Landmark State Decision in RE Agency and Disclosure Law

[Coronita]

This thread is just getting too weird for me….

[sdrealtor]

Why bother with Holmes v. Summer when I can enjoy Kosta v. Browne?

[sdrealtor]

Why bother with Holmes v. Summer when I can enjoy Kosta v. Browne?

[sdrealtor]

Why bother with Holmes v. Summer when I can enjoy Kosta v. Browne?

[sdrealtor]

Why bother with Holmes v. Summer when I can enjoy Kosta v. Browne?

[sdrealtor]

Why bother with Holmes v. Summer when I can enjoy Kosta v. Browne?

[PCinSD]

[quote=bearishgurl]

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. INSTEAD, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

(emphasis added)

btw: I’ve also worked on more than a few broker/seller “failure to disclose” cases in my day.

[quote=pabloesqobar]Why don’t you answer my question re the dual agency? Upon what do you base your assertion that the buyers were represented by the sellers agent? You’re very detail oriented, so I’m sure you can find it for us.[/quote]

pablo, I’m going to take that statement as a “pseudo-compliment.” Actually, “detail” is my middle name and I pride myself on my skills in this area. Thank you for your support!

As a matter of fact, I’ve recently loaded my “bestest and brightest” flashlight with fresh batteries, lol and I would hope that you do same.

(Op. p. 3) Summer is a licensed real estate broker who represented the seller of certain residential real property located in Huntington Beach, California. Summer was employed by Beneficial Services, Inc., which operated a Re/Max office in Huntington Beach.

The brokers listed the property for sale on a multiple listing service, advertising a price of $749,000 to $799,000. The listing noted that the seller was motivated and that Summer would receive a 3 percent commission for the sale. The buyers saw the listing on the multiple listing service Web site and became interested in the property. Summer showed them the property, and made no mention of any encumbrances on the property that might affect the ability of the seller to sell at the advertised price…

(Op. p 14) Turning now to moral blame, we observe that California cases recognize a fundamental duty on the part of a realtor to deal honestly and fairly with all parties in the sale transaction. Surely a sense of rudimentary fairness would dictate that buyers in a case such as this should be informed before they open escrow and position themselves to consummate the same that there is a substantial risk that title cannot be conveyed to them . . .

(Op. p. 15) Both the policy of preventing future harm and considerations of moral blame compel the imposition of a duty on the part of a realtor never to allow a desire to consummate a deal or collect a commission to take precedence over his fundamental obligation of honesty, fairness and full disclosure toward all parties…

(emphasis added)

see: http://www.courtinfo.ca.gov/opinions/documents/G041906.PDF

Any attorney representing brokers should advise them to communicate the fact that the seller’s property is underwater (i.e., the debts against the property exceed its fair market value) to potential buyers right at the start—along with any and all other possibly relevant facts. That is common sense as well as good conduct…

The court noted that Buyers were not in a position to protect themselves because it is not typical in a residential purchase for the buyer to perform a title search before making an offer. The California Association of Realtors standard form purchase contract states that the buyer will receive a preliminary title report after escrow is opened…

Even if a title search would have divulged deeds of trust, it would not have disclosed the balance owing on the promissory notes. Further, when a seller agrees to sell a property free and clear of all liens and encumbrances, the seller impliedly represents that he will be in a position to deliver title free and clear. The court also noted that even if Buyers had been on constructive notice of the liens, the seller still would have had a duty to disclose…

Brokers argued that the court’s ruling would require them to divine when a seller may have breached agreements and to disclose that to the buyer. However, the court noted that the seller’s financial situation was clear to Brokers at the time the purchase agreement was signed. When an agent or broker is aware that either a short sale requiring the cooperation of a lender or the deposit of cash by the seller will be required to release monetary liens, the agent has a duty to disclose those facts to the buyer so that the buyer can investigate further regarding the risk that the transaction will fail.

Brokers also argued that imposing this duty to disclose would require them to breach their duty of confidentiality to the seller. The court noted, however, that brokers have a duty, under CC §2079.16, to disclose confidential matters if they materially affect the desirability of entering into the transaction. Brokers also have a duty of honest and fair dealing and good faith. CC §2079.16(b).

(emphasis added)

See: http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/

As per Summer’s DRE license record: (current office address: 301 Main St. Huntington Beach, CA 92649)
see: http://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=00428643

For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.html

Any person a “notch above a dimwit “ (SDR’s words) could “infer” from the information provided here plus 1.5 mins “surfing the net” that Summer was acting as a dual agent as, from the opinion, she appears to also be the “procuring” agent/broker in this case.

pablo, as an aside, can I just inquire, what do you mean by “marionesque?” Does it have to do with “puppets??” I’m a “dimwit” about these things, so . . . just wondering . . . why don’t you “enlighten” me?[/quote]

Wow. Simply amazing. I first thought your ignorance was because of lack of education and experience. I was wrong. You have a complete lack of self awareness and common sense. (emphasis added)

I asked you to support your assertion that the Sellers agent also represented the Buyer in this transaction. In the end, you claim that we could “infer” it from the information provided plus 1.5 mins “surfing the net”.

In response:

1. From your own quote:

“This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD FIDUCIARY DUTIES TO THE BUYERS and made it much easier to impose disclosure duties on her.”

I know you do not understand what this means, but I will point out the obvious to the rest of the folks here. The Defendant in this case did NOT designate herself as a dual agent. BECAUSE SHE DID NOT DESIGNATE HERSELF AS A DUAL AGENT, THE PLAINTIFFS COULD NOT ALLEGE BREACH OF FIDUCIARY DUTY AGAINST HER, WHICH IS A MUCH EASIER STANDARD. I know this is lost on you, but not on every one else. Your own post confirms this FACT. Check the causes of action for yourself to confirm.

From the appellate opinion:

“Summer is a licensed real estate broker who represented the SELLER
of certain residential real property located in Huntington Beach, California.”

Do they EVER claim that the broker represented the buyer? Did the appeals court get that wrong? No.

And again:

“DESPITE THE ABSENCE OF PRIVITY OF CONTRACT, a real estate agent is
clearly under a duty to exercise reasonable care to protect those persons whom the agent is attempting to induce into entering a real estate transaction for the purpose of earning a commission. [Citations.]” (Id. at p. 98, fn.2.)”

