Short Sale


Short Sale Tax Issues 2014Tax Exclusion on Short Sales, extended to end of 2014. As in two weeks!

My original post on this matter is here: Income Taxes & Foreclosures/Shortsales 12.21.2007.

See also January 2013’s, Income Taxes & Foreclosure/Short Sales 2013 Update

As you know the tax code had an “Exclusion from gross income of discharge of qualified principal residence indebtedness (Sec. 108)”

…in other words many home owners were not taxed for 1099C income received as a result of foreclosure/short sale.  This exclusion expired 12.31.2103, well, it has been reinstated and extended to 12.31.2014. Good news for the short sale market.

UPDATE 12.24.2014 – Many questions as to when a real estate transaction must close. It must close in the year of 2014 to take advantage of this tax break.   But see these other posts from the I.R.S. which are helpful for non-owner occupied short sale/foreclosure tax concerns.

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales 12.21.2007

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Home Owner’s Bill of Rights (Foreclosure/Short Sale/Judicial Foreclosure)

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale – “Dual Tracking” and the Homeowner’s Bill of Rights in Nevada May 2013

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

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  On May 13, 2013 I wrote to you about the Nevada Homeowner’s Bill of Rights.  The link is here.

Short Sale – “Dual Tracking” and the Homeowner’s Bill of Rights in Nevada May 2013

Tomorrow October 1, 2013 it becomes law.  You can review the law by clicking the post above. As a reminder here are some bullet points that affect sales:

TO WHOM DOES IT NOT APPLY, YOU ASK?

(a)    Notice that these additional restrictions apply only to a notice of default and election to sell which is recorded on or after October 1, 2013.

(b)   Lenders with less than 100 foreclosures per year, are exempt.

(c)    A lender that complies with United States of America et al. v. Bank of America Corporation et al., is exempt from these provisions.

UNIQUE EFFECTS OF THE  LAW

Duel Tracking Prohibited.  Prohibits the lender  from continuing the foreclosure process while an application for a foreclosure prevention alternative is pending (short sale). (Section 13).

Arm’s Length Not Required. Sec. 16.5. declares a short sale cannot be denied based upon the . No provision of the laws of this State may be “non arm’s length,” in other words, if you relative buys the property, that cannot be the reason for lender denial.  This is big point, the exact language if a lender asks for it is “Sec. 16.5. 1. No provision of the laws of this State may be construed to require a sale in lieu of a foreclosure sale to be an arm’s length transaction or to prohibit a sale in lieu of a foreclosure sale that is not an arm’s length transaction.” That’s found on page 17 of Nevada Senate Bill 321.

Single Point of Contact. The Lender must provide a single point of contact for a borrower who requests a foreclosure prevention alternative (short sale).

Notice of Information. At least 30 calendar days before recording a notice of default and election to sell and at least 30 calendar days after the borrower’s default, the lender must provide to the borrower information concerning the borrower’s account, the foreclosure prevention alternatives offered by the lender and a statement of the facts supporting the right of the mortgagee or beneficiary to foreclose.

Rescission of Notice of Default.  Any notice of default and election to sell recorded must be rescinded, and any pending foreclosure sale must be cancelled, if:

(a)    The borrower accepts a permanent loan modification

(b)   A notice of sale is not recorded within 9 months after the notice of default and election to sell is recorded

(c)    A foreclosure sale is not conducted within 90 calendar days after a notice of sale is recorded.

Did you catch that? A foreclosure has to start over, including new recording of notice of default, if the foreclosure does not take place if 1.) a notice of sale is not recorded 90 days after the notice of default and then the next deadline is 2.) if the foreclosure does not take place 90 days after the notice of sale.  That will be interesting.

$50,000 Penalty. If a Court finds a lender in violation of this law, the Court can order and award to the borrower the greater of treble actual damages or statutory damages of $50,000.

Alright, that should make it fun until Christmas 2013 at least.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

HUD Suspends Pending Dual Agency Limitation – Short Sales 9.26.2013

Income Taxes & Foreclosures/Shortsales 12.21.2007

Income Taxes & Foreclosure/Short Sales 2013 Update

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

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Web’s Chicken Coop

“Short Sale – Dual Tracking” during residential foreclosure is where the lender pursues foreclosure AND other loan modifications (short sales) simultaneously.

