Short Sale Listings: Leaving Out Key Details Is Like Telling A Lie..

[Editors note: It’s always exciting to introduce a new author to RCG… and today I’m especially excited to introduce Courtney Cooper of Cooper Jacobs as the newest RCG contributor!  Far from a newbie, she’s been running an entertaining blog on ActiveRain for over a year now (and racked up tens of thousands of points in the process!), so I’m pretty sure she’ll have no problem making her impact on the RCG community.   Welcome Courtney!   ~Dustin]

Hello RCG!

Thanks Dustin and ARDELL for the encouragement! I am a huge fan of RCG and look forward to what lies ahead!

Pushing openness with short sale listings…

A lot has been written on Rain City Guide and elsewhere about short sales in the Seattle area, but 2008 had me working with far more buyers than sellers and one sentence kept popping up: “that house is a short sale

118 thoughts on “Short Sale Listings: Leaving Out Key Details Is Like Telling A Lie..

  1. Hi Courtney,

    Welcome to RCG. I’ve brought these same questions into the classroom as a Realtor Ethics case study. A careful reading of Article 12 of the Realtor Code shows us that this new short sale problem hasn’t yet been tackled by NAR. Perhaps in the future we will see another standard of practice added to Article 12:

    “Realtors shall be careful at all times to present a true picture in their advertising and representations to the public…”

    Today, real estate agents and Realtors have the option of putting the “short sale” status of the home in the PUBLIC comments, on the MLS, on their marketing flyers, and so forth. So the choice *is* there.

    Most agents tell me that the reason they chose not to do this is because doing so may not promote the best interests of their client, the SELLER. (See Article 1 of the NAR Code which also says that a duty of honesty is higher than the duty to promote the best interests of the client.)

    Since Realtor/real estate agent commission is paid by the seller, I will assert that the reason the “short sale” status is not provided to the public through the MLS is because the MLS members recognize the importance of promoting their client’s best interests, which is to sell the home.

    As you point out, with full disclosure, the seller will attract the right kind of buyer. Without full disclosure we may be wasting everyone’s time. Similar to someone asking me out on a date and then later telling me he’s married. Hey, I still could have said yes. Full disclosure is respectful.

    I’m with you on this issue. However, I’m not so sure that the MLS will vote to make decisions that may put sellers at a disadvantage, until the buyers side commission is divorced from the sales price.

  2. HI Jillayne – Thank you for the warm welcome!

    I do understand that these listing agents think they are representing their clients the sellers in the best light by not disclosing the short sale status and also that the NWMLS thinks that this is helping the sellers somehow, but you are right about the respect issue. It also isn’t really helping the sellers at all not to disclose because although they are getting more exposure, it isn’t the right kind of exposure. They need to be honest and advertise to the audience that will close a deal and help them prevent foreclosure.

    Good point on the standards of practice issues as well.


  3. Welcome Courtney! I just received a response to an offer we presented that it was a short sale, and there was no indication to the public OR to the agents. If the listing office is willing to guarantee the full commission to the buyer’s agent, then there need be no warning to the buyer’s agent that it is a short sale.

    So the question to both you and Jillayne is, does the seller have the option to get the highest possible price for his sale (in case he has to pay the shortfall) by not disclosing to all parties PRIOR to an offer being received, that it is a short sale? Why does the owner have to put forth his weakness in the “advertising” portion, the mls public remarks? He doesn’t put his wet basement there. Yes, it must be disclosied, but during escrow…not in a manner that makes the offer lower.

    It’s not a matter of what needs to be disclosed, as much as it is a matter of when, and the seller’s right to proceed in his own best interest as to the timing of that information.

  4. Jillayne,

    The logic that the mls tells agents and not buyers, for the reasons you state, makes no sense. Unless the mls doesn’t understand the the agent for the buyer has to reveal that to the buyer. Telling the agent for the buyer “via the mls” is the same as telling the buyer…no?

  5. Courtney,

    Sorry for the delay. I’m batting eight balls at once today 🙂

    I think the mls put out a warning not to list at prices that are not known to be valid. But you are absolutely right. If the price is “iffy”, and the bank may want more than the list price, one MUST for sure disclose it is a short sale, unless we go to “range pricing”.

