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#161604 - 08/08/07 09:19 PM Agency Disclosure
livinitup Offline
Member

Registered: 08/08/07
Posts: 16
Loc: California
In California, when working as an exclusive buyer's agent, when should the Agency Disclosure form be signed buy the buyer and sent to the seller? We have an offer in, but this form was not requested.

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#161748 - 08/09/07 10:55 AM Re: Agency Disclosure [Re: livinitup]
Jim Erickson Offline
Veteran Member

Registered: 03/31/04
Posts: 513
Loc: Twin Cities, MN
Cannot answer to California requirements but in Minnesota, Agency Disclosure is made at the first substantial contact with the consumer. Substantial contact would be prior to discussing price, terms, motivation with consumer. The consumer reads the disclosure and signs it. This disclosure is placed in the file. Commerce department will randomly check broker transaction files specifically looking for this disclosure. Fines apply if there are found to be none.

Generally, this disclosure is not submitted with offers.

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#161967 - 08/10/07 04:32 AM Re: Agency Disclosure [Re: Jim Erickson]
livinitup Offline
Member

Registered: 08/08/07
Posts: 16
Loc: California
Thanks

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#192182 - 01/09/08 09:12 PM Re: Agency Disclosure [Re: livinitup]
cori Offline
Member

Registered: 01/29/06
Posts: 46
Loc: Auburn, Ca
I would ask the buyer to sign it right away, that way they can't come back at you and say they didn't understand what the relationship was. When you submit the offer its not necessary for the seller to have the agency disclosure untill the offer is accepted.
_________________________
Corinne Shepard-Realtor
Keller Williams Realty
11601 Blocker Dr. Suite 200
Auburn, Ca 95603

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#196722 - 01/24/08 05:47 PM Re: Agency Disclosure [Re: cori]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
In California, can an agent have a buyer agency (agent/fiduciary) relationship with just a verbal agreement, or does it have to be in writing?

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#196863 - 01/24/08 10:29 PM Re: Agency Disclosure [Re: Pikes Peak]
Devil's Advocate Offline
Veteran Member

Registered: 01/03/05
Posts: 538
Loc: Ontario, Canada
LOCALLY The requirement is to make written disclosure at the earliest practicable opportunity utilizing your best efforts to obtain written acknowledgement of the disclosure and before any offer is made.

Interestingly, if my memory serves correctly, it was in the early 80's THAT the common law of agency in relation to the real estate industry was brought to the fore in a successful California lawsuit by a buyer against a real estate agent for the breach of his fiduciary duty to his principal, which the agent denied arguing that he was not the agent of the buyer, but that as the co-operating broker in the transaction, he was the subagent of the listing broker and seller, but the court found that under the common law of agency, the fiduciary relationship and the agents duty thereunder, was clearly establish between the buyer and the agent through implication.

So, it is accepted by the courts that if you act like someone's agent and talk or behave like their agent, you are their agent in the eyes of the court, UNLESS the relationship is clearly documented to the contrary.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .

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#196990 - 01/25/08 11:53 AM Re: Agency Disclosure [Re: Devil's Advocate]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
The reason for asking:

http://www.nytimes.com/2008/01/22/business/22agent.html?pagewanted=1&hp

"The Ummel case poses the question: In a relationship built on trust, where promises are rarely written down and where — as in this case — there is no signed contract, what are the exact obligations of these representatives in guiding their clients through a sizzling market?"

In my state there is no such thing as "implied agency", it has to be in writing.
I think Oregon has implied agency.

FYI, interesting cases:
http://www.frascona.com/resource/jag802rutrans.htm

http://www.frascona.com/resource/oef701buyer.htm


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#197355 - 01/26/08 06:07 PM Re: Agency Disclosure [Re: Pikes Peak]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
Any California agents know the answer to my question?

