The Consigliere Files: Double Escrows that Involve Short Sales
By Christopher Moles
Double escrows, or simultaneous property flips, are not illegal. However, it’s clear that double escrows can lead to various dilemmas. This is because a double escrow inherently requires a property to transfer at less than the property’s present value. The same is true for short sales. Short sales cause dilemmas because someone is always taking a hit on the property. The purpose of this writing is to warn of some of the potential pitfalls in trying to pull off a double escrow during a short sale.
The Problem Scenario
Someone submits an offer at less than the property owner’s mortgage. Of course, this requires approval by the bank. During negotiations, the buyer locates a second buyer to purchase the property at a higher price simultaneous with the short sale or in rapid succession. The bank is not aware of the second buyer and the short sale is approved without the bank truly realizing its highest and best return in the transaction.
This scenario can lead to problems for all parties involved. The seller is certifying that he or she is offering the property at the “highest and best return” presently possible. So, when the bank finds out that the property immediately sold for higher than the seller’s price, the bank has a circumstantial claim against the seller for fraud – the favorite cause of action for plaintiffs in real property cases. And you may recall, demonstrating fraud always allows the bank to reinstate deficiency.
The initial buyer can be in hot water as well. This is because some short sale approvals require the buyer to promise to retain the property for a proscribed “retention period.” This is a direct attempt by the banks to eliminate double escrows in short sale transactions.
As I pointed out in a past newsletter, property retention clauses have become so common that the federal government now requires buyer retention periods for any short sale that comes about as part of a federal program. For example, short sales that are part of the Obama Administration’s Home Affordable Foreclosure Alternatives (HAFA) program require the buyer to hold the property for at least 90 days. In essence, the federal government disallows double escrows for any short sale transaction that it helps facilitate.
DRE Red Flags
In recent DRE actions against licensees who have been jeopardized by a double escrow involving a short sale, the DRE alleged that the second buyer was not sufficiently at an “arms-length,” and/or that the second sale was made possible by an obviously inflated appraisal. While these dishonest acts can occur in any transaction, it is now clear that the DRE will search for them by particularly scrutinizing double escrows.
Also, there are foreseeable fiduciary dilemmas that arise anytime an agent tries to double-end a double escrow. These dilemmas may not be curable by full disclosure. For instance, if an agent represents both buyer and seller in the first transaction, and then the same agent represents the new seller in the simultaneous flip at a higher listing price, the agent may be in breach of his or her duties to the first seller. In this case, it might not matter whether the first seller knew that the buyer was going to flip the property and the agent was going to represent the second listing. At the moment that the same agent lists the same home for two different sellers at different prices, the agent could face trouble.
Title Company Concerns
Due to the relative risk involved with double escrows, some title companies are now refusing to close simultaneous transactions. As a result, some instances have been recorded where perpetrators commit a fraudulent “single transaction property flip.” Basically, the first seller sells directly to the last buyer, and the middleman is paid outside of closing. Suffice it to say, these transactions can only be pulled off if the parties commit some sort of fraud on the HUD 1.
Disclose, Disclose, Disclose
Of course, the best way to avoid a problem is to let all parties, especially the short sale bank, know about the pending flip. If disclosure will destroy your chances of getting bank approval, then that should tell you something about the safety of your deal.
Regardless of whether or not the bank approves the deal, parties should take care to learn the contractual obligations of the buyer before proceeding as the buyer may be required to retain the property or otherwise make the property a primary residence.
In closing, double escrows in short sale transactions are technically allowable, but they are difficult to pull off properly and the government openly discourages the practice. Therefore, these transactions are generally not advisable.作者: BBQ 时间: 2012-12-7 20:30
In closing, double escrows in short sale transactions are technically allowable, but they are difficult to pull off properly and the government openly discourages the practice.
“结论,技术上double escrows在短售交易中是允许的,但是要摆脱政府在交易中的干涉是有困难的。”
1). "double escrows" 是完全合法的操作工具, 但现在绝大部分ShortSales,"double escrows" 都不合法,因为绝大部分Lenders都从Obama那里拿了钱,而政府在它的现在的项目里,不允许"double escrows"。当然你可以挑战政府,说它的这个行为不合法。fannie mae OR freddie mac 就更不行了,做多少PaperWork 都不灵。