    “Well obviously I would do that, but just don’t like sounding like a broken record saying “sorry, that house is a short sale

  6. Hi Courtney,

    You’ve joined a great group on Rain City-congratulations.

    Disclosing a short sale is a tough one, however, if I were at the point of writing an offer for a buyer on a short sale I want to know about it. My buyer can then make a decision as to whether to move forward with an offer. There are a lot of issues associated with a short sale and a buyer must have time to wait for the powers to be to sort the issues out, knowing, as you say, they may never hear a response.

    Unfortunately, the process to sort out the liens can take a long time if there’s a first, a second, tax liens, and unpaid utility bills. I just heard a story in which a short sale was almost to closing and all the liens were covered, except an outstanding utility bill that was less than $1000. Everyone refused to pay the outstanding utility bill and the sale did not close.

    A lot of buyers are under the misconception that a short sale is a always a deal. I know several agents who work primarily with short sales and this is not the case.

    If you write an offer on a short sale it’s important to have a listing agent who knows how to “work” the short sale and how to get to the right person at the bank. It can make all the difference. Suffice to say, short sales are only for buyers with lots of time and patience.


    You are right that a seller or agent doesn’t need to disclose a wet basement in the listing. There are only 500 characters available in a listing to describe a home. We agents, as marketers, need to use those 500 characters to market the home. However, the seller would need to disclose the wet basement in the disclosure form, form 17. Many times the disclosure form is attached on line to the MLS listing. The information is in the proper place, the disclosure form, not the marketing remarks.

  7. Ardell a short sale is a material fact. The seller cannot perform without the approval of the lender. I would argue that it doesn’t matter what the commission is, even if a full commission was offered the buyer’s agent, the buyer still must be informed of a material fact prior to making the offer. Debra says it well above.

    If the buyer finds out later that it’s a short sale and cannot wait around while the listing agent figures out what to do, then the listing agent has wasted everyone’s time: Seller, buyer, and both agents.

    Better to fully disclose and attract the buyers who are fine with waiting.

    In fact, I’m inclined to promote the idea of the listing agent disclosing his/her experience successfully closing short sales to the buyers agents, and disclosing that the seller has already been pre-approved by the bank for a short sale. This would speed up the bank approval time.

  8. I think listings taken should disclose a potential short sale publicly. It is in the interest of the lender and seller to get the home sold vs. move into foreclosure state and add to the market inventory.

    A buyer is interested in the home foremost, not necessarily because the home is over-encumbered with a 1st & 2nd and various other liens. Buyers are setting market value. After all, when a lender calls the shots in approving a short sale subject to…. dictating commissions that they are not a party to (contractually), dictating a net zero proceeds to the seller or dictates what escrow fee can be charged (another lovely notion) among other stipulations, it makes it very clear the owner is not really the decision maker but more of a conduit.

    Sharp buyers agents can spot a potential short sale without the disclosure from the listing side, starting with the year it last sold and going from there. Short sales are a large part of the paltry sales volumes today.

  9. Hey ARDELL – I bet it is more like twelve balls and you are being modest!

    I will never tire of giving the buyer accurate info – that is part of the job, but the “broken record” was tough for my last particularly frustrated buyer who did not want to deal with short sales at all. I felt so bad for his frustration and disappointment when he realized that there was “a catch” to this house being in his price range. He kept saying, “That’s false advertising!!!!!”

    Deb – so glad to see you here! There are so many short sale “experts” out there right now, too, right? Aye aye aye! These are extremely complicated transactions and I have come across some that haven’t even written a hardship letter to the bank or asked for a short sale package. On the other hand, I have seem many pre approved short sales because the first buyer got frustrated and backed out just in time for the lien holder to come back and say, “OK, we will take x amount of money”. Of course, there is no guarantee that with a new buyer they will still take x amount of money…

  10. Jillayne – Obviously, I like the idea, too of disclosing and then adding the details. That was particularly helpful to one of my transactions this year – it actually was a short sale, but there was a previous buyer whose financing had failed and my client was able to pick up the pieces – our lender was able to close in less than two weeks with a lot of driving around on every one’s part: – the listing agent was very clever and disclosed in the remarks that, “hey, the bank will take X amount of money!” and we went for it. It was a great buy and literally NO hassles. Not the norm, but possible because of the details shared.

