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Materials from Bob Hamilton’s Presentation about Real Estate Commissioners (your guide to being one)

Presenter:

Robert N. Hamilton

 

USE OF A COMMISSIONER IN FAMILY LAW CASES

 

  1. WHAT IS A COMMISSIONER
  1. WHY APPOINT A COMMISSIONER
  1. TIMING
  1. PROCEDURE
  1. HOW DO YOU DETERMINE THE VALUE OF PROPERTY
  1. DIVISION OF PERSONAL PROPERTY
  1. EXAMPLES OF ISSUES AND PROBLEMS

PRESENTER:

Robert N. Hamilton is an attorney at the St. Louis law firm Reinker, Hamilton & Piper, L.L.C. where he practices primarily in the area of Family Law. He is regularly appointed by the Court as a Guardian ad Litem and as a Commissioner.

Reinker, Hamilton & Piper, L.L.C

2016 S. Big Bend Blvd.

St. Louis, MO 63117

Tel: 314-333-4140

Direct Fax: 314-754-2701

bobh@rhplawfirm.com

 

 

STATE OF ____________      )

)  SS

COUNTY OF _______            )

 

 

IN THE CIRCUIT COURT OF THE COUNTY OF _________

STATE OF ________

 

_________________,                                     )                                                                                                                                                                       )

Petitioner,                                            )           Cause Number:

  1. )

)

_________________,                                     )       Division:

)

Respondent.                                         )

 

 

APPOINTMENT OF COMMISSIONER

 

  1. _____________shall serve as the Real Estate Commissioner to sell the real estate known as [ADDRESS].
  2. The Commissioner shall select a real estate agent to list the real property for sale.  Both parties will use their best efforts to maximize the sale price of the premises.
  3. The Commissioner shall select an independent third party contractor to perform the repair work as specified on the attached order.
  4. These repairs shall be paid from the net proceeds after the cost of the sale and repaid to the party or parties originally fronting the funds for the repairs. Receipts for any such repairs shall be provided to the Real Estate Commissioner.
  5. The mortgage, taxes, utilities on the property shall be paid by Petitioner/Respondent.
  6. Petitioner/Respondent shall be allowed to remain in the property until the property is sold so long as he/she cooperates with the Real Estate Commissioner and the real estate agent. He/she shall pay the monthly utility payments on the property.  He/she shall have exclusive possession of the
  7. Should a party fail to pay the mortgage or utility payments at any time prior to the sale of the premises, they shall be responsible for the costs incurred including late fees, penalties and unpaid mortgage fees on said premises. These costs shall be deducted from his/her share of the proceeds from the sale of the
  8. Upon the sale of the property, the proceeds shall be divided ___% to Petitioner and ____% to Respondent after the cost of the sale, the repayment for any repair work, and the Real Estate Agent and Real Estate Commissioner’s fees are The parties acknowledge the court may reapportion the sale proceeds if so requested by the Commissioner for good cause shown. The Commissioner may request payment of  fees in advance if necessary.
  9. This Order implies implicitly and explicitly that both parties will cooperate  fully in the sale of the premises including showing the premises at reasonable times, and keeping the premises in orderly
  10. The Real Estate Commissioner shall have the authority to compel compliance of the parties, including if necessary, removal of a party from the property should it be deemed necessary for the purpose of this sale of the
  11. Failure of either party to abide by the terms and conditions of this document may necessitate additional Court costs, attorney fees and Real Estate Commissioner fees and if either party fails to abide by this document they should be liable for the other parties’ attorney’s fees and costs incurred in enforcing this Order.  The Real Estate Commissioner fees shall be apportioned equally unless the Commissioner requests the court make a different apportionment as a result of a party’s failure to cooperate with the sale of the property.

 

 

KURT SELZLE, CRMS CONSISTENTLY A TOP PRODUCING AGENT AND MULTI-MILLION DOLLAR PRODUCER IN TIIB #I OFFICE IN THE STATE OF MISSOURI!

 

 

 

 

G U N D A K E R

 

 

 

 

 

I 100 TOWN & COUNTRY CROSSING DRIVE TOWN & COUNTRY, MO 63017

DIRECT (314) 324-7950 ·

BUS. (636) 394-9300 WWW.KURTSELZLE.COM KSELZLE@CBGUNDAKER.COM

 

 

 

“A Reputation for Results!”

 

 

Congratulations on the accepted offer for your home.

 

It is the wise client who prepares for problems before they happen! I also believe in this concept for my business. For this reason I would like to share my problem checklist that keeps me busy every day. Since a contract isn’t closed until it is funded, the following items are our potential roadblocks.

