Home › Forums › Closed Forums › Buying and Selling RE › Landmark State Decision in RE Agency and Disclosure Law
- This topic has 265 replies, 9 voices, and was last updated 13 years, 8 months ago by
bearishgurl.
-
AuthorPosts
-
January 29, 2011 at 8:58 PM #660821January 29, 2011 at 9:25 PM #659692
SD Realtor
ParticipantI am not taking anything personally. You can look at all my posts and anytime anyone says anything contrary to what is either the truth or what is the reality of what goes on in transactions I speak up.
I am not worried about anything.
Tell us all, since you have been licensed so long, when exactly was your last transaction? In fact when was your last short sale?
As for what NAR or CAR or even SDAR does, I honestly do not care one bit.
The entire premise of your rants have been that buyers spend lots of money before they find out about liens. This is a blatant falsehood. All I am asserting is that what you are saying is not true. The court case is fine and I hope that agent gets what is coming to them.
I am attacking you for making statements about buyers putting out alot of money before being able to find out liens in a short sale.
Just because an escrow is opened doesn’t mean a thing. The buyer does not have to spend a penny. Contingencies have not started in a short sale until written approval is obtained from the lender/lenders involved. Everything can be found out (and usually is found out) weeks and even months before the approval is completed.
Your assertions that buyers are putting out money because they cannot find out this information are false. You are telling a lie. Your other allegations about short sales falling through because of your litany of judgements and other reasons… well I will ask you AGAIN…you said you were going to talk to realtors and find out about how many transactions this occurred in? Well? I am still waiting.
I am not taking anything personally. I am one of a few people who can call you out on this. The bottom line is you know deep down that buyers can find out all of this information and instead of saying, “yes buyers can find out about this” you would rather do anything you can to not say that.
January 29, 2011 at 9:25 PM #659755ParticipantI am not taking anything personally. You can look at all my posts and anytime anyone says anything contrary to what is either the truth or what is the reality of what goes on in transactions I speak up.
I am not worried about anything.
Tell us all, since you have been licensed so long, when exactly was your last transaction? In fact when was your last short sale?
As for what NAR or CAR or even SDAR does, I honestly do not care one bit.
The entire premise of your rants have been that buyers spend lots of money before they find out about liens. This is a blatant falsehood. All I am asserting is that what you are saying is not true. The court case is fine and I hope that agent gets what is coming to them.
I am attacking you for making statements about buyers putting out alot of money before being able to find out liens in a short sale.
Just because an escrow is opened doesn’t mean a thing. The buyer does not have to spend a penny. Contingencies have not started in a short sale until written approval is obtained from the lender/lenders involved. Everything can be found out (and usually is found out) weeks and even months before the approval is completed.
Your assertions that buyers are putting out money because they cannot find out this information are false. You are telling a lie. Your other allegations about short sales falling through because of your litany of judgements and other reasons… well I will ask you AGAIN…you said you were going to talk to realtors and find out about how many transactions this occurred in? Well? I am still waiting.
I am not taking anything personally. I am one of a few people who can call you out on this. The bottom line is you know deep down that buyers can find out all of this information and instead of saying, “yes buyers can find out about this” you would rather do anything you can to not say that.
January 29, 2011 at 9:25 PM #660358ParticipantI am not taking anything personally. You can look at all my posts and anytime anyone says anything contrary to what is either the truth or what is the reality of what goes on in transactions I speak up.
I am not worried about anything.
Tell us all, since you have been licensed so long, when exactly was your last transaction? In fact when was your last short sale?
As for what NAR or CAR or even SDAR does, I honestly do not care one bit.
The entire premise of your rants have been that buyers spend lots of money before they find out about liens. This is a blatant falsehood. All I am asserting is that what you are saying is not true. The court case is fine and I hope that agent gets what is coming to them.
I am attacking you for making statements about buyers putting out alot of money before being able to find out liens in a short sale.
Just because an escrow is opened doesn’t mean a thing. The buyer does not have to spend a penny. Contingencies have not started in a short sale until written approval is obtained from the lender/lenders involved. Everything can be found out (and usually is found out) weeks and even months before the approval is completed.
Your assertions that buyers are putting out money because they cannot find out this information are false. You are telling a lie. Your other allegations about short sales falling through because of your litany of judgements and other reasons… well I will ask you AGAIN…you said you were going to talk to realtors and find out about how many transactions this occurred in? Well? I am still waiting.
I am not taking anything personally. I am one of a few people who can call you out on this. The bottom line is you know deep down that buyers can find out all of this information and instead of saying, “yes buyers can find out about this” you would rather do anything you can to not say that.
January 29, 2011 at 9:25 PM #660497ParticipantI am not taking anything personally. You can look at all my posts and anytime anyone says anything contrary to what is either the truth or what is the reality of what goes on in transactions I speak up.
I am not worried about anything.
Tell us all, since you have been licensed so long, when exactly was your last transaction? In fact when was your last short sale?
As for what NAR or CAR or even SDAR does, I honestly do not care one bit.
The entire premise of your rants have been that buyers spend lots of money before they find out about liens. This is a blatant falsehood. All I am asserting is that what you are saying is not true. The court case is fine and I hope that agent gets what is coming to them.
I am attacking you for making statements about buyers putting out alot of money before being able to find out liens in a short sale.
Just because an escrow is opened doesn’t mean a thing. The buyer does not have to spend a penny. Contingencies have not started in a short sale until written approval is obtained from the lender/lenders involved. Everything can be found out (and usually is found out) weeks and even months before the approval is completed.
