Because California has been exempted by the IRS from their debt-tax on short sales, we should still see more of them in the coming months and years. They tend to be shady – here’s how a case in Nevada turned out:
Harcourts was one of the Northern Nevada companies identified by a Reno Gazette-Journal investigation last year for engaging in quick-listed, dual agency short sales. The deals allow the same agents or firms to earn multiple commissions on the same property by representing both the buyer and the seller — at times “triple dipping” and earning a third or even fourth commission by being involved in the property’s resale as well.
The practice also allows a pre-arranged buyer or investor to purchase the property far below fair value by blocking other offers for the property, which go pending with an approved offer the moment they are listed on the market. This allows an investor to resell the property just a few weeks or months later at huge profit, with some examples posting more than $100,000 in appreciation during the resale.
“What we pursued was gross negligence based on fiduciary duty … to represent the interests of all parties involved,” said Jonathan “JD” Decker, Nevada Real Estate Division administrator. “In this case, all parties include the seller, buyer and the mortgage lender.”
According to the defense, the primary interest of the seller is to sell a property quickly to avoid a harder hit on their credit rating from foreclosure. Since the seller is losing the property, it does not matter if the house is sold at a lower price to a prearranged buyer. By failing to get the best offer, however, Decker’s team said that the deals did not fairly serve the interests of the mortgage lender.
During the hearing on Wednesday, the defense countered that courts have ruled that the lender and homeowner are adversarial so the broker cannot represent both their interests. Instead, banks need to do their own due diligence to ensure a distressed property is being sold for the best price possible.
“You could call what was going on potentially distasteful,” Decker said. “But (the commission decided) that it did not come down to being illegal or in violation of statute.”