 

Many years of experience and hundreds of successful closings have armed me with the tools to overcome each and every problem encountered here; however, it would be unfair for me to say that every problem can be solved. I have placed a delay of closing estimate next to each problem and the ones with asterisks (*) are potential deal-killers. Here we go:

 

 

LENDER:

 

  1. Lender does not properly pre-qualify  borrower.

 

  1. Lender decides last minute they don’t like

 

  1. Lender decides last minute they don’t like the

 

  1. Lender wants property repaired or cleaned prior to

DELAY:

 

2 weeks or * 2 weeks or * 2 weeks or * 1 to 3 weeks*

 

 

 

  1. Lender raises rates, points, or

 

  1. Lender requires, last minute, a re-appraisal.

 

  1. The borrower does not like the fine print in the

loan documents that were received 3 days before close.

 

  1. Lender loses file.

 

  1. The lender does not simultaneously ask for informationfrom the buyer. They ask for information in bits and pieces, thus infuriating the buyer.

2 weeks or * 2 weeks or * 3 days or *

 

1 to 3 weeks

 

1 to 4 weeks

 

Page 2

 

 

 

1.

THE COOPERATIVE AGENT:

 

Won’t return phone calls.

DELAY:

 

1 to 3 weeks

2. Transfers to another office. 1 week
3. Did not pre-qualify the client for motivation. 2 weeks or *
4. Goes on vacation and leaves no one to handle file. 1 to 4 weeks
5. Does not understand or lacks experience in real estate. 1 week or *
6. Has poor people skills. 1 to 3 weeks
7. Gets client upset over minor points. 1 to 3 weeks*
8. Does not communicate with their client. 1 to 4 weeks
 

THE BUYER:

 

DELAY:

1. Did not tell the truth on loan application. 1 week or *
2. Did not tell the truth to their agent. 1 week or *
3. Submits incorrect tax returns to lender. 4 weeks or *
4. Lacks motivation. 1 week or *
5. Source of down payment changes. 1 week or *
6. Family members do not like purchase. 1week or *
7. Is too picky regarding condition. 1 week or *
8. Finds another property that is a better deal. 1 week or *
9. They are “nibblers” (always negotiating) 1 week or *
10. The buyers bring an attorney into the picture. 2 weeks or *
11. They do not execute paperwork in a timely manner. 3 weeks or *
12. They do not deliver their money in a “check cleared” fashion to the closing agent. 1 to 2 weeks
13. Job change, illness, divorce, or other financial setback. 3 weeks or *
14. Comes up short on money. 1 week or *
15. Does not obtain insurance in a timely manner. 1to 4 weeks

 

Page 3

 

 

TITLE COMPANY:

 

  1. Fails to notify agents of unsigned or unreturned documents so that the agents can cure the problems relating to the same.

 

  1. Fails to obtain information from beneficiaries,

lien holders, title lien holders, insurance companies, or lenders in a timely manner.

 

  1. Let’s principals leave town without getting all necessary

 

  1. Incorrect at interpreting or assuming aspects of the transaction and then passing these items on to related parties such as lenders, attorneys, buyers, and

 

  1. Too

 

  1. Loses

 

  1. Incorrectly prepares

 

  1. Does not pass on valuable information fast

 

  1. Does not coordinate items that can be done

DELAY:

 

1 week or *

 

 

 

1 week or *

 

 

 

1to 2 weeks

 

 

1 week or *

 

 

 

 

1 to 3 weeks

 

1 to 3 weeks

 

1 to 3 weeks

 

1 to 4 weeks

 

1 to 4 weeks

 

 

Using a reputable title company will greatly reduce the problems on our side of the transaction.

 

 

 

1.

ACTS OF GOD:

 

Earthquake, tornado, fire, slides, hurricane.

DELAY:

 

1 week or *

 

THE APPRAISAL:

 

DELAY:

1. The appraiser is not local and misunderstands the market. I to 3 weeks
2. No comparable sales available. 1 week or *
3. Appraiser delays (too busy, etc.) 1 to 3 weeks
4. Incorrect appraisal. 1to 3 weeks
5. Appraisal too low. 1 week or *

 

Page 4

 

INSPECTION COMPANIES:                                                                    DELAY:

 

1.         Too picky.                                                                                            l day or *

 

  1. Scares buyer. 1 week or *

 

  1. Infuriates you.                                                                                      1 week or *

 

  1. Makes mistakes.                                                                                  1 to 3 weeks

 

  1. Delays report.                                                                                      1 week or *

 

 

I appreciate the time you have spent to understand the challenging time between contract acceptance and close. I wanted you to understand these potential problems for the following reasons:

 

  1. A transaction cannot close until I have cleared up any and all of the previously mentioned problems.

 

  1. To let you know that I have considerable experience in heading off these potential pitfalls and have you feel secure in my capabilities.