Your assertions that buyers are putting out money because they cannot find out this information are false. You are telling a lie. Your other allegations about short sales falling through because of your litany of judgements and other reasons… well I will ask you AGAIN…you said you were going to talk to realtors and find out about how many transactions this occurred in? Well? I am still waiting.
I am not taking anything personally. I am one of a few people who can call you out on this. The bottom line is you know deep down that buyers can find out all of this information and instead of saying, “yes buyers can find out about this” you would rather do anything you can to not say that.
January 29, 2011 at 9:25 PM #660826ParticipantI am not taking anything personally. You can look at all my posts and anytime anyone says anything contrary to what is either the truth or what is the reality of what goes on in transactions I speak up.
I am not worried about anything.
Tell us all, since you have been licensed so long, when exactly was your last transaction? In fact when was your last short sale?
As for what NAR or CAR or even SDAR does, I honestly do not care one bit.
The entire premise of your rants have been that buyers spend lots of money before they find out about liens. This is a blatant falsehood. All I am asserting is that what you are saying is not true. The court case is fine and I hope that agent gets what is coming to them.
I am attacking you for making statements about buyers putting out alot of money before being able to find out liens in a short sale.
Just because an escrow is opened doesn’t mean a thing. The buyer does not have to spend a penny. Contingencies have not started in a short sale until written approval is obtained from the lender/lenders involved. Everything can be found out (and usually is found out) weeks and even months before the approval is completed.
Your assertions that buyers are putting out money because they cannot find out this information are false. You are telling a lie. Your other allegations about short sales falling through because of your litany of judgements and other reasons… well I will ask you AGAIN…you said you were going to talk to realtors and find out about how many transactions this occurred in? Well? I am still waiting.
I am not taking anything personally. I am one of a few people who can call you out on this. The bottom line is you know deep down that buyers can find out all of this information and instead of saying, “yes buyers can find out about this” you would rather do anything you can to not say that.
January 30, 2011 at 10:53 AM #659792bearishgurl
Participant[quote=faterikcartman][quote=SD Realtor]I am trying to not be civil but it is getting difficult.[/quote]
Freud is rolling on the floor with his mother’s slip laughing his arse off at that one. ;)[/quote]
fat erik, are you there???
[img_assist|nid=14551|title=faterik “copman”|desc=|link=node|align=left|width=100|height=76]
Hello-o-o-o-o . . .
It’s Sunday now . . . almost noon!!! Are you STILL trying to impersonate Dr. Freud?? Don’t you have a “day job”???
Time to lose the “slip fetish” and get your arse up off the floor and do what you “presumably” do best, that is, READ and TALK. Do I have this correct???
Pour yourself another cup of coffee and enjoy ;=]
January 30, 2011 at 10:53 AM #659855Participant[quote=faterikcartman][quote=SD Realtor]I am trying to not be civil but it is getting difficult.[/quote]
Freud is rolling on the floor with his mother’s slip laughing his arse off at that one. ;)[/quote]
fat erik, are you there???
[img_assist|nid=14551|title=faterik “copman”|desc=|link=node|align=left|width=100|height=76]
Hello-o-o-o-o . . .
It’s Sunday now . . . almost noon!!! Are you STILL trying to impersonate Dr. Freud?? Don’t you have a “day job”???
Time to lose the “slip fetish” and get your arse up off the floor and do what you “presumably” do best, that is, READ and TALK. Do I have this correct???
Pour yourself another cup of coffee and enjoy ;=]
January 30, 2011 at 10:53 AM #660459Participant[quote=faterikcartman][quote=SD Realtor]I am trying to not be civil but it is getting difficult.[/quote]
Freud is rolling on the floor with his mother’s slip laughing his arse off at that one. ;)[/quote]
fat erik, are you there???
[img_assist|nid=14551|title=faterik “copman”|desc=|link=node|align=left|width=100|height=76]
Hello-o-o-o-o . . .
It’s Sunday now . . . almost noon!!! Are you STILL trying to impersonate Dr. Freud?? Don’t you have a “day job”???
Time to lose the “slip fetish” and get your arse up off the floor and do what you “presumably” do best, that is, READ and TALK. Do I have this correct???
Pour yourself another cup of coffee and enjoy ;=]
January 30, 2011 at 10:53 AM #660597Participant[quote=faterikcartman][quote=SD Realtor]I am trying to not be civil but it is getting difficult.[/quote]
Freud is rolling on the floor with his mother’s slip laughing his arse off at that one. ;)[/quote]
fat erik, are you there???
[img_assist|nid=14551|title=faterik “copman”|desc=|link=node|align=left|width=100|height=76]
Hello-o-o-o-o . . .
It’s Sunday now . . . almost noon!!! Are you STILL trying to impersonate Dr. Freud?? Don’t you have a “day job”???
Time to lose the “slip fetish” and get your arse up off the floor and do what you “presumably” do best, that is, READ and TALK. Do I have this correct???
Pour yourself another cup of coffee and enjoy ;=]
January 30, 2011 at 10:53 AM #660926Participant[quote=faterikcartman][quote=SD Realtor]I am trying to not be civil but it is getting difficult.[/quote]
Freud is rolling on the floor with his mother’s slip laughing his arse off at that one. ;)[/quote]
fat erik, are you there???
[img_assist|nid=14551|title=faterik “copman”|desc=|link=node|align=left|width=100|height=76]
Hello-o-o-o-o . . .
