Home Buying in San Diego>Question Details

ojaigrandma, Home Buyer in Ventura County, CA

seller cancels a short sale due to illness , can they at a later date file for another short sale on the same property.

Asked by ojaigrandma, Ventura County, CA Fri Nov 16, 2012

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Yes, the property owner can request a short sale at a later date, as long as he still owns the property at the later date. However, if he does not sell by the end of this year, the tax liability that he would incur by waiting until next year may make a short sale undesirable, so there may be a chance that he might decide not to sell after all.

Instead of waiting around for this homeowner to decide to sell, why not look at some properties that are available now?

If you are looking for a home in the San Diego area, call me and let me know what type home (house or condo), what size (number of bedrooms and baths), what areas, and what price range you are interested in. I can send you detailed listings of properties that meet your criteria.

Tera George
Broker

Coastal Realty
(760) 931-0345
0 votes Thank Flag Link Wed Nov 21, 2012
Hello ,

They can or cannot depending on many factors, just like the agents stated below. If they don't sell their property by the end of this year, due to the Mortgage Debt Relief Act of 2007 expiring the end of this year. The seller will pay taxes on the difference owed on the property. For example if the property is sold for $400,000 and the seller owes $500,000, they will have to pay taxes for the $100,000 difference. Read the link below.

http://www.irs.gov/Individuals/The-Mortgage-Forgiveness-Debt…

Michael Alex
Real Estate Consultant
“The Trustworthy Knowledgeable Choice in Real Estate”
cell. 619.581.9348 | fax. 619.269.7263
email. AskMichaelAlex@gmail.com
San Diego,CA
0 votes Thank Flag Link Fri Nov 16, 2012
@ Jerry - thanks for your response. I have no idea how a buyer is going to prove the seller did or did not act in good faith on a short sale. It would be too time consuming and not worth the effort. Let us not even get into how many buyers out there do not act in good faith in a short sale as they submit 5-10 offers simultaneously with no intention on closing on even half of them. I have not heard of them being prosecuted.

I have worked with plenty of short sellers who are ready to throw in the towel if the bank asks for one more document. It can be a hard long and frustrating process for a seller with no guarantees. On the last SSA sentence, when that clock runs out, there is no breach - if the seller tries to cancel prior to that timeframe, the buyer would point out that sentence and then the listing agent would simply just wait for the time to run out to cancel again. Not much you can really do about it from a practical standpoint.

In a short sale, the buyer is in the passenger seat on the bus. That is just the way it is.

There are all these sentences and ins and outs in the contracts, and then there is a practical application. For me, practicality and common sense are what serve my clients best.
0 votes Thank Flag Link Fri Nov 16, 2012
@beach Broker Bill look at the last sentence in paragraph 1A of the SSA. Now if the time frame has elapsed then the contract can be canceled. If not there may be cause for action. If the seller has not acted in good faith and provided the bank(s) with the proper information there also may be a cause for action. Remember paragraph 28 of the RPA, time is of the essence. Failure to act in a timely manner may be a breach of the contract..
We won't settle this issue here because we don;t have enough information.
0 votes Thank Flag Link Fri Nov 16, 2012
Help me here Laura -

The seller doesn't get bank approval to short sale....the buyer doesn't agree to cancel, where are you going from there as the buyer's agent?

I agree from a contractual standpoint, both parties have to agree to cancel an escrow, but from a practical standpoint, no bank approval, no deal, regardless of the buyer's wishes or their agent's prowess.

The short sale approval is a contractual condition, and it works in part for the seller - much like conditions the buyer places on their offer like home inspection and loan approval. It is a turned table that perhaps many agents don't think about. Very much like a seller cannot make a buyer purchase their home if the buyer can't get loan approval, if there is no short sale approval, the buyer cannot force a bank approval.

The Short Sale Addendum gives outs to both buyer and seller to cancel. So if I as a seller have a contractual right to cancel because of no short sale bank approval, then what are you as the buyer's agent going to do? The deal is dead.

In many cases of short sales, 1) listing agents aren't even opening escrow until the bank approval comes and 2) there is the Short Sale Addendum in play, which doesn't exist with a equity sale. I think you have to pick your battles to truly represent your buyers best interests and trying to get around paragraph 1D of the SSA may not be the best battle to wage.

If the short sale seller says they are sick and are not moving forward, specifically what are you going to fight to protect your buyer?

What am I missing?

In this case, I would ask for first right of refusal if the seller were to go back on the market and stay in touch with the listing agent to keep updated on what the seller is wanting to do down the road. In the meantime, I would direct my buyer's energy toward finding the house that is waiting for them elsewhere.

Part of what is missing from this question is whether the seller has bank approval. I expect that is not the case here. If they do have bank approval, then the cancellation certainly could be more problematic for the seller.
0 votes Thank Flag Link Fri Nov 16, 2012
Hello - You didn't really offer many specifics about the contract and terms of sale. If you used the California Purchase Contract that agents use - the seller can't unilaterally cancel. If the bank refused the short sale, that's a different matter. All short sales are subject to lender approval.

Do you have an agent? I hope so...what does he/she say?

C.
0 votes Thank Flag Link Fri Nov 16, 2012
If you have an executed contract they can not cancel unless you agree.
This is why when buyers are looking for an agent they need to pick one that knows contracts, negotiations, and buyers rights.
As your agent my number one job is to protect and fight for you.
If the sellers cancels and you agree they can try the short sale later no problem.
0 votes Thank Flag Link Fri Nov 16, 2012
@Jerry - if there is no bank approval, the deal is over regardless of what the buyer wants to do. If the seller decides not to pursue the bank approval - which seems to be the case here, there is not much the buyer can do contractually about it because the deal is conditioned on the short sale approval which will not happen without the seller providing the paperwork to process the approval.

Let's say this buyer doesn't agree to cancel, where does that go in a situation like this? Refer to paragraph 1.D. of the Short Sale Addendum....
0 votes Thank Flag Link Fri Nov 16, 2012
If they are under contract, they can cancel if the buyer agrees. They can put the home on the market at a later date and hope for a successful short sale. However, the lender(s) may be able to issue a 1099 for the shortage if the sale closes after 1-1-2013. Then the seller would have to report the shortage on their tax return as income.
0 votes Thank Flag Link Fri Nov 16, 2012
On the surface, the answer to your question is yes....but really there is a lot of detail missing from your question like if they are behind on payments, if there is an auction date, etc. If they still have title to the home at that later date, sure they can try to do another short sale.

They may also just be shutting down the process during the holidays....due to the overwhelming number of files banks are currently handling, some homeowners are electing to stay in their home for a an extended period of time while not paying the mortgage because they feel no pressure to move (ie. the bank sale is not scheduled). I know one person who is going on 35 months....
0 votes Thank Flag Link Fri Nov 16, 2012
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