 

  1. To make these pitfalls clear to all the parties we are working with so problems can be discovered early.

 

  1. To make you aware of these pitfalls so you can warn me of any potential problems and aggressively comply with any requested information.

 

Once again,  congratulations  on  your  contract.   Please  be  assured  that  I  am  always available to you!

 

 

 

 

 

Kurt Selzle, CR      S, Realtor® International President’s Premier Coldwell Banker Gundaker

 

[Attorney]

Email: ________________

 

[Petitioner]

Email: ________________

 

[Respondent]

Email: __________________

 

      Re:  _____ v. ______ – [Address of Property]
Dear ____, ______, _______:

 

I received an email from [Attorney] that [Petitioner/Respondent] is offering $_________ to purchase the property. In speaking with [Real Estate Agent], I assume the offer is for as in condition.  I need a written contract by [Petitioner/Respondent]  if I am going to consider this offer.  Otherwise we will forge ahead with repairs and determining the necessary monies that will be posted in my escrow account to cover the cost of the repairs and move forward.  In speaking with [Real Estate Agent] he/she believes that $_______ as is offer is in the ballpark and reasonable for this property before any work is done on it.  As I described before previous analysis by [Real Estate Agent] would be that, in its current condition, the property is worth approximately $_______ to $________.  However, if approximately $_______ worth of work is put into the property the property would likely sell for around $_______ to $______.  For that to occur the work needs to be done and paid for.   I would need $_______ deposited into my escrow account before we begin.

 

[Petitioner/Respondent]’s offer would be good if the parties are unable to afford these repairs. I enclose my motion that I am filing with the court to secure the necessary escrow funds to move forward in having these repairs done.  In the interim I have received several bids to do work and will be ready to have the work commence once I have secured the money to pay for same.

 

Before we incur significant fees and costs on this project if [Petitioner/Respondent]’s offer is forthcoming per the terms I suggested which is on a proper offer form for the purchase of real estate so I may accept it on behalf of the parties and if Judge _____ agrees to allow me to sell the home in as is condition based on my motion to the court then we shall proceed in that fashion.

 

I want to be clear on this potential purchase by one of the parties. They will be treated like any other buyer. They must show they have the financing approval as well as they prepare and complete the proper forms. If we know that [Petitioner/Respondent]  is buying the property then I will not enter into a listing contract with [Real Estate Agent].  However, he/she will be reimbursed for the time he/she has incurred at my request.  He/she is owed approximately $______ based on the _____ hours he/she has put in to date. This is far less than any commission and possible closing costs credits and is basically paying him/her as a consultant that I have used to value the property.

 

If this is not agreeable and/or ordered by the court then I will ask the court that I may proceed with the sale as ordered which would be that work be put into the property and that potentially if the parties could not afford to do the work that I would offer to allow [Petitioner/Respondent] to do the work and compensate him/her out of the sale proceeds.

 

Sincerely,

 

 

 

 

 

 

STATE OF ____________     )

)  SS

COUNTY OF _______          )

 

 

IN THE CIRCUIT COURT OF THE COUNTY OF _________

STATE OF ________

 

_________________,                                     )           Cause Number:                                                                                                                      )

Petitioner,                                            )           Division:

  1. )

)

_________________,                                     )

)

Respondent.                                        )

 

 

 

MEMORANDUM OF LAW IN SUPPORT OF COURT APPOINTED COMMISSIONER’S MOTION TO CLARIFY AUTHORITY

 

COMES NOW, ___________________, the undersigned court appointed Commissioner to sell real estate, states to the Court as follows:

