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Seeking counsel from “peers”? STOP!



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Wondering Around Makes My Head Hurt

Unfortunately I am going to pick on Activerain here for a bit.  Not because it’s an evil entity, but because it’s where I find the WORST real estate advice being given by “peers”.  I have no issue with Activerain charging fees, I have no issue with the point system, nor do I care that writing to other agents is a waste of time…..wait, what!?!?!  Oh, never mind….

My issues with Activerain are the users.  The community as a whole, seems to just abuse the system and each other.  Friday night I went on a tangent on Twitter about what I was reading on Activerain.  Yes, I wondered in there, because as I wanted to know what was on our local agent’s minds; so that I could better develop programs.  I hate when I wonder into Activerain (if it were some other venue like it, I would hate it too.)  My issue is not the sharing of listings or marketing ideas, but rather the sharing of advice – very bad advice – that should be coming from Brokers and attorneys to agents (usually new agents).

Increasing Your Liability for 100 Points

in this very litigious industry, agents open themselves up to even more litigation when they express their lack of knowledge in an open forum.  When an agent goes out and shares information about a particular transaction, in order to ask a question, they often times violate their mandated confidentiality and proceed with telling the world that they haven’t a clue what they are doing.  So, if you’re an attorney out there, that has the privilege to sue an agent for negligence, please go search their posts on Activerain as evidence that they hadn’t a clue as to what they are doing!

How Do You Define Peers?

On Friday night I read a post asking for counsel on a certain practice of real estate.  I found the post after 70 comments had been made and frankly only read the first five.  The first five violated two laws in Virginia, 2 local MLS policies  and had 3 Code of Ethic violations.  Grant it, the advice givers may not have been licensees and not Realtors, so the Code of Ethics wouldn’t apply; but that just proves my point.

I believe in the counsel of peers, but how are you defining peers?  Here’s what I think you should consider:

  1. Are they licensed in your same state? (and competent)
  2. Are they bound by your company’s policies (and competent)
  3. Are they bound by your MLS policy (and competent)
  4. Are they bound by your Code of Ethics (and competent)
  5. …Are they going to be sitting next to you in the court room?

If the above questions aren’t clear enough, let me say this – counsel from anyone who isn’t your Broker or Corporate Counsel (an attorney as staff or retainer, hired to protect your business) they aren’t peers and it’s just noise.  If your Broker isn’t competent – you’re in the wrong brokerage and need to leave.  He he or she is competent, than why do you feel the need to ask for legal advice from other “bloggers”?

But I Like To Help Others

You may be asking how I can write this on a blog designed to give advice to agents.  Easy, if I am going to give legal advice, it’s going to have a reference to it, such as title such-in-such of such-in-such has this to say…. and then let the reader decide.

Otherwise, I think that sharing marketing ideas, new technologies, sales approaches and such is far different than how to handle disclosure issues or what terms to put in an offer to purchase.

Just to Be Fair

The premise of my post is not just targeted to Activerain, but to the “Breakfast Clubs” that exist at so many companies.  I’ve been to many offices where there are a contingent of nefarious gossips, who have moderate business coming in and typically use the office as a place to meet other sycophants who sit around bad-mouthing whoever is not in the room, complaining about the market and showing no real interest in engaging those not in their clique.  You know the types….they do all this, but still consider themselves the sages, because they’ve been licensed for 300 bazillion years.  (Listen, if you do it wrong for 30 years – it’s not right today)  Honestly, if these folks knew so much about real estate – how do they have so much time on their hands?  The good part is that these bad-advice-givers typically are only in the office from 10-1 and then go to lunch together and then home to watch the o’Reilly Factor….

Matthew Rathbun is a Virginia Licensed Broker and Director of Professional Development for Coldwell Banker Elite, in Fredericksburg Virginia. He has opened and managed real estate firms, as well as coached and mentored agents and Brokers. As a Residential REALTOR®, Matthew was a high volume agent and past REALTOR® Rookie of the Year & Virginia Association Instructor of the Year. You can follow him on Twitter as "MattRathbun" and on Facebook. Matthew's blog is

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  1. Ken Montville - The MD Suburbs of DC

    March 29, 2009 at 7:32 am

    So, Matt. What do you really think?

