{"id":13375,"date":"2010-10-12T18:58:13","date_gmt":"2010-10-13T01:58:13","guid":{"rendered":"http:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/?p=13375"},"modified":"2010-10-12T18:58:16","modified_gmt":"2010-10-13T01:58:16","slug":"foreclosuregate-a-scandal-if-you-want-to-sue-for-damages-it-behooves-you-to-have-suffered-a-real-actual-material-injury","status":"publish","type":"post","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/13375\/foreclosuregate-a-scandal-if-you-want-to-sue-for-damages-it-behooves-you-to-have-suffered-a-real-actual-material-injury\/","title":{"rendered":"Foreclosuregate? A scandal? If you want to sue for damages, it behooves you to have suffered a real, actual, material injury."},"content":{"rendered":"

I had buyers back out of a purchase contract at the last minute, earlier this year. They got cold feet, and they had no remaining contingencies, so they understood they were losing their earnest deposit. The seller’s agent wanted to fight about it, making a lot of noise about specific performance. But here is what was interesting to me, thinking about the legal issues in the abstract:<\/p>\n

The deal was a short sale.<\/p>\n

In other words, had the sale proceeded to closing, the seller’s actual material gain would have been zero dollars and zero cents.<\/p>\n

Taking account that we cancelled the contract, the seller’s actual material loss was — wait for it — zero dollars and zero cents.<\/p>\n

Arguably, the seller might have suffered financial damages as a result of losing the home to foreclosure, rather than losing it in a short sale, but these consequences could never have been subject to my buyers’ control.<\/p>\n

In other words, though we did not go to court, I could not see a way for the seller to claim any sort of material injury by the cancellation of the contract. He had no real, actual, material consideration at stake.<\/p>\n

Why bring this up?<\/p>\n

Because I think this is the end of the road in the so-called “Foreclosuregate” “scandal.”<\/p>\n

To bring us up to speed, the Wall Street Journal<\/em> wonders if we’re headed for housing armageddon<\/a>. Not to be outdone, CNBC insists that foreclosure fraud is worse than you think<\/a>.<\/p>\n

Here’s what I think: If there were procedural laxities in the handling of paperwork, there was no intent to defraud. And laying that aside, there are no former homeowners who can claim that they were avoidably injured by mis-handled paperwork.<\/p>\n

Why was your mortgage foreclosed? Because you stopped paying it. Did you have any rational reason to believe that you could keep your house once you had stopped paying your mortgage? No. If the paperwork that led to your foreclosure was not prepared to perfection, does that give you the right to retain possession of a home you are not paying for? No.<\/p>\n

Voters are fools, of course, and the Attorneys General of the many states Read more<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