  1. That on [DATE}, this Court entered an order (“order”) in the above cause appointing ___________________ as Commissioner for the purpose of selling ____ acres of land at [ADDRESS OF PROPERTY] (“___ Property”), in accordance with the judgment entered on [date] and as amended on [date]; and the parties stipulation on [date].
  2. The [date] order did not specifically grant the Commissioner several authorities the Commissioner now believes to be essential to facilitate the sale of the ___ Property. The authorities the Commissioner now requests are specifically listed in the Court Appointed Commissioner’s Proposed Order filed herein.
  3. This Court has the authority and continuing and inherent jurisdiction to amend the order entered by this Court on [date]. In Missouri, as discussed in In re Marriage of Smith, it has long been recognized that a court rendering a decree has the inherent jurisdiction through contempt or other proceeding to enforce its orders. See In re Marriage of Smith, 721 S.W.2d 782 (Mo.App. S.D. 1986).
  4. Pursuant to Rule 68.01 of the Missouri Supreme Court Rules, this Court has the authority to grant the Commissioner such authority. Supreme Court Rule 68.01(e) states “The order of reference to the master may specify or limit the master’s powers and may direct the master to report only upon particular issues or to do or perform particular acts or to receive and report evidence only and may fix the time and place for beginning and closing the hearings and for the filing of the master’s report. Subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the duties under the order.”
  5. Rule 68.01 clearly authorizes this Court to grant the Commissioner the powers requested by the Commissioner because as the rule states, “subject to the specifications and limitations stated in the order, the master has and shall exercise the power to regulate all proceedings in every hearing before the master and to do all acts and take all measures necessary or proper for the efficient performance of the duties under the order”.
  6. The order required payment by the parties to the Commissioner upon completion of the sale of the ___ Property. The Commissioner requests in paragraph 21 of the Motion to Clarify that this Court amend the order to require the parties to pay the Commissioner’s fees on a monthly basis.
  7. Pursuant to Rule 68.01(a) of the Missouri Supreme Court Rules, this Court has the authority to fix the compensation received by the Commissioner. Rule 68.01(a) states “Each circuit court in which any action is pending may appoint a master therein. The compensation to be allowed a master shall be charged upon such of the parties, or paid out of any fund or subject matter of the action which is in the custody or control of the court, as the court may direct.”
  8. Rule 68.01(a) clearly authorizes this Court to order the parties to pay the Commissioner’s fees on a monthly basis because Rule 68.01 states compensation is to be allowed “as the court may direct”, meaning the payment schedule is at the court’s discretion.
  9. This Court has the authority and continuing and inherent jurisdiction to amend the order entered by this Court on [date]. In Missouri, as discussed in In re Marriage of Smith, it has long been recognized that a court rendering a decree has the inherent jurisdiction through contempt or other proceeding to enforce its orders. See In re Marriage of Smith, 721 S.W.2d 782 (Mo.App. S.D. 1986).

 

WHEREFORE, ___________________, the undersigned Commissioner requests this Court amend the [date] order and grant the Commissioner such requested authorities as specified in the Motion to Clarify Authority and for such other orders the Court deems just and proper under the circumstances.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

STATE OF ____________      )

)  SS

COUNTY OF _______            )

 

 

IN THE CIRCUIT COURT OF THE COUNTY OF _________

STATE OF ________

 

_________________,                                     )           Cause Number:                                                                                                                                   )

Petitioner,                                            )           Division:

  1. )

)

_________________,                                     )

)

Respondent.                                         )

 

 

COMMISSIONER’S MOTION TO AMEND PRIOR ORDER APPOINTING COMMISSIONER AND FOR A SCOPE OF PROCEDURE FOR SALE AND FOR AN ORDER REQUIRING PARTIES TO POST MONIES FOR NECESSARY REPAIRS

 

Comes now, ________________, the undersigned real estate commissioner to sell real estate, and for his motion states to the Court, as follows:

  1. That on [date] the undersigned was appointed to sell the real estate located at [ADDRESS].  The order specifically requires the commissioner to select an independent third party contractor to perform the repair work.
  2. That the commissioner has retained the services of [Real Estate Agent] to sell the property either as an agent and/or as a consultant to determine the value of the property in its current condition and what it would be fixed up and what cost would be necessary to fix up the property.
  3. That [Real Estate Agent] has determined the following repairs need to be done:  All garden areas need to be landscaped, the windows & doors inside and out need to be cleaned, the carpet needs to be removed and replaced in the living room, hall, 3 bedrooms and 5 closets, the gutters need to be cleaned, the trim on the front porch needs to be painted along with the deck and pergola, the exterior needs to be power washed, the driveway needs to have the asphalt overlaid, wallpaper and border needs to be removed, the walls need to be prepared and primed and then painted (including the ceilings) in the living room, hall, master bedroom, front bedroom, small bedroom, hall bath, kitchen, half bath and laundry room, the doorknobs need to be replaced, the kitchen counter and around the bathtubs needs to re-calked, along with any minor electrical, or handy man work that may need to be done.

4,         On [date] the court ordered  _________  as the contractor to repair the property.  On [date] the court appointed ________________ to select an independent third party contractor to perform the repair work.  The order also provides that the work is to be paid by the parties up front if necessary.