SB 321 has passed and is set to be signed by the Nevada Governor.

It affects foreclosure both statutory and judicial of owner-occupied property; providing civil remedies for failure to comply with certain provisions.  It extends the foreclosure mediation process to judicial foreclosures.

It is complicated and mostly concerns actions leading up to foreclosure.

However, for re-sales, likely the most important is the elimination of the practice commonly known as “dual-tracking” by prohibiting the continuation of the foreclosure process while an application for a foreclosure prevention alternative is pending or while the borrower is current on his or her obligation under a foreclosure prevention alternative.  So, for example, if the owner enters into an arrangement with the lender, a foreclosure prevention alternative, which could arguably include a short sale, the lender is prohibited from continuing the foreclosure process until such time as the foreclosure prevention alternative is ended. This may end the surprise foreclosures the day before short sale close of escrow.

Read the whole bill here:  SB 321

Here is the Nevada Legislative Counsel’s Digest:

  Under existing law, the trustee under a deed of trust concerning owneroccupied housing has the power to sell the property to which the deed of trust applies, subject to certain restrictions. (NRS 107.080, 107.085, 107.086) Existing law also provides for a judicial foreclosure action under certain circumstances for the recovery of any debt or for the enforcement of any right secured by a mortgage or other lien upon real estate. (NRS 40.430)

  Sections 2-16 of this bill establish additional requirements for the foreclosure of owner-occupied housing securing a residential mortgage loan.

  Under section 7.5 of this bill, these additional restrictions do not apply to a financial institution that, during its immediately preceding annual reporting period, as established with its primary regulator, has foreclosed on 100 or fewer owner-occupied homes located in this State.

  Under section 30 of this bill, these additional restrictions apply only to a notice of default and election to sell which is recorded on or after October 1, 2013.

  Section 10 of this bill provides that at least 30 calendar days before recording a notice of default and election to sell or commencing a judicial foreclosure action and at least 30 calendar days after the borrower’s default, the mortgage servicer, mortgagee or beneficiary of the deed of trust must provide to the borrower certain information concerning the borrower’s account, the foreclosure prevention alternatives offered by the mortgage servicer, mortgagee or beneficiary and a statement of the facts supporting the right of the mortgagee or beneficiary to foreclose.

  Section 11 of this bill prohibits the recording of a notice of default and election to sell or the commencement of a judicial foreclosure action involving a failure to make payment until the mortgage servicer complies with certain requirements regarding contact with, or attempts to contact, the borrower.        Section 13 of this bill prohibits the practice commonly known as “dual-tracking” by prohibiting a mortgage servicer, trustee, mortgagee or beneficiary of a deed of trust from continuing the foreclosure process while an application for a foreclosure prevention alternative is pending or while the borrower is current on his or her obligation under a foreclosure prevention alternative.

  Section 14 of this bill requires a mortgage servicer to provide a single point of contact for a borrower who requests a foreclosure prevention alternative.

  Section 15 of this bill requires that under certain circumstances, a mortgage servicer, mortgagee or beneficiary of a deed of trust must dismiss a judicial foreclosure action or rescind a recorded notice  – 2 – – of default and election or notice of sale.

  Section 16 of this bill provides for certain civil remedies for a material violation of the provisions of sections 2-16.

  Section 16 also provides that a signatory to the consent judgment entered in the case entitled United States of America et al. v. Bank of America Corporation et al., who complies with the Settlement Term Sheet under that judgment is deemed to be in compliance with sections 2-16 and is not liable for a violation of those provisions.

  Section 16 further provides that if the consent judgment is modified or amended to permit compliance with the Final Servicing Rules issued by the federal Consumer Financial Protection Bureau to supersede the terms of the Settlement Term Sheet under the consent judgment: (1) a signatory to the consent judgment who complies with the modified or amended Settlement Term Sheet while the consent judgment is in effect is deemed to be in compliance with sections 2-16 and is not liable for a violation of those provisions; and (2) any mortgage servicer, mortgagee or beneficiary of the deed of trust who complies with the Final Servicing Rules is deemed to be in compliance with sections 2-16 and is not liable for a violation of those provisions.

  Section 18 of this bill provides that in a judicial foreclosure action concerning owner-occupied property, the mortgagor may elect to participate in the Foreclosure Mediation Program.