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#197372 - 01/26/08 07:35 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
My friend you should review your CAR forms and speak with your broker. The answer to your question regarding agency is this, as a licensee you must have any person you have a meaningful conversation with regarding real estate sign an agency document. Use a reasonable man standard to define meaningful. If you're at a Laker game an the guy drinking a brew next to you talks about buying the REO three doors down from him you don't need to have him complete an agency doc. If he shows up at your office or invites to his home to walk down the street you should have him sign the form.

With regard to submitting an offer, your client should have signed an agency disclosure doc, that document is sent along with the purchase offer signed by your client. If you were presenting the offer in person you'd prepare an agency document for the seller to sign as well.

This is NOT optional, do it if you remember stuff. This is all codified in the California Civil Code 2079.13 to 2079.24. Which means non-compliance gets your licensed yanked and you successfully sued by your former client or the seller or both.


Edited by BayAreaTexan (01/26/08 11:18 PM)

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#197406 - 01/26/08 09:45 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
So, what you are saying is, that the laws in California as to buyer Agency are the same as in Colorado (where I am). Without a SIGNED agency agreement, there is NO agency?

The women suing the agent in California doesn't have a leg to stand on because there is no BA contract?

http://www.nytimes.com/2008/01/22/business/22agent.html?pagewanted=1&hp

p.s. I'm not into brews and laker games, a link to the CA agency laws will be appreciated.

Never mind, looks like you are not required to have a separate buyer agency contract, just some type of disclosure form stating who you work for. Here is our BA contract, making it quite clear who pays us and who we work for, including our fiduciary obligations and responsibilities.

http://www.dora.state.co.us/Real-estate/contracts/BC60040705CLN.pdf

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#197443 - 01/26/08 11:23 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike the original question came from a Cali licensee. That licensee has specific requirements to keep his license and avoid prosecution of claims against himself and his brokerage.

If I read your comments correctly I really wouldnt know how to respond. In real estate what isn't in writing won't bear probative scrutiny at trial. You have to figure that memories will fade or become selective so you memorialize the agreement for the benefit of all parties.

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#197445 - 01/26/08 11:31 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
Reading this (link below), does NOT require a written Buyer Agency Contract to be able to represent a buyer, which in my location is illegal. Your requirement, if I read it correctly, only requires a disclosure form.

http://caselaw.lp.findlaw.com/cacodes/civ/2079-2079.24.html

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#197492 - 01/27/08 10:04 AM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
In California a licensee is not required to have a written agreement to represent a buyer. Best practices dictate if you want to be paid for your time during this period where gasoline prices are approaching $4 a gallon you'd have the person sign a buyer broker agreement mandating that he pay you for your services. Otherwise what's to stop that person from riding around in your range rover for a month then buying from their cousin who has a license but not much else?

Hope this adds just a bit of clarity to how our laws are different from what you see every day in Colorado Pike.

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#197510 - 01/27/08 11:37 AM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"Hope this adds just a bit of clarity to how our laws are different from what you see every day in Colorado Pike.


Thanks, it does.
Looks to me, like you guys operate a little loosy goosy with buyer agency. So, the lady with the lawsuit, probably does have a leg to stand on and might win, given the agent had a fiduciary duty to her, although it was not in writing.

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#197627 - 01/28/08 12:03 AM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike, I don't know that the buyer broker agreement promulgated by the California Association of REALTORS has been successfully challenged at trial. I've had more than a few conversations with CAR attorneys and while most aren't trial litigators they would have mentioned the fact that the buyer broker contract being used has had successful challenges.

I'm also unfamiliar with the ongoing litigation you're referring to. Is it California litigation?

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#197664 - 01/28/08 07:56 AM Re: Agency Disclosure [Re: BayAreaTexan]
Bigtoe Offline
Major Contributor

Registered: 10/14/07
Posts: 2238
Loc: Outer Banks
In NC there is a real estate license law that says we have to have a buyer agency agreement signed.

