Home Selling in Phoenix>Question Details

Screwedinphx, Home Buyer in Phoenix, AZ

Do I have any recourse to get my money back?

Asked by Screwedinphx, Phoenix, AZ Mon Oct 4, 2010

I was under contract to purchase a home in Phoenix with a FHA loan. The home was purchased by the seller at trustee auction 5 days prior to my offer on it. I had an approved LSR from the bank and the seller insisted on the purchase not be contingent on appraisal or financing. I was in a bind and we renegotiated with the seller and the sale was contingent on appraisal. The appraisal came in lower then the agreed sale price and we reached a new agreement. My bank then came back to me a few weeks in to the process and advised me they will not fund a loan on a flip for anyone and this is non-negotiable. I tried to secure financing with another lender but ultimately was unable to. Who should have caught this 90 day flip issue? The bank and the realtor are pointing fingers at each other and I am out $2000. I feel like the realtor should have disclosed the 90 day flip issue for FHA and told me to talk to my bank about it, but she claims she has never heard of this FHA guidline.

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17
Hi
Instead of filing complaints and going to attorney,s negative action, see if the seller can wait for the 90 days. If not the lender should have known and told you about that requirement. The real estate agent did not give you the loan..
1 vote Thank Flag Link Tue Oct 5, 2010
This whole anti-flipping rule is a mess.
HUD announced in Feb 2010 the FHA 90-day anti-flipping rule would be suspended for one year. See
http://portal.hud.gov/portal/page/portal/HUD/press/press_rel… As far as I can determine, that is still the HUD/FHA guideline.

Banks are still selling Bank owned property requiring the old language and putting a deed restriction of 90-days. Lenders may or may not have their own anti-flipping lending "rule" in addition to HUD/FHA rules. Remember that lenders can add more conditions to FHA and any other loans they write. With other government backed loanswe see added conditions by the lenders all the time.

I see two issues. 1) The lender should have explained their 90-day rule up front. The agent is not the lender and does not have the role or responsibility. On the other hand an LSR is not a firm contract to lend, only a poor promise to consider a loan. Loans don't always close.
2) As the buyer, you waived the loan contingency and appraisal by contract.-We cannot speak to what was said between you and your agent when the contingency waiver questions arose. I would hope you were cautioned about the risk, but in the end it was your decision (the buyer's) which you ratified by signing the contingency waiver or striking that clause. As agents we recommend, you make the final decision. By that waiver, contractually you agreed to come to closing with cash (not a loan) and agreed to pay the agreed price no matter what the appraisal. Risky , but your choice. Failure to close has the penalty of forfeiting your earnest money.

Have you contacted the agent's Designated Real Estate Broker (your agent's boss) and the Mortgage Broker (your loan officer's boss) to sit down face to face and discuss the situation.
1 vote Thank Flag Link Tue Oct 5, 2010
Realtor's cannot offer legal opinions. A Realtor cannot review your contract and offer an opinion, that would be practicing law without a license. You need to speak to your agents broker. If you do not get the result you are looking for you can file a complaint with the Arizona Department of Real Estate. If you still do not get the result you are looking for you can hire an attorney.
Web Reference: http://www.gergurroz.com
1 vote Thank Flag Link Tue Oct 5, 2010
I need help with this too! Thanks Greg. BTW, if anyone needs to fill out a loan status update form, I found a blank form here http://bit.ly/1ulSm5s
Flag Fri Feb 6, 2015
So you waived the financing contingency but kept the appraisal contingency. When a property is contingent upon the buyer obtaining financing that means if you cannot get the loan, you can get out of the contract. Why, if you were getting an FHA loan would you waive the loan contingency???? Then it appraises for less than the offer price so I'm assuming the seller lowered the price so that took care of the appraisal contingency. By waiving the loan contingency you were basically stating that the transaction wasn't contingent upon financing which basically means you could pay cash???? It appears you didn't leave yourself with alot of options. You should have been able to get out of the contract even with the 90 day flip rule (which has been waived) had you had a loan contingency. Did you ask your agent about this and if so, what did he/she say?