    I’ve been on Active Rain a tad over a year, I guess, and I like the point system and the fact that, via the comments, it appeared as if someone read my blog posts. A nice ego rush.

    To your point, though, it does seem like it is the real estate agents talking to one another (sort of like AG) and, more often than not, offering up advice that is irrelevant or irresponsible. The challenge there is that if you’re either new or clueless (and why else would you be posting a question on Active Rain?)you’re liable to get the wrong answer or wrong advice and get yourself into trouble.

    Having said that and also acknowledging that, for all the contracts and addenda and Disclosures and admonitions against this or that, the real estate profession really is like the Wild West. There are so many players with varying levels of experience or competence and so many different laws and regulations and so many Brokers who really don’t stand behind their agents if there is even the whiff of legal fees or local Association proceedings that I’m not really surprised agents go on Active Rain for guidance. (sorry for the run-on sentence there)

    Add to all of that the fact that we are all competitors and it makes it tough to sit down with someone (it is the rare Broker who can or will or is competent to do so) to get the guidance you need or want.

    So, I’m with you, Matt, but maybe a little more understanding of why this particular phenomenon exists.

  2. Charles McDonald

    March 29, 2009 at 7:56 am


    I find it interesting that anyone would talk about a deal or transaction they are involved in. I have posted about this very subject several times on AR because I see agents potentially violating the “Code of Ethics”.

    You post is well taken, but I would certainly extent it to several platforms. I am also seeing it so much on “twitter” it is ridiculous.

    The other thing I see is that the agents giving advise are often not a good source at all… They seem to have to much time on their hands (as you pointed out).

    I will often go a step further (at least regarding our local MLS agents) and look at the statistics of sales the agent is involved in. One such example is an agent openly discussing reducing commission (scary subject) and this persons sales showed one (yes 1) sale last year…is this a person of authority?

    Were I totally agree with you is regarding your broker.

    you said “If your Broker isn’t competent – you’re in the wrong brokerage and need to leave. ”

    excellent advise

  3. Lisa Sanderson

    March 29, 2009 at 8:10 am

    The clueless are out there giving ‘advice’ to consumers too, which is scarier yet. I know you agree that we need to raise the bar in this profession.

  4. Bob

    March 29, 2009 at 9:32 am

    AR is such an easy target on so many fronts, but for lawyers looking to litigate, its as good as a wire tap.

    Ken made an excellent point about the Wild West aspect of this biz and i think you hid the nail on the head bringing into question the competence and skill set of the broker/manager. Hopefully the downsizing the industry is going through serves to change the view of broker owners that the role of the broker/manager needs to shift from recruiter tasked with increasing market share to actually managing agents and over seeing transactions.

    The issue of liability is only going to grow in economic times like these.

  5. Bob Stewart

    March 29, 2009 at 10:30 am

    Can I convince you to post this over on AR Matthew? This is something our members need to read, without question.

  6. Melina Tomson

    March 29, 2009 at 10:49 am

    I also participate on AR and I don’t ask for advice on AR because that is why I have a company attorney on retainer for.

    What I have found interesting…if that is the right word…is that it would occur to someone to post it on their blog before asking their broker for help. I am not a REALTOR, but our local state association has a legal service which is only $100 a year for that kind of help.

    I have found a few of those “what would you have done” topics interesting, but the agent has already dealt with the situation. I think some of those have opened up interesting discussions on ethics.

    I don’t know which post you are referring to, but what I have seen most often is someone writing a “what do I do post, or I did this post” and getting reemed by members for acting unethically or violating their fiduciary duties to their clients.

  7. Alan May

    March 29, 2009 at 11:21 am

    Matt – I, too, find it troublesome when an agent spells out too many specific about an individual transaction.

    But to ask questions, generic questions, in my opinion is not only okay, but is a great way to grow as a Realtor and an individual. To consider other viewpoints, that you might have missed otherwise is a blessing.

    I’m sorry if wAndering around makes your head hurt, but it’s not a violation of the code of ethics or any other violation.

    Granted, we have to be circumspect about just how much information we put out there… but if done carefully… it’s an excellent tool.