If we don't have one signed but walk, talk and quack like a buyer's agent we not only break that law but we have become a buyer's agent through our actions.
_________________________
Your Outer Banks real estate agent. Helping people buy and sell OBX real estate since 1989.

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#197702 - 01/28/08 09:59 AM Re: Agency Disclosure [Re: Bigtoe]
Devil's Advocate Offline
Veteran Member

Registered: 01/03/05
Posts: 538
Loc: Ontario, Canada
Could have - Would have - SHOULD HAVE

Some jurisdiction may try to water down the common law of agency which is reputed to be over 300 hundred years old and imported from England. In some jurisdiction, real estate organization strongly opposed all the fiduciary obligation place upon an agent, under the law of Agency as it increased the agents liability and interfered with their income earning potential.

In our jurisdiction, the opinion of the courts was that “we do not abide by what real agents may think or want or what their organizations may suggest, or the term of reference they may choose to use etc. just as long as they obey the letter of the law.” (Agency law)

Some Real Estate organizations, who had failed to see the "writing on the wall" are still trying to play catch-up. Today, there are some agents representing buyers, who without any special knowledge or training fail to relize the liability involved.

Change is enviable, who can remember the anger generated when Re/Max entered the scene with revolutionary commission splits or the opposition to “part timers” or the introduction of “independent contractors” and Buyer’s agents, and those who sat back and said "it will never happen or it won't last" etc. none of these past changes were voluntary, and were originally brought about through the operation of law, despite the efforts of those real estate organizations that were opposed to change.

Important Notice: This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .

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#197718 - 01/28/08 10:53 AM Re: Agency Disclosure [Re: Devil's Advocate]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"I'm also unfamiliar with the ongoing litigation you're referring to. Is it California litigation?"

http://www.nytimes.com/2008/01/22/business/22agent.html?_r=1&pagewanted=1&hp&oref=slogin

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#197933 - 01/28/08 09:06 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike your link doesn't work. Given its the NYT I doubt its Cali litigation.

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#197964 - 01/28/08 10:44 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"Feeling Misled on Home Price, Buyers Sue Agent

CARLSBAD, Calif. — Marty Ummel feels she paid too much for her house. So do millions of other people who bought at the peak of the housing boom."

It works for me. Those are the headlines.
If it doesn't work for you, google should help, or this link:

http://www.msnbc.msn.com/id/21134540/vp/22838905#22838905

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#197976 - 01/28/08 11:42 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike, I doubt seriously that a reasonable person would not know about a home selling for $100,000 less in an area of interest. These idiots are looking to shift blame. Couldn't happen to a nicer couple.

I'd cross complaint those bastards and own two houses in Carlsbad when it was all said and done. With respect to their appearance on national telivision I would make their decision to appear in public very unfortunate. I'd also find their retirement or any other assets to end the trail they are blazing.

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#198071 - 01/29/08 10:44 AM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"Pike, I doubt seriously that a reasonable person would not know about a home selling for $100,000 less in an area of interest. These idiots are looking to shift blame. Couldn't happen to a nicer couple."

You don't think it's the buyers agent fiduciary duty to show less expensive, identical homes to their buyer in the same neighborhood?
Anyhow, this can be a long discussion, especially not knowing all the facts, and a judge is going to decide what the law says about that.

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#198078 - 01/29/08 11:02 AM Re: Agency Disclosure [Re: Pikes Peak]
DesertRose Offline
Member

Registered: 01/09/08
Posts: 264
Loc: SoCal
They're having a huge party over this on the appraiser's board. People w/a lot of free time & an odd sense of superiority.

In CA we have a Market Advisory disclosure buyers sign. I don't know the facts in this one either but it is scary to think that failing to show 1 listing out of 52 actives in an area could be actionable.

Another reason I quit representing buyers a long time ago.

Did any of those lower priced units actually sell for those lower prices or were they fishing? Could the other units have been listed incorrectly in the MLS (we all know how that goes)? Or had/didn't have some feature buyers wanted/hated?