It’s Sunday now . . . almost noon!!! Are you STILL trying to impersonate Dr. Freud?? Don’t you have a “day job”???
Time to lose the “slip fetish” and get your arse up off the floor and do what you “presumably” do best, that is, READ and TALK. Do I have this correct???
Pour yourself another cup of coffee and enjoy ;=]
January 30, 2011 at 11:05 AM #659787Participant[quote=pabloesqobar]Way to ignore most of my post. Even the appeals court would disagree with your characterization of a listing agent being allowed to withhold material facts. Existing law already takes care of that. The appeals court relied on existing case law when reaching their decision. [/quote]
No one’s “ignoring” your post, pablo. Prior to Holmes, “existing law” regarding RE “disclosure” only covered a property’s physical condition, status of existing permits, etc, environmental hazards, its known history and anything else which would prevent a buyer from his/her “quiet enjoyment” of said property, NOT the “condition of the title.” This is what the preliminary title report (“PR” or “PTR” is supposed to do). But to order one of these, there needs to be an escrow opened and a subsequent title order opened corresponding to that escrow. Otherwise a person would have to pay anywhere from $175 to $350 for one (such as a potential buyer of a trustee’s deed on the steps).
Why do you think this particular opinion was “Certified for Publication,” pablo? Could it be because it set a precedent in that it is now time for the condition of the TITLE to be disclosed early on (before escrow is opened), since so many titles now seem to be “clouded” or otherwise difficult or impossible to convey given their current “condition?”
[quote=pabloesqobar]I agree it’s a good ruling for buyers. But again, like everyone has repeatedly pointed out, this is not a scenario that is rampant in the industry, and therefore will have little effect – no matter how much you scream it from the rooftops or bore us with it. [/quote]
If you are “bored” with the subject matter here, pablo, you are free to move on to another thread. Seriously, it wouldn’t bother me a bit.
[quote=pabloesqobar]I don’t need to scour the internet to read random legal opinions. You do. Come talk to me after you pass law school, pass the bar exam, and actively represent buyers, sellers, agents and brokers in court in failure to disclose cases as I have. [/quote]
I guess I didn’t make myself very clear. “Opinion” is not the right word. “Commentary” is. There was plenty of “legal (and business) commentary” on this case online LONG before it was citable.
***********************************************
Good morning/afternoon/evening, pablo! For your Sunday reading enjoyment, I attach:
http://firsttuesdayjournal.com/november-article-of-the-month-holmes-v-summer-dilatory-disclosures-and-the-damage-done/
http://firsttuesdayjournal.com/dilatory-home-sales-disclosures-and-the-damage-done-holmes-v-summer-press-version/
http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/
http://www.zulpc.com/news/139-holmes-v-summer
http://www.airea.com/memberinfo/arbitrationcasestudy.pdf
http://www.trulia.com/voices/Home_Buying/Holmes_v_Summer_dilatory_disclosures_and_the_dam-257806
http://www.lexisnexis.com/COMMUNITY/REALESTATELAW/blogs/topcases/archive/2010/11/02/ca-court-imposes-duty-upon-seller-s-broker-to-disclose-to-buyer-that-property-is-so-over-encumbered-that-clear-title-cannot-be-conveyed-for-the-price-holmes-v-summer-10-6-2010.aspx
http://www.sellarlaw.com/2010/10/07/real-estate-brokers-and-agents-must-disclose-property-overencumbered-by-debt/
http://www.sierrasun.com/article/20101014/NEWS/101019949
http://www.cwclaw.com/publications/alertDetail.aspx?id=513
see below from http://rogerbernhardt.com/November_2010.html3. 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]Conning people out of $600 a pop to help them avoid foreclosure does not make you an expert. By the way, do you ever feel bad about that? You did it for several years and never once prevented a foreclosure, correct? [/quote]
I didn’t need to “con” anyone, pablo. I sought no “business” at all in this type of work. Like it or not, these delinquent borrowers all came crawling to me, utterly desperate, a couple of them years AFTER I told them NOT to go thru with their exotic, NINA and/or “stated income” refis with “shady” mortgage brokers, after they brought me their “Reg Z’s” (GFE’s) showing blatantly usurious rates and terms.
art of the reason why I required the borrower be present with me when we talked with their lender(s) on speakerphone is because I wanted them to SEE for themselves and KNOW what they were up against and how their lender’s collection/loss mit depts thought about their case. Since a few were “friends,” I didn’t want them later accusing me of “botching” their HAMP/Deed in Lieu and tell others that they “lost” their homes due to MY negligence or incompetence. I also wanted them to SEE how much work I was doing and how much paper it generated, etc. I wanted them HEAR me TALK to their lenders on their behalf. This enabled them, over a matter of 8-30 mos, to come down to a fairly “soft” landing off their “2005-2007 fantasy billowing cloud in the sky” and realize they had to give it up. ALL thanked me (even after moving out) and ALL are grateful they did not go to shark attorneys and get robbed for MUCH more $$. NONE wanted to sell short. All but one still had minor children living at home and wanted to live in their properties as long as humanly possible. Their years of ownership spanned 5-23 years. Only TWO were “bubble purchasers.”
FWIW, I never collected as much as “$600” from ANYONE who was behind in their payments and sought my help. In TWO of the cases I tried to help, I BARTERED with the borrowers for services. I performed at least 12 hrs work for another 2-3 borrowers who sought HAMP and took NOTHING from them and told them I could do NOTHING for them, as soon as practicable.
