Prepare Your Buyer/Borrower for the Closing

 

With the volume of closings that we have, we handle a lot of different personalities, situations, and behaviors when we go through our closing process. Being aware of these in advance, and perhaps trying to get ahead of the issues, can sometimes make the difference between a happy closing and a dramatic one.

1. Closing Dates: Avoid closing dates that are the last business day of the month or the last business day before a long holiday weekend. Take the time to look at a calendar when the contract is being drafted. Lenders and closing agents will thank you.
2. Simultaneous Closing: Counsel your buyers that a simultaneous closing, while seemingly synchronistic, may end up with excessive stress and emotions when the first closing domino does not fall as expected. Create the expectation that the closing is not a light switch that just needs to be turned on and off.
3. The Immediate Move In: Similarly, buyers expecting to close while the moving van is in the closing agent’s parking lot, or worse, in the driveway of the residence being purchased, have a great likelihood of frustration, anger, and tears when they are told they are not allowed to access the property. It is worse when the closing is on a Friday and no access can be granted until the following Monday at the earliest. At the very least, buyers should be advised in advance about the risks of possible delays so that they can make alternate plans.
4. The Failure to Communicate: Communication is critical and delays or failure to provide accurate information and decisions can many times result in the inability of the closing parties to accommodate changes or newly discovered information. Need to have someone else join in your loan, have a pet who is not “yet” an approved service animal, or don’t have anywhere else to park the RV or commercial vehicle? Find that out upfront, not on the day before closing.
5. Responsiveness and Focus: Failure to focus early on in the closing process will result in panicked last-minute changes and requests for information by the closing agent and the lender. A buyer should review all summary documents and disclosures provided to them at the time they are provided.
6. Taking Title: Decisions as to how to take title affect multiple parts of the closing process, including preparation of closing documents, title searches, loan underwriting decisions, and the supplying of substantiating documents. Many buyers need to be counseled about the choices that they have, so that should be done as early in the closing process as possible.
7. Attitude: Beware of the know it all who doesn’t. Perhaps the only solution to this is to be consistent in providing all normal and applicable closing information regardless of how it is received or responded to.
8. Cooperation: Get a commitment early on in the closing process as to where the parties intend to be on the date of closing and do they have a working phone, internet, and available overnight courier service. We routinely get last-minute phone calls alerting us to an international vacation on the date of closing. While we can usually accommodate that, it is not a “closing as usual” situation and requires a lot of alternative advanced planning and process.

As much as we would like to think that our clients will of course be forthright, accommodating, and of good cheer, every closing should begin with our awareness of the quicksand and cow pies that we tread through to make each closing successful. Please make sure an experienced real estate attorney is involved in your closings as part of your closing team to work together with you.

Sincerely,

Chris Caswell, Esq.
Berlin Patten Ebling, PLLC

This communication is not intended to establish an attorney-client relationship, and to the extent, anything contained herein could be construed as legal advice or guidance, you are strongly encouraged to consult with your own attorney before relying upon any information contained herein.

All rights reserved. This copyrighted material may not be re-published without permission. Links are encouraged.

www.berlinpatten.com

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Many clients, their agents, and unfortunately some closing/title agents believe that the end of a real estate transaction occurs when it closes and funds.  Too many times we have seen post-closing glitches, oversight, or lack of follow-up lead to problems with the future sale of a property.  Over the last few weeks we have run…

Counting Time Periods When Using The FR/BAR Contract Form

Under the FR/BAR Contract calendar days are used when calculating time periods versus the CRSP-12 Contract form, in which business days are used. Consequently, it is much easier to count time periods using the FR/BAR since you don’t have to worry about excluding national legal holidays when counting your time periods.  You don’t count the…

Dealing With Entities As Buyers In Investment Properties

As most of you are aware, more and more investors are coming to this area to invest in distressed properties. The result is an increasing number of short sale contracts in which the buyers are entities (such as LLCs) rather than individuals. Typically, short sale lenders require the seller to provide a slew of documentation,…