If the agent intentionally misled, that is one thing. But if the issue becomes does buyer's agent have an absolute responsiblity to show each & every listing that is listed in buyer's price range, well that is a scary outcome.

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#198091 - 01/29/08 11:35 AM Re: Agency Disclosure [Re: DesertRose]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"If the agent intentionally misled, that is one thing. But if the issue becomes does buyer's agent have an absolute responsiblity to show each & every listing that is listed in buyer's price range, well that is a scary outcome."

Only if those listings meet the buyer's needs/parameters and they want to see them. The agent has a choice to fire the buyer if the agent thinks they have become unreasonable.

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#198136 - 01/29/08 02:16 PM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike I looked at the buyer in the video clip you sent me. I've managed people an resources for decades. This woman is being less than candid. her husband is going along for the ride because he doesn't want to stand up to her or he has more money than common decency. In either case I'd never give in this kind of mean spirited attempt to shift blame.

Let me ask you this directly Pike, who do you know that could spend a $1.3Mil on a house who isn't also sufficiently capable of picking up a flyer from a house 3 doors down from a house they were interested in purchasing?

Pike who do you know that doesn't have internet access and doesn't look at available information including comparable sales information available from a number of free sites?

Pike if you're telling me the woman on that video, the buyer in this case doesn't yahoo or internet but she buys $1.3 Mil homes I have a slightly used bridge in the San Francisco bay to sell you at a good price. Oh, an Pike, no checks. You know you REALAAATUURS can't be trusted.

The woman is lying and I wouldn't have a bench trial I'd have a jury trial because jurors in socal would give me punitive damages because of her malicious intent in bringing a frivilous claim.

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#198145 - 01/29/08 02:42 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
Here is what a Certified General Appraiser had to say about this:

FYI,

I know this area reasonably well as I was doing a lot of field reviews there during this time frame.

The Ummel's property is a subdivision home. I looked this property up last week. There was an apparent model match located on the same street that sold for $175k less 3 months prior, and another model match that was in escrow and eventually closed on the same day as the Ummels' sale for $105k less; and that property had a nice pool/spa combo that the Ummel's property lacked. FYI, that property had been listed with a range listing that topped out only $5k more than the sale price. It was listed prior to the contract date reported for the Ummel's home. It's all in the MLS.

There were other sales data in that subdivision and the surrounding areas that appear to me to reflect the trends demonstrated by these other two properties. We're definitely not talking about an agent accidentally overlooking 1 listing out of 50 or anything like that. The Ummels would have had to drive past the active listing 3 doors down to get to this property when they were looking at it.

If I had reviewed an appraisal on this property I definitely would expect an appraiser to address both sales in the report, and they'd better have a really good reason for significantly exceeding the list price on the model match with the pool.

The facts of the case and who was supposed to do what will come out at trial. Or maybe not. I suppose it depends if there will be a settlement.

And some more info:
Couple, Feeling They've Been Wronged, Picket Re/Max

http://www.voiceofsandiego.org/articles/2007/02/20/housing/939picket021207.txt



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#198417 - 01/30/08 08:34 AM Re: Agency Disclosure [Re: Pikes Peak]
Bigtoe Offline
Major Contributor

Registered: 10/14/07
Posts: 2238
Loc: Outer Banks
The appraiser in this deal already settled with the buyers.
_________________________
Your Outer Banks real estate agent. Helping people buy and sell OBX real estate since 1989.

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#198426 - 01/30/08 09:23 AM Re: Agency Disclosure [Re: Bigtoe]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"The appraiser in this deal already settled with the buyers."

I know, do you know for how much?