Obviously I'm basing this on your information and is in no way an intent to give any type of legal advice.
1 vote Thank Flag Link Mon Oct 4, 2010
This is most definitely a question for an attorney.
1 vote Thank Flag Link Mon Oct 4, 2010
Anyone who is an agent should know the rules. This 90 day flip rule has been around for a while. The listing agent should have known it too, but the one holding the bag for you is probably your agent. Did the seller resell it for cash to someone else or with conventional financing? Unfortunately, a lot of fingers point towards your agent. Maybe your agent didn't know it was a flip though. The tax records weren't updated at the time of purchase, so there are many possibilities. Good luck,
Web Reference: http://www.SearchAZmls.com
0 votes Thank Flag Link Mon Nov 1, 2010
It seems like there are quite a few specifics involved in this entire situation. Definitely too many specifics for you to get real and professional adivice here on Trulia. I have heard of the 90 day flip rule, there are a few lenders who can get around it but not many. Your agent is not able to disclose financial information to anyone, that is true. Your best course of action is to speak to your agent's broker. Have a meeting with them and your agent.
Best of luck!
0 votes Thank Flag Link Sun Oct 10, 2010
Don't deal directly with a bank, especially Bank of America. Feel free to contact my lender at 602-410-7505. His name is Jamie Schafer with Alliance Financial Resources. I am an investor myself and I have no problems selling homes within 90 days from the time I purchase. Just tell him I referred you (Sean Heideman) and please let me know how it works out. If he can't get you an FHA approval, then he can put you in a conventional loan with about the same down payment.

The reason the investor was trying to make the contract not contingent upon appraisal or financing because he was well aware of this 90 day rule. Your realtor should have known about this rule and advised you not to accept the contingencies. Since the contract was not contingent on financing, then you would be out the $2,000 if you can't close the transaction. Give my lender a call and he should be able to help. I wish you the best of luck.
0 votes Thank Flag Link Tue Oct 5, 2010
Some options:

Find another lender that will do the deal for you (Some will)
Talk to your agents Broker
Get an attorney
File a Code of Ethics complaint with the Local Association
File a complaint with the Arizona Department of Real Estate
Move on

Just a few options for you to consider.

Sorry to hear of your unfortunate situation, as Realtors we can not give legal advice,

Doug
Web Reference: http://www.McVinua.com
0 votes Thank Flag Link Tue Oct 5, 2010
I am sorry to hear the story of what happened to you. In all fairness, you can't hold your real estate agent accountable for a loan program; that is your lender's responsibility.

Are you sure that the only reason you could not get this loan is because the seller had not owned the property for more than 90 days? I am surprised that the foreclosure happened so quickly given the sellers owned it less than 90 days. You did mention you had a short sale previously. Did your short sale occur at least three years ago? Without extenuating circumstances, there is a 3-year waiting period before you can buy again using FHA financing. The waiting period is only two years with a conventional loan & 20% down. This is also your lender's responsibility to know.

Many lenders add additional layers of guidelines above & beyond FHA guidelines. I have one particular listing agent who specializes in flips who calls me on a regular basis to help with financing a loan on her flipped properties, owned less than 90 days, and where the purchase price is greater than 20% of seller's purchase price because the buyer's lender will not fund this type of transaction.

Did you use a licensed loan originator? Loan originators who work for the big national banks are not required to be licensed, so they do not have to take the mandatory 20-hour classes or pass the national & state tests to originate loans. You can find out if your loan originator was licensed by checking here: http://www.nmlsconsumeraccess.org.

As far as the real estate questions, I think Stephanie Weiss does a good job of "voicing" her thoughts.

When you do start this home buying process again, may I suggest the following? Find a Licensed Loan Originator with experience, who works for a Mortgage Bank that is a direct lender & will originate, process, underwrite & fund your loan, all “in-house.” A bank only has their products & guidelines which you have found, may not be beneficial to you, while a Mortgage Bank has many sources of loans, depending upon the situation. While there are good mortgage brokers, they can not keep control of your loan because they find the lender for you & then ship your loan & paperwork to that lender. You may need a longer of time to close your loan in this circumstance, plus watch out for all the fees charged.

Is the $2,000 you lost all attributed to your earnest money deposit? Please seek legal advice, & you might ask that since this was an FHA loan & was identified as such on the LSR, in your FHA paperwork, you have a form called the “Amendatory Clause” that “is intended to ensure that prospective home buyers with FHA-backed loans receive important information in a timely manner about the house to be purchased. In particular, the Amendatory Clause stipulates that if buyers have not received information about the appraised value of the home they intend to buy, the buyers are not obligated to purchase the home.”

