Monday, July 19th, 2010 at 4:04pm

Wells Fargo Claims Agents Owe It Fiduciary Duty

Posted by Ron Ballard

Obviously, I receive bank documents for review from clients involved in short sales. Wells Fargo Bank Home Mortgage (WFB) has revised important documents.

Since at least the fourth quarter of 2009 WFB has provided a “Short Sale Listing Addendum” and a “Purchase Contract Addendum” to be executed in the traditional short sale process. (I don’t know if this applies to HAFA short sales as the one my client just forwarded is not a HAFA short sale.)

Today I received a new version – at least to my eyes.

What really shocked me is the second line of the Listing Addendum which states: “It is the listing agent’s fiduciary responsibility to present the highest and best offer to the servicer.

Is WFB implying that the listing agent not only has a duty to its principal, the seller, but somehow also has a duty to the servicer?

Or, is WFB trying to confuse agents into thinking that “offers” must be presented to servicers, not “contracts.” A seller “accepts” an offer and forms a contract. The contract is submitted to lien holders. In a short sale, the lien holders merely “approve” (or provide) the terms by which they will agree to release their lien and possibly release personal liability of the seller if there could be any recourse deficiency.

If WFB is implying an agent has a duty to the servicer, from where does that duty arise? A fiduciary duty must be defined by common law (such as the law of agency) or by statute? What is WFB relying upon? How is an agent to resolve this dual agency? How is it to be disclosed to the seller?

The usual purchase contract for a short sale is a binding agreement between the seller and buyer which is contingent upon the lien holders approving terms that are mutually agreeable to the buyer and seller. The bank is not a party to the purchase agreement. It is merely a participant in the transaction whose approval is needed for the sale to close.

If buyer and seller have entered into a binding contract and the real estate agent submits a subsequent “highest and best” offer to the servicer, followed by the servicer disapproving the first contract, then the agent is likely liable to the buyer for interfering with the buyer’s contract. Moreover, the agent likely has violated its fiduciary duty to the seller by causing the first contract to be breached.

What happens if the bank does not approve (or withdraws approval of) the first contract and the subsequent offer does not result in a contract or doesn’t close? Let’s further assume no other, or no higher, offers are received (which is a natural market-chilling effect of this kind of interference) and the property goes to foreclosure. The homeowner now has a foreclosure on its credit record rather than a short sale and will be credit damaged for up to 10 years.

Do the seller and the buyer then have actions against WFB for interference with contract and for damage to the seller’s credit? I hope some creative plaintiff’s attorneys will figure out how to make those work.

The seller also has a very ripe complaint to the Department of Real Estate for the agent violating the duty to the seller to get a deal that will close and avoid a foreclosure. The agent switched its allegiance from the seller to the bank and damaged the seller; or, possibly, acted as a non-disclosed and non-approved dual agent.

The WFB statement could also create confusion about “highest and best offer” with respect to short sales. Effective analysis of “highest and best” always requires emphasis on the “AND.” This is particularly true in short sales.

A cash buyer will typically make a lower offer than a financed buyer. The less qualified the financed buyer, often the higher they will bid, as they are anxious to get whatever deal they can. It should be clear in the case of a short sale that a cash buyer will close more quickly and easily than a financed buyer, even if the financed buyer has a fully underwritten approval. Why? A cash buyer doesn’t have any appraisal issues or risks of delay.

The SELLER decides with which buyer it wants to enter into contract, not the bank. If the seller decides that a 3% lower cash offer is more desirable than a FHA buyer who has barely enough cash reserves to meet the FHA requirements, who is the bank to decide which is the better offer? The FHA buyer could fall below qualification levels any day. The property also could fail to meet FHA standards.

Does WFB recognize the can of worms it opens with this seemingly simple statement? Probably not.

Adding insult to injury, the Listing Addendum also states: “Failure to comply with any of the above conditions or acts of misrepresentation could result in servicer pursuing any and all available legal remedies.

What remedies does WFB think it has against the listing agent (which, of course, includes its broker)? Moreover, it doesn’t tell agents how to handle this “fiduciary responsibility.” Will it sue the agent for the difference between the submitted offer and any offer that was not submitted? (Keep in mind lower could be “better” or higher could be “better,” but which should be submitted?) Will it refuse to approve any short sale on the property without more offers? When is the agent supposed to stop taking offers and presenting them to WFB? Will WFB promise to keep extending the foreclosure date while more offers come in?

