I have a serious problem with Bullet Point #2 (Reads: "Listing Broker/Agent Agreement: It is the listing broker/agent’s fiduciary responsibility to present the highest and best offer to the servicer.") in the wells Fargo required HAFA Addendum (see attached) as it requires the Listing Broker (i.e. us) to have a fiduciary relationship with Wells Fargo when this can only be given to the seller, especially since there is an adversarial relationship present between the bank and the seller.  Also, from a practical standpoint, I cannot present the "highest and best offer" since only executed contracts are submitted to the bank and highest (i.e. lots of contingencies, weak buyer, etc.) is frequently not the best (i.e. cash, AS IS, etc.).  Also, this clause does not have an ending time.  Therefore, it could be construed to mean that I have to continue to submit higher offers even after a previous fully executed contract is approved and ready to close.

This Addendum cannot be acceptable to REALTORS.  It is yet another way that the banks are trying to more and more burdens on the back of short sale professionals by requiring them to do things that are in direct violation of their contractural duties to their actual clients (i.e. the sellers).

Any suggestions, comments or advice?

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I agree, Jim. 

If you understand anything about "fiduciary" responsibilities, trying to create one in a short-sale situation is pure folly.

 

The lender is not a party to the listing agreement, but they're trying to become one. 

It also appears (or could be construed) that every offer must be presented to the servicer, if you apply a strict reading to the "under penalty of perjury" section. 

I fear that most agents will just blindly sign whatever the bank puts in front of them, too bad. 

Jim, this addendum has been around a while.  It's a joke...like much of the verbiage I see in addendums, affidavits, etc.  Your duty is to the seller.  We all know that.  We also know contracts are open to interpretation.  I "interpret" it to mean whatever the SELLER feels is the BEST offer will be presented to the servicer.  If you don't like the terms, cross them out, initial them and then fill in what you want.  I've done it on HUNDREDS of addendums.  On this one I cross out servicer and put in "property owner".  One time it was kicked back by the negotiator and one time it went right through.  On the one that was kicked back I took ALL my documentation and saved it from the negotiator saying the sale would not be approved without an addendum that wasn't marked and put it aside and that way if I ever end up in court I can show I was FORCED to change the addendum to get the sale approved. 

You can always plead coercion. From what I understand many times these things are not legit because we are coerced into signing them to get the deal together for our clients....so doesn't that make it non-binable in a court of law when a contract is signed under coercion or duress? That would be my case.....

Coercion is the key..these addendums are stuck in these deals as a way for the Lenders to have a fall back person to blame for "fraud" or whatever.  But..they won't approve without or with changes most of the time, so it's back on them.  This keeps being discussed and NAR isn't handling it for us.

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