself facing the client who is considering a “strategic default”. Personally I don’t think I could intentionally default on a loan just because the value of the collateral had dropped. When the bank loaned me money to buy my home I signed a note promising to repay my debt, and the note wasn’t conditional on home prices continuing to rise. I’m not an attorney but I would almost think that intentional or “strategic” default could be considered fraud if the defaulter represented they had a hardship when in fact they did not.

  2. TeamJernigan

    February 10, 2010 at 7:10 pm

    Short sales I have done also required a financial statement for the seller. Mine always had no savings, $50,000+ in credit card debt and insignificant income. By the time the owner decided to consider selling, they were in such bad shape that the short sale did not solve anything. It just got them out of the house. I think all the debt resolution advertising on the radio is convincing people that it is OK to bail on painful debt. That is not the way I was raised. I think I would try to find my way out without defaulting. Of course no one wants to pay 50% more for something than it is worth. This goes back to the point where they bought the house. Did they really think that 3br 1800 sq. ft. house was worth $250.00 a sq. ft.?

  3. Melvin Khachigian

    February 16, 2010 at 12:51 pm

    Thank you for your webinar and this post.
    Here is the situation: Owner died. She had a reverse Mortgage. Todays BOP is about 210000. The Reverse mortgage was for @$400,000. The son is going to probate court today to get permission to list the property. Can we do a shor sale on this?

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Disputing a property’s value in a short sale: turn a no into a go

During a short sale, there may be various obstacles, with misaligned property values ranking near the top, but it doesn’t have to be a dealbreaker!



magic eight ball

magic eight ball

It’s about getting your way

Were you on the debate team in high school? Were you really effective at convincing your parent or guardian to let you do things that you shouldn’t have been doing? How are your objection-handling skills? Can you flip a no into a go?

When working on short sales, there is one aspect of the process that may require those excellent negotiation or debate skills: disputing the property value. In a short sale, the short sale lender sends an appraiser or broker to the property and this individual conducts a Broker Price Opinion or an appraisal, using special forms provided by the short sale lender.

After this individual completes the Broker Price Opinion or the appraisal, he or she will return it to the short sale lender. Shortly thereafter, the short sale lender will be ready to talk about the purchase price. Will the lender accept the offer on the table or is the lender looking for more? If the lender is seeking an offer for a lot more than the one on the table, mentally prepare for the fact that you will need to conduct a value dispute.

Value Dispute Process

While each of the different short sale lenders (including Fannie Mae) has their own policies and procedures for value dispute, all these procedures have some things in common. Follow the steps below in order to conduct an effective value dispute.

  1. Inquire about forms. Ask your short sale lender if there are specific forms that you need to complete in order to conduct a value dispute. Obtain those forms if necessary.
  2. Gather information. Your goal is to convince the lender to accept the buyer’s offer, so you need to demonstrate that your offer is in line with the value of the property. Collect data that proves this point, such as reports from the MLS, Trulia, Zillow, or your local title company.
  3. Take photos. If there are parts of the property that are substandard and possibly were not revealed to the lender by the individual conducting the BPO, take photos of those items. Perhaps the kitchen has no flooring, or there is a 40-year old roof. Take photos to demonstrate these defects.
  4. Obtain bids. For any defects on the property, obtain a minimum of two bids from licensed contractors. For example, obtain two bids from roofers or structural engineers if necessary
  5. Write a report. Think back to high school English class if necessary. Write a short essay that references your information, photos, and bids, and explains how these items support your buyer’s value. This is not something that you whip up in five minutes. Spend time preparing a compelling appeal.

It is entirely possible that some lenders will not be particularly open-minded when it comes to valuation dispute. However, more times than not, an effective value dispute leads to short sale approval.

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Short sale standoffs: how to avoid getting hit

The short sale process can feel a lot like a wild west standoff, but there are ways to come out victorious, so let’s talk about those methods:



short sales standoff

short sales standoff

What is a short sale standoff?

