Attention California Realtors® – The Revised Residential Purchase Agreement will be published November 24, 2014! Will you be ready for the changes?

kathy-2014-3-31Q:  I just heard a rumor and I was hoping you could set me straight!  Is it true that the Residential Purchase Agreement (“RPA”) will be revised AGAIN?  It seems that it changes every year!  Please let me know.

A:  Simply put; it is no rumor!  The RPA is currently under revision.  The good news is, the last time it was substantially revised was April 2010, nearly four years ago!  I know it seems like just yesterday doesn’t it? The revised RPA is scheduled for release November 2014, it is true!

As the Chairperson of the Study Grou    p, charged with the daunting task of analyzing each and every recommendation and comment as well as suggesting necessary revisions based on feedback from the field,  I can tell you that this is one dedicated and accomplished group of Realtors® and Attorneys!

If you would like to weigh in before it is too late you can view the “most current draft” by logging onto the following link: this draft will be posted through March 31, 2014 and reflects proposed modifications as of January 31, 2014.

Happy reading and remember; if you don’t vote you can’t complain about the results of the election – by that I mean make your voices heard.  If you have comments or suggestions you may deliver them to C.A.R via email at

Knowledge is power – stay informed – continue to be the “best of the best!”

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Solar Panels And Other Systems – Are They Leased or Owned?

Trending indicates that homeowners are opting to lease many of the property systems (water softeners, water purification, property alarms, integrated phones, etc.) rather than purchase them.  For that reason you will find that I have re-posted this message regarding Solar Panels and other leased systems insofar as they impact the real estate transaction!

Whether or not the seller owns or leases all “Property Systems” including energy savings solar panels is an important factor in the contract negotiations between buyers and sellers.  In order to assist in the facilitation of this discussion/negotiation you may wish to review the tips below.

While you will note that the example below is geared toward solar panels the discussion points are similar irrespective of the type of “Property System.”  What is most important is communication, whether the brokerage firm represents buyer, seller or is acting as  dual agent, engaging in frank and open discussion regarding any and all matters affecting the property is a wise course of action.  Enjoy the read!

As always, feel free to send requests to if you would like specific subjects addressed in future editions of insideCBNOW.

1)  Listing agents:  When listing a property with solar panels (or other systems) ASK the seller if they are owned or leased.

a. If these systems are leased request a copy of the lease agreement.

b. Provide the lease agreement and the terms of the agreement to the buyer by way of an attachment to a counter offer or contract addendum.

c. Amend Paragraph 8 “Items Included In And Excluded From Purchase Price” of the Residential Purchase Agreement to state that the seller does not own the solar panels or other leased systems.

d. In addition, include verbiage that requires the buyer to both qualify for (within the timeframe specified in paragraph 14B of the Residential Purchase Agreement) and to assume the existing lease agreement(s) unless otherwise agreed in writing between the parties.

e. Advise the seller that the buyer may ask for a price concession equaling the remaining balance on the lease OR ask that the lease be paid off.

f. Bear in mind the buyer’s lender will factor in any solar panel lease agreement obligations when calculating ratios.

2)  Buyer’s agents:  When selling a property with solar panels or other systems, ASK the listing agent if they are owned or leased.

a. If the agent says they are owned include language in the purchase agreement requesting proof of ownership.

b. If the agent says they are leased include a request for a copy of the lease agreement as a term/condition of the purchase agreement.

c. If leased the buyer should provide the lender with a copy of the lease to determine whether or not the payments will affect the buyer’s debt/income ratio.

d. Buyer should be advised to contact the leasing company to determine what, if any, steps need to be taken in order to qualify for the lease.

e. Buyers may wish to negotiate a lease pay-off as a condition of the purchase agreement or some other concession.

f. Buyer should consult with their lender with respect their obligations under an assumed lease agreement.

3)  The buyer should contact the leasing company directly for additional information.  For example: (i) “In the event wood pest fumigation is required and should the integrity of the solar panels be compromised would warranty be negatively impacted?”  (ii) “Will the leasing company inspect the panels prior to close and after the fumigation to insure everything is in good working order?” (iii) “If there is damage to the solar panels, which party is to be deemed responsible for any necessary repairs/replacement?”