OTHER SHORT SALE POSTS

7 Tips for Short Sale

Addendum to Short Sale Listing 1.26.2010

Advance Fees Continued and the FTC 1.6.2011

Advance Fees – Short Sales – FTC II 5.4.2011

Charging for negotiating short sales/Negotiators 10.1.2010

Deficiency Judgments Nevada 4.27.2007

Foreclosure and the One Action Rule in Nevada 4.10.2007

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales 12.21.2007

Income Taxes & Foreclosure/Short Sales 2013 Update

IRS PUBLICATIONS shortsales/foreclosures:

Ten Facts about Mortgage Debt Forgiveness

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..) 3.23.2012

Lender Short Sale Approval Addendum

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale 4.20.2007

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods 10.5.2012

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Questions? email me darren@dwelshlaw.com

This is a follow up to my March 20, 2009 post Short Sale Seller Files Bankruptcy.

Bankruptcy in a short sale comes in two forms – the seller is already in bankruptcy or files during the short sale process. 

QUESTION: Why should a seller in or considering bankruptcy perform a short sale?

ANSWER:  To start their “waiting period” before a borrower can be eligible for certain loans.  The short sale waiting period is usually shorter than the foreclosure waiting period.

Generally bankruptcy serves to eliminate the obligation to pay a debt.  In the words of the greater bankruptcy lawyer Robert Charles.  It does not eliminate the debt, it just eliminates one party’s obligation to pay. In recent history persons seeking bankruptcy would more or less abandon over encumbered properties, allow it to go to foreclosure and wait some number of years before their re-entered the economy in attempting to purchase a home. Today, certain loan programs allow purchases after a short sale sooner than a foreclosure, even after a bankruptcy.

Look at FannieMae for example. FannieMae has a great role in conventional mortgages as America’s largest mortgage buyer. It sets guidelines to lessen the chance a borrower will go into foreclosure. FannieMae’s current guidelines have separate waiting periods depending on the type of foreclosure, in other words if it is a short sale or a classic foreclosure. Fanniemae underscores in their separate waiting periods, the “importance of borrowers working with their [lenders to avoid foreclosure.” Short sellers are rewarded with the shorter waiting period, currently a difference of 7 to 2 years depending on the circumstances. It is more complicated than simply stating 7 vs. 2 years.  This is just one example, but there is a difference and the short gets the longer end of the stick…you can read guidelines àhere.

Bankruptcy has its own restrictions, its own waiting period effects. However, even with bankruptcy (and its additional waiting periods) combined with a foreclosure, vs. a bankruptcy combined with a short sale; again the short sale can have drastically different waiting periods.  And if the debtor has “extenuating circumstances” waiting periods post bankruptcy combined with a short sale can be quite reasonable. 

ALSO, by not performing a short sale a debtor is waiting for the lender to foreclose. The lender has no duty to hurry up the foreclosure.  Nor does the bankruptcy process really address this issue.  Bankruptcy removes liability, but does not necessarily aid in starting the beginning of the waiting period.

I have been brought in on numerous transactions in 2012 where a purchase fails due to the time period not being ripe yet for a new buyer.  Each time the buyer filed bankruptcy some years prior. And each time the buyer believed that eventually their home had been foreclosed upon.  In some instances the buyer was not even aware they were still on title to their former residence and in others the foreclosure had only been finalized some months prior, although the bankruptcy case was successfully completed years prior.  In these scenarios each time, the purchaser (formerly in bankruptcy) was unable to get around the requirements of the current lender and were instructed they would have to “wait” out the actual period.  A short sale during bankruptcy starts the waiting period more effectively.

This is part of my short sale series listed below in alphabetical order:

7 Tips for Short Sale

Addendum to Short Sale Listing

Advance Fees Continued and the FTC

Advance Fees – Short Sales – FTC II

Charging for negotiating short sales/Negotiators

Deficiency Judgments Nevada

Foreclosure and the One Action Rule in Nevada

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales

IRS PUBLICATIONS shortsales/foreclosures:

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Judicial Foreclosures (Short sales are looking more attractive..)