Navigating a Short Sale – Tips & Reminders

With the extension of deficiency waiver tax relief, we have seen no slowdown with respect to short sales, and do not anticipate a slowdown in the foreseeable future.  With that in mind, we wanted to remind anyone who routinely handles short sales to consider the following: Do not forget about how critical it is to…

How to Effectively Use an Attorney From a Realtor’s Perspective

We have found with our experience that most real estate professionals are not aware of how they can most effectively utilize an attorney throughout a real estate transaction to not only protect themselves, but to better serve their clients. Many real estate professionals (and/or even their clients) are under the assumption that they will receive…

Another Reason to Complete Your Residential Real Estate Transaction in 2012

Beginning January 1, 2013, a new 3.8% tax on some investment income will take effect.  The tax was passed by Congress to help fund the health care and Medicare overhaul. Recently, we have been receiving multiple inquiries regarding the new 3.8% capital gain tax and what impact it will have on residential real estate transactions. …

Addressing Financing Contingencies

Under the Financing Contingency paragraph of the FloridaRealtors/FloridaBar-1 Contract and As-Is Contract (hereinafter collectively referred to as “Contract”), when can the Buyer or Seller terminate the Contract and is the deposit returned to Buyer? Prior to Loan Commitment Date, Buyer notifies Seller in writing that Buyer can’t obtain financing after using diligence and good faith,…

Berlin Patten Raises Funds for the American Cancer Society

Originally Published: 9/14/2012 Berlin Patten would like to thank our donors, sponsors, and guests for supporting our charity bartending event for the American Cancer Society on September 10, 2012.  Together, we almost doubled our fundraising contributions from last year!  We would like to give special thanks to Shane Rawley, owner of Shaner’s Pizzeria.  He and…

Issues with Designating Seller as “Owner of Record”

Originally Published: 9/3/2012 One trend we have noticed recently is an increasing number of new purchase contracts with “Owner of Record” designated as the seller.  For several reasons, we do not encourage sellers’ agents to complete contracts with this designation, or for buyers to sign contracts without the full legal name of the seller listed.…

CRSP-12 and CRSP-12 Addendums Debut

Originally Published: 8/10/2012 Effective August 20, 2012, the FAR-9 Contract will be replaced with the Contract for Residential Sale and Purchase (CRSP-12). In addition, the Comprehensive Addendum (FARA-10) will be replaced with the CRSP-12 addenda. Please see the attached link to the summary list of the changes between the FAR-9 Contract and the CRSP-12 Contract.…

IMPORTANCE OF OBTAINING NEW SURVEYS AND HAVING THEM REVIEWED IN ACCORDANCE WITH THE FLORIDA REALTORS/FLORIDA BAR CONTRACT

Originally Published: 6/8/2012 The following are excerpts of a more comprehensive article previously published by Julie A. Horstkamp, Esquire, Berlin Patten, PLLC, Member of Sarasota Association of Realtors/Sarasota County Bar Association Joint Committee, and Chair of the Florida Realtors/Florida Bar Joint Committee. We receive a number of questions regarding the survey provision under the Florida…

And the Survey Says?

Originally Published: 5/12/2012 Survey review is a prevalent part of our practice whether we do so for purposes of property due diligence, removing or confirming title issues, etc. More often than not Buyers are unclear as to the necessary requirement that a survey must include to be used for purposes of removing title exceptions and…

“Collected” Funds

Originally Published: 4/25/2012 You might have noticed that more and more closing agents are requiring wire transfers from buyers to fund closings. Berlin Patten was forced to recently adopt this practice. Please note that no closing agent who has adopted this practice is doing so because they want to. Due to changes in banking regulations,…

Deficiency – What is it and How Much Time Does My Bank Have to Sue?