I’m sure the reader can likely think of even more confusion this seemingly simple statement creates.

I wonder what brokers’ Errors & Omissions insurance carriers will think of this provision? They are looking at a lot of ambiguity to potentially defend.

This provision presents a very significant problem for agents and brokers for which there is no simple solution.

The safest solution is simply not to list properties in which Wells Fargo Bank is a loan servicer – let someone else bear the risk.

This listing addendum applies only to a listing agent, so a buyer’s agent, including a buyer’s agent for a FSBO (for sale by owner), could be a safer role to take. As a result, seller’s will be left without an advisor who is loyal to them and their interests. Chalk up another win for the banks and another loss for consumer protection.

This is only one of the market-chilling terms in the new Wells Fargo Bank short sale documents. I’ll discuss others in the near future.

For now, buyers and agents would be well-advised to avoid Wells Fargo Bank short sales, as there are far too many risks that a deal won’t get done or that someone might sue or get sued as a result of this vague and obnoxious provision.

35 Responses to “Wells Fargo Claims Agents Owe It Fiduciary Duty”

  1. miriam istrin says:

    this is a very disturbing turn. They want to cut us, the investor, out without seeing the value we bring as bridging the gap between a distressed property sale and arms length market sale. Thanks Wells Fargo for adding more confusion to an already foggy situation!

  2. Moe Nelson says:

    Admittedly I haven’t seen the addendum from Wells Fargo. However I can’t help but think this is a knee jerk reaction. I believe once Wells understands investors are indeed part of the solution, and not part of the problem, more rational minds will prevail.

  3. Juan Escobar says:

    Flat out liars. Unless they are complete idiots, they have listened to the webinars and the statements and discussions held about Fid. duty and they see how easy it is to confuse untrained, un-educated real estate agents who have no idea how to untangle that sentence.

    There is no Fid. Duty to a lender. That is just nonsense and illogical. This is absolute B.S. They know it, and they know that some agents and brokers are just too scared to think through this statement and claim that it is non-sense. Just BS!!

    In turn, they deliberately confuse agents + brokers with the intent of being the “supreme” holder of final approval in a short sale. They might as well walk around with a invisible stick in their hands and wave it all around town to scare and intimidate real estate agents, brokers, sellers, investors and anyone who has an interest in a home.

    So, what do you do? Fight off Wells Fargo Bank who has billions to win in a legal case, or just forget about them all together. That is the corner they want you to be in — in the corner with fear in your mind.

    I say forget them — let them sink in all that BS toxic loans they want to protect. Let them sink like the titanic amidst their screams about Fid. duty. Let them explain their balance sheets to their investors — their own Fid Duty of telling the truth about the true value of their assets.

    And switch to another bank if you have funds parked there. They do not deserve the business.
    They are flat our liars! to agents, to brokers, their investors and the homeowners.

    Let them toxic loans.

  4. Sojka says:

    They have made a ridiculous statement that they just possibly hold up in a legal case. It’s all about fear and fighting for their own investors. To try to create such a level of fear and anxiety within the listing agent’s mind (and the broker) just does no good for the professionalism and the law that the Realtors are trying to abide by. They can’t possibly serve both sides in a dual agency like that without violating someone’s rights.

    Wells Fargo, along with all banks, will try to do whatever they can to protect their investors and will let the suffering homeowner drowned. They don’t care. NEVER believe them when they say they do. It’s a lie!

  5. Fabian Rodriguez says:

    Looks like Wells just made it very risky for any Listing Agent to take on one of their short sales regardless of how high or sufficient the offer is that the HOMEOWNER CHOOSES to accept. Brokers should definitely be educated on this risk before taking on any Wells Short Sale. I wonder what fiduciary responsibility Wells has to the homeowner? What happens if a approval is already given by Wells and a higher offer comes in? Do they have a responsibility or obligation to ensure the approved offer is closed?

  6. Michael Crites says:

    Oh here we go again…I didn’t realize that banks are also “law makers”?? When I first got into this business of investing, all I heard was banks don’t want the property back and they don’t want to be in the real estate business….hmmm. I have so many short sales in the works and after working through the time consuming process – I am beginning to wonder “do they really not want to be in the real estate business”? How long America are we going to let them bully us around – seriously the banks really don’t care about the consumer, I am convinced. I have some deals recently that fell through because I was not willing to buy at FMV – let alone 10k above the FMV, the reality is the houses won’t even appraise for those prices????? Unbelievable!!!