Lender Short Sale Approval Addendum

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sales and Bankruptcy and Waiting Periods

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

Ten Facts about Mortgage Debt Forgiveness

Questions? email me darren@dwelshlaw.com

Short sales are looking more attractive.

Foreclosure changes in the state of Nevada are making short sales more attractive.  Recently a number of lenders have commenced foreclosure through the judicial foreclosure process.  A judicial foreclosure is governed by NRS 40.  These are different from what the public is used to, the non-judicial process, governed by NRS 107.  The judicial foreclosure is a lawsuit filed in court, just like any breach of contract case.

Deficiency Judgments.  The potential issue with a judicial foreclosure is a deficiency judgment.  In a normal foreclosure, there is potential liability to be pursued for the difference between what the property sells for at the trustee sale and the outstanding debt.  Nevada is a recourse state.  If you do not pay back your loan, you can be sued.  (There have been some recent rules enacted to alleviate this issue (see the legislative memo —->here, but the Nevada Supreme Court is poised to limit these applications,  Volkes v. BAC Home Loans Servicing, No. 57304, 2012 WL 642673 (Nev. Feb. 24, 2012)).  Typically, in the last few years, foreclosure did not usually lead to the filing of a lawsuit by the lender for a “deficiency judgment.”  In Nevada this lawsuit to seek this debt has to be filed within 6 months of the trustee sale date.  See my post on this here.  These lawsuits were simply not being filed, for the most part, by the large institutional lenders, only typically by the local, regional lenders.  That has changed.  Lenders are beginning to seek foreclosure via the judicial foreclosure process. (WHY? See the short history below.)  Now, remember, the judicial foreclosure is a lawsuit.  So, instead of the previous scenario where the lender had to decide after foreclosure, if they wanted to hire a Nevada attorney and pursue the homeowner; the lender is already in court.  The judicial foreclosures showing up on line (search the filings here at the —->Eighth Judicial District Court) are demanding two causes of action: 1.) Judicial Foreclosure and 2.) Request For A Deficiency Judgment.  The lender is already engaged with a Nevada attorney, so the lender does not have to make the decision to pursue the homeowner, they simply go to the next step and ask for a judgment immediately after the sheriff’s sale.  Hundreds of these lawsuits have been filed in the Eighth Judicial District Court in Clark County in only the past 90 days.

Short Sales.  Thus, a successful short sale, coupled with the lender releasing the seller of future deficiency liability (see my post on release language –> HERE) is an attractive option for a seller in Nevada.

Short History.  Back in the summer of 2011 the Nevada Legislature passed Assembly Bill 284.  AB 284 changed Nevada Foreclosure Law by adding stricter requirements for the foreclosure process.  It’s complicated.  You can read the Nevada Attorney General’s comments about it here.  You can read the whole bill here.  The NRS statute is 107.080.  In summary – it required lenders/trustee to sign documents prior to foreclosing, which, if done improperly triggers potential civil and criminal penalties.  This effectively slowed the number of trustee sales, notice of defaults, etc. There has been much discussion on this.  Such as the Nevada Attorney General issuing a statement.  Even the legislators that sponsored the bill wrote a memo about this subject recently.  This is rare.  And here we are, judicial foreclosures have commenced.

***

This is part of my short sale series listed below in alphabetical order:

7 Tips for Short Sale

Addendum to Short Sale Listing

Advance Fees Continued and the FTC

Advance Fees – Short Sales – FTC II

Charging for negotiating short sales/Negotiators

Deficiency Judgments Nevada

Foreclosure and the One Action Rule in Nevada

HAMP the Federal Shortsale Program coming April 2010

Income Taxes & Foreclosures/Shortsales

Lender Short Sale Approval Addendum

Nevada Supreme Court Mandatory Mediation Program and How it Affects Shortsale

Nevada Short Sale Documents

Seller Being Released From Liability Language in Shortsale

Seller Liability After Short Sale

Short Sale Advanced Fees

Short Sale Addendum to Purchase Agreement October 2010

Short Sale Junior Lien/Senior Liens Rights To Sue & Other Changes

Short Sale Wallet Size Answer Sheet

IRS PUBLICATIONS shortsales/foreclosures:

IRS publication on how 1099 taxes are calculated, exempt, etc.

IRS explanation as to taxes resulting from Foreclosure and Debt Cancellation.