Originally Published: 3/27/2012 When an underwater home is sold in a short sale or a foreclosure, the greatest concern is almost always over the remaining mortgage balance owed by the homeowner (known as a “deficiency balance”) and how long the lender has to try to collect it.  When a property is sold in short sale,…

23 Federal Laws that Apply to Real Estate Sales

Originally Published: 3/8/2012 RealtorMag recently published an article entitled “Federal Laws that Apply to Real Estate Sales.” The article provides a nice and concise summary of the multitude of Federal laws that govern the various aspects of real estate transactions.  Needless to say, there are many. For further information on how these laws impact your real…

Backup Offers

Originally Published: 2/22/2012 Most short sale addenda have provisions for backup offers if you check the appropriate box. It is our opinion that, generally speaking, you should not check the box permitting backup offers when dealing with a short sale. It creates too many unnecessary legal and practical issues. Most importantly, many lenders and their…

Foreclosure Update

As most are painfully aware, Florida foreclosures suffered tremendously last year after the discovery of apparent rampant fraud by both lenders and foreclosure attorneys in prosecuting foreclosure actions. Many existing foreclosure lawsuits came to a sudden halt, and new filings dropped significantly. As a result of this, along with the poor foreclosure practices of many…

Bank of America Short Sale Seminar Summary

The Berlin Patten short sale negotiating team recently attended a Bank of America Short Sale Seminar.  The following is a brief summary of what Bank of America advised its seminar’s attendees:  Short sales are about two primary things to Bank of America:  Hardship and net proceeds Investors are reluctant to postpone foreclosures as the buyer…

Response to Anonymous Blog Entry: Title Agents should still not be conducting short sale negotiations

On or about September 30, 2011, an anonymous reader provided a response to a blog Berlin Patten had sent to its readers regarding who can or should be engaged in the negotiation of short sales. While we debated whether or not to further comment on the subject (as the blog response did not really specifically…

Short Sale “Pre-Approvals”

We are frequently asked about listings being marketed as “pre-approved” in the MLS. We suspect this designation is intended to imply or suggest that there can be a quick closing.  We feel that the use of the term “pre-approved” can be misleading and lead to unrealistic or false expectations. Other than a pre-approval under HAFA,…

Short Sale Negotiations

We have been asked by several real estate agents to investigate whether or not a title company or title agent can conduct short sale negotiations. One of Berlin Patten’s contacts at the Florida Department of Financial Services, Bureau of Investigation, Title Services, responded to our inquiry as follows: “The license for a title insurance agent does not…

Fraud Investigation – A Top Priority for Freddie Mac

In previous blogs, we have discussed our concerns about short sale fraud and the warning signals to watch for.  According to Freddie Mac’s Mortgage Fraud Officer, Short sale fraud has also become the top priority for Freddie Mac’s fraud investigation unit as well. Per the attached article, recent trends that Freddie has been alerting Real…

Assignable Contracts & Specific Buyers

Please be advised that short sale lenders are getting very strict about approving the specific buyer identified on the contract. As such, lenders are carefully scrutinizing assignment provisions in contracts. Short sale lenders who are reviewing contracts (that permit the contract to be assigned) are kicking back the contracts more and more frequently.) Lenders are…

Berlin Patten’s Short Sale and Bankruptcy Services

Real Estate professionals are frequently confronted with listing a short sale property encumbered by two or more mortgages and a seller who is strongly considering bankruptcy as its “exit strategy.” We have struggled with that same scenario… working on a short sale for months, and then the seller decides to file for bankruptcy. At that…

HAFA Policy Changes for Servicers

Lenders’ inconsistent eligibility requirements seem to be the most consistent thing we have seen with respect to the Federal Government’s HAFA (Home Affordable Foreclosure Alternatives) Program.  The Federal Government seems to have taken notice. On August 9, 2011, the Home Affordable Foreclosure Alternatives Program adopted certain policy guideline changes.  The changes, we presume, are in…

The Importance of a Municipal Lien Search

Performing a municipal lien search is crucial when purchasing property in this day and age. In many cases there are unknown or undisclosed fees, costs or other issues that will impact a buyer post-closing. In addition a municipal lien search generally will assist a seller in complying with contractual terms to avoid a default. Examples…