  1. The cost of the repairs to fix the property up would be approximately $________.  The contractors are not willing to wait until the potential sale of a property and need to be paid up front.  Accordingly, the parties need to be ordered to deposit $________ into the commissioner’s escrow account before the work can be started.
  2. Petitioner/Respondent is a contractor and could do some of the work but the court order prohibits the commissioner from using him/her. Petitioner/Respondent’s charges may not be in accordance with other bids received for doing more work and as result the commissioner will not want to use him/her if that would be the case.
  3. That the house in its current condition is work approximately $_______ to $_________.
  4. With approximately $_______ work, the house would likely sell for approximately $_________.
  5. That [Real Estate Agent] has incurred time as a consultant in evaluating this case in the amount of $________.
  6. That if [Real Estate Agent] was used as the agent to sell the property he/she would waive these charges.  If he/she is not used as an agent, his/her charges are as indicated herein.
  7. The commissioner needs the order amended to allow him/her to sell the property in as is condition to the parties and/or to the public if they do not post the necessary funds to do the work on the property.
  8. The commissioner also needs an order from the court requiring the parties to deposit the necessary funds into his/her escrow account to have the necessary repairs done.
  9. If the property is going to be sold without the use of an agent then person employed by the real estate commissioner needs to be compensated for his/her time and effort in this case, evaluating the value of the property and the necessary repair work that needs to be done to same.

WHEREFORE the Commissioner requests the Court issue an order to allow him/her to sell the property in as is condition to anyone he/she chooses for fair market value based on its condition and/or alternatively to require the parties to deposit the necessary funds into the commissioner’s escrow account to have the necessary repairs done and to pay [Real Estate Agent] for his/her time and efforts in this case and for such other orders as this Court deems just and proper under the circumstances.

 

 

 

 

 

 

 

 

 

 

 

 

 

IN THE CIRCUIT COURT OF THE COUNTY OF _________

STATE OF ________

 

_________________,                                     )                                                                                                                                                           )

Petitioner,                                           )           Cause Number:

  1. )

)

_________________,                                     )           Division:

)

Respondent.                                        )

 

 

 

PROPOSED AMENDED ORDER APPOINTING COMMISSIONER FOR THE PURPOSE OF SELLING REAL PROPERTY

 

The Court having heard argument of the parties on [Petitioner/Respondent]’s Motion to Amend Order Appointing Commissioner for the Purpose of Selling Real Property, does hereby GRANT said Motion and renews, affirms and amends the appointment of ______________ as Commissioner for the purpose of selling _____ acres of land at ______________ (“____ Property”) in accordance with the Judgment entered by the Court on [date], as amended on [date], and the Parties Stipulation of [date].

The Commissioner is granted full and complete power and authority to list the ____ [Property], to negotiate and sign offers, counter-offers and acceptances of such to sell the ____ [Property]; to close the sale of the _____ [Property], and convey the _____ [Property] by Deed, all under the signature of the Commissioner by the authority granted to him/her by the Court through this Order.

In addition, the Commissioner is granted full and complete power and authority to enter into and record any and all agreements, including without limitation, granting and entering into easements, rights-of-way, driveway agreements and boundary adjustments deemed appropriate by the Commissioner in his sole discretion to effectuate the listing and sale of the _____ [Property], whether said agreements relate to the _____ [Property] or the adjoining property owned by Petitioner/Respondent located at [ADDRESS] (“____ Property”), said ____ [Property] being subject to the continuing jurisdiction of the Court by virtue of the Family Court Judgment entered on [date], as amended.

Further, the Commissioner is empowered to make application or petition to any governmental authority for permits, permissions, boundary adjustments, or any other required governmental approval deemed by the Commissioner in his/her sole discretion to be appropriate to facilitate the listing and sale of the _____ [Property], whether such application and/or petition relates to the _____ [Property] or the ______ [Property].

All of the powers granted herein may be exercised by the Commissioner in his name and under his signature as Commissioner as if he is the Owner of the _____ [Property] and ____ [Property], and the consent, approval or signatures of Petitioner, ________ or Respondent, _______ shall NOT be required.

The Commissioner shall have full access to the ____ [Property] and ____ [Property] as he deems appropriate to carry out his/her duties hereunder and the Commissioner is further authorized to grant access to the ____ [Property] and _____ [Property] to others as he/she deems appropriate to carry out this Order.

The Petitioner and Respondent shall cooperate in good faith with the Commissioner in all respects or be subject to sanctions by the Court.

The Commissioner shall be paid his or her normal hourly rate for his or her time. The Commissioner shall submit an invoice to the parties on a monthly basis, reflecting time spent as well as his or her reasonable and necessary expenses. The invoice shall be paid forthwith, one­ half by Petitioner and one-half by Respondent.

The Commissioner may decline this appointment. If such appointment is declined, either Party may move the court for the appointment of a different Commissioner.