Asking questions gets to the truth, getting to the truth makes for a smoother transaction; smoother transactions mean happier clients and agents!

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Nationstar Servicing A Much Larger Portfolio of Short Sales

In the first quarter of 2013 Nationstar acquired Mortgage Service Release Agreements valued at 200 billion dollars. Bank of America formerly serviced these assets.  For this reason short sale transactions will, in many cases, involve Nationstar as the Servicer.

In order to facilitate short sales effectively and efficiently, it is important that real estate practitioners gain a thorough understanding of the processes that will be implemented.  If we are to serve the needs of distressed homeowners, information and knowledge are prerequisites.

Let’s get to it!  For the record this post is not intended to offer personal opinions as to the processes that will be discussed, rather it is an effort to provide information to the real estate industry.   You have most likely heard about Nationstar’s Market Validation Program (MVP). This online auction platform is currently being utilized as a “offer validation” tool.

Without a doubt, short sale transactions have been the subject of fraud and abuse as it relates to undervaluing short sale properties. This sad fact has lead to the implementation of a variety of “offer validation” processes. Servicers and Investors have adopted tools and systems to mitigate loss and ensure they fully maximize the sales price.  As an example you may recall that the US Department of Housing and Urban Development (HUD) was recently considering a ban on brokerage dual agency on FHA short sales.  That decision is on hold for now.  In an attempt to be abundantly clear that fraud and abuse will not be tolerated, the auction platform for market validation is being implemented by some Servicers to insure open market and competitive bidding.

In those circumstances where the servicer is not contacted until after a purchase contract is formed and the offer on the table meets the Fair Market Value (FMV) threshold; it is unlikely to be overbid during the online auction.  Remember, the successful bidder at auction will pay a five (5) percent buyer premium unless the successful bidder was the original buyer currently under contract.

Note: Clearly it can be very frustrating when agents, after working diligently have an offer only to learn that the property must go to auction to validate the offer. The question often asked is: “Why?”

Servicers and Investors contend:

  • The validation program has been instituted as a result of the abundance of dual representation in those transactions where negotiated sales price was less than the FMV
  • The use of the MVP program has  shown a 13% -15% increase from the original offer
  • When using the on-line auction concerns regarding dual representation are mitigated 

Here are a number of tips every real estate practitioner should consider:

1)  The duty to ensure that the seller receives highest price / best terms is of paramount importance in short sales as in any other transaction.  All too often I’ve heard statements like this:  “What difference does it make to the seller they aren’t making any money on the sale, so what’s the big deal?”  The big deal is our duty to ensure highest price / best terms which does not carry a stipulation that says:  “Unless it is a short sale!”

2)  FMV is what Servicers and the underlying investor expect to receive.  FMV is based on the property location, amenities and benefits.  Keep in mind that in a short sale the value may be slightly skewed because many buyers anticipate some sort of price concession due to the uncertainty and time constraints these challenging transactions entail.

3)  Once a homeowner, after exploring all other options, determines that a short sale is best for him/her it is prudent to contact the servicer prior to or at the time of the listing. That initial you, the agent, to assess procedural requirements, qualification for consideration, reserve pricing, list price guidance policy, relocation incentives and special programs,  including the utilization of the auction platform.  If the Servicer is contacted at the time the listing is taken the property may be entered into the auction platform upfront.

4)  Often the short sale can be initiated at the time of listing under the “marketing status” category.

5)  Delaying initiation with the Servicer until a purchase contract is executed is often problematic, in particular when the auction “bomb” is dropped on unsuspecting parties, including the real estate practitioner.  When this happens buyers feel disenfranchised and sellers are frustrated and confused. Some servicers have teams set-up to begin discussions as soon as the property is listed. In fact, most Servicers would prefer to know about the Short Sale request at the time the listing is taken. They may be able to provide you with pertinent information as to their specific processes so that when you do obtain an offer, the buyer and their agent can be informed as the sale is negotiated.

6)  Always check the foreclosure sale status at the onset.  Securing a postponement is not always a simple matter.  Additionally, it is important to note that the only way to document the postponement is through the trustee.

7)  Document marketing efforts by using a Market Activity report.  Include MLS data sheets including broker and public remarks as well as accurate relevant comparable sales.  Do your homework – make no assumptions when it comes to establishing value!