Short Sales – Working with Second Lenders

Anyone who works with short sales knows that it can be very difficult to get short sales approved when there is a second (or even third lender). To successfully complete a short sale, ALL lenders (among others) must agree. The problem is that in many instances, they do not. In fact, we have seen situations…

A New Buyer Can Be Substituted for One Who Walked

We have learned of a very interesting development with respect to Bank of America. Bank of America has advised that it will permit a new buyer to step into the shoes of a buyer who has walked away from a transaction.  Furthermore, Bank of America has advised that the process will not have to begin…

Deficiencies and Deficiency Judgements

We spend a great deal of time counseling prospective short sale sellers regarding the advantages of attempting to pursue a short sale rather than allowing their property to go through the foreclosure process. Many people do not realize that the foreclosure process is a two step process. The first step is the sale of the…

Bank of America Realtor/Broker Listing Agent Certification – Questions and Answers

The new Bank of America Realtor/Broker Listing Agent Certification (the “Certification”) has fostered some significant concern among real estate agents. The most common questions and our comments/responses are as follows: 1. Question: Does paragraph 1 of the Certification mean that Bank of America will not pay a commission. Answer: No! Bank of America never paid…

Wells Fargo Short Sale Addendum

As expected, Wells Fargo has followed suit with Bank of America and has put out a new Short Sale Affidavit (attached hereto). Similar to the agreements recently published by Bank of America, Wells Fargo appears to be getting more aggressive in trying to curb flips and low offers and is now requiring realtors and closing…

Bank of America Document Warning

Please be advised that Bank of America is now requiring the parties to a short sale transaction to execute certain form documents before they will consider your short sale for approval. The buyer and seller will be required to execute a new addendum, and somewhat interestingly, the agents involved in the transaction will also need…

Nonlawyer Assisting the Short Sale Seller: Ministerial Acts or UPL?

As you know, short sale negotiations (and negotiators) are coming under great scrutiny by local and federal authorities. There are significant new disclosures for non-attorneys, and now the Florida Bar is weighing in on the subject. In essence, various proposals under consideration by the Florida Bar suggest that a great deal of the short sale…

FTC Issues New Rules for MARS

The Federal Trade Commission (FTC) has issued new rules that might impact real estate practitioners who represent clients involved in short sale transactions. The Mortgage Assistance Relief Services (“MARS”) regulations define anyone providing services which assist or attempt to assist the consumer in negotiating a short sale as a “MARS” provider. Depending on certain factors,…

18 Month Moretorium on Home Valuation Code of Conduct

Fannie Mae and Freddie Mac implemented a new appraisal rule starting May first, written by the office of New York Attorney General Andrew Cuomo last year; however, critics of the new rule applied pressure before the July 4 congressional recess with the introduction of bipartisan legislation that would mandate an 18-month moratorium on the “Home…

Fighting Foreclosure

There are differing opinions concerning homeowners who contest foreclosure proceedings in an effort to continue to stay in their homes without making mortgage payments. A recent article in the Sarasota Herald Tribune offers one perspective. The article titled “Fighting a foreclosure may beat the alternative” written by Tom Lyons reads “Staying, it appears, can be…

FHA Changes Condo Rules

There have been many changes recently regarding the financing of condominiums.  FHA recently announced its newest guidelines for financing condominiums. Realty Times provided the following summary of these rules. Kenneth R Harney wrote, “On one hand, the rules allow lenders a lot more flexibility in reviewing condo project eligibility and documentation.” He goes on to…

New Appraisal Guidelines

On May 1st, Fannie Mae and Freddie Mac imposed a new appraisal rule, referred to as the Home Valuation Code of Conduct. It is now coming under attack from the National Association of Realtors. The article read: “The intent of the rule is to improve the accuracy of appraisals by eliminating pressure on appraisers from…
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