Ten Facts about Mortgage Debt Forgiveness

Questions? Call me. Darren Welsh, Esq. 702 245 1787 email me darren@dwelshlaw.com or drop me a TPS by filling out this form

 

   …… Changes to the Nevada residential real property disclosure.  Effective October 1, 2011 the Seller’s Real Property Disclosure Form, also known as the S.R.P.D. can longer be waived. This form must be provided in just about every residential transaction in Nevada.  There are some exceptions, see below.

    …… The statute controlling this form (NRS 113) was modified within Senate Bill 314 in the July 2011 Nevada Legislative Session removing the section that allowed a seller and buyer to mutually agree that the SRPD would not be provided. Such a waiver had to be signed before a notary by a buyer.  The Law can be found here NRS 113

  …… This will affect many sales such as probate, short sales, and bank owned (REO). Exceptions are foreclosure (when the trustee sale occurs, not a bank selling after they have already foreclosed) between co-owners and new home. All sellers in Nevada must now provide this form. Some sellers have not lived in, or even seen these properties, but the statute is clear, it must still be filled out. If a Seller does not provide the form, a buyer may cancel, without penalty.

…… This should not affect the August 7, 2007 entry on disclosure – New Clarification of Real Estate Disclosure Laws in Nevada.  Remember in that case (the Nelson Case), the Nevada Supreme Court ruled on the scenario where a defect, now repaired, was not disclosed on the Nevada SRPD – “Once the [damage] was repaired … it no longer constituted a condition
that materially lessened the value or use of the [home. Accordingly, [the Seller] did not have a duty to disclose the …. damage.” This rule would still apply.

This is a series of Disclosure Entries see also:

An Updated All Inclusive & Belt Way Disclosure

The New, Improved All Inclusive Disclosure

Nevada Condominium Hotel Disclosure

Nevada S.R.P.D. New Clarification of Real Estate Disclosure  Laws in Nevada

Any questions, you can call me Darren Welsh 702 245 1787.

On July 15, 2011 FTC DECLARES:

  • real estate brokers can conduct short sales and
  • can collect advance fees if they follow their own state guidelines.
  • real estate brokers do not have to make several disclosures required by MARS.
  • that as more and more American homeowners seek short sales, it is especially important that MARS not inadvertently discourage real estate professionals from helping consumers with these types of transactions.

I am keeping track of the Federal Trade Commission (FTC) Mortgage Assistance Relief Services (MARS) Rule.  My previous post proposing that MARS did not apply to the real estate profession from May 4, 2011 is here Advance Fees – Short Sales – FTC II.  As stated prior, I believe MARS should not affect licensed real estate sales persons, rather is directed at individuals and companies that do not already have a structure in place to police their conduct.

As of July 15, 2011 the FTC has stayed enforcement of many of the provisions of MARS against real estate professionals helping consumers obtain short sales.  The FTC declared the stay on enforcement includes a stay on the collection of advance fees.  Therefore brokers can conduct short sales and can collect advance fees if they follow their own state laws and regulations. See the July 15, 2011 FTC press release here:  http://www.ftc.gov/opa/2011/07/mars.shtm The FTC has ruled on a unanimous vote the following:

FTC will not enforce most of the provisions of the MARS Rule against real estate professionals who are engaged in obtaining short sales for consumers. The stay applies only to real estate professionals who:

1) are licensed and in good standing under state licensing requirements;

2) comply with state laws governing the practices of real estate professionals; and

3) assist or attempt to assist consumers in obtaining short sales in the course of securing the sales of their homes.

The stay exempts real estate professionals who meet these requirements from the obligation to make disclosures and from the ban on collecting advance fees. These professionals, however, remain subject to the Rule’s ban on misrepresentations. As a result of the stay on enforcement, these real estate professionals will not have to make  several disclosures required by the Rule that, in the context of assisting with short sales, could be misleading or confuse consumers. As more and more American homeowners seek short sales, it is especially important that the Rule not inadvertently discourage real estate professionals from helping consumers with these types of transactions.”

See my earlier blogs on Advance Fees

Advance Fees – Short Sales – FTC II May 4, 2011
Advance Fees Continued and the FTC 01.06.2011
Short Sale Advanced Fees 12.3.2010
Charging for negotiating short sales/Negotiators 10.1.2010

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