Comment

Comment by Stephanie Lim on March 18, 2010 at 12:42am

Karen--it is my understanding that a divorce decree can not release one spouse from liability for the loan. It should be refinanced at the time to prevent this being an issue. I have a friend whose husband is being sued for foreclosure in this type of situation. The ex-wife had him deed the property back to her at the time of divorce. He believed that this was releasing him from all liability. Now he is being sued for foreclosure and having to hire an attorney to fight the foreclosure when it was never his house, he just helped her finance it. He is on the loan although he is not on the title.

I won't touch a short sale where there is this type of situation if both the husband and wife are not 100% cooperative.

Comment by Karen Mathers on March 9, 2010 at 8:39am

Can a divorce decree release a husband or wife from their mortgage obligation? If a divorce gives the responsibility of the loan to only one spouse, can the other spouse do a quick claim and walk away with no damage to their credit? I am trying to do a short sale and I have one spouse that wants to work with me and the other will not respond.

Comment by Stephen B. McWilliam on February 6, 2010 at 11:02am

I might suggest that you request your MLS to provide you with the specific reference in their R&R which specifically restricts entering options into their MLS. I know some MLS do have such a restriction but many do not have any restrictions in these regards. Basically, make certain it is in writting contained within their R&R. Many a MLS staffer has provided inaccurate information to their members. Regarding your attorney; all I can tell you is that unless Neveda law has some unique statute which also provides a Neveda state regulatory agency for such a "security" he would be inaccurate. This simply does not full under the authority of the SEC for numerous reasons.

Comment by Ali S on February 6, 2010 at 10:52am

Stephen,

Thank you for your comment, I ran that by legal department of where I am from which is Las Vegas and they do not allow options to be listed because they consider it a security for a reasonable consideration as well. So I guess my attorney and the entire Legal team for our division is wrong in Las Vegas.

Comment by Stephen B. McWilliam on February 6, 2010 at 10:49am

Regarding the real estate option issue: your information is somewhat inaccurate. First, the Courts have held that in a lease option the lease itself is the consideration. Obviously, absent a lease there would need to be nominal and reasonable consideration for the option to be enforceable. Lastly, your attorney is 110% incorrect. An option is not a security regulated by the SEC and real estate licenses most certainly may engage in option contracts. Local MLS Rules will determine if such a listing may be entered into their system.

Comment by Ali S on February 6, 2010 at 10:42am

Gathy, thats is correct even if buyer pays more money to the second it has to be listed on the HUD-1 and the final HUD has to be approved by almost 99% of the lenders before they will accept funds. If now some how that money was not on the HUD-1 and was not disclosed I could see a problem with it pendig how they were paying the second. Any thing that happens in this escrow has to be disclosed on the hud-1 and communicated to all lenders and parties involved. Now I have seen banks do some thing different which is completely legal. Some 2nds now are asking buyers or sellers to pay the money as a Promissory note which is a separate agreement and has nothing to do with your first escrow. Promissory note can be either a Lump sum required with in like 24 to 48 hours of close of escrow or it could be in payments over months or years. The second has a right to negotiate that out side of escrow if they choose to go that road.

Comment by Ali S on February 6, 2010 at 10:36am

Hello All, to have a real option that is Legal there has to be some sort of money paid for it ( compensation to the owner) to be a valid option, by paying for an option, therefore that becomes a security and as licensed real estate agents we are NOT licensed to sale securities rather ONLY Real Estate. MLS will not allow the option to be mentioned because if its been paid for it is consider a security not real estate. This is what my attorney has told me.

Comment by Karen Mathers on December 27, 2009 at 9:21am

Be careful as properties with option contracts are not allowed to be listed in most MLS systems. We had several investor/flippers in our area till someone complained and all the listings with option contracts had to be removed from the MLS. Once that happened the investors walked away. Be careful as these investors know how to protect themselves and they have nothing to lose. It is the real estate agent that has the most to lose.

Comment by Bryant Tutas on December 19, 2009 at 8:32am

Anna, I think there are many ways to get around that (double HUDs) and that's where the problem comes in. The 1st lien holders usually take the stance that if the buyer is willing to pay more money then the 1st should be entitled to it.

They are basing the short sale approval on the premise that the contract price is the most the buyer is willing to pay and that this is the market value of the property. When an additional 3k is available they want it. Makes sense.

Comment by Kent Dills on December 19, 2009 at 1:44am

Exactly the point Anna! Can't wait to see a copy of the letter once Cathy gets her hands on it. ;-)

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