  7. Abe Kassem says:

    Ok, so if we treat the seller as a FSBO then what leg do they have to stand on?

  8. Mike Mova says:

    I used to have several accounts with Wells Fargo & have encountered multiple problems. Finally got to a point that was too much, so closed most my accounts & only kept a small checking account with them. These banks have gotten so big by receiving money from the Fed at close to zero cost to give out fair loans but they rarely do. You would think that they ‘ll be a bit more willing to help out the economy by relaxing their requirements to close more short sales but it is just the opposite. I flat out hate Wells. I hope they’ll be fined. upset investor

  9. Diane says:

    Thank you, Ron, for bringing this to our attention. As a broker, I know that many agents are ALREADY convinced that they owe the bank a fiduciary duty, so this really muddies the waters. However, please tell us–just by stating this and getting the agent to sign it–has WF created a fiduciary duty? What if there is an underlying investor? Should that person or entity be included? Is that person included? How can the agent have a fiduciary duty to each of two antagonists, the sellers and the bank?
    I don’t see this as aimed especially at investors. I see this aimed at uninformed agents and brokers who have the E&O insurance. Personally, having negotiated a number of short sales, I see the bank as a major adversary, most of them trying to “skin the pants off” whoever is available–sellers, buyers and especially agents.

  10. nodakson says:

    Anytime I read something from the banks in the past several years, I try to understand the reason for the decision. As with most of these decisions, it appears the banks still do not have an understanding of the services the investor is doing for the banks, homeowners, and agents/brokers.

    Many agents are leery of the short sale market and this decision by a national bank is going to increase their concern. I am not able to understand why WFB has inserted this statement into their paperwork.

    The question that needs to be addressed is when does the bank insert themselves into the transaction between the buyer and seller. I believe Ron did an excellent job of attempting to clarify the issue but I still am not able to see where the bank is part of the transaction which would put the agent/broker at risk. The agent/broker is at risk if the transaction is terminated because they present a higher offer and that offer is rejected by the lender (either WFB or the underwriting Lender of the higher offer). It appears now the agent/broker could be deemed as not doing his due diligence in providing the most qualified offer.

    How many of these banks are going to need another bailout because of their ill advised decisions toward the homes that ultimately end up as bank owned properties?

  11. Ron Ballard says:

    Juan: could you tell us just what you “really” think without sugar coating it?

    Abe: the unfortunate affect of the WFB point of view is that it leads the cautious brokers and agents avoiding representation of sellers. Then the seller’s are left to the benevolence and good will of the bank.

    Interesting: About a month ago, in Wells Fargo Bank, N.A., v.Philip Sessley et al.,No. 09AP-178.
    Court of Appeals of Ohio, Tenth District, Franklin County. Rendered on June 24, 2010. Wells argued that there is no fiduciary duty between the borrower and the bank. The Court of Appeals said: Generally, the relationship between a creditor and debtor is not a fiduciary relationship but instead is governed by the principles of contract. Stone v. Davis (1981), 66 Ohio St.2d 74, 78. The trial court therefore did not err in granting summary judgment [in favor of WFB] as to appellants’ breach of fiduciary duty claim. Obviously, WFB argues only what benefits it.

  12. Shari says:

    No matter how you look at it, it’s not a good situation. Clearly, the banks are running scared and are doing everything they can to intimidate sellers and agents into thinking that the banks are some sovereign power who can make things up as they go. There are still LAWS on the books that we have to operate under. All WFB has done is confuse the entire process and unsuspecting agents (and brokers) are falling for it. The DRE has also contributed to the confusion with the illustrious Short Sale Addendum.

    In my contracts, the buyer and seller agree that once the offer is Accepted and Submitted for review that no other offers will be submitted until the short sale lender Accepts, Rejects or Counters the buyers offer. At which time, the buyer has the First Right of Refusal to meet the terms of the banks counter. If they decline, they exit the transaction and we move on to the next back-up offer if there is one.

    Before we even get to that point though, the seller reviews all offers that have been received and decides which offer they want to submit and signs a disclaimer that they have reviewed all the offers and the one they have selected is the Highest and Best one. We want the offer that has the best chance of closing and that may not be a high offer with 3.5% down and seller credits. In addition, banks aren’t lending money very easily now and we have to consider the possibility of the buyer not being able to obtain funding. So was that the “Highest and Best” offer if it falls apart at the last minute?