8)  If repairs are needed to enhance the value of the property or seller disclosures indicate serious material defects, provide the servicer with estimates from reputable licensed contractors along with the disclosure documents. Photographs speak a thousand words – use them as needed to document property condition or neighborhood deficiencies.

9)  When an offer is received review the terms with the seller and issue counter offers as needed in order to negotiate a sales price that reflects FMV.

Note: Sellers should be made aware that a short sale involves additional steps and processes to be taken with the servicer. While there is an executed purchase contract the agreed upon sales price does not fulfill the full amount of the borrower’s debt.  The responsibility to ensure that the loss is minimized falls upon the servicer.  

10) As mentioned above Servicer concerns regarding dual brokerage/agent representation may be eliminated in the auction process.  The auction platform requires open marketing for a set number of days and affords all interested buyers the opportunity to compete regardless of representation.

11) The Equator system tasks and deadlines must be adhered to. Failure to do so may result in the file being terminated causing unnecessary delays.

Final notes:

Whether or not the auction platform is successful in securing higher net proceeds for investors remains to be seen.  However, because a short sale is a debt settlement the Investor has the right and the Servicer acting on behalf of the Investor has the duty to act in a manner that ensures losses are mitigated.

Short sales are complicated.  Preparation and knowledge are the keys to success.  Always request that sellers aggregate financial documentation early on.  Setting the expectations of both buyers and sellers will ensure that short sale navigation is as smooth as possible.

This brief post in no way addresses each and every challenge faced in short sale transactions; but is an overview of one of the recent developments – the auction platform.

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Using Social Media for Networking and Business Development Poses Risks if not Managed Professionally

Blogs and social networking sites are being increasingly used by real estate professionals to market to, and to communicate with, clients, prospective clients and the public in general.  It is the nature of these social media sites to be informal, light and conversational.  However, it is important to remember that whether you are using a blog or other social media networking site for personal or business purposes, as a professional you are responsible for the content of any entry/post you create in all such media.  The content clearly reflects on you individually, as a Realtor® and, in turn, on the Company with which you are affiliated.

Just keep in mind that all messaging should be thoughtfully considered in same manner and with the same consideration you would employ for any other communication. To the extent that these entries/posts relate to the business practices of you and/or the Company, they are subject to all of the laws, ethical standards and other regulations that otherwise govern your behavior as a Realtor®.  For example, the Code of Ethics, California Bureau of Real Estate Regulations, Advertising/Fair Housing Laws, Multiple Listing Service Rules and Defamation Laws may apply to such communications.
A Few Best Practices for Your Consideration:
1.  Use your same high standards when messaging via blogs, facebook, LinkedIn, twitter or any other social media site just as you would in any other writing you would create for the public to read.  The style can be informal, but the standards do not vary.
2.  While social media s may by its nature encourage an informal style remember, even in the “ether-sphere,” you are bound by laws, regulations as well as the Code of Ethics.  Do not deviate from your high standards and best practices.
3.  Never advertise another agent’s listing for sale without the written consent of the listing broker (not the listing agent – because such decisions are appropriately made by the broker) and your own broker.   Some websites, blogs and on-line ads imply that the agent writing the information is the listing agent (e.g., “Call me for more information about this listing” when it is not your listing.).  This could lead to an ethics complaint or MLS rules violation.
4.  Routinely review your social media sites to make sure that the information is accurate and up to date.
5.  Also, regularly monitor and delete any inaccurate, derogatory, vulgar, offensive or obscene postings by others if others are allowed to post on your site.
6.  Do not engage in gossip or passing along unverified information.
7.  When in doubt – leave it out.  Better not to publish an item than regret it later.
8. Before posting an entry in any such media, ask yourself, “Would I like to see this entry being viewed on a courtroom wall?”  If not, don’t post it.
9. Consider maintaining separate social media sites for personal and business use but always remember your clients and colleagues are watching you.
10. Use common sense and be careful out there!
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Avoid Foreclosure Prevention and Loan Assistance Schemes

Homeowners must continue to protect themselves from the unscrupulous scammers who prey upon those that are vulnerable.  Learn to recognize and avoid mortgage fraud, loan assistance scams and other common schemes

  • Beware of any person or organization that asks you to pay a fee in exchange for housing counseling services or modification of a past due loan
  • Beware of anyone who says they can “save” your home if you sign or transfer over the deed to your house
  • Do not sign over the deed to your property to any organization or individual unless you are working directly with your mortgage servicer to forgive your debt
  • Do not sign a power of attorney to anyone who claims they can “save” your home
  • Do not transfer your property into a trust whereby one of the beneficiaries of that trust has promised to “save” your home
  • Never make your mortgage payments to anyone other than your mortgage servicer without their approval
  • Remember, if it sounds too good to be true, it is!!!