In other words, there was no contractual relationship between the buyer and the sellers broker. But they still have to exercise reasonable care.

Moving on.

More obvious language from the appellate court:

“The brokers, in support of their position, cite Merrill v. Buck (1962) 58
Cal.2d 552. In a case having to do with the duty of a real estate agent to a person WITH WHOM SHE HAD NO PRIVITY OF CONTRACT, the court stated: “„The determination whether in a specific case the defendant will be held liable to a THIRD PERSON NOT IN PRIVITY is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‟s conduct and the injury suffered, the moral blame attached to the defendant‟s conduct, and the policy of preventing future harm.‟ [Citations.]” (Id. at p. 562; accord, Krug, supra, 220 Cal.App.3d at p. 42.) The brokers argue that, applying these factors, it is clear they owed no duty to the buyers. We disagree.”

Here, the brokers argue that because THEY ARE NOT IN PRIVITY OF CONTRACT (i.e., DO NOT REPRESENT THE BUYERS AND DO NOT OWE THEM ANY FIDUCIARY DUTY) are therefore not liable for their damages. The appellate court disagreed. Just because they do not represent the buyers, does not mean they do not owe a duty of disclosure to the buyers. This is fairly basic stuff. Why you cannot comprehend it is not surprising given your posting history.

And finally:

“By so holding, WE DO NOT CONVERT THE SELLER’S FIDUCIARY INTO THE BUYER’S FIDUCIARY. The SELLER’S agent under a listing agreement owes the seller “[a] fiduciary duty of utmost care, integrity, honesty, and loyalty . . . .” (Civ. Code, § 2079.16.) ALTHOUGH THE SELLER’S AGENT DOES NOT GENERALLY OWE A FIDUCIARY DUTY TO THE BUYER, he or she nonetheless owes the buyer the affirmative duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code section 2079.16, as well as such other NONFIDUCIARY DUTIES as are otherwise imposed by law. (See Krug, supra, 220 Cal.App.3d at p. 42; 2 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 3:36, pp. 213-214.)’

Here, the court is once again pointing out the obvious. One which is beyond your comprehension. They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary.

I’m sure you’ve worked on nondisclosure cases. In litigation it is common to have support staff that makes copies, does drafting, etc. That is a far cry from representing clients in litigation as an attorney. I’ve changed light bulbs, but I do not consider myself an electrical contractor. See the difference? No, I didn’t think so.

As to “Marionesque” – it’s an inside joke, don’t worry about it.

[PCinSD]

[quote=bearishgurl]

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. INSTEAD, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

(emphasis added)

btw: I’ve also worked on more than a few broker/seller “failure to disclose” cases in my day.

[quote=pabloesqobar]Why don’t you answer my question re the dual agency? Upon what do you base your assertion that the buyers were represented by the sellers agent? You’re very detail oriented, so I’m sure you can find it for us.[/quote]

pablo, I’m going to take that statement as a “pseudo-compliment.” Actually, “detail” is my middle name and I pride myself on my skills in this area. Thank you for your support!

As a matter of fact, I’ve recently loaded my “bestest and brightest” flashlight with fresh batteries, lol and I would hope that you do same.

(Op. p. 3) Summer is a licensed real estate broker who represented the seller of certain residential real property located in Huntington Beach, California. Summer was employed by Beneficial Services, Inc., which operated a Re/Max office in Huntington Beach.

The brokers listed the property for sale on a multiple listing service, advertising a price of $749,000 to $799,000. The listing noted that the seller was motivated and that Summer would receive a 3 percent commission for the sale. The buyers saw the listing on the multiple listing service Web site and became interested in the property. Summer showed them the property, and made no mention of any encumbrances on the property that might affect the ability of the seller to sell at the advertised price…

(Op. p 14) Turning now to moral blame, we observe that California cases recognize a fundamental duty on the part of a realtor to deal honestly and fairly with all parties in the sale transaction. Surely a sense of rudimentary fairness would dictate that buyers in a case such as this should be informed before they open escrow and position themselves to consummate the same that there is a substantial risk that title cannot be conveyed to them . . .

(Op. p. 15) Both the policy of preventing future harm and considerations of moral blame compel the imposition of a duty on the part of a realtor never to allow a desire to consummate a deal or collect a commission to take precedence over his fundamental obligation of honesty, fairness and full disclosure toward all parties…

(emphasis added)

see: http://www.courtinfo.ca.gov/opinions/documents/G041906.PDF

Any attorney representing brokers should advise them to communicate the fact that the seller’s property is underwater (i.e., the debts against the property exceed its fair market value) to potential buyers right at the start—along with any and all other possibly relevant facts. That is common sense as well as good conduct…

The court noted that Buyers were not in a position to protect themselves because it is not typical in a residential purchase for the buyer to perform a title search before making an offer. The California Association of Realtors standard form purchase contract states that the buyer will receive a preliminary title report after escrow is opened…

Even if a title search would have divulged deeds of trust, it would not have disclosed the balance owing on the promissory notes. Further, when a seller agrees to sell a property free and clear of all liens and encumbrances, the seller impliedly represents that he will be in a position to deliver title free and clear. The court also noted that even if Buyers had been on constructive notice of the liens, the seller still would have had a duty to disclose…

Brokers argued that the court’s ruling would require them to divine when a seller may have breached agreements and to disclose that to the buyer. However, the court noted that the seller’s financial situation was clear to Brokers at the time the purchase agreement was signed. When an agent or broker is aware that either a short sale requiring the cooperation of a lender or the deposit of cash by the seller will be required to release monetary liens, the agent has a duty to disclose those facts to the buyer so that the buyer can investigate further regarding the risk that the transaction will fail.

Brokers also argued that imposing this duty to disclose would require them to breach their duty of confidentiality to the seller. The court noted, however, that brokers have a duty, under CC §2079.16, to disclose confidential matters if they materially affect the desirability of entering into the transaction. Brokers also have a duty of honest and fair dealing and good faith. CC §2079.16(b).