  11. Tim – I agree! It is pretty easy to spot a short sale even when not disclosed. It is also in the best interest of the seller in my opinion to go ahead and target the correct market by being honest in the public remarks. At least everyone knows what they are getting into at that point. Your word “conduit” is actually perfect.

  12. Courtney – I’m surprised our more “legally” minded contributors haven’t joined this conversation. I get really nervous when phrases such as “in my client’s best interest” or “this or that is a material fact” are thrown about on behalf of the client. Truly, if you’re a real estate professional, you must refer your client to an attorney to answer these questions. The complexities of short sales are quite often beyond the scope of the average agent. Taking a “short sale” listing without the proper experience and aid of other professionals is not just telling a lie: it’s unethical and exposes everyone to unnecessary risk.

  13. This is not legal or tax advice. Seek appropriate legal and tax counsel.

    “It is unfair to a new or unsuspecting buyer to essentially falsely-advertise a home when the lien holder has not even approved the price being advertised.

  14. And now, a word from the legally minded…

    Jame, I’m not so convinced that a short sale requires the involvement of two attorneys (one attorney could not represent both buyer and seller). That said, you are correct that an agent is not allowed (by law — actual practice is a different story) to answer questions from the client about the risks/benefits/potential liabilities associated with a short sale — although even that is an overstatement. I don’t see a bright line here between the practice of law and simply educating the client.

    Courtney, I agree wholeheartedly with your thesis. However, I take exception to your comment that a short sale “really shouldn’t be” on the market for the listed price. You put the cart before the horse. It is not the amount owed on the property that determines the market value. It is the price that a willing buyer will pay a willing seller, neither under compulsion to buy/sell. So, a short sale price is in fact much closer to the “real” value of the house — much to the chagrin of the lender.

  15. Michael,

    I agree with everything you’ve said, except for one important point. Only the foreclosing lien holder itself is barred from pursuing a deficiency judgment. The WA Supreme Court confirmed in 2007 that “wiped-out” junior lien holders following trustee sales can pursue its losses based upon the promissory note itself. See Beal Bank SSB v. Sarich, — Wn.2d –, 167 P.3d 555 (Sept 13, 2007). Thus, it’s important that homeowners understand that negative-equity properties following a foreclosure can still result in a deficiency where the owner has multiple mortgages.

  16. Hi Craig – While I agree with you that the market value of a short sale should be what a ready willing and able buyer will pay, the problem is that in the actual practice of these things on the market today, it isn’t happening that way most of the time.

    This isn’t always the case, but here is what I have seen a lot of the time: The buyers who want a short sale are coming in ridiculously below market to take advantage of the situation. The sellers sign whatever offer they get to try and avoid foreclosure and the lien holder of course won’t take the low offer. The lien holder drags their feet to look for more offers, etc. The system is tough on both informed buyers and unsuspecting buyers. That is a whole other can of worms.

    Of course I am advising clients to talk to an attorney. In addition our NWMLS 22SS also has the same advise though non specific on item # 6:

    “Implications of a short sale. The parties acknowledge that this Addendum does not fully explain all of the implications of a Short Sale. The parties are advised to seek the advice of third party professionals regarding this Agreement and the consequences of this Addendum.”

  17. Martin — great point! Thank you for making it. Your comment weighs in favor of attorney involvement in a short sale, as this information probably should not be provided by an agent as that would constitute the unauthorized practice of law.

  18. Martin, thanks for the correction. Good stuff.

    Craig, how does attorney involvement work for the seller when the seller has no money to pay an attorney?

  19. Hi Craig – Actually, Michael’s question regarding the involvement of an attorney is of critical importance these days. When a distressed owner seeks help in selling a home, how do real estate professionals frame the issue of attorney fees? Indeed, if there’s no money there, what options are there? By the way, thanks for your participation in this discussion.

  20. Well, there is money available in the form of the listing agreement and the lender’s presumed willingness to pay 5% in commissions. I have offered to negotiate a short sale on behalf of a seller if the listing agent is willing to share the commission with me. My actual fee — and indeed whether I am even willing to take the case — will depend on the complexity of the transaction (number of liens, multiple lenders, etc.). To date nobody has taken me up on the offer. In the past, I have also negotiated a short sale where the seller paid me directly but received a little help from family members in doing so.

  21. Courtney,

    There should be a HUGE notice to the homeowner as part of the listing agreement.