RECOGNIZE                REJECT                 REPORT

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Fannie Mae and Freddie Mac Marketing Requirements for Short Sales


Short Sales are still part of our real estate landscape.  For that reason I want to be certain that the real estate community is aware of developments as they occur.  Fannie Mae has established policy that requires short sale properties to be listed as ‘Active’ in the MLS for at least 5 days, including a weekend, before the servicer can submit the offer to Fannie Mae for review.  Below please find an excerpt from this policy statement: 

Multiple Listing Service Requirements for Standard Short Sale/HAFA II Servicing Guide, Part VII, Section 604.05: Requesting Fannie Mae’s Approval; Announcement SVC-2012-19, Standard Short Sale/HAFA II and Deed-in-Lieu of Foreclosure Requirements

On or after August 1, 2013, all properties being considered for a standard short sale/HAFA II must be listed with an active status on a multiple listing service (MLS) for a minimum of five consecutive calendar days, including one weekend (i.e., Saturday and Sunday), prior to the servicer submitting the standard short sale/HAFA II recommendation to Fannie Mae for review, or  approving the standard short sale/HAFA II.

 The property must be listed on the applicable MLS which covers the geographic area in which the property is located and a printed copy of the property’s MLS listing must be kept on file. If a property is located in an area that is not covered by an MLS, the property must be advertised in a manner customary for that real estate market for at least five consecutive calendar days, including one weekend.  (see

 The Florida Association of REALTORS® recently published this article, you may find it helpful. (

 Freddie Mac announced similar guidance.  Fannie Mae and Freddie Mac along with FHFA, their regulator, are responding to concerns where a short sale property may go into the MLS as ‘Active’ and, within less than an hour, go into ‘Pending’ status. 

The expectation is that short sale listings are to be marketed in a manner that allows broad market exposure for the listing in order to insure the highest price and best terms.  This is consistent with the REALTORS® duty to the seller and should not create any hardship or reason for concern.


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Kathy Mehringer: Fannie Mae Strives to Improve the Short Sale Process for Homeowners and Real Estate Professionals

As part of their ongoing effort to create a more efficient system for Fannie Mae short sales a recently implemented system was introduced in June of this year. Yes, it is true; an improved short facilitation program is awaiting your next Fannie Mae short sale. Both homeowners and real estate professionals alike will find great value in the going forward changes!

It is well known that short sales are not the answer for every distressed homeowner. Equally true is the fact that these complex transactions take patience, perseverance and attention to detail! Once a homeowner determines that the short sale path is right option for them selecting a qualified and experienced real estate professional is the next step.

Staying up to speed with industry development is an integral component of success for that reason today’s post will provide you with an overview of the changes.

Start with a visit to this website: This site is designed for listing agents who have been selected to represent homeowners who have determined that they wish to pursue a short sale IF Fannie Mae is the investor on their mortgage. When you click on the link titled “Listing Agent Representing a Homeowner in a Fannie Mae Short Sale,” you will note an option to “Register an Offer.” I strongly urge you to do just that! In this way Fannie Mae will be able to begin working proactively with the servicer; thereby improving communication as well as the decision making process.

The overall experience will be much better if the homeowner understands the eligibility requirements and the needs to aggregate financial date early in the process. There are so many moving parts in a short sale, they can seem daunting but preparation and knowledge remain essential to success! As the good Dr. Seuss so aptly put it: “The more that you read, the more things you will know. The more that you learn the more places you’ll go.”