(emphasis added)

See: http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/

As per Summer’s DRE license record: (current office address: 301 Main St. Huntington Beach, CA 92649)
see: http://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=00428643

For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.html

Any person a “notch above a dimwit “ (SDR’s words) could “infer” from the information provided here plus 1.5 mins “surfing the net” that Summer was acting as a dual agent as, from the opinion, she appears to also be the “procuring” agent/broker in this case.

pablo, as an aside, can I just inquire, what do you mean by “marionesque?” Does it have to do with “puppets??” I’m a “dimwit” about these things, so . . . just wondering . . . why don’t you “enlighten” me?[/quote]

Wow. Simply amazing. I first thought your ignorance was because of lack of education and experience. I was wrong. You have a complete lack of self awareness and common sense. (emphasis added)

I asked you to support your assertion that the Sellers agent also represented the Buyer in this transaction. In the end, you claim that we could “infer” it from the information provided plus 1.5 mins “surfing the net”.

In response:

1. From your own quote:

“This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD FIDUCIARY DUTIES TO THE BUYERS and made it much easier to impose disclosure duties on her.”

I know you do not understand what this means, but I will point out the obvious to the rest of the folks here. The Defendant in this case did NOT designate herself as a dual agent. BECAUSE SHE DID NOT DESIGNATE HERSELF AS A DUAL AGENT, THE PLAINTIFFS COULD NOT ALLEGE BREACH OF FIDUCIARY DUTY AGAINST HER, WHICH IS A MUCH EASIER STANDARD. I know this is lost on you, but not on every one else. Your own post confirms this FACT. Check the causes of action for yourself to confirm.

From the appellate opinion:

“Summer is a licensed real estate broker who represented the SELLER
of certain residential real property located in Huntington Beach, California.”

Do they EVER claim that the broker represented the buyer? Did the appeals court get that wrong? No.

And again:

“DESPITE THE ABSENCE OF PRIVITY OF CONTRACT, a real estate agent is
clearly under a duty to exercise reasonable care to protect those persons whom the agent is attempting to induce into entering a real estate transaction for the purpose of earning a commission. [Citations.]” (Id. at p. 98, fn.2.)”

In other words, there was no contractual relationship between the buyer and the sellers broker. But they still have to exercise reasonable care.

Moving on.

More obvious language from the appellate court:

“The brokers, in support of their position, cite Merrill v. Buck (1962) 58
Cal.2d 552. In a case having to do with the duty of a real estate agent to a person WITH WHOM SHE HAD NO PRIVITY OF CONTRACT, the court stated: “„The determination whether in a specific case the defendant will be held liable to a THIRD PERSON NOT IN PRIVITY is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‟s conduct and the injury suffered, the moral blame attached to the defendant‟s conduct, and the policy of preventing future harm.‟ [Citations.]” (Id. at p. 562; accord, Krug, supra, 220 Cal.App.3d at p. 42.) The brokers argue that, applying these factors, it is clear they owed no duty to the buyers. We disagree.”

Here, the brokers argue that because THEY ARE NOT IN PRIVITY OF CONTRACT (i.e., DO NOT REPRESENT THE BUYERS AND DO NOT OWE THEM ANY FIDUCIARY DUTY) are therefore not liable for their damages. The appellate court disagreed. Just because they do not represent the buyers, does not mean they do not owe a duty of disclosure to the buyers. This is fairly basic stuff. Why you cannot comprehend it is not surprising given your posting history.

And finally:

“By so holding, WE DO NOT CONVERT THE SELLER’S FIDUCIARY INTO THE BUYER’S FIDUCIARY. The SELLER’S agent under a listing agreement owes the seller “[a] fiduciary duty of utmost care, integrity, honesty, and loyalty . . . .” (Civ. Code, § 2079.16.) ALTHOUGH THE SELLER’S AGENT DOES NOT GENERALLY OWE A FIDUCIARY DUTY TO THE BUYER, he or she nonetheless owes the buyer the affirmative duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code section 2079.16, as well as such other NONFIDUCIARY DUTIES as are otherwise imposed by law. (See Krug, supra, 220 Cal.App.3d at p. 42; 2 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 3:36, pp. 213-214.)’

Here, the court is once again pointing out the obvious. One which is beyond your comprehension. They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary.

I’m sure you’ve worked on nondisclosure cases. In litigation it is common to have support staff that makes copies, does drafting, etc. That is a far cry from representing clients in litigation as an attorney. I’ve changed light bulbs, but I do not consider myself an electrical contractor. See the difference? No, I didn’t think so.

As to “Marionesque” – it’s an inside joke, don’t worry about it.

[PCinSD]

[quote=bearishgurl]

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. INSTEAD, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

(emphasis added)

btw: I’ve also worked on more than a few broker/seller “failure to disclose” cases in my day.

[quote=pabloesqobar]Why don’t you answer my question re the dual agency? Upon what do you base your assertion that the buyers were represented by the sellers agent? You’re very detail oriented, so I’m sure you can find it for us.[/quote]

pablo, I’m going to take that statement as a “pseudo-compliment.” Actually, “detail” is my middle name and I pride myself on my skills in this area. Thank you for your support!

As a matter of fact, I’ve recently loaded my “bestest and brightest” flashlight with fresh batteries, lol and I would hope that you do same.

(Op. p. 3) Summer is a licensed real estate broker who represented the seller of certain residential real property located in Huntington Beach, California. Summer was employed by Beneficial Services, Inc., which operated a Re/Max office in Huntington Beach.

The brokers listed the property for sale on a multiple listing service, advertising a price of $749,000 to $799,000. The listing noted that the seller was motivated and that Summer would receive a 3 percent commission for the sale. The buyers saw the listing on the multiple listing service Web site and became interested in the property. Summer showed them the property, and made no mention of any encumbrances on the property that might affect the ability of the seller to sell at the advertised price…

(Op. p 14) Turning now to moral blame, we observe that California cases recognize a fundamental duty on the part of a realtor to deal honestly and fairly with all parties in the sale transaction. Surely a sense of rudimentary fairness would dictate that buyers in a case such as this should be informed before they open escrow and position themselves to consummate the same that there is a substantial risk that title cannot be conveyed to them . . .

