Home Selling in Miami Beach>Question Details

Katz, Home Seller in Miami Beach, FL

Is it necessary to have both an attorney and a realtor to do a short sale?

Asked by Katz, Miami Beach, FL Thu Apr 8, 2010

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If you don't get legal advice, you are making a serious mistake. Most of the time, foreclosure is better for a seller.
1 vote Thank Flag Link Thu Apr 8, 2010
You may be able to get the short sale done without a Realtor but please remember that are tons of documentation to be prepared and if you don't have experience in doing that, you will just get completely lost and just delay the purchase. So my advise: hire a Realtor!

You should absolutely hire an attorney, you do not want to make any legal mistakes that will cost you much more in the long run. Real estate attorneys don't cost much. My advise: have a realtor and an attorney on your side to have a smooth process.

Good luck

Gisele Zachar
The Campins Co.
Broker Associate
0 votes Thank Flag Link Fri Jun 1, 2012
You don't NEED both, an attorney and a realtor, but I would advise that you have a consultation with an attorney before initiating one. Some real estate companies have a division that will handle the short sale mitigation for you with attorneys on speed dial.
Web Reference: http://www.courbo.com
0 votes Thank Flag Link Thu Apr 15, 2010
Would be very wise to involve an attorney, a CPA and a Realtor.

The Realtor merely "sells" the real estate. The attorney will give you legal advice. The CPA will give you tax advice.

There are so many things that can go awry with a short sale and to best protect your interests you need to engage the services of all 3 professionals.

Tax consequences can be extremely expensive if you short sale a non-primary residence. Tax forgiveness on a non-owner occupied property can also result in significant IRS bill!

Then if you don't have an attorney protect your interests you may end up with a large deficiency that you will ultimately owe. Florida is a deficiency judgement state and you are liable for the loss on Real Estate whether it goes through foreclosure, short sale. It's crucial that you hire an attorney to ensure the final paperwork actually forgives you of the loss so they cannot go and attach your wages in the future!
0 votes Thank Flag Link Fri Apr 9, 2010
For a Short Sale, attorney OR your realtor. BOTH could handle, but let one person handle with the loss mitigation dept of your lender.
email for FREE REPORT.
0 votes Thank Flag Link Fri Apr 9, 2010
Before considering a short sale do have a consultion with an attorney who specializes in real estate, agents cannot offer legal advice--protect your assets.
0 votes Thank Flag Link Fri Apr 9, 2010
This is such a great question. The correct answer would be maybe. Very often in the short sale process, we are able to get the bank approval and keep the seller satisfied with the results. Sometimes, however, there are problems with the second mortgage holder or the mortgage insurance company. If it is an investment property that we are dealing with, they will often ask for a note to be signed by the seller to make a reimbursement to the bank, or a 1099 form making the difference in the sale (the short amount) taxable. This is not allways OK with the seller. As realtors, we have reached the wall in our negotiation. We can deal with the contract offer and nothing else. We are not licensed to practice law and go into the further negotiation on behalf of the seller. An attorney is.

I hope this helps you understand that "maybe" a seller will need both a realtor for the sale, marketing and contract specifics AND an attorney to deal with the bank.

Debbie Albert, PA
Coldwell Banker Residential
Web Reference: http://www.ronanddebbie.net
0 votes Thank Flag Link Fri Apr 9, 2010
It is not necessary to have an attorney, and I know brokers and their agents work hard for their clients on short sales. My uncle is one such broker here in Lodi, CA. Just remember, however, the broker will only be responsible for the short sale and will have no obligation to advise you on other options.

There are situations in which you will need an attorney's guidance. These days, it is common to be faced with a short sale gone bad or a loan modification that needs more time. In the short sale gone bad, you may need to hire an attorney to have your debt discharged in bankruptcy where the bank refuses to actually release you from liability on one or more notes. Loan modifications may call for an attorney to file bankruptcy to obtain an automatic stay against foreclosure. I have been stunned to discover that the bank loan mod departments are not coordinating with their legal departments, and homeowners are being foreclosed on during the loan modification negotiation period. So, these are just some examples of when you might wish to have an attorney look at your situation.

I highly recommend you visit an attorney if you are considering a short sale. Attorneys offer free consultations because they have strict anti-solicitation rules (under their Rules of Professional Responsibility). So, they offer free consultations to meet people, and they want to meet you even if you are not going to retain them now. You may have a friend, relative, or later case for them. In short, you can get some good analysis for free.

-David Turturici, Attorney/Broker
Web Reference: http://visvires.net
0 votes Thank Flag Link Fri Apr 9, 2010
Mcc has made a very dangerous statement. Get advice from an attorney to fully understand what your options are on a short sale, but "most of the time" is not you and in my experience not true.
Foreclosure prohibits you from buying a home with conventional financing for at least 5 years, a short sale may have you buying again in as little as two. Your situation will be different from Mcc's and anyone else, that is why you need experienced professional assistance dealing with you and all of your specifics.
These sites are interesting and entertaining to visit, but if you are considering a short sale the only advice to take from here is to get good professional help.
0 votes Thank Flag Link Thu Apr 8, 2010
Assuming you are selling, laws vary from state to state as to who may negotiate a short sale. A Realtor is necessary to market your home and bring you the best buyer at the highest possible price. An attorney, your agent or a licensed lender may negotiate with your lender. Experience really counts here. Whichever professionals you choose, make certain they have recent experience negotiating short sales. There are many newly certified "distressed properties specialists" who based on a day in class are trying out this new niche. Let them learn on someone else.
There are a number of specialists in your area, if you need a referral let me know and I can put you in touch with someone with the experience you need.
0 votes Thank Flag Link Thu Apr 8, 2010
Your question is a bit of a puzzle to me for a variety of reasons. Are you the buyer or the seller. You say "to do a short sale". If you mean you are a seller and you want to sell short, you may have an attorney involved who specializes in short sales. However, you want to list the home so that the greatest number of buyers will find out about it. That is where the realtor comes in handy because the attorney can't help you there.

If you are the buyer, and you are just looking around for short sales, the best way to do that is with a realtor because they will have the inside story on a property and can provide you with lots of choices.

In Georgia where I lived prior to moving to Sarasota, FL, all transactions were closed by attorneys but in Florida I usually have my closings with a title company. However, if I'm helping a client buy a short sale we do close with an attorney.

Some buyers think they can save money bypassing the realtor and negotiate a purchase with a seller by themselves. Aside from risking all kinds of legal pitfalls and contractual problems by simply not knowing the contracts, and time restraints, research has shown that you will end up with a better price if you let a realtor do the negotiations.
0 votes Thank Flag Link Thu Apr 8, 2010
Good question. While an attorney is not required per se to sell as a short sale, as with any real estate transaction it is highly recommended that one employs the services of an attorney, for many reasons.

As for using a Realtor, the lender will require that the property in question be listed for sale and a listing agreement must be provided as part of the short sale application package. Plus, your Realtor will bear most of the brunt of this demanding and time consuming process. One huge caveat, be certain that the Realtor is well-versed in working short sales, as that will considerably facilitate the process, decrease the time required to work the deal through, and help ensure a successful completion. Better yet, choosing a Realtor with a distressed property certification (such as Certified Distressed Property Expert or Certified REO Specialist), such as myself, will go miles in ensuring success throughout the entire short sale process.

Feel free to contact me for more information on this process and how my experience could assist you.
Best Regards,
Chris Jenkins
Keller Williams Miami Beach
1680 Merdian Ave, Suite 101
Miami Beach, FL 33139
0 votes Thank Flag Link Thu Apr 8, 2010
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