Assuming arguendo that I made about $3500 over 30 months assisting delinquent borrowers and given my knowledge and experience, how much do you think my time is worth, pablo? How much is YOUR time worth? Would you do this kind of work for a handful of delinquent borrowers for this sum? Is $3500 enough for you to “run and jump over??”
Compare my former $400-$500 charge and dozens of hours of work to the thousands of dollars those members of the bar charged for the same work while “not guaranteeing a particular result” (roughly over 10x times what I charged).
See: http://piggington.com/ot_funniest_foreclosure_story
and its underlying article: http://mcsweeneys.net/links/panoramaexcerpts/Ali.html as told by CA Attorney Wajahat Ali:
… “This frickin’ guy!” Carl exploded. “I gave him sixty-five hundred dollars! And you know what he did? You know what I got for sixty-five hundred dollars? He foreclosed my home! He did nothing. He wouldn’t even return my calls! Not one call!”
By this time, Carl began eyeballing me with suspicion.
“Hey… do you know what you’re doing?” he asked. “I mean, are you just going to take our money and do nothing?”
My paranoid and terrified mind went into fight-or-flight mode. I pictured Carl lunging for my jugular, his mind clouded by berserker rage as he imagined me as the attorney who had defrauded him. I scanned my friend’s office for a weapon I could use to defend myself, but noticed only a bowl of wasabi peas. I thought perhaps I could quickly fling a pea into his eye, temporarily blinding him, if he took the offensive.
Thankfully, his wife calmed him down, and the pea ended up in my mouth…
Sadly, though, the Lipkins’ tale of being thoroughly screwed by unethical attorneys preying on desperate clients is all too common. The State Bar of California has released several “ethics alerts” reminding attorneys of their professional responsibilities and of the appropriate way to deal with clients in default. The Recorder, a legal newspaper, had a cover feature on the most notorious offenders, who bilked clients out of millions and did nothing as their homes went into default, were foreclosed, and then sold on the steps of their local courthouse…
SB 94 will, though, impede certain types of fraud. The law would have prevented the Lipkins’ trouble with Rodis Law Group, the lawyers the family retained before they found Wajahat. Ron Rodis was disbarred October 15, and Rodis Law Group is under Federal Trade Commission investigation.
(emphasis added)
I’m only mentioning one name here that has tarnished your good and noble profession, pablo. You know there are many more.
In hindsight, I really probably made less than minimum wage trying to iron out these people’s intractable problems that were, 75% of the time, self-made. It really wasn’t worth it to me but I feel I helped them to get into the right mindset to move forward with their lives. And learned a few things along the way, as well. Mostly, that the persons hired or contracted by these banks as “collectors” or to administer newly-minted government “programs” geared for their delinquent borrowers, were, for the most part, supremely incompetent . . . literally . . . bumping into one another . . .
[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=00428643For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.htmlAny 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?
January 30, 2011 at 11:05 AM #659850Participant[quote=pabloesqobar]Way to ignore most of my post. Even the appeals court would disagree with your characterization of a listing agent being allowed to withhold material facts. Existing law already takes care of that. The appeals court relied on existing case law when reaching their decision. [/quote]
No one’s “ignoring” your post, pablo. Prior to Holmes, “existing law” regarding RE “disclosure” only covered a property’s physical condition, status of existing permits, etc, environmental hazards, its known history and anything else which would prevent a buyer from his/her “quiet enjoyment” of said property, NOT the “condition of the title.” This is what the preliminary title report (“PR” or “PTR” is supposed to do). But to order one of these, there needs to be an escrow opened and a subsequent title order opened corresponding to that escrow. Otherwise a person would have to pay anywhere from $175 to $350 for one (such as a potential buyer of a trustee’s deed on the steps).
Why do you think this particular opinion was “Certified for Publication,” pablo? Could it be because it set a precedent in that it is now time for the condition of the TITLE to be disclosed early on (before escrow is opened), since so many titles now seem to be “clouded” or otherwise difficult or impossible to convey given their current “condition?”
[quote=pabloesqobar]I agree it’s a good ruling for buyers. But again, like everyone has repeatedly pointed out, this is not a scenario that is rampant in the industry, and therefore will have little effect – no matter how much you scream it from the rooftops or bore us with it. [/quote]
If you are “bored” with the subject matter here, pablo, you are free to move on to another thread. Seriously, it wouldn’t bother me a bit.
[quote=pabloesqobar]I don’t need to scour the internet to read random legal opinions. You do. Come talk to me after you pass law school, pass the bar exam, and actively represent buyers, sellers, agents and brokers in court in failure to disclose cases as I have. [/quote]
I guess I didn’t make myself very clear. “Opinion” is not the right word. “Commentary” is. There was plenty of “legal (and business) commentary” on this case online LONG before it was citable.