(Op. p. 15) Both the policy of preventing future harm and considerations of moral blame compel the imposition of a duty on the part of a realtor never to allow a desire to consummate a deal or collect a commission to take precedence over his fundamental obligation of honesty, fairness and full disclosure toward all parties…

(emphasis added)

see: http://www.courtinfo.ca.gov/opinions/documents/G041906.PDF

Any attorney representing brokers should advise them to communicate the fact that the seller’s property is underwater (i.e., the debts against the property exceed its fair market value) to potential buyers right at the start—along with any and all other possibly relevant facts. That is common sense as well as good conduct…

The court noted that Buyers were not in a position to protect themselves because it is not typical in a residential purchase for the buyer to perform a title search before making an offer. The California Association of Realtors standard form purchase contract states that the buyer will receive a preliminary title report after escrow is opened…

Even if a title search would have divulged deeds of trust, it would not have disclosed the balance owing on the promissory notes. Further, when a seller agrees to sell a property free and clear of all liens and encumbrances, the seller impliedly represents that he will be in a position to deliver title free and clear. The court also noted that even if Buyers had been on constructive notice of the liens, the seller still would have had a duty to disclose…

Brokers argued that the court’s ruling would require them to divine when a seller may have breached agreements and to disclose that to the buyer. However, the court noted that the seller’s financial situation was clear to Brokers at the time the purchase agreement was signed. When an agent or broker is aware that either a short sale requiring the cooperation of a lender or the deposit of cash by the seller will be required to release monetary liens, the agent has a duty to disclose those facts to the buyer so that the buyer can investigate further regarding the risk that the transaction will fail.

Brokers also argued that imposing this duty to disclose would require them to breach their duty of confidentiality to the seller. The court noted, however, that brokers have a duty, under CC §2079.16, to disclose confidential matters if they materially affect the desirability of entering into the transaction. Brokers also have a duty of honest and fair dealing and good faith. CC §2079.16(b).

(emphasis added)

See: http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/

As per Summer’s DRE license record: (current office address: 301 Main St. Huntington Beach, CA 92649)
see: http://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=00428643

For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.html

Any person a “notch above a dimwit “ (SDR’s words) could “infer” from the information provided here plus 1.5 mins “surfing the net” that Summer was acting as a dual agent as, from the opinion, she appears to also be the “procuring” agent/broker in this case.

pablo, as an aside, can I just inquire, what do you mean by “marionesque?” Does it have to do with “puppets??” I’m a “dimwit” about these things, so . . . just wondering . . . why don’t you “enlighten” me?[/quote]

Wow. Simply amazing. I first thought your ignorance was because of lack of education and experience. I was wrong. You have a complete lack of self awareness and common sense. (emphasis added)

I asked you to support your assertion that the Sellers agent also represented the Buyer in this transaction. In the end, you claim that we could “infer” it from the information provided plus 1.5 mins “surfing the net”.

In response:

1. From your own quote:

“This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD FIDUCIARY DUTIES TO THE BUYERS and made it much easier to impose disclosure duties on her.”

I know you do not understand what this means, but I will point out the obvious to the rest of the folks here. The Defendant in this case did NOT designate herself as a dual agent. BECAUSE SHE DID NOT DESIGNATE HERSELF AS A DUAL AGENT, THE PLAINTIFFS COULD NOT ALLEGE BREACH OF FIDUCIARY DUTY AGAINST HER, WHICH IS A MUCH EASIER STANDARD. I know this is lost on you, but not on every one else. Your own post confirms this FACT. Check the causes of action for yourself to confirm.

From the appellate opinion:

“Summer is a licensed real estate broker who represented the SELLER
of certain residential real property located in Huntington Beach, California.”

Do they EVER claim that the broker represented the buyer? Did the appeals court get that wrong? No.

And again:

“DESPITE THE ABSENCE OF PRIVITY OF CONTRACT, a real estate agent is
clearly under a duty to exercise reasonable care to protect those persons whom the agent is attempting to induce into entering a real estate transaction for the purpose of earning a commission. [Citations.]” (Id. at p. 98, fn.2.)”

In other words, there was no contractual relationship between the buyer and the sellers broker. But they still have to exercise reasonable care.

Moving on.

More obvious language from the appellate court:

“The brokers, in support of their position, cite Merrill v. Buck (1962) 58
Cal.2d 552. In a case having to do with the duty of a real estate agent to a person WITH WHOM SHE HAD NO PRIVITY OF CONTRACT, the court stated: “„The determination whether in a specific case the defendant will be held liable to a THIRD PERSON NOT IN PRIVITY is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‟s conduct and the injury suffered, the moral blame attached to the defendant‟s conduct, and the policy of preventing future harm.‟ [Citations.]” (Id. at p. 562; accord, Krug, supra, 220 Cal.App.3d at p. 42.) The brokers argue that, applying these factors, it is clear they owed no duty to the buyers. We disagree.”

Here, the brokers argue that because THEY ARE NOT IN PRIVITY OF CONTRACT (i.e., DO NOT REPRESENT THE BUYERS AND DO NOT OWE THEM ANY FIDUCIARY DUTY) are therefore not liable for their damages. The appellate court disagreed. Just because they do not represent the buyers, does not mean they do not owe a duty of disclosure to the buyers. This is fairly basic stuff. Why you cannot comprehend it is not surprising given your posting history.

And finally:

“By so holding, WE DO NOT CONVERT THE SELLER’S FIDUCIARY INTO THE BUYER’S FIDUCIARY. The SELLER’S agent under a listing agreement owes the seller “[a] fiduciary duty of utmost care, integrity, honesty, and loyalty . . . .” (Civ. Code, § 2079.16.) ALTHOUGH THE SELLER’S AGENT DOES NOT GENERALLY OWE A FIDUCIARY DUTY TO THE BUYER, he or she nonetheless owes the buyer the affirmative duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code section 2079.16, as well as such other NONFIDUCIARY DUTIES as are otherwise imposed by law. (See Krug, supra, 220 Cal.App.3d at p. 42; 2 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 3:36, pp. 213-214.)’

Here, the court is once again pointing out the obvious. One which is beyond your comprehension. They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary.