    Better yet, there ougtta be a law that agents can’t take short sale listings without a letter from an attorney saying short sale is recommended by the attorney to their client, the seller.

  22. Martin,

    Craig and I have discussed that topic on another blog post. I think that if the second lienholder is the same as the first lienholder, that ruling would not apply.

    I think the case hinged on the second lienholder not being the entity that foreclosed. Some believe it hinges on “that Deed of Trust”, so that if the one lender had two Deeds, and the second “lienholder” is the entity that foreclosed on the first, the same entity could try to collect “on the second Deed”.

    Your thoughts?

  23. Ardell — do you provide that counsel to your clients? If so, you’re engaging in the unauthorized practice of law. Regardless, and as we discussed at length in an earlier post, I think you are wrong. The case drew no such distinction. Absent language in the opinion to support your “belief,” your analysis is on thin ice. Sellers need to be aware of the implications of having a second where the first is foreclosed as noted by Martin.

  24. Ardell,

    First, if you’re referring to some sort of dragnet clause exemption, I’m not sure if that applies in WA. The plain reading of RCW 61.24.100(1) would seem to imply under the “that deed of trust” clause that it’s irrelevant if the foreclosing lien holder and the “wiped-out” junior lien holder are the same creditor. Craig, is that how you read it? Further, that distinction is not made in the Beal Bank decision, which is a pretty clear holding.

    So reading that into the law would seem to be a stretch. That’s my two-cents. Ardell, do you have any support for the idea that a wiped-out junior lienholder is barred from a deficiency judgment if it is the same creditor as the senior?

    By the way, the idea that WA is a non-deficiency state is a widely-held myth in the world of short sales, given the high percentage of under-water properties facing foreclosure that have multiple mortgages.

    Martin Goldberg

  25. The sheer volume of differing opinions and thoughts on this post in regards to short sale sellers just further illustrates the entire point I am trying to make with regards to the buyers: The buyer should have a clue what they are getting into so they know it isn’t just a “normal” house listing.

  26. “Ardell, do you have any support for the idea that a wiped-out junior lienholder is barred from a deficiency judgment if it is the same creditor as the senior?”

    There is no case to the contrary, to the best of my knowlege.

  27. Craig,

    It really wouldn’t provide a different answer from someone to see legal advice, as there is no case where the second lienholder was the same as the first lienholder. Correct?

  28. Craig,

    Can non RE licensees share a RE agent’s commission in WA? If the bank were to pay your fee, then that seems to be a conflict of interest as the fee increases the loan deficiency. this seems to be a sticky topic.

    I know of a transaction with a short sale seller who hired a listing agent and an attorney to handle the bank. The house was sold at auction. Under what circumstances would you recommend the short sale seller go through foreclosure instead of short sale?

  29. Ardell,

    “Does it matter of the Deed is on a refi vs. a purchase money loan?” Not the way I read it.

    Both re-fi’s and purchase money loans involve a promissory note secured by a deed of trust. Once a junior deed of trust is extinguished as a result of the senior foreclosing lien holder following a trustee sale, the security interest (lien) goes away, but the the note remains as an obligation of the borrower (assuming this is a negative equity property). In either case, it would appear that, under Beal Bank, the wiped-out lien holder can sue on the note.

    “There is no case to the contrary, to the best of my knowlege.”
    I would have to disagree with you on this point. I believe both the plain language of RCW 61.24.100(1) and Beal Bank are authority for the contrary principle. The distinction under the statute, and which was confirmed by the Supreme Court, revolves around the differences between the deeds of trust, not the nature of the creditor.

  30. Ardell — the law is quite a bit more complex than how you construe it. Your point (and interpretation of the statute and the Beal case) appears to be based solely on the fact that there is no authority to disprove it. That simply is not how the law works, and anybody who acts based on such analysis does so at their significant risk.

    In reality, the statute and the Beal court strongly suggest that the junior debt (but not the lien) would survive foreclosure even if it is the same creditor as the senior debt. If faced with the issue, I think the client deserves legal counsel from someone qualified and legally capable of providing it. Besides, that counsel would differ from your interpretation, because you do not fully understand the law as reflected by your comment 31 (new comments have appeared since I began).