    If my seller is not subject to a deficiency judgment, it doesn’t matter to them what the loss is – they just want to make sure that they don’t end up in foreclosure and that the offer submitted is within an acceptable loss severity range to the bank so the short sale gets approved and the buyer closes. In the end, the bank analyzes how much will they make going short sale v. foreclosure and they don’t want to have to carry these properties again if they take it all the way to the end and continue to make stupid decisions. We can’t fix stupid!

  13. As a listing agent that does a large amount of short sales I can say this is not a problem. I am closing a few with them this month. They are just trying to distinguish between true investors that can close on a property and those that are flopping a property without any real money up. The true investors are safe…

  14. As if the listing agents weren’t confused enough yet.
    Unfortunately my observation is that the agents are
    going to ‘comply’ and hope nothing bad happens.

    We should all work together to get this reversed,
    agents, investors and homeowners.

    Thanks for the great content Ron

    Yves Baggi
    http://www.ShortSaleFactory.com

  15. Bradley Gaskins says:

    So Ron…we know the banks are stupid and they just keep on reinforcing that to us.

    In my mind the real questions are as follows:

    1. “It is the listing agent’s fiduciary responsibility to present the highest and best offer to the servicer.” Does this being in the listing agreement ACTUALLY create a fiduciary duty? If not then why not sign away; it’s a misdirection play with no consequences?

    2. “Failure to comply with any of the above conditions or acts of misrepresentation could result in servicer pursuing any and all available legal remedies.” Acts of misrepresentation ACTUALLY do have available legal remedies; contract or no contract, true? But since WF is not a party to the contract there would be no legal consequences for failure to submit the H&B offer to WF, correct? If there are no legal consequences then the statement is true since WF states they will pursue any and all AVAILABLE legal remedies. Key word being AVAILABLE. Isn’t this still a misdirection play?

    3. And lastly, Ron, would you like to be the attorney representing either the seller or buyer against the REA when the REA violates their fiduciary duty to the seller and the deal blows up? How would you like a shot a WF under the same scenerio since they are the one who created the interference with their false and misleading addendum?

    Of course, all this really seams to hinge on highest AND best. What they heck is that anyway? WF sure can’t be the decider of that; only the buyer can deternine what their H&B offer is and onlt the seller can determine what the H&B offer is to them. So, is it not true, that as long as the seller has choosen the H&B offer for them that WF has no action even if their statement WAS true? WF didn’t ask for ALL offers to be submitted, justthe highest and best.

    As Sharu said we can’t fix stupid but they WILL eventually go out of business. Good ridence to them. They are not helping our economy anyway.

    Brad

  16. Bradley Gaskins says:

    [email protected]com,

    How is this distinguishing between the true investors that can close on a property and those that are flopping a property without any real money up? An investor offer is an investor offer. It will be lower so as to sell higher. The selling higher is what WF is trying to stop by cutting the investor middleman out.

    Brad

  17. CA Foreclosure Alternatives says:

    William: Huh? “flopping a property without any real money up” and “true investors”? I think I know what you’re trying to say but… a poor and vague choice of words. My guess at what you’re saying is that the “true investors” are the ones who pay a higher price and buy & hold (and rehab)? And that someone who is skilled in “fixing” a distressed property’s title and encumbrance defect(s) funds with real cash (even if it’s rented OPM) and flips for a profit is not a “true investor” and “flopping”? Got news for you. The big boys & girls on Wall Street are predominantly this model: using OPM to exploit and arbitrage market inefficiencies. You (or I) may not like it, but you can’t say those folks are not “true investors”. Maybe not “true”, but pretty damn real are their actions.

  18. CA Foreclosure Alternatives says:

    Understand a couple of ground rules with the lender/servicers:

    – I want more $$ from the buyer
    – I want more $$ from the seller
    – And I want to squeeze your agent commisssions

    Also:

    – These powerful, “too big to fail (TBTF)” institutions make up their own rules and break existing law brazenly and grossly because many times they WILL get away with it. The few times they actually get bitten… eh, just the cost of doing business.

    You are aware that Goldman Sachs just settled the SEC investigation into their MBS CDS massive conflict of interest, lootin’ & shootin’ for a mere $550 million? Believe me, a mere fraction of the ill-gotten gains from selling toxic mtg debt WHILE CONCURRENTLY BETTING against those same packages and the folks they just sold them too!