I’m sure you’ve worked on nondisclosure cases. In litigation it is common to have support staff that makes copies, does drafting, etc. That is a far cry from representing clients in litigation as an attorney. I’ve changed light bulbs, but I do not consider myself an electrical contractor. See the difference? No, I didn’t think so.

As to “Marionesque” – it’s an inside joke, don’t worry about it.

[PCinSD]

[quote=bearishgurl]

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. INSTEAD, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

(emphasis added)

btw: I’ve also worked on more than a few broker/seller “failure to disclose” cases in my day.

[quote=pabloesqobar]Why don’t you answer my question re the dual agency? Upon what do you base your assertion that the buyers were represented by the sellers agent? You’re very detail oriented, so I’m sure you can find it for us.[/quote]

pablo, I’m going to take that statement as a “pseudo-compliment.” Actually, “detail” is my middle name and I pride myself on my skills in this area. Thank you for your support!

As a matter of fact, I’ve recently loaded my “bestest and brightest” flashlight with fresh batteries, lol and I would hope that you do same.

(Op. p. 3) Summer is a licensed real estate broker who represented the seller of certain residential real property located in Huntington Beach, California. Summer was employed by Beneficial Services, Inc., which operated a Re/Max office in Huntington Beach.

The brokers listed the property for sale on a multiple listing service, advertising a price of $749,000 to $799,000. The listing noted that the seller was motivated and that Summer would receive a 3 percent commission for the sale. The buyers saw the listing on the multiple listing service Web site and became interested in the property. Summer showed them the property, and made no mention of any encumbrances on the property that might affect the ability of the seller to sell at the advertised price…

(Op. p 14) Turning now to moral blame, we observe that California cases recognize a fundamental duty on the part of a realtor to deal honestly and fairly with all parties in the sale transaction. Surely a sense of rudimentary fairness would dictate that buyers in a case such as this should be informed before they open escrow and position themselves to consummate the same that there is a substantial risk that title cannot be conveyed to them . . .

(Op. p. 15) Both the policy of preventing future harm and considerations of moral blame compel the imposition of a duty on the part of a realtor never to allow a desire to consummate a deal or collect a commission to take precedence over his fundamental obligation of honesty, fairness and full disclosure toward all parties…

(emphasis added)

see: http://www.courtinfo.ca.gov/opinions/documents/G041906.PDF

Any attorney representing brokers should advise them to communicate the fact that the seller’s property is underwater (i.e., the debts against the property exceed its fair market value) to potential buyers right at the start—along with any and all other possibly relevant facts. That is common sense as well as good conduct…

The court noted that Buyers were not in a position to protect themselves because it is not typical in a residential purchase for the buyer to perform a title search before making an offer. The California Association of Realtors standard form purchase contract states that the buyer will receive a preliminary title report after escrow is opened…

Even if a title search would have divulged deeds of trust, it would not have disclosed the balance owing on the promissory notes. Further, when a seller agrees to sell a property free and clear of all liens and encumbrances, the seller impliedly represents that he will be in a position to deliver title free and clear. The court also noted that even if Buyers had been on constructive notice of the liens, the seller still would have had a duty to disclose…

Brokers argued that the court’s ruling would require them to divine when a seller may have breached agreements and to disclose that to the buyer. However, the court noted that the seller’s financial situation was clear to Brokers at the time the purchase agreement was signed. When an agent or broker is aware that either a short sale requiring the cooperation of a lender or the deposit of cash by the seller will be required to release monetary liens, the agent has a duty to disclose those facts to the buyer so that the buyer can investigate further regarding the risk that the transaction will fail.

Brokers also argued that imposing this duty to disclose would require them to breach their duty of confidentiality to the seller. The court noted, however, that brokers have a duty, under CC §2079.16, to disclose confidential matters if they materially affect the desirability of entering into the transaction. Brokers also have a duty of honest and fair dealing and good faith. CC §2079.16(b).

(emphasis added)

See: http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/

As per Summer’s DRE license record: (current office address: 301 Main St. Huntington Beach, CA 92649)
see: http://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=00428643

For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.html

Any person a “notch above a dimwit “ (SDR’s words) could “infer” from the information provided here plus 1.5 mins “surfing the net” that Summer was acting as a dual agent as, from the opinion, she appears to also be the “procuring” agent/broker in this case.

pablo, as an aside, can I just inquire, what do you mean by “marionesque?” Does it have to do with “puppets??” I’m a “dimwit” about these things, so . . . just wondering . . . why don’t you “enlighten” me?[/quote]

Wow. Simply amazing. I first thought your ignorance was because of lack of education and experience. I was wrong. You have a complete lack of self awareness and common sense. (emphasis added)

I asked you to support your assertion that the Sellers agent also represented the Buyer in this transaction. In the end, you claim that we could “infer” it from the information provided plus 1.5 mins “surfing the net”.

In response:

1. From your own quote:

“This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD FIDUCIARY DUTIES TO THE BUYERS and made it much easier to impose disclosure duties on her.”

I know you do not understand what this means, but I will point out the obvious to the rest of the folks here. The Defendant in this case did NOT designate herself as a dual agent. BECAUSE SHE DID NOT DESIGNATE HERSELF AS A DUAL AGENT, THE PLAINTIFFS COULD NOT ALLEGE BREACH OF FIDUCIARY DUTY AGAINST HER, WHICH IS A MUCH EASIER STANDARD. I know this is lost on you, but not on every one else. Your own post confirms this FACT. Check the causes of action for yourself to confirm.

From the appellate opinion:

“Summer is a licensed real estate broker who represented the SELLER
of certain residential real property located in Huntington Beach, California.”

Do they EVER claim that the broker represented the buyer? Did the appeals court get that wrong? No.

And again:

“DESPITE THE ABSENCE OF PRIVITY OF CONTRACT, a real estate agent is
clearly under a duty to exercise reasonable care to protect those persons whom the agent is attempting to induce into entering a real estate transaction for the purpose of earning a commission. [Citations.]” (Id. at p. 98, fn.2.)”

In other words, there was no contractual relationship between the buyer and the sellers broker. But they still have to exercise reasonable care.

Moving on.