***********************************************
Good morning/afternoon/evening, pablo! For your Sunday reading enjoyment, I attach:
http://firsttuesdayjournal.com/november-article-of-the-month-holmes-v-summer-dilatory-disclosures-and-the-damage-done/
http://firsttuesdayjournal.com/dilatory-home-sales-disclosures-and-the-damage-done-holmes-v-summer-press-version/
http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/
http://www.zulpc.com/news/139-holmes-v-summer
http://www.airea.com/memberinfo/arbitrationcasestudy.pdf
http://www.trulia.com/voices/Home_Buying/Holmes_v_Summer_dilatory_disclosures_and_the_dam-257806
http://www.lexisnexis.com/COMMUNITY/REALESTATELAW/blogs/topcases/archive/2010/11/02/ca-court-imposes-duty-upon-seller-s-broker-to-disclose-to-buyer-that-property-is-so-over-encumbered-that-clear-title-cannot-be-conveyed-for-the-price-holmes-v-summer-10-6-2010.aspx
http://www.sellarlaw.com/2010/10/07/real-estate-brokers-and-agents-must-disclose-property-overencumbered-by-debt/
http://www.sierrasun.com/article/20101014/NEWS/101019949
http://www.cwclaw.com/publications/alertDetail.aspx?id=513
see below from http://rogerbernhardt.com/November_2010.html3. 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]Conning people out of $600 a pop to help them avoid foreclosure does not make you an expert. By the way, do you ever feel bad about that? You did it for several years and never once prevented a foreclosure, correct? [/quote]
I didn’t need to “con” anyone, pablo. I sought no “business” at all in this type of work. Like it or not, these delinquent borrowers all came crawling to me, utterly desperate, a couple of them years AFTER I told them NOT to go thru with their exotic, NINA and/or “stated income” refis with “shady” mortgage brokers, after they brought me their “Reg Z’s” (GFE’s) showing blatantly usurious rates and terms.
art of the reason why I required the borrower be present with me when we talked with their lender(s) on speakerphone is because I wanted them to SEE for themselves and KNOW what they were up against and how their lender’s collection/loss mit depts thought about their case. Since a few were “friends,” I didn’t want them later accusing me of “botching” their HAMP/Deed in Lieu and tell others that they “lost” their homes due to MY negligence or incompetence. I also wanted them to SEE how much work I was doing and how much paper it generated, etc. I wanted them HEAR me TALK to their lenders on their behalf. This enabled them, over a matter of 8-30 mos, to come down to a fairly “soft” landing off their “2005-2007 fantasy billowing cloud in the sky” and realize they had to give it up. ALL thanked me (even after moving out) and ALL are grateful they did not go to shark attorneys and get robbed for MUCH more $$. NONE wanted to sell short. All but one still had minor children living at home and wanted to live in their properties as long as humanly possible. Their years of ownership spanned 5-23 years. Only TWO were “bubble purchasers.”
FWIW, I never collected as much as “$600” from ANYONE who was behind in their payments and sought my help. In TWO of the cases I tried to help, I BARTERED with the borrowers for services. I performed at least 12 hrs work for another 2-3 borrowers who sought HAMP and took NOTHING from them and told them I could do NOTHING for them, as soon as practicable.
Assuming arguendo that I made about $3500 over 30 months assisting delinquent borrowers and given my knowledge and experience, how much do you think my time is worth, pablo? How much is YOUR time worth? Would you do this kind of work for a handful of delinquent borrowers for this sum? Is $3500 enough for you to “run and jump over??”
Compare my former $400-$500 charge and dozens of hours of work to the thousands of dollars those members of the bar charged for the same work while “not guaranteeing a particular result” (roughly over 10x times what I charged).
See: http://piggington.com/ot_funniest_foreclosure_story
and its underlying article: http://mcsweeneys.net/links/panoramaexcerpts/Ali.html as told by CA Attorney Wajahat Ali:
… “This frickin’ guy!” Carl exploded. “I gave him sixty-five hundred dollars! And you know what he did? You know what I got for sixty-five hundred dollars? He foreclosed my home! He did nothing. He wouldn’t even return my calls! Not one call!”
By this time, Carl began eyeballing me with suspicion.
“Hey… do you know what you’re doing?” he asked. “I mean, are you just going to take our money and do nothing?”
My paranoid and terrified mind went into fight-or-flight mode. I pictured Carl lunging for my jugular, his mind clouded by berserker rage as he imagined me as the attorney who had defrauded him. I scanned my friend’s office for a weapon I could use to defend myself, but noticed only a bowl of wasabi peas. I thought perhaps I could quickly fling a pea into his eye, temporarily blinding him, if he took the offensive.
Thankfully, his wife calmed him down, and the pea ended up in my mouth…
Sadly, though, the Lipkins’ tale of being thoroughly screwed by unethical attorneys preying on desperate clients is all too common. The State Bar of California has released several “ethics alerts” reminding attorneys of their professional responsibilities and of the appropriate way to deal with clients in default. The Recorder, a legal newspaper, had a cover feature on the most notorious offenders, who bilked clients out of millions and did nothing as their homes went into default, were foreclosed, and then sold on the steps of their local courthouse…
SB 94 will, though, impede certain types of fraud. The law would have prevented the Lipkins’ trouble with Rodis Law Group, the lawyers the family retained before they found Wajahat. Ron Rodis was disbarred October 15, and Rodis Law Group is under Federal Trade Commission investigation.
(emphasis added)
I’m only mentioning one name here that has tarnished your good and noble profession, pablo. You know there are many more.
In hindsight, I really probably made less than minimum wage trying to iron out these people’s intractable problems that were, 75% of the time, self-made. It really wasn’t worth it to me but I feel I helped them to get into the right mindset to move forward with their lives. And learned a few things along the way, as well. Mostly, that the persons hired or contracted by these banks as “collectors” or to administer newly-minted government “programs” geared for their delinquent borrowers, were, for the most part, supremely incompetent . . . literally . . . bumping into one another . . .
[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=00428643For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.htmlAny 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?