  31. “strongly suggest” does not a decision make. Seems to me there would have to be a case to decide. And for there to be a case, some lawyer would have to be willing to find out. Until then “jury’s still out”.

  32. Martin,

    As you likely know, in much of the Country Deeds of Trust are not signed by people buying homes and judicial foreclosure is the only remedy. The tradeoff for non-judicial, Trustee Sales via Deeds of Trust, is the anti-deficiency provision.

    In the past and future, 2nds as a rule when buying a home were not taken into consideration as well as they should have been, and so there is confusion as to the seconds. Since they only involve a short time in history, and most lenders do not pursue, I doubt any attorney specializing in this small segment of same lienholder for both can be found.

    It is clear that the logic used with the lender not being the foreclosing party and the borrower’s rights, as I recall, were not considered in that suit between two lenders. Was the borrower even a party in interest in that suit?

    I think people are talked into short selling being the best route always, by agents. And I am clearly not convinced that is the case. I have not seen anyone come up with a list of pros and cons as to short sale vs. Trustee Sale.

  33. Courtney – Your comment #27

    Ever since short sales started to become more common (2 years ago), there has been a huge learning curve for real estate professionals. Many are still behind that curve. Your observation that there are differing views should be a wake-up call to agents to educate themselves and their clients about the complexities and challenges in this arena. Thanks for a great post. It’s good to air out these issues.

  34. Hey, thanks, Jame! Glad to come on to RCG with such an important and complex issue – It is clear to me that these should be disclosed in the public remarks on public search sites. I am in the process of writing a letter to the Board of Directors at this point and will update along the way.

  35. Ardell mentioned:

    “I have not seen anyone come up with a list of pros and cons as to short sale vs. Trustee Sale.”

    Perhaps because going short sale retains some commissions and is slightly better in credit than foreclosure. Going Foreclosure is not good for credit but may be more advantageous to wipe out debt completely. Short sales preserves commissions and earned income for all involved in the sale, but the seller.

  36. Ardell,

    It is a complicated problem with sprinkles of legal, tax and market health implications. Last night on TV I caught a few minutes of the short-sale vs. foreclosure debate over which trashes credit more, therefore which is better for the seller. There was no real consensus, but it appeared to lean toward foreclosure (being more of a sound business decision for the seller) and people walking away. The implication of going foreclosure is that we will have inventory to continue to come to market in a distressed manner, putting downward pressure on values and not helping as fast as we would like to find a “bottom”, per se.

    Obviously, for sales to take place in a semi-traditional route, short sales create a mechanism for earned income: title, escrow, commissions etc..

    Foreclosures eliminate a lot of earned income for us folks in the business.

    It’s a complicated scenario that is highly tailored to the individual sellers financial/solvency situation.

  37. As in all real estate transactions, each is very individual which is why no blanket statements should be made or assumed. For some, short sale is the proper remedy because foreclosure and/or bankruptcy are “not an option” as we had one seller say. It was a very personal decision to not have this noted as foreclosure or bankruptcy on their financial record.

    For some, it is just easier to “let it go” rather than deal with the hassles. For others, they dig in their heels and fight it all the way even though the fight is useless when done without proper counsel and mostly out of pride rather than an educated point of view.

    We’ve been working with many agents who represent short sale properties and each one is very unique. The reasons for many people getting in these situations is usually quite heartbreaking and mostly centers around health and/or job issues. I can certainly understand as I had major health issues at a very young age that caused me not only to almost lose my life, but to also lose my job because of my illness. Thankfully, I didn’t have a home to lose in a foreclosure or short sale, but I did lose my apartment and had to find shelter elsewhere. I’ve been thankful to my family for 20 years for their willingness to step up and help me then. I dutifully paid off my large medical bill (I didn’t have insurance at the time) over 12 years time and keep those memories fresh in my mind so that I have empathy and sympathy for each of the people who end up in similar situations.

    Legal counsel and tax counsel are incredibly important considerations for these types of transactions and should ALWAYS be recommended. Whether a homeowner is willing to follow up with the recommendation is another matter. Agents can best cover themselves from later exposure by making sure these recommendations are put in writing to their clients and signed off on by them as having been read.

  38. It’s clear getting involved in short sales can be a slippery slope. I learned a long time ago to consult with attorneys and others if I knew I didn’t have the expertise to do the job for the client. I’ve know a lot about short sales, but there is still a huge learning curve.