More obvious language from the appellate court:

“The brokers, in support of their position, cite Merrill v. Buck (1962) 58
Cal.2d 552. In a case having to do with the duty of a real estate agent to a person WITH WHOM SHE HAD NO PRIVITY OF CONTRACT, the court stated: “„The determination whether in a specific case the defendant will be held liable to a THIRD PERSON NOT IN PRIVITY is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‟s conduct and the injury suffered, the moral blame attached to the defendant‟s conduct, and the policy of preventing future harm.‟ [Citations.]” (Id. at p. 562; accord, Krug, supra, 220 Cal.App.3d at p. 42.) The brokers argue that, applying these factors, it is clear they owed no duty to the buyers. We disagree.”

Here, the brokers argue that because THEY ARE NOT IN PRIVITY OF CONTRACT (i.e., DO NOT REPRESENT THE BUYERS AND DO NOT OWE THEM ANY FIDUCIARY DUTY) are therefore not liable for their damages. The appellate court disagreed. Just because they do not represent the buyers, does not mean they do not owe a duty of disclosure to the buyers. This is fairly basic stuff. Why you cannot comprehend it is not surprising given your posting history.

And finally:

“By so holding, WE DO NOT CONVERT THE SELLER’S FIDUCIARY INTO THE BUYER’S FIDUCIARY. The SELLER’S agent under a listing agreement owes the seller “[a] fiduciary duty of utmost care, integrity, honesty, and loyalty . . . .” (Civ. Code, § 2079.16.) ALTHOUGH THE SELLER’S AGENT DOES NOT GENERALLY OWE A FIDUCIARY DUTY TO THE BUYER, he or she nonetheless owes the buyer the affirmative duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code section 2079.16, as well as such other NONFIDUCIARY DUTIES as are otherwise imposed by law. (See Krug, supra, 220 Cal.App.3d at p. 42; 2 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 3:36, pp. 213-214.)’

Here, the court is once again pointing out the obvious. One which is beyond your comprehension. They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary.

I’m sure you’ve worked on nondisclosure cases. In litigation it is common to have support staff that makes copies, does drafting, etc. That is a far cry from representing clients in litigation as an attorney. I’ve changed light bulbs, but I do not consider myself an electrical contractor. See the difference? No, I didn’t think so.

As to “Marionesque” – it’s an inside joke, don’t worry about it.

[PCinSD]

[quote=bearishgurl]

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. INSTEAD, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

(emphasis added)

btw: I’ve also worked on more than a few broker/seller “failure to disclose” cases in my day.

[quote=pabloesqobar]Why don’t you answer my question re the dual agency? Upon what do you base your assertion that the buyers were represented by the sellers agent? You’re very detail oriented, so I’m sure you can find it for us.[/quote]

pablo, I’m going to take that statement as a “pseudo-compliment.” Actually, “detail” is my middle name and I pride myself on my skills in this area. Thank you for your support!

As a matter of fact, I’ve recently loaded my “bestest and brightest” flashlight with fresh batteries, lol and I would hope that you do same.

(Op. p. 3) Summer is a licensed real estate broker who represented the seller of certain residential real property located in Huntington Beach, California. Summer was employed by Beneficial Services, Inc., which operated a Re/Max office in Huntington Beach.

The brokers listed the property for sale on a multiple listing service, advertising a price of $749,000 to $799,000. The listing noted that the seller was motivated and that Summer would receive a 3 percent commission for the sale. The buyers saw the listing on the multiple listing service Web site and became interested in the property. Summer showed them the property, and made no mention of any encumbrances on the property that might affect the ability of the seller to sell at the advertised price…

(Op. p 14) Turning now to moral blame, we observe that California cases recognize a fundamental duty on the part of a realtor to deal honestly and fairly with all parties in the sale transaction. Surely a sense of rudimentary fairness would dictate that buyers in a case such as this should be informed before they open escrow and position themselves to consummate the same that there is a substantial risk that title cannot be conveyed to them . . .

(Op. p. 15) Both the policy of preventing future harm and considerations of moral blame compel the imposition of a duty on the part of a realtor never to allow a desire to consummate a deal or collect a commission to take precedence over his fundamental obligation of honesty, fairness and full disclosure toward all parties…

(emphasis added)

see: http://www.courtinfo.ca.gov/opinions/documents/G041906.PDF

Any attorney representing brokers should advise them to communicate the fact that the seller’s property is underwater (i.e., the debts against the property exceed its fair market value) to potential buyers right at the start—along with any and all other possibly relevant facts. That is common sense as well as good conduct…

The court noted that Buyers were not in a position to protect themselves because it is not typical in a residential purchase for the buyer to perform a title search before making an offer. The California Association of Realtors standard form purchase contract states that the buyer will receive a preliminary title report after escrow is opened…

Even if a title search would have divulged deeds of trust, it would not have disclosed the balance owing on the promissory notes. Further, when a seller agrees to sell a property free and clear of all liens and encumbrances, the seller impliedly represents that he will be in a position to deliver title free and clear. The court also noted that even if Buyers had been on constructive notice of the liens, the seller still would have had a duty to disclose…

Brokers argued that the court’s ruling would require them to divine when a seller may have breached agreements and to disclose that to the buyer. However, the court noted that the seller’s financial situation was clear to Brokers at the time the purchase agreement was signed. When an agent or broker is aware that either a short sale requiring the cooperation of a lender or the deposit of cash by the seller will be required to release monetary liens, the agent has a duty to disclose those facts to the buyer so that the buyer can investigate further regarding the risk that the transaction will fail.

Brokers also argued that imposing this duty to disclose would require them to breach their duty of confidentiality to the seller. The court noted, however, that brokers have a duty, under CC §2079.16, to disclose confidential matters if they materially affect the desirability of entering into the transaction. Brokers also have a duty of honest and fair dealing and good faith. CC §2079.16(b).