    “If you don’t know who the sucker is at the poker table… it’s you.”

  19. CA Foreclosure Alternatives says:

    For all of you who constantly scratch your head at “why the banks are so stupid” and do the things they do… it’s not all accidental and incompetence.

    Read THIS and you’ll have a much more informed picture of the play.

    – by John R. Talbot, Bestselling author of The Coming Crash in the Housing Market

  20. Steve Pawera says:

    Ron,

    I can not believe how much you were able to write about such a silly sentence. 🙂

    Let’s forget for a minute the writer of this sentence was serving fries at MickeyD’s last week.
    For all the reasons you cited, when you really look at it, after you explain ‘fiduciary duty’, ‘agency’, tand ‘tortious interference’ (I LOVE saying that one) to WF, and after they could only respond with ‘well we made a mistake. We realy meant [what ever they meant]’..

    as written, isn’t there some concept under the law that you can’t require, impose or enforce something that is an impossibility? Agents have no fiducary duty to the servicer. Highest is not ‘best’, and listing agents submit contracts not offers. Case closed.

    And what ‘legal remedies’ are available – if you have no damages to show?

    You think WF would just say thank you for our work of getting them out of a bad spot. 🙂

    Regards,
    Steve

  21. CA Foreclosure Alternatives says:

    On the brighter side:

    Last Monday, Edward DeMarco, Acting Director of FHFA (Federal Housing Finance Agency), overseeing regulator of Fannie/Freddie, just issued 64 subpoenas to various lenders/servicers to “show me the documents” on a huge pile of PLS the GSEs invested heavily in.

    Translation: you sold us all this fraudulent crap and now we’re going to push it back for a refund of taxpayer $$$$

    At least a few regulators work on behalf of “the people” and not the business interests of those they regulate.

    Thank you Mr. DeMarco!!!!!! 🙂

  22. Greg Diodati says:

    Ron,

    Great post and discussion on the subject. I think Wells can claim what they wish will happen, but last time I checked the AD forms do not provide for disclosures to the lender and in fact they are not a party to the contract. Granted, they have the right to approve the short sale, taking less than what is owed on the loan, but that doesn’t give the right to make assumptions to Fiduciary responsibility.

    As a Broker, my duty is to my client’s best interest, not the lenders. Sometimes that means not taking the highest offer, but the one that can close the quickest stopping the distress for the homeowner. Never in my listing or purchase agreements do I provide a Fiduciary to the lender.

    I haven’t completed a Wells deal yet, I walked away from 2 as an Investor, but when if and when I see this language, I will strike from the addendum as it does not apply and I will never agree to such conditions.

    My two cents,

    Greg

  23. Bill Schmidt says:

    Ron,

    How is this for interpretation: At the time the listing agent submits the investor’s offer, it IS the highest and best offer. They don’t state that the agent then has to send them subsequent offers that he/she might receive. But to be safe, the listing agent then pulls their listing from the MLS, I add my investor listing to the MLS, and now all subsequent offers are coming to the investor’s agent (who is not a signator of the WFB Listing Addendum) instead of the listing agent, so the listing agent doesn’t run afoul of even a broad interpretation of WFB’s language. The problem with some of the other replies here is that you cannot just say WFB has no authority to create this fiduciary relationship, or enforce it. If you sign it, you’re hooked. If you don’t sign it, deal’s dead. You have to structure around it, I’m afraid. And get your attorney’s blessing.

    Bill Schmidt

  24. Bradley Gaskins says:

    Bill,

    Interesting point you bring up. “…The problem with some of the other replies here is that you cannot just say WFB has no authority to create this fiduciary relationship, or enforce it. If you sign it, you’re hooked. …” What gives WF the authority to create this fiduciary relationship if they are not a party to the agreement? Obviously if they have no authorityto create it nnot enforce it.

    Fiduciary duty of the REA to WF would require the REA to be a fiduciary to WF. Fiduciary is defined as “a business like a bank who has the power and obligation to act for another. … Characteristically, the fiduciary has greater knowledge and expertise about the matters being handled. A fiduciary must avoid ‘self-dealing’ or ‘conflicts of interests’ in which the potential benefit to the fiduciary is in conflict with what is best for the person who trusts the fiduciary. … For example, a stockbroker must consider the best investment for the client and not buy or sell on the basis of what brings the fiduciary the highest compensation.”