If you are a short sale listing agent, a short sale processor, or a short sale negotiator then you probably already know about the short sale standoff. That’s when you are processing a short sale with more than one lien holder and neither will agree to the terms offered by the other. Or… better yet, each one will not move any further in the short sale process until they see the short sale approval letter from the other lien holder.

Scenario #1 – You are processing a short sale with two different mortgage-servicing companies. Bank 1 employees tell you that they will proceed with the short sale, and they will offer Bank 2 a certain amount to release their lien. You call Bank 2 and tell them the good news. Unfortunately, the folks at Bank 2 want more money. If Bank 1 and Bank 2 do not agree, then you are in a standoff.

Scenario #2 – You are processing a short sale with two different mortgage-servicing companies. Bank 1 employees tell you that they cannot generate your approval letter until you present them with the approval letter from Bank 2. Bank 2 employees tell you the exact same thing. Clearly, in this situation, you are in a standoff.

How to Avoid the Standoff

If you are in the middle of a standoff, then you are likely very frustrated. You’ve gotten pretty far in the short sale process and you are likely receiving lots of pressure from all of the parties to the transaction. And, the lenders are not helping much by creating the standoff.

Here are some ideas for how to get out of the situation:

  • Go back to the first lien holder and ask them if they are willing to give the second lien holder more money.
  • Go to the second lien holder and tell them that the first lien holder has insisted on a maximum amount and see if they will budge.
  • If no one will budge, find out why. Is this a Fannie Mae or Freddie Mac loan? If so, they have a maximum that they allow the second. And, if you alert the second of that information, they may become more compliant.
  • Worst case: someone will have to pay the difference. Depending on the laws in your state, it could be the buyer, the seller, or the agents (yuck). No matter what, make sure that this contribution is disclosed to all parties and appears on the short sale settlement statement at closing.
  • In Scenario #2, someone’s got to give in. Try explaining to both sides where you are and see if one will agree to generate their approval letter. If not, follow the tips provided in this Agent Genius article and take your complaint to the streets.

One thing about short sales is that the problems that arise can be difficult to resolve merely because of the number of parties involved—and all from remote locations. Imagine how much easier this would be if all parties sat at the same table and broke bread? If we all sat at the same table, then we wouldn’t need armor in order to avoid the flying bullets from the short sale standoff.

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Short sale approval letters don’t arrive in the blink of an eye

Short sale approval letters may look like they’ve been obtained simply by experts, but it takes time and doesn’t just happen with luck.



short sales

short sale approval

Short sale approval: getting prepared, making it happen

People always ask me how it is that I obtain short sale approval letters with such ease. The truth is, that while I have more short sale processing and negotiating experience than most agents and brokers, I don’t just blink my eyes like Jeannie and make those short sale approval letters appear. I often sweat it, just like everyone else.

Despite the fact that I do not have magical powers, I do have something else on my side—education. One of the most important things than can lead to short sale success for any and all agents is education.

Experience dictates that agents that learn about the short sale process
have increased short sale closings.

Short sale education opportunities abound

There are many ways to become educated about the short sale process and make getting short sale approval letters look easy to obtain. These include:

  • Classes at your local board of Realtors®
  • Free short sale webinars and workshops
  • The short sale or foreclosure specialist designations

As the distressed property arena grows and changes, it is important to always stay abreast of policy changes that may impact how you do your job and how you process any short sale that lands on your plate.

The most important thing to do is to read, read, read. Follow short sale specialists and those who blog about short sales on AGBeat, Google+, facebook, and twitter. Set up a Google Alert for the term ‘short sale’ and you will receive Google’s top short sale picks daily in your email inbox. Visit mortgagor websites to read up on their specific policies and procedures.

Don’t take on too much

And, when you get a call from a prospective short sale seller, make sure that you don’t bit off more than you can chew. Agents in most of America right now are clamoring for listings since we are in the midst of a listing shortage. But, if you are going to take on a short sale, be sure that it is a deal that you can close. And, if you have your doubts, why not partner up with a local agent that can mentor your and assist you in getting the job done? After all, half a commission check is better than none!

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