  8. Southboro Real Estate

    March 29, 2009 at 11:26 am

    This kind of thing happens every week and not just at Active Rain. Happens on most every Real Estate forum. I find it even more interesting when agents give out legal advice to consumers and they are not even from that persons state.

  9. Brian Block

    March 29, 2009 at 11:29 am

    As you know, I look at this issue from a rather unique perspective. First, as a licensed (but no longer actively practicing) attorney. And secondly, as a newly minted managing broker.

    I can see nothing but trouble in the asking or the answering of such questions on an agent’s blog. The place for these questions is in the broker’s office. Several agents in my office have already asked me if I would be advising on legal matters. Using caution, I answered that only within the context of my role as a broker. While I can certainly advise about certain language in the contract and certain routine questions of law and brokerage that agents see, I know where to draw the line when something is beyond my repetoire of knowledge. There are definitely times when the wisest of brokers tells their agents to consult a knowlegeable and reputable real estate attorney.

    One thing I have never done nor will I ever do is advise on brokerage or legal issues in a state where I am not licensed. This is a huge no-no and mistake that occurs way too often on sites like AR and others. I would advise neither other agents nor consumers across state lines.

  10. Matthew Rathbun

    March 29, 2009 at 12:15 pm

    @Ken… LOL, what do I really think? I’ll guess I’ll be more direct in my next posts 🙂 It is like AG, in some ways. As we can tell from the the latest “Lockbox = Lazy Agent” debacle we’re not exempt from bad advice here either.

    @Charles: I agree, it exists all over the place, but it’s easier to find on-line and there seems to be a group of “unchecked” agents on AR. If we gave them another platform, it would happen there too. Good points!

    @Lisa: I think that the bar is fairly high, its just no one is enforcing it. Self-policing is the answer. You can read a good post on 100Watt Consulting about this too.

    @Bob: Yep, a “wire tap” is a good analogy.

    @Bob II: Sure, I can reflect on this post on AR. Are you trying to crucify me over there? 😉

    @Melina: That’s exactly right, an attorney on retainer and a good broker is the best defense. In Virginia, our State Association has a legal rockstar named Lem Marshall who answers calls and e-mails from Member-Brokers. He also travels the state and teaches classes. It’s a fantastic service.

    @Alan: See Brian’s comments after yours. Brian is an attorney, active AR member and now managing broker and honestly one of few who has gotten my respect in regards to Real Estate practice. In addition, I’d ask you to review Article 11 (Competency), Article 13 (Realtors® shall not engage in the unlicensed practice of law), Article 15 (shall not make reckless or false statements about other Realtors®), Article 1, SOP 1-9 that requires confidentiality on behalf of the client and lastly Article 10, which has resulted in agents being removed from AR. So yes, I feel the COE does apply and is regularly violated when agents ask for help with specific situations.

    And just because the comments are pointed to another practitioner, doesn’t mean that a consumer doesn’t wonder in there and may take the advice as gospel.

    @Brian: “The place for this is in the Brokers Office” is EXACTLY right. I don’t expect the broker to know everything, but they should know a good attorney…a good real estate attorney.

  11. Rich Jacobson

    March 29, 2009 at 3:19 pm

    You could replace ‘ActiveRain’ with any number of other sites currently being frequented by real estate professionals – Trulia Voices, Zillow Advice, etc.. What’s the saying? “Loose lips sink ships?” The Internet digital record is one that is extremely difficult to erase once something is said. Real estate is LOCAL. So it only stands to reason that our professional advice should be local as well.

  12. Alan May

    March 29, 2009 at 5:40 pm

    Sorry Brian, but perhaps you want to re-read my response. I am NOT advocating giving any specifics about a real transaction. Clearly that would be a violation of privacy and I’m sure plenty of COE articles, that I’m sure you’d like to quote me.

    Having a generic conversation about “how would you handled ‘this’ situation?… is NOT practicing law, nor is it reckless or making false statements about other Realtors… (not sure where you’re getting this)

    Certainly the Code of Ethics applies in all aspects of our lives including online. But the COE has not been broken by discussing generic “what ifs”… and if a member of the public should happen by, and accept it as advice… that’s okay too…as long as the information is accurate, and applicable in that state.