(emphasis added)

See: http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/

As per Summer’s DRE license record: (current office address: 301 Main St. Huntington Beach, CA 92649)
see: http://www2.dre.ca.gov/PublicASP/pplinfo.asp?License_id=00428643

For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.html

Any person a “notch above a dimwit “ (SDR’s words) could “infer” from the information provided here plus 1.5 mins “surfing the net” that Summer was acting as a dual agent as, from the opinion, she appears to also be the “procuring” agent/broker in this case.

pablo, as an aside, can I just inquire, what do you mean by “marionesque?” Does it have to do with “puppets??” I’m a “dimwit” about these things, so . . . just wondering . . . why don’t you “enlighten” me?[/quote]

Wow. Simply amazing. I first thought your ignorance was because of lack of education and experience. I was wrong. You have a complete lack of self awareness and common sense. (emphasis added)

I asked you to support your assertion that the Sellers agent also represented the Buyer in this transaction. In the end, you claim that we could “infer” it from the information provided plus 1.5 mins “surfing the net”.

In response:

1. From your own quote:

“This WOULD HAVE BEEN a considerably easier case HAD THE DEFENDANT—who was apparently the only broker in the picture—DESIGNATED HERSELF AS A DUAL AGENT RATHER THAN SOLELY AGENT FOR THE SELLERS. That way, she WOULD HAVE HAD FIDUCIARY DUTIES TO THE BUYERS and made it much easier to impose disclosure duties on her.”

I know you do not understand what this means, but I will point out the obvious to the rest of the folks here. The Defendant in this case did NOT designate herself as a dual agent. BECAUSE SHE DID NOT DESIGNATE HERSELF AS A DUAL AGENT, THE PLAINTIFFS COULD NOT ALLEGE BREACH OF FIDUCIARY DUTY AGAINST HER, WHICH IS A MUCH EASIER STANDARD. I know this is lost on you, but not on every one else. Your own post confirms this FACT. Check the causes of action for yourself to confirm.

From the appellate opinion:

“Summer is a licensed real estate broker who represented the SELLER
of certain residential real property located in Huntington Beach, California.”

Do they EVER claim that the broker represented the buyer? Did the appeals court get that wrong? No.

And again:

“DESPITE THE ABSENCE OF PRIVITY OF CONTRACT, a real estate agent is
clearly under a duty to exercise reasonable care to protect those persons whom the agent is attempting to induce into entering a real estate transaction for the purpose of earning a commission. [Citations.]” (Id. at p. 98, fn.2.)”

In other words, there was no contractual relationship between the buyer and the sellers broker. But they still have to exercise reasonable care.

Moving on.

More obvious language from the appellate court:

“The brokers, in support of their position, cite Merrill v. Buck (1962) 58
Cal.2d 552. In a case having to do with the duty of a real estate agent to a person WITH WHOM SHE HAD NO PRIVITY OF CONTRACT, the court stated: “„The determination whether in a specific case the defendant will be held liable to a THIRD PERSON NOT IN PRIVITY is a matter of policy and involves the balancing of various factors, among which are the extent to which the transaction was intended to affect the plaintiff, the foreseeability of harm to him, the degree of certainty that the plaintiff suffered injury, the closeness of the connection between the defendant‟s conduct and the injury suffered, the moral blame attached to the defendant‟s conduct, and the policy of preventing future harm.‟ [Citations.]” (Id. at p. 562; accord, Krug, supra, 220 Cal.App.3d at p. 42.) The brokers argue that, applying these factors, it is clear they owed no duty to the buyers. We disagree.”

Here, the brokers argue that because THEY ARE NOT IN PRIVITY OF CONTRACT (i.e., DO NOT REPRESENT THE BUYERS AND DO NOT OWE THEM ANY FIDUCIARY DUTY) are therefore not liable for their damages. The appellate court disagreed. Just because they do not represent the buyers, does not mean they do not owe a duty of disclosure to the buyers. This is fairly basic stuff. Why you cannot comprehend it is not surprising given your posting history.

And finally:

“By so holding, WE DO NOT CONVERT THE SELLER’S FIDUCIARY INTO THE BUYER’S FIDUCIARY. The SELLER’S agent under a listing agreement owes the seller “[a] fiduciary duty of utmost care, integrity, honesty, and loyalty . . . .” (Civ. Code, § 2079.16.) ALTHOUGH THE SELLER’S AGENT DOES NOT GENERALLY OWE A FIDUCIARY DUTY TO THE BUYER, he or she nonetheless owes the buyer the affirmative duties of care, honesty, good faith, fair dealing and disclosure, as reflected in Civil Code section 2079.16, as well as such other NONFIDUCIARY DUTIES as are otherwise imposed by law. (See Krug, supra, 220 Cal.App.3d at p. 42; 2 Miller & Starr, Cal. Real Estate (3d ed. 2000) § 3:36, pp. 213-214.)’

Here, the court is once again pointing out the obvious. One which is beyond your comprehension. They explicitly state that they are NOT converting the duties owed between the agent and seller to that of the 3rd party buyer. Rather, they acknowledge a lower standard of utmost care, integrity, honesty, and loyalty. A much different standard than that of a fiduciary.

I’m sure you’ve worked on nondisclosure cases. In litigation it is common to have support staff that makes copies, does drafting, etc. That is a far cry from representing clients in litigation as an attorney. I’ve changed light bulbs, but I do not consider myself an electrical contractor. See the difference? No, I didn’t think so.

As to “Marionesque” – it’s an inside joke, don’t worry about it.

[bearishgurl]

pablo, I’ve sat in and assisted on several trials in my day (yes, RE related). And I don’t “draft and make copies,” I “draft, finalize and they SIGN” (with little to no changes) for ALL levels of court in this state.

You have NO IDEA whether Summer was the “procuring agent” (read: buyer’s agent) in this purchase. The opinion is not crystal CLEAR on this. It states Summer showed the property to the Plaintiffs here. Why would she NOT write the offer? WHERE is the plaintiff’s agent in this case, pablo? Didn’t (s)he have any culpability here?

Summer likely did not have a Buyer-Broker Agency Agreement or any separate “Agency Agreement” with the Holmses because they called her to see her listing and she showed it to them and then wrote up the offer listing her brokerage as both the listing and selling broker in the transaction. Thus, the court (and plaintiff/appellant, in their brief) HAD to deal with “six-factor privity analysis” (and the corresponding case law) in order to reach their decision.

see: http://rogerbernhardt.com/November_2010.html

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This would have been a considerably easier case had the defendant—who was apparently the only broker in the picture—designated herself as a dual agent rather than solely agent for the sellers. That way, she would have had fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. Instead, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

I’m not the only one who believes that Summer was the “selling agent.”