January 30, 2011 at 11:05 AM #660454Participant[quote=pabloesqobar]Way to ignore most of my post. Even the appeals court would disagree with your characterization of a listing agent being allowed to withhold material facts. Existing law already takes care of that. The appeals court relied on existing case law when reaching their decision. [/quote]
No one’s “ignoring” your post, pablo. Prior to Holmes, “existing law” regarding RE “disclosure” only covered a property’s physical condition, status of existing permits, etc, environmental hazards, its known history and anything else which would prevent a buyer from his/her “quiet enjoyment” of said property, NOT the “condition of the title.” This is what the preliminary title report (“PR” or “PTR” is supposed to do). But to order one of these, there needs to be an escrow opened and a subsequent title order opened corresponding to that escrow. Otherwise a person would have to pay anywhere from $175 to $350 for one (such as a potential buyer of a trustee’s deed on the steps).
Why do you think this particular opinion was “Certified for Publication,” pablo? Could it be because it set a precedent in that it is now time for the condition of the TITLE to be disclosed early on (before escrow is opened), since so many titles now seem to be “clouded” or otherwise difficult or impossible to convey given their current “condition?”
[quote=pabloesqobar]I agree it’s a good ruling for buyers. But again, like everyone has repeatedly pointed out, this is not a scenario that is rampant in the industry, and therefore will have little effect – no matter how much you scream it from the rooftops or bore us with it. [/quote]
If you are “bored” with the subject matter here, pablo, you are free to move on to another thread. Seriously, it wouldn’t bother me a bit.
[quote=pabloesqobar]I don’t need to scour the internet to read random legal opinions. You do. Come talk to me after you pass law school, pass the bar exam, and actively represent buyers, sellers, agents and brokers in court in failure to disclose cases as I have. [/quote]
I guess I didn’t make myself very clear. “Opinion” is not the right word. “Commentary” is. There was plenty of “legal (and business) commentary” on this case online LONG before it was citable.
***********************************************
Good morning/afternoon/evening, pablo! For your Sunday reading enjoyment, I attach:
http://firsttuesdayjournal.com/november-article-of-the-month-holmes-v-summer-dilatory-disclosures-and-the-damage-done/
http://firsttuesdayjournal.com/dilatory-home-sales-disclosures-and-the-damage-done-holmes-v-summer-press-version/
http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/
http://www.zulpc.com/news/139-holmes-v-summer
http://www.airea.com/memberinfo/arbitrationcasestudy.pdf
http://www.trulia.com/voices/Home_Buying/Holmes_v_Summer_dilatory_disclosures_and_the_dam-257806
http://www.lexisnexis.com/COMMUNITY/REALESTATELAW/blogs/topcases/archive/2010/11/02/ca-court-imposes-duty-upon-seller-s-broker-to-disclose-to-buyer-that-property-is-so-over-encumbered-that-clear-title-cannot-be-conveyed-for-the-price-holmes-v-summer-10-6-2010.aspx
http://www.sellarlaw.com/2010/10/07/real-estate-brokers-and-agents-must-disclose-property-overencumbered-by-debt/
http://www.sierrasun.com/article/20101014/NEWS/101019949
http://www.cwclaw.com/publications/alertDetail.aspx?id=513
see below from http://rogerbernhardt.com/November_2010.html3. 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]Conning people out of $600 a pop to help them avoid foreclosure does not make you an expert. By the way, do you ever feel bad about that? You did it for several years and never once prevented a foreclosure, correct? [/quote]
I didn’t need to “con” anyone, pablo. I sought no “business” at all in this type of work. Like it or not, these delinquent borrowers all came crawling to me, utterly desperate, a couple of them years AFTER I told them NOT to go thru with their exotic, NINA and/or “stated income” refis with “shady” mortgage brokers, after they brought me their “Reg Z’s” (GFE’s) showing blatantly usurious rates and terms.
art of the reason why I required the borrower be present with me when we talked with their lender(s) on speakerphone is because I wanted them to SEE for themselves and KNOW what they were up against and how their lender’s collection/loss mit depts thought about their case. Since a few were “friends,” I didn’t want them later accusing me of “botching” their HAMP/Deed in Lieu and tell others that they “lost” their homes due to MY negligence or incompetence. I also wanted them to SEE how much work I was doing and how much paper it generated, etc. I wanted them HEAR me TALK to their lenders on their behalf. This enabled them, over a matter of 8-30 mos, to come down to a fairly “soft” landing off their “2005-2007 fantasy billowing cloud in the sky” and realize they had to give it up. ALL thanked me (even after moving out) and ALL are grateful they did not go to shark attorneys and get robbed for MUCH more $$. NONE wanted to sell short. All but one still had minor children living at home and wanted to live in their properties as long as humanly possible. Their years of ownership spanned 5-23 years. Only TWO were “bubble purchasers.”
FWIW, I never collected as much as “$600” from ANYONE who was behind in their payments and sought my help. In TWO of the cases I tried to help, I BARTERED with the borrowers for services. I performed at least 12 hrs work for another 2-3 borrowers who sought HAMP and took NOTHING from them and told them I could do NOTHING for them, as soon as practicable.
Assuming arguendo that I made about $3500 over 30 months assisting delinquent borrowers and given my knowledge and experience, how much do you think my time is worth, pablo? How much is YOUR time worth? Would you do this kind of work for a handful of delinquent borrowers for this sum? Is $3500 enough for you to “run and jump over??”