For your protection, the FHA Amendatory Clause “protects buyers by stipulating that if the required appraisal information is not delivered per the terms of the clause, buyers shall not be required to forfeit earnest money they have deposited for a house if they elect not to buy the house.” Again, check with a real estate attorney on this.

If I can help you with any questions you may have, please feel free to give me a call.

Good luck & all the best,
Ros

All the best,
Ros

Roswell Moore, CMPS
Certified Mortgage Planner
480-422-5095 direct

We are a Direct Lender, Mortgage Bank where we originate, process, underwrite and fund our own loans, on time. NMLS ID 263779 | AZ BK 0903725
Web Reference: http://www.ezAZloan.com
0 votes Thank Flag Link Tue Oct 5, 2010
Hello,

Even though your agent doesn't sound very experienced, she doesn't control the banks decision re: their lending practices so the main issue that I see is why your lender waited so long to come back and say they would not lend in this situation. Both you & they should have received a preliminary report from the title company within a few days of entering escrow (as part of the seller disclosures) so they should have been able to tell you early on that this sale did not meet their underwriters guidelines in time for you to use your inspection contingency period to back out of escrow & receive your deposit back.

How long has it been since you completed your short sale? If it has been less than 2 years, that is a more likely reason that you were not able to find another lender to do the loan since FHA suspended its 90 Day Flip Rule on February 1, 2010 for a period of 12 months (though lenders could possibly still use it as their own company guideline when underwriting).

Lenders will also look at how much the seller of a flip is profiting on the transaction and if it exceeds a certain percentage (usually 20% above the acquisition costs) that would also preclude an FHA loan.

With out actually seeing your contract, it would be hard for any of us to give you a good answer but I would recommend that you speak to your agents broker and if that doesn't give you any closure you could then speak to an attorney.

Best of luck to you,
Trevolyn
0 votes Thank Flag Link Mon Oct 4, 2010
I feel the realtor failed to do her job in advising me, she was retained as a specialist, I feel she failed to live up to that, I also feel she violated privacy laws given that she disclosed my personal finances to the seller and the sellers realtor. I was not in a position to buy this home for cash.
0 votes Thank Flag Link Mon Oct 4, 2010
Yes I was represented by my own realtor, any references to a realtor, refers to my realtor, not the sellers representative.
0 votes Thank Flag Link Mon Oct 4, 2010
Hi:

I agree that you should consider talking the agent's broker and also an attorney. You might also want to check out this link http://portal.hud.gov/portal/page/portal/HUD/press/press_rel… This is a HUD web page regarding the conditions for the current 90 day flip rule waiver. I wish you luck.
0 votes Thank Flag Link Mon Oct 4, 2010
Wow! It sounds like you have had an extremely unfortunate experience. I think that the best options are to contact the Realtor's broker first. If you don't get the resolution that you want there, then you can contact the Arizona Department of Real Estate at http://www.re.state.az.us/ Within the consumer section, you can find information to file a complaint.
Web Reference: http://www.re.state.az.us/
0 votes Thank Flag Link Mon Oct 4, 2010
Was there a Realtor representing you besides the listing agent (seller's agent)? Also, it will be very difficult for anyone here on Trulia to fully advise you since we have not seen your contract. If you financing contingency has been removed from the language in the contract, you may be at a loss.

As for the appraisal contingency, since you chose to come to a new agreement with the seller, there is no recourse to cancel due to the home not appraising.

FHA does allow for flipping a home in under 90 days, it's just that different requirements need to be met. You might consider trying a different lender that will do FHA flips under 90 days, they are out there.

Do you have a Realtor representing you?
Web Reference: http://www.jameswehner.com
0 votes Thank Flag Link Mon Oct 4, 2010
The realtor also disclosed to the seller that I had a previous short sale and he was very reluctant at that point to sell to me in general. She also disclosed my personal and financial situation to the seller. I feel these are a breach of my personal privacy. Do I have any recourse against her, the bank or to get my escrow money back.
0 votes Thank Flag Link Mon Oct 4, 2010
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