Please see below Fannie Mae’s description of the resources now available to real estate professionals:

  • Request a recommended list price from Fannie Mae before listing the property.
  • Register an accepted offer with Fannie Mae immediately after submitting the offer to the servicer.
  • Escalate an issue they are having with a servicer in regards to an offer they submitted or a valuation they received.
  • Submit a question about a Fannie Mae policy related to short sales.

Through this comprehensive site, agents can also:

  • Learn more about the key steps of doing a short sale with Fannie Mae.
  • Access our loan lookup tool to determine if Fannie Mae owns the mortgage.
  • Find answers to frequently asked questions on short sales and helpful resources to share with homeowners on their role and Fannie Mae’s role in the short sale process.
  • Report fraud if they see it occur on a Fannie Mae short sale.

Spread the word to your colleagues and be sure to take the time to review the plethora of information housed within! I think you agree that Fannie Mae has taken great strides in improving the short sale experience for real estate professionals and homeowners!

The News Release associated with this aforementioned announcement may be found by clicking on the following link:

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Kathy Mehringer: “Hot Pockets” – Firestorm Erupts Over Withholding Listings from MLS

Market trending analysis in most areas demonstrates that buyers are “off the fence” and ready to invest in real estate.  The dream of homeownership is alive and well, interest rates remain at historic lows, consumer confidence is rising and prices are appreciating in varying degrees dependent on the region. But for today’s buyers the experience is frustrating at best!  Limited inventory translates to limited opportunity for many!

The first time homebuyer is forced to compete with all cash investors. FHA and VA buyers face increased challenges when there are competing offers because many sellers prefer larger down payments to exclusion of federally backed loan programs. Multiple offers create even more obstacles as bidding wars push the sales price upward.

As if all this wasn’t enough, the Pocket Listing appears to be gaining popularity with sellers and real estate agents alike.  When a listing contract is formed between seller(s) and broker the MLS Rules require the broker to submit the listing to the MLS within a set number of hours or days, unless the seller instructs the broker otherwise. The instruction must be in writing and submitted to the MLS along with the listing contract. This process results in the listing agent holding the listing in their “Pocket” or “Off-MLS” unless and until the seller instructs otherwise.

The term Pocket Listing is also used to describe a property that is not officially on the market but the seller has “authorized” one or more agents to quietly promote the property to prospective buyers and/or other brokers. Often these agreements are oral and highly risky. To avoid the many perils of such agreements, a Single Party Compensation Agreement (CAR Form SP) (CLICK FOR SAMPLEshould be executed by and between the broker and the seller. This document identifies the subject property, potential buyer, the commission rate due to the broker who secures the agreement as well as the commencement and expiration date. Note* the seller is to receive and acknowledge a Disclosure Regarding Real Estate Agency Relationships (“AD”) (CLICK FOR SAMPLEPRIOR to the execution of the agreement.

If a cooperating broker secures the buyer identified in the agreement any compensation due must be negotiated by using the Cooperating Broker Compensation Agreement (CAR Form CBC) (CLICK FOR SAMPLEor by including the cooperating broker in the Single Party Compensation Agreement.

When either of above-mentioned scenarios occurs the marketing is limited to small number of agents who may be part of a common networking group.  This practice is legal and ethical so long as the seller is made aware of the pros and cons of this particular strategy. Home sellers who may prefer the Pocket or Off-MLS marketing are often celebrities, judges, prosecutors, politicians or other high profile figures that prefer to maintain their privacy and security by limiting the exposure of their property to a smaller audience.  But for the average home seller who desires broader exposure this may not be the most effective approach. The MLS reaches the entire brokerage community stretching far beyond the geographic location of the property. Failure to utilize this service often results in a limited buyer pool and possibly a lower sales price. Even so, as previously mentioned there are home sellers who are more comfortable with a private marketing program.

The key is to be certain the home seller understands the advantages and disadvantages that go along with Pocket or Off-MLS Listings. This can be achieved by using the Seller Instruction to Exclude Listing from the Multiple Listing Service or Internet (CAR Form SEL)  (CLICK FOR SAMPLEor similar form.

The duty of the listing brokerage is to assist the home seller in securing the highest and best price and terms possible. Setting, managing and meeting expectations are essential!

The California Association of Realtors® has published a number of support materials to assist its members in coping with the current state of the market you are able to access these resources at

As always, feel free to contact me if you have any questions.