Compare my former $400-$500 charge and dozens of hours of work to the thousands of dollars those members of the bar charged for the same work while “not guaranteeing a particular result” (roughly over 10x times what I charged).
See: http://piggington.com/ot_funniest_foreclosure_story
and its underlying article: http://mcsweeneys.net/links/panoramaexcerpts/Ali.html as told by CA Attorney Wajahat Ali:
… “This frickin’ guy!” Carl exploded. “I gave him sixty-five hundred dollars! And you know what he did? You know what I got for sixty-five hundred dollars? He foreclosed my home! He did nothing. He wouldn’t even return my calls! Not one call!”
By this time, Carl began eyeballing me with suspicion.
“Hey… do you know what you’re doing?” he asked. “I mean, are you just going to take our money and do nothing?”
My paranoid and terrified mind went into fight-or-flight mode. I pictured Carl lunging for my jugular, his mind clouded by berserker rage as he imagined me as the attorney who had defrauded him. I scanned my friend’s office for a weapon I could use to defend myself, but noticed only a bowl of wasabi peas. I thought perhaps I could quickly fling a pea into his eye, temporarily blinding him, if he took the offensive.
Thankfully, his wife calmed him down, and the pea ended up in my mouth…
Sadly, though, the Lipkins’ tale of being thoroughly screwed by unethical attorneys preying on desperate clients is all too common. The State Bar of California has released several “ethics alerts” reminding attorneys of their professional responsibilities and of the appropriate way to deal with clients in default. The Recorder, a legal newspaper, had a cover feature on the most notorious offenders, who bilked clients out of millions and did nothing as their homes went into default, were foreclosed, and then sold on the steps of their local courthouse…
SB 94 will, though, impede certain types of fraud. The law would have prevented the Lipkins’ trouble with Rodis Law Group, the lawyers the family retained before they found Wajahat. Ron Rodis was disbarred October 15, and Rodis Law Group is under Federal Trade Commission investigation.
(emphasis added)
I’m only mentioning one name here that has tarnished your good and noble profession, pablo. You know there are many more.
In hindsight, I really probably made less than minimum wage trying to iron out these people’s intractable problems that were, 75% of the time, self-made. It really wasn’t worth it to me but I feel I helped them to get into the right mindset to move forward with their lives. And learned a few things along the way, as well. Mostly, that the persons hired or contracted by these banks as “collectors” or to administer newly-minted government “programs” geared for their delinquent borrowers, were, for the most part, supremely incompetent . . . literally . . . bumping into one another . . .
[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=00428643For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.htmlAny 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?
January 30, 2011 at 11:05 AM #660592Participant[quote=pabloesqobar]Way to ignore most of my post. Even the appeals court would disagree with your characterization of a listing agent being allowed to withhold material facts. Existing law already takes care of that. The appeals court relied on existing case law when reaching their decision. [/quote]
No one’s “ignoring” your post, pablo. Prior to Holmes, “existing law” regarding RE “disclosure” only covered a property’s physical condition, status of existing permits, etc, environmental hazards, its known history and anything else which would prevent a buyer from his/her “quiet enjoyment” of said property, NOT the “condition of the title.” This is what the preliminary title report (“PR” or “PTR” is supposed to do). But to order one of these, there needs to be an escrow opened and a subsequent title order opened corresponding to that escrow. Otherwise a person would have to pay anywhere from $175 to $350 for one (such as a potential buyer of a trustee’s deed on the steps).
Why do you think this particular opinion was “Certified for Publication,” pablo? Could it be because it set a precedent in that it is now time for the condition of the TITLE to be disclosed early on (before escrow is opened), since so many titles now seem to be “clouded” or otherwise difficult or impossible to convey given their current “condition?”
[quote=pabloesqobar]I agree it’s a good ruling for buyers. But again, like everyone has repeatedly pointed out, this is not a scenario that is rampant in the industry, and therefore will have little effect – no matter how much you scream it from the rooftops or bore us with it. [/quote]
If you are “bored” with the subject matter here, pablo, you are free to move on to another thread. Seriously, it wouldn’t bother me a bit.
[quote=pabloesqobar]I don’t need to scour the internet to read random legal opinions. You do. Come talk to me after you pass law school, pass the bar exam, and actively represent buyers, sellers, agents and brokers in court in failure to disclose cases as I have. [/quote]
I guess I didn’t make myself very clear. “Opinion” is not the right word. “Commentary” is. There was plenty of “legal (and business) commentary” on this case online LONG before it was citable.