    Is there any doubt that WF has greater knowledge and expertise than the seller in these matters or the REA in the terms of short sales? Is there any doubt that WF is only concerned with their best interest in a relationship in which the seller has absolutely no knowledge or power? This might be construed that WF has a fiduciary duty to the seller…not the other way around.

    Since this is a negotiation and WF does not “just accept the offer” then WF is not “trusting” in the REA or the seller. Since WF is not exhibiting ‘trust’ in the REA or the seller then WE is not treating them as a fiduciary. If WF does not treat someone like a fiduciary might there be some doubt as to whether they REALLY believe they are a fiduciary?

    I don’t think the the statement “It is the listing agent’s fiduciary responsibility to present the highest and best offer to the servicer.” makes it clear WHO the fiduciary duty is to. One might argue that the statement is 100% valid and should be construed to read “It is the listing agent’s fiduciary responsibility TO THE SELLER to present the highest and best offer to the servicer.” This is true, has been true, will always be true, and absolutely implies NO fiduciary duty to WF.

    This could be a very intersting argument to make. Really wish I was a lawyer so I could do so.

    Brad

  25. Gino says:

    Bill, I like that reasoning.

    Ron, before the first presentation of the contract to the lender/servicer. How about some contract language that states something like this: “buyer and seller (or seller and broker) are aware that servicer may try to impose specific language into the contract during their negotiation to approve the short sale. Buyer and seller acknowledge that the lender/servicer is not a party to the contract and no agency exists between the parties and the lender/servicer. Any requests to change or amend the previously agreed contract imposed by servicer that are signed by the parties will be considered signed under duress and will be null and void and without effect.”

  26. leonard flores says:

    Place the staus in contingent once the seller signs the purchase contract and do not except anymore offers.

  27. Steve Londeau says:

    LOTS of great comments here. I tend to agree with Brad on most of his postings. I see where some of the others are coming from though.

    I will likely strike these words from the contract, use an old version (they probably won’t even notice) or just delete it altogether using Adobe Pro. 🙂 If they insist on this language being signed, then unfortunately, we won’t be helping anymore sellers whose loans are serviced by WF.

    Bill – We do not take the house off the market and re-list, so that wouldn’t work for us. We amend the listing contract to put the obligation/responsibility to the Trustee no the individual seller anymore.

    Leonard – That is fine if you are doing A-C transactions, or simply listing short sales for retail sales. However, if you have an investor buyer that is promptly re-selling the property for a profit, such as what a lot of commentators here do, then that strategy will not work. We need someone to sell the home TO, marking it contingent, or pending, will stop showings cold.

    Steve

  28. Hil Margolin says:

    Having served at outside counsel for the FSLIC during the dress rehearsal for the current disaster, i.e., the savings and loan failures of the 1980’s, I just have to laugh at the antics of Wells Fargo. In a desperate attempt to continue to deny the extent of their losses, they make a plodding attempt to shift the blame, and thus the liability, to others. These hypocrites want it both ways: They blame the mortgage brokers for making the loans that WF willingly purchased and now they want to blame realtors and investors if, for some reason, the bank willingly accepts an offer that is later determined not to be the “highest and best;” whatever that means

    I simply cannot believe that anyone at the WF corporate legal department reviewed these two new clauses. They contain two stunning and potentially disastrous admissions. First, that WF is not capable of competently performing due diligence, one of its principal lending functions, and second, that WF is thus in breach of certain duties that it owes to others. The first admission should arouse the attention of the FDIC as WF has made itself a prime candidate for receivership and liquidation. The second admission should raise the ire of the shareholders and depositors to whom WF owes the highest standard of care as WF is admitting that it can’t deliver. If either admission is, in fact true, say goodbye to the officers and directors of WF. The officers and directors, in turn, should be saying goodbye to their assets.

    None of this is going to happen because nobody has the spine or stomach to force WF and the other institutions to recognize their losses and hold the officers and directors strictly liable.

    The only solution I can see is to decline to do any transactions with WF.

  29. Bill Gatten says:

    Ron,

    The points made in the article are (quite obviously) dead on. It is my clear understanding that a servicing agency cannot lawfully force a dual agency relationship on a Realtor®…or anyone else. ‘Will the servicer’s attorney represent both the lender and the seller in court when they are suing each other for damages done in the short sale process?