I had buyers back out of a purchase contract at the last minute, earlier this year. They got cold feet, and they had no remaining contingencies, so they understood they were losing their earnest deposit. The seller’s agent wanted to fight about it, making a lot of noise about specific performance. But here is what […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_crdt_document":"","jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[29,26,6,5],"tags":[],"class_list":{"0":"post-13375","1":"post","2":"type-post","3":"status-publish","4":"format-standard","5":"hentry","6":"category-group-therapy","7":"category-lending","8":"category-marketing","9":"category-real-estate","11":"no-featured-image"},"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack-related-posts":[{"id":521,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/521\/the-fetal-flat-fee-contract-language\/","url_meta":{"origin":13375,"position":0},"title":"The fetal flat fee: Contract language . . .","author":"Greg Swann","date":"October 7, 2006","format":false,"excerpt":"The first transaction we do with the flat fee as a matter of policy will probably come together tomorrow or Monday, but, as I had mentioned, Cathy has been playing with the idea. She has a contract in play right now, so I had to write language for the Buyer-Broker\u2026","rel":"","context":"In "Marketing"","block_context":{"text":"Marketing","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/marketing\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":677,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/677\/how-not-to-take-it-in-the-shorts\/","url_meta":{"origin":13375,"position":1},"title":"How not to take it in the shorts . . .","author":"Greg Swann","date":"November 23, 2006","format":false,"excerpt":"I had a confidential Ask the Broker question this morning, believe it or not. Glossing over the whole thing, the listing agent could have avoided the entire problem with this language in a counter-offer:Buyer is aware that seller reserves the right to cancel this contract unilaterally and without recourse within\u2026","rel":"","context":"In "Ask the Broker"","block_context":{"text":"Ask the Broker","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/ask-the-broker\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":16907,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/16907\/the-sweet-spot-pricing-real-estate-the-guerrilla-marketing-way-to-maximize-the-sellers-net-as-soon-as-possible\/","url_meta":{"origin":13375,"position":2},"title":"The sweet spot: Pricing real estate the guerrilla marketing way, to maximize the seller\u2019s net \u2013 as soon as possible.","author":"Greg Swann","date":"September 5, 2020","format":false,"excerpt":"I am a passionate lister, and I have argued forever that everything matters in the listing praxis \u2013 but nothing matters more than the listing price. And: As you may have noticed, I could go on forever about pricing, but there is one idea that matters to me above all\u2026","rel":"","context":"In "Flourishing"","block_context":{"text":"Flourishing","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/flourishing\/"},"img":{"alt_text":"","src":"https:\/\/i0.wp.com\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-content\/uploads\/2020\/09\/daiji-umemoto-f0aE-bu7sco-unsplash.jpg?resize=350%2C200","width":350,"height":200,"srcset":"https:\/\/i0.wp.com\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-content\/uploads\/2020\/09\/daiji-umemoto-f0aE-bu7sco-unsplash.jpg?resize=350%2C200 1x, https:\/\/i0.wp.com\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-content\/uploads\/2020\/09\/daiji-umemoto-f0aE-bu7sco-unsplash.jpg?resize=525%2C300 1.5x, https:\/\/i0.wp.com\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-content\/uploads\/2020\/09\/daiji-umemoto-f0aE-bu7sco-unsplash.jpg?resize=700%2C400 2x"},"classes":[]},{"id":2555,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/2555\/if-youve-finally-found-your-dream-home-dont-dawdle\/","url_meta":{"origin":13375,"position":3},"title":"If you’ve finally found your dream home — don’t dawdle","author":"Greg Swann","date":"February 1, 2008","format":false,"excerpt":"This is my column for this week from the Arizona Republic (permanent link): \u00a0If you've finally found your dream home -- don't dawdle Here's a paradox for the ages: It's been a strong buyers market for more than two years -- and yet buyers still can't afford to be lax\u2026","rel":"","context":"In "Marketing"","block_context":{"text":"Marketing","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/marketing\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]},{"id":17734,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/17734\/overnight-news-buyers-agents-you-cant-fight-cash-with-flash-but-you-can-out-humble-it\/","url_meta":{"origin":13375,"position":4},"title":"Overnight News: Buyer\u2019s\u00a0Agents: You can\u2019t fight cash with flash, but you can out-humble\u00a0it.","author":"Greg Swann","date":"January 19, 2021","format":false,"excerpt":"Every listing is a clinic for me. I don't list a lot, so I have the time to study things \u2013 but I'm the type who studies things, anyway. My goal is to improve my listing praxis, house-by-house, steadily approaching perfection. I talk about this a lot here, of course,\u2026","rel":"","context":"In "Group Therapy"","block_context":{"text":"Group Therapy","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/group-therapy\/"},"img":{"alt_text":"Ya think it's easy?","src":"https:\/\/i0.wp.com\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-content\/uploads\/2020\/08\/BHBNewTopImage-300x225.jpg?resize=350%2C200","width":350,"height":200},"classes":[]},{"id":4705,"url":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/4705\/in-a-declining-market-buying-a-short-sale-is-too-tall-an-order\/","url_meta":{"origin":13375,"position":5},"title":"In a declining market, buying a short sale is too tall an order","author":"Greg Swann","date":"September 28, 2008","format":false,"excerpt":"This is my column for this week from the Arizona Republic (permanent link). \u00a0In a declining market, buying a short sale is too tall an order Is it time to kick the stilts out from under short sales? Right now in most neighborhoods in the Phoenix area, the houses that\u2026","rel":"","context":"In "Marketing"","block_context":{"text":"Marketing","link":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/category\/marketing\/"},"img":{"alt_text":"","src":"","width":0,"height":0},"classes":[]}],"_links":{"self":[{"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/posts\/13375","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/comments?post=13375"}],"version-history":[{"count":1,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/posts\/13375\/revisions"}],"predecessor-version":[{"id":13376,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/posts\/13375\/revisions\/13376"}],"wp:attachment":[{"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/media?parent=13375"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/categories?post=13375"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.bloodhoundrealty.com\/BloodhoundBlog\/wp-json\/wp\/v2\/tags?post=13375"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}