***********************************************
Good morning/afternoon/evening, pablo! For your Sunday reading enjoyment, I attach:
http://firsttuesdayjournal.com/november-article-of-the-month-holmes-v-summer-dilatory-disclosures-and-the-damage-done/
http://firsttuesdayjournal.com/dilatory-home-sales-disclosures-and-the-damage-done-holmes-v-summer-press-version/
http://www.krbecheklaw.com/2010/10/17/holmes-v-summer-fiduciary-duties-of-real-estate-broker/
http://www.zulpc.com/news/139-holmes-v-summer
http://www.airea.com/memberinfo/arbitrationcasestudy.pdf
http://www.trulia.com/voices/Home_Buying/Holmes_v_Summer_dilatory_disclosures_and_the_dam-257806
http://www.lexisnexis.com/COMMUNITY/REALESTATELAW/blogs/topcases/archive/2010/11/02/ca-court-imposes-duty-upon-seller-s-broker-to-disclose-to-buyer-that-property-is-so-over-encumbered-that-clear-title-cannot-be-conveyed-for-the-price-holmes-v-summer-10-6-2010.aspx
http://www.sellarlaw.com/2010/10/07/real-estate-brokers-and-agents-must-disclose-property-overencumbered-by-debt/
http://www.sierrasun.com/article/20101014/NEWS/101019949
http://www.cwclaw.com/publications/alertDetail.aspx?id=513
see below from http://rogerbernhardt.com/November_2010.html3. 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]Conning people out of $600 a pop to help them avoid foreclosure does not make you an expert. By the way, do you ever feel bad about that? You did it for several years and never once prevented a foreclosure, correct? [/quote]
I didn’t need to “con” anyone, pablo. I sought no “business” at all in this type of work. Like it or not, these delinquent borrowers all came crawling to me, utterly desperate, a couple of them years AFTER I told them NOT to go thru with their exotic, NINA and/or “stated income” refis with “shady” mortgage brokers, after they brought me their “Reg Z’s” (GFE’s) showing blatantly usurious rates and terms.
art of the reason why I required the borrower be present with me when we talked with their lender(s) on speakerphone is because I wanted them to SEE for themselves and KNOW what they were up against and how their lender’s collection/loss mit depts thought about their case. Since a few were “friends,” I didn’t want them later accusing me of “botching” their HAMP/Deed in Lieu and tell others that they “lost” their homes due to MY negligence or incompetence. I also wanted them to SEE how much work I was doing and how much paper it generated, etc. I wanted them HEAR me TALK to their lenders on their behalf. This enabled them, over a matter of 8-30 mos, to come down to a fairly “soft” landing off their “2005-2007 fantasy billowing cloud in the sky” and realize they had to give it up. ALL thanked me (even after moving out) and ALL are grateful they did not go to shark attorneys and get robbed for MUCH more $$. NONE wanted to sell short. All but one still had minor children living at home and wanted to live in their properties as long as humanly possible. Their years of ownership spanned 5-23 years. Only TWO were “bubble purchasers.”
FWIW, I never collected as much as “$600” from ANYONE who was behind in their payments and sought my help. In TWO of the cases I tried to help, I BARTERED with the borrowers for services. I performed at least 12 hrs work for another 2-3 borrowers who sought HAMP and took NOTHING from them and told them I could do NOTHING for them, as soon as practicable.
Assuming arguendo that I made about $3500 over 30 months assisting delinquent borrowers and given my knowledge and experience, how much do you think my time is worth, pablo? How much is YOUR time worth? Would you do this kind of work for a handful of delinquent borrowers for this sum? Is $3500 enough for you to “run and jump over??”
Compare my former $400-$500 charge and dozens of hours of work to the thousands of dollars those members of the bar charged for the same work while “not guaranteeing a particular result” (roughly over 10x times what I charged).
See: http://piggington.com/ot_funniest_foreclosure_story
and its underlying article: http://mcsweeneys.net/links/panoramaexcerpts/Ali.html as told by CA Attorney Wajahat Ali:
… “This frickin’ guy!” Carl exploded. “I gave him sixty-five hundred dollars! And you know what he did? You know what I got for sixty-five hundred dollars? He foreclosed my home! He did nothing. He wouldn’t even return my calls! Not one call!”
By this time, Carl began eyeballing me with suspicion.
“Hey… do you know what you’re doing?” he asked. “I mean, are you just going to take our money and do nothing?”
My paranoid and terrified mind went into fight-or-flight mode. I pictured Carl lunging for my jugular, his mind clouded by berserker rage as he imagined me as the attorney who had defrauded him. I scanned my friend’s office for a weapon I could use to defend myself, but noticed only a bowl of wasabi peas. I thought perhaps I could quickly fling a pea into his eye, temporarily blinding him, if he took the offensive.
Thankfully, his wife calmed him down, and the pea ended up in my mouth…
Sadly, though, the Lipkins’ tale of being thoroughly screwed by unethical attorneys preying on desperate clients is all too common. The State Bar of California has released several “ethics alerts” reminding attorneys of their professional responsibilities and of the appropriate way to deal with clients in default. The Recorder, a legal newspaper, had a cover feature on the most notorious offenders, who bilked clients out of millions and did nothing as their homes went into default, were foreclosed, and then sold on the steps of their local courthouse…
SB 94 will, though, impede certain types of fraud. The law would have prevented the Lipkins’ trouble with Rodis Law Group, the lawyers the family retained before they found Wajahat. Ron Rodis was disbarred October 15, and Rodis Law Group is under Federal Trade Commission investigation.
(emphasis added)
I’m only mentioning one name here that has tarnished your good and noble profession, pablo. You know there are many more.
In hindsight, I really probably made less than minimum wage trying to iron out these people’s intractable problems that were, 75% of the time, self-made. It really wasn’t worth it to me but I feel I helped them to get into the right mindset to move forward with their lives. And learned a few things along the way, as well. Mostly, that the persons hired or contracted by these banks as “collectors” or to administer newly-minted government “programs” geared for their delinquent borrowers, were, for the most part, supremely incompetent . . . literally . . . bumping into one another . . .
[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=00428643For ReMax Office located at 301 Main St. Huntington Beach, CA 92649
see: http://www.stockteam.com/remax-real-estate-huntington.htmlAny 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?
-
AuthorPosts
- The forum ‘Buying and Selling RE’ is closed to new topics and replies.