    This is an example of the attempted takeover of the country by the goddamned slime-ball mortgage industry! First off, the owner of these notes is Bank of America, not Wells Fargo any longer, and the servicing is done by BAC (which is not a part of B of A OR Wells Fargo). Furthermore, the portfolio is their own (the mortgage industry’s) contrivance MERS, who, state-by-state, is more and more being prohibited from foreclosure on behalf of a service or originating institution.

    My practice will be to work any Well Fargo transaction as usual…until an agent or broker tells me they have an agency responsibility to the adversary of their true client (the bank that, through its sheer negligence and lack of concern for its millions of clients, caused their misfortune in the first place). Let me hear such drivel from an agent, and their deal is dead in my office at that point…at least until the seller gets a new agent more familiar with how the law is “supposed to work” in this country.

    Bill Gatten

  30. Paul Francis says:

    Interesting information… Personally.. I think it has more to do with preventing get rich in short sales then anything else.

    You know… short selling properties to private clients for far less then what they are really worth… and not really marketing them for the highest and best offer.

    As pointed out though… very questionable wording chosen.

  31. […] I’ve neglected blogging lately, but this got my blood boiling when I read it. You can read about it on the California Short Sale Lawyer blog at http://californiashortsalelawyer.com/2010/07/wells-fargo-claims-fiduciary-duty/ […]

  32. Brokerheather says:

    Gino You are exactly right. Use an older form or simply white out the language you don’t agree with. They do not notice.

  33. Joseph Alfe says:

    As on of Illinois largest short sale negotiators, I try to keep up on these developments. As soon as I saw this, I alerted all the brokers I work with, and overwhelmingly, the response was…”Meh, we can’t do anything about it.”

    If the lender is interjecting themselves a s a party, do they sign listing agreements?, do they have to sign purchase contracts? And, if they want to play “third party”, do they now give up their insistence on reducing or altering broker commission?

  34. My 2 cents is that many banks (big and small) would rather do nothing (i.e. not foreclose and not approve a short sale) since due to the bank bailouts and accounting rule changes, banks can sometimes benefit more by purposely overvaluing their non-performing assets so that they look financially solvent.

  35. Mike Cuevas says:

    WOW this is a joke. I just finished my course on what an agents true fiduciary duty is to a seller. The highest and best offer is rarely the best case for the seller in any short sale. If they are not receiving any proceeds from the transaction, are protected from 1099 tax consequences from the home debt relief act, have no other sort of financial consequences the price is the the least relevant part of the transaction to the seller. its far more important that they get out of this situation as soon as possible with the least amount of damage. Also what if seller needs assistance on settling the 2nd by the buyer? Certainly not in the best interest of the seller to take in a higher offer that would lead the buyer to not contributing anything to the 2nd.

    The seller owns the property, the bank owns the note. In short sales the bank and seller have an adverse relationship with one another so for an agent to be a dual agent of both the bank and seller would only invite serious law suits. This is like being both a Chicago Cubs and Chicago White Sox fan at the same time, its just ugly. Who’s interest is more important. I cannot imagine brokers signing off on this form it violates everything they stand for. Im not an atty but this is arguably illegal or am I crazy? its definitely unethical but I wouldnt expect anything less form a bank. isn;t that why NAR was created to protect buyers and sellers?WFB is nuts. Heres a perfect example on a property this week I have an option on. BPO 215K my offer 210K. End buyer 235K. Slam dunk deal until the addendum hits because it also states that you must hold the property for 90 days before you can resell it. Also states no option contracts allowed? I thought that BOA addendums were bad with 30 days but now they want 90 days. I also thought that we lived in America and you were able to do anything you want with anything you own. Do their REO’s that are broken into and get picked up by a rehabber have to wait 90 days to resell that property? Freddie MAc guidelines also contradict this on their lending side. “Property flips are not inherently illegal…” So they will finance a deal that is flipped but not allow it on the short sale side weird. Back to story… Ok thats great I backed out of the deal and the property will sell for and close for 215K vs. the 235K. A few more properties on same block just shifted into negative equity and are future short sales and REO’s now. Now thats the new comparable to go off of which only kills everyone else on that block and building lowering neighborhood values. WFB does a 29 year old really need to tell you how math works. I know you have some Ivy league grads up in there come on put that eduction to work.

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