See: http://www.sierrasun.com/article/20101014/NEWS/101019949

…Selling agent Summer told the court the loans were a matter of record and could be seen on the preliminary title report; however, by the time the Holmeses received the title report, they had already sold their home. I assume “sold” means they went into escrow, unless it was the fastest sale in history…

pablo, did it ever occur to you that Summer may not have been aware of the over-encumbrances herself until after escrow was opened in this case? Stranger things have happened.

And since you’re so good at “changing light bulbs,” why don’t you put a new one in your flashlight ;=!

[bearishgurl]

pablo, I’ve sat in and assisted on several trials in my day (yes, RE related). And I don’t “draft and make copies,” I “draft, finalize and they SIGN” (with little to no changes) for ALL levels of court in this state.

You have NO IDEA whether Summer was the “procuring agent” (read: buyer’s agent) in this purchase. The opinion is not crystal CLEAR on this. It states Summer showed the property to the Plaintiffs here. Why would she NOT write the offer? WHERE is the plaintiff’s agent in this case, pablo? Didn’t (s)he have any culpability here?

Summer likely did not have a Buyer-Broker Agency Agreement or any separate “Agency Agreement” with the Holmses because they called her to see her listing and she showed it to them and then wrote up the offer listing her brokerage as both the listing and selling broker in the transaction. Thus, the court (and plaintiff/appellant, in their brief) HAD to deal with “six-factor privity analysis” (and the corresponding case law) in order to reach their decision.

see: http://rogerbernhardt.com/November_2010.html

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This would have been a considerably easier case had the defendant—who was apparently the only broker in the picture—designated herself as a dual agent rather than solely agent for the sellers. That way, she would have had fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. Instead, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

I’m not the only one who believes that Summer was the “selling agent.”

See: http://www.sierrasun.com/article/20101014/NEWS/101019949

…Selling agent Summer told the court the loans were a matter of record and could be seen on the preliminary title report; however, by the time the Holmeses received the title report, they had already sold their home. I assume “sold” means they went into escrow, unless it was the fastest sale in history…

pablo, did it ever occur to you that Summer may not have been aware of the over-encumbrances herself until after escrow was opened in this case? Stranger things have happened.

And since you’re so good at “changing light bulbs,” why don’t you put a new one in your flashlight ;=!

[bearishgurl]

pablo, I’ve sat in and assisted on several trials in my day (yes, RE related). And I don’t “draft and make copies,” I “draft, finalize and they SIGN” (with little to no changes) for ALL levels of court in this state.

You have NO IDEA whether Summer was the “procuring agent” (read: buyer’s agent) in this purchase. The opinion is not crystal CLEAR on this. It states Summer showed the property to the Plaintiffs here. Why would she NOT write the offer? WHERE is the plaintiff’s agent in this case, pablo? Didn’t (s)he have any culpability here?

Summer likely did not have a Buyer-Broker Agency Agreement or any separate “Agency Agreement” with the Holmses because they called her to see her listing and she showed it to them and then wrote up the offer listing her brokerage as both the listing and selling broker in the transaction. Thus, the court (and plaintiff/appellant, in their brief) HAD to deal with “six-factor privity analysis” (and the corresponding case law) in order to reach their decision.

see: http://rogerbernhardt.com/November_2010.html

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This would have been a considerably easier case had the defendant—who was apparently the only broker in the picture—designated herself as a dual agent rather than solely agent for the sellers. That way, she would have had fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. Instead, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

I’m not the only one who believes that Summer was the “selling agent.”

See: http://www.sierrasun.com/article/20101014/NEWS/101019949

…Selling agent Summer told the court the loans were a matter of record and could be seen on the preliminary title report; however, by the time the Holmeses received the title report, they had already sold their home. I assume “sold” means they went into escrow, unless it was the fastest sale in history…

pablo, did it ever occur to you that Summer may not have been aware of the over-encumbrances herself until after escrow was opened in this case? Stranger things have happened.

And since you’re so good at “changing light bulbs,” why don’t you put a new one in your flashlight ;=!

[bearishgurl]

pablo, I’ve sat in and assisted on several trials in my day (yes, RE related). And I don’t “draft and make copies,” I “draft, finalize and they SIGN” (with little to no changes) for ALL levels of court in this state.

You have NO IDEA whether Summer was the “procuring agent” (read: buyer’s agent) in this purchase. The opinion is not crystal CLEAR on this. It states Summer showed the property to the Plaintiffs here. Why would she NOT write the offer? WHERE is the plaintiff’s agent in this case, pablo? Didn’t (s)he have any culpability here?

Summer likely did not have a Buyer-Broker Agency Agreement or any separate “Agency Agreement” with the Holmses because they called her to see her listing and she showed it to them and then wrote up the offer listing her brokerage as both the listing and selling broker in the transaction. Thus, the court (and plaintiff/appellant, in their brief) HAD to deal with “six-factor privity analysis” (and the corresponding case law) in order to reach their decision.

see: http://rogerbernhardt.com/November_2010.html

3. When It Is the Seller’s Broker Who Did Not Inform the Buyers

This would have been a considerably easier case had the defendant—who was apparently the only broker in the picture—designated herself as a dual agent rather than solely agent for the sellers. That way, she would have had fiduciary duties to the buyers and made it much easier to impose disclosure duties on her. Instead, her status made the court of appeal feel compelled to go through the classic six-factor privity analysis before imposing such duties on her.

I’m not the only one who believes that Summer was the “selling agent.”

See: http://www.sierrasun.com/article/20101014/NEWS/101019949

…Selling agent Summer told the court the loans were a matter of record and could be seen on the preliminary title report; however, by the time the Holmeses received the title report, they had already sold their home. I assume “sold” means they went into escrow, unless it was the fastest sale in history…

pablo, did it ever occur to you that Summer may not have been aware of the over-encumbrances herself until after escrow was opened in this case? Stranger things have happened.

And since you’re so good at “changing light bulbs,” why don’t you put a new one in your flashlight ;=!

[Author]

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