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The Scoop on “Confidentiality of Offers to Purchase Real Estate”

Every week I receive multiple emails or phone calls on the subject of “Confidentiality of Offers.”

Most of the time these inquiries arise as a result of the buyer’s and/or their agent’s suspicion that the terms of their offer may have been used by the seller and/or his/her agent to solicit higher and better offers! While this may seem like an unfair practice the truth is the seller has the right to instruct his/her agent to do just that!

It is of interest to note that Article 1, Standard of Practice 1-15, of the National Association of Realtors® Code of Ethics requires Realtors® to advise potential clients of: “the possibility that sellers or sellers’ representatives may not treat the existence, terms, or conditions of offers as confidential unless confidentiality is required by law, regulations, or by any confidentiality agreement between the parties.”

For that reason the Statewide Buyer and Seller Advisory (CAR Form “SBSA”) was amended in recent years to include the following language, thereby providing a written disclosure to clients.

In addition, California Association of Realtors® Disclosure and Consent for Representation of More Than One Buyer or Seller (CAR from “DA”) includes language that addresses the Non-Confidentiality of Offers in similar fashion.

In an effort to assist Realtors® and their buyers in the negotiating of a confidentiality agreement between the parties and their respective agents the California Association of Realtors® (“CAR”) released a form which addresses this issue. 

The form is self-explanatory and is intended to be used to bind, Buyer, Seller, Landlord or Tenant as well as the involved real estate broker/licensees to confidentiality.

In the event a Buyer wishes to negotiate confidentiality by using this form keep in mind: (i) The form is to be sent in advance of the Offer to Purchase (ii) The applicable boxes should be checked (iii) Seller(s), Buyer(s) and both agents sign the Agreement.  It should be returned to the Buyer’s agent prior to presentation of any offer being delivered.

Be aware that Paragraph 1 includes language regarding the Agent(s) obligation to keep the information confidential; it also states that the respective parties are responsible for any breach of the CND by its agents.

At the end of the day our duty is to make certain our clients understand the risk versus reward analysis of any contract negotiation. Whether the inclusion of a confidentiality agreement is a good strategy depends on the market conditions. For example, based on the number of multiple offers and bidding wars we are currently experiencing, conditioning an offer on such an agreement may severely handicap the buyer’s ability to secure the property. There is no secret recipe, our responsibility is to consult and advise while setting and managing the expectations of our clients!

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Short Sale News You Can Use – Fannie Mae to Streamline the Short Sale Process

Fannie Mae ( continues its efforts to streamline the short sale process by providing real estate licensees representing sellers in these complex transactions additional tools designed to improve the likelihood of achieving a successful closing.

These efforts are demonstrated by the recently introduced expanded HomePath for Short Sales Escalation Tool (click to visit).  Listing agents who believe a short sale is being derailed due to a servicer’s lack of responsiveness or property valuation disputes are urged to complete the requisite form (click to view form) in order to facilitate the escalation request directly to Fannie Mae thereby bypassing the servicer. While we respect the role of the servicers, it is important that we be assured of the investor’s involvement in the weighty decisions of debt settlement.  For that reason we applaud Fannie Mae for launching the HomePath Escalation Tool.

The simple truth is it is not uncommon to learn that Fannie Mae may not have been made aware of requests for short sale escalation, exceptions to guidelines or property valuation disputes when these requests have been made directly to the servicer.  The newly introduced program will insure that Fannie Mae is in the loop on Short Sale transactions that require a little extra TLC. This should make for a smoother transaction for everyone involved.

I would be remiss if I did not add: it is important to keep in mind that escalation requests are not intended for use at the initiation of a short sale.  Judicious use of the process, on an as needed basis, will ensure that the real estate community as well as distressed homeowners continue to receive this much needed support and assistance from Fannie Mae.

By working together toward our common goals we can achieve success. Please remember that a short sale is a debt settlement and as such is optional. In simple terms the proposal needs to makes sense regardless of whom the investor may be!  The investor’s expectation of a Fair Market Value price (FMV) is appropriate and we must remember that the FMV concern is not limited to individual properties but rather to entire neighborhood. Investors often own many loans in a given community and when the sales prices fall below FMV everyone feels the pain because artificially deflated values can destroy communities.



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