    Companies are out there to help navigate the short sale process. We had Washington Property Solutions come to our office meeting last week to talk about what they do. The company has been working with short sales for 5 years. Their website is I’ve never worked with them, so this is not an official endorsement, but others in my office have done so. The question a Realtor has to decide is if they have enough knowledge and expertise to help their client through the process or if they need to have additional help.

  39. This is the first discussion of short sales that makes sense.

    Trying to short sale a property is difficult now as opposed to the normal progression of the past. Negotiators are over worked with a mandate of getting as much as possible.

    Broker’s price opinions are being done in a hap hazard manner by both seasoned and junior agents depending on the day.

    In my opinion we won’t know what the legal aspects of the short as opposed to the foreclosure for many years. The courts may be clogged with cases, or start taking decisive action to clear case loads. We won’t know.

    I do recommend going to an attorney. I do have hours of conversation with a potential client. I make it very clear it is thier choice.

    My opinion is that a short sale shows a seller is trying to be responsible. I think it looks good for a seller to work hard to keep the place up and market it for the highest dollar for the lender. If there should be court action the seller can make the case they did what they could.

    That is purely an opinion I have, that I express, and have for many years. Short sales ar NOT a revenue generating transaction. It’s a ton of hours, hard negotiation, and needs to be documented.

    A short sale also needs to have a compelling story. They need a Change in Circumstance. Just because a property lost value, or a seller wants to change strategy is not a compelling reason. I only help distressed owners who have a reason they can prove in court.

  40. Let me add that in a foreclosure the seller gives up any control of clearing themselves from a legal obligation to pay a debt. The lender/investor is in charge of recourse.

    In the past, when there was just a first position loan, maybe with a little equity, it was OK to be foreclosed. Today, I’m thinking investors may have a ton of legalese in that fifty page loan document that none of us have really explored.

  41. We can never have people talking about short sales enough. There is to much educating to do, not only to buyers and sellers but also to us agents. We can and should always be learning more as the market is not showing any signs of slowing down when it comes to short sales.

  42. Debra, you probably had Richard of our company (Washington Property Solutions) speak to your office about short sales last week. We work closely with many offices throughout Puget Sound assisting brokers and agents through the short sale process. Our belief is that short sales are extremely complicated to navigate without professional assistance. To echo many of the comments on this thread, it is alarming to us to see how little some listing agents know about the short sale process and yet still try to tackle them. We’ve been exclusively involved with short sales long before they became “in vogue.”

  43. Yes Martin, you and Richard visited our office. I appreciate you coming by. I wish I had known about you earlier as I had a short sale going for about two months last year. My buyer gave up and went and bought another home. I know a few things about short sales, but it was clear to me the listing agent on this property knew almost nothing. I’m not saying she could have solved the issues completely and gotten the seller and bank to come to terms over an offer, but she sure did not add to the experience. Her lack of expertise almost guaranteed the failure of our offer.

    As I said previously, we Realtors have to know when we need to bring in the extra guns and support. We can’t know everything. We need to make sure our clients ar well taken care of and if the services of an outside company or an attorney are needed, we need to call on them and not expect to handle the job ourselves. Our clients deserve that from us.

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  48. Hi Courtney,

    I enjoyed your post and also read through a few of the comments. It seems to me that there are two areas of disclosure here. First, the short sale must be disclosed to buyers’ agents prior to their writing the offer. In Tucson, we are required to disclose in the Agent Only Remarks that the sale is a potential short sale.

    Secondly, the question comes up of disclosure to the public. If there was a possibility of it not being a short sale (ex: a seller can come in with $$ if the home sells high enough) then I would avoid mentioning a short sale in the public remarks. Of course, any mention of a short sale requires my client’s authorization, but I agree with you and counsel my clients to advertise that it is a short sale. I do a lot of advertising online and find that I get investor calls from all over the country who are interested in my listings because they are short sales. I would lose all that targeted traffic and interest if I didn’t disclose and that would NOT be in my Seller’s best interest.

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  50. The latest release on the NWMLS might help – hoping that the public will be able to search easily this way, too:

    “Coming Soon – New Required Fields – 3rd Party Approval Required and Bank/REO Owned
    NWMLS is excited to announce two new required fields; “3rd Party Approval Required

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