  13. Brian Block

    March 29, 2009 at 6:57 pm


    There are two key letters in your latest comment. “E” and “D”

    As in “how would you handlED [sic] ‘this’ situation?”

    Asking about a transaction in the past tense is one thing, though some caution should still be used here. However, many of the agents online are likely asking these questions in the present tense, while in the midst of a deal. This is what Matthew is describing in the original post.

  14. Matthew Rathbun

    March 29, 2009 at 6:59 pm

    Rich, you’re absolutely correct. You could replace it with any of those venues. The unfortunate truth is that with the popularity of Activerain, there is more opportunity for us to see this played out. I also think too many agents act as if they are hidden in AR, from others. The vastness does allow certain autonomy.

    I used the reference at the bottom of the post, to show that this even occurs in the office “breakfast clubs”.

    Sorry to make AR a target, but its the most predominate and probably will be for some time.

  15. Elaine Reese

    March 29, 2009 at 8:03 pm

    I’ve seen some client confidential stuff posted on Twitter as well. People talking about canceled contracts, buyer didn’t get financing, etc. It isn’t always too difficult to figure out which house, which client.

  16. Alan May

    March 29, 2009 at 9:08 pm

    “how would you handle this?” as a hypothetical, should suffice as well.

    It needn’t be in the past tense, in order to be generic.

  17. Bob

    March 29, 2009 at 9:17 pm

    With regard to Alan’s objection, if the question involves a legal opinion, then asking the question on AR is asking it in the wrong venue. How doers asking non experts about areas of expertise help one grow as an agent?

    I teach agents that they need to be able to defend the answer to any question with two words at the end of the defense – “Your Honor”.

  18. Brian Block

    March 30, 2009 at 6:09 am


    I love the last sentence in your response. I’m going to keep that instructional phrase up my sleeve.

  19. Alan May

    March 30, 2009 at 6:51 am

    I’ll agree, that you should be able to add “your honour” to the end of the sentence (a good trick, that I’m going to appropriate too….)

    but you’ve just proven my case for me.

    See, there’s a new tool in my bag of tricks that I didn’t have before. And I didn’t have to break the code of ethics, nor share any proprietary information to get it.

    … I also agree, that I’m not going to be asking other agents for “legal advice”… I’m in Illinois, where we use attorneys at almost every closing. I have access to plenty of attorneys to ask legal questions.

  20. Bob

    March 30, 2009 at 9:28 am

    Alan, I’m a tad slow this morning on only one cup of joe so far, so help me out here if you could. How did that make your point?

  21. Brad Andersohn

    March 30, 2009 at 9:35 am

    …and all this time I thought the advice given from RE Industry Professionals on EVERY site was “true” and “accurate”, oh darn!! 🙁

  22. Bob

    March 30, 2009 at 9:46 am

    it isnt the venue, but the participants.

  23. Alan May

    March 30, 2009 at 11:00 am

    I thought I spelled it out rather clearly, in my post above… but maybe not.

    you showed that through online conversation, among agent, about a real estate subject… that I could grow (learn something new) without breaching the COE, nor breaching the privacy of my clients, nor breaking my fiduciary duty to the client.

    the something new? the ability to think through my comments by adding the term “your honour” at the end to see if it passes the “court case” litmus test.


  24. Matthew Rathbun

    March 30, 2009 at 11:21 am

    “…and all this time I thought the advice given from RE Industry Professionals on EVERY site was “true” and “accurate”, oh darn!!” LOL

    Listen, all of your points are taken, that AR is not the source, but the venue. I was clear, in the first sentence of the second paragraph. The users are the issue, and not the platform.

  25. Brad Andersohn

    March 30, 2009 at 11:54 am

    Matt – you were very clear in your first sentence of the second paragraph, thanks for allowing me to be a smart a$$. 🙂

    I was just having some fun with the first sentence in the first paragraph. :-O

  26. Paula Henry

    April 6, 2009 at 7:35 am

    There is huge risk and liability involved when agents start talking about their current contracts and clients and much more risk involved if you are to take the words of another as gospel.

    Blogging and social media have provided the “transparency” so desired. Lack of knowledge is also transparent.

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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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