I have a serious problem with Bullet Point #2 (Reads: "Listing Broker/Agent Agreement: It is the listing broker/agent’s fiduciary responsibility to present the highest and best offer to the servicer.") in the wells Fargo required HAFA Addendum (see attached) as it requires the Listing Broker (i.e. us) to have a fiduciary relationship with Wells Fargo when this can only be given to the seller, especially since there is an adversarial relationship present between the bank and the seller.  Also, from a practical standpoint, I cannot present the "highest and best offer" since only executed contracts are submitted to the bank and highest (i.e. lots of contingencies, weak buyer, etc.) is frequently not the best (i.e. cash, AS IS, etc.).  Also, this clause does not have an ending time.  Therefore, it could be construed to mean that I have to continue to submit higher offers even after a previous fully executed contract is approved and ready to close.

This Addendum cannot be acceptable to REALTORS.  It is yet another way that the banks are trying to more and more burdens on the back of short sale professionals by requiring them to do things that are in direct violation of their contractural duties to their actual clients (i.e. the sellers).

Any suggestions, comments or advice?

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exactly.  Wells tried this language last year on the Arms length affidavit and the public whipping they received from attorneys caused them to change it.  Cross it out, do not sign, and report to HAFA regarding the illegality or their requirement.

Thanks, Joseph.  Do you have any contact info for the HAFA program directly?



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