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#198434 - 01/30/08 09:47 AM Re: Agency Disclosure [Re: Bigtoe]
Devil's Advocate Offline
Veteran Member

Registered: 01/03/05
Posts: 538
Loc: Ontario, Canada
The Ummel’s are in the process of settling suits with both Contento and Horizon Pacific Financial Inc., the mortgage brokerage Little was affiliated with when he made their loan.

The hearing for that settlement, which seeks $20,000 from those two co-defendants, is scheduled for Feb. 23.

The appraiser in the "Ummel" case would make a good plaintiff witness against the defendents, if he testifies that he was under "undue influence" from the agent to bring in a high appraisal.

The court date, is set for July 13, 2008 according to Jeffery Hogue, the Ummel's lawyer and I would not be surprised, if this case, like a lot of other civil lawsuits will be settled out-of-court by the insurance company in order to avoid a court ruling that would establish a legal precedent and encourage similar lawsuits.

But, if it is discovered that there was collusion between the agent who owned the property and the buyer's agent, that may have involved fraudulent misrepresentation, then most insurance companies have a exclusionary clause allowing them to deny coverage in the event of criminal charges being filed, and the defendents are then on their own.

b] Important Notice:[/b] This information is provided as basic educational information by the author and is not a substitute for the advice of an expert and/or the advice of a lawyer. There is NO representation as to legality, accuracy, correctness of the herein information and the reader is strongly urged to consult a lawyer in the relevant jurisdiction to ensure accuracy before acting on this information .

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#198477 - 01/30/08 12:27 PM Re: Agency Disclosure [Re: Devil's Advocate]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
I wouldn't give a damn what my E&O carrier had to say. Before I paid my deductible I'd file a cross complaint. The appraiser was employed by the lender. If the appraiser wanted to testify I'd make sure his testimony was at an administrative hearing to take his license.

Pike, let me say it again. I looked at the video you sent me. The woman is a liar and that would show in 4 hours of aggressive cross before a socal jury. What jury member would be sympathetic to this kind of person with adequate direct examination?

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#198494 - 01/30/08 01:21 PM Re: Agency Disclosure [Re: BayAreaTexan]
Pikes Peak Offline
Major Contributor

Registered: 12/15/04
Posts: 2799
Loc: FL
"What jury member would be sympathetic to this kind of person with adequate direct examination?"
"Before I paid my deductible I'd file a cross complaint."

I hope you talk to your attorney first before filing.
I'm not sure we will find out, it could be a secret settlement.

Did you read this?
http://www.voiceofsandiego.org/articles/2007/02/20/housing/939picket021207.txt

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#198748 - 01/31/08 08:15 AM Re: Agency Disclosure [Re: Pikes Peak]
BayAreaTexan Offline
Member

Registered: 01/01/08
Posts: 106
Loc: SFBayArea, CA
Pike I'm not a big fan of the caliber of individuals I've seen at bay area remax offices so I'm a bit tickled by your link. That aside, these good folks can from Marin County California. Trust me, no damn jury is gonna rule their way.

I can articulate the business reasons that ReMax will settle but you seem pretty sharp Pike. No damn way you'd give her a damn $50 let alone more then $64.19. I wouldn't give her anything other than a depo subpeona and lots of time in a seat on my cross action. I'd also send a landscape engineer out the day before so I can start getting their home, new place for a new Maria ready for when her seesters visit me.


The case is crap. Never ever in life would this woman prevail. She could raise every issue in her tweaked mind. Bottom line she lived in Marin County then bought a Million dollar home in SD County. If I couldn't articulate contributory negligence or outright lies on her part I need to pay her. The only babes collecting my cash are half my age, can read and write in habla and like being spanked for being bad.

I only lightly read the article but that its happening to ReMax is pretty funny to me however Ummel isn't close to being right in her claim. Its impossible for to have not taken action. Specifically her remax counsel may have been flawed, hell I'll even her Ummel that her remax counsel may have been sub par. The problem with her case is no jury will believe she didnt take independent action. Thats way contrary to human nature in general and folks in this income bracket in particular.

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