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Getting wealth or making money

If you wanted to get rich, how would you do it? I think your best bet would be to start or join a startup. That’s been a reliable way to get rich for hundreds of years. The word “startup” dates from the 1960s, but what happens in one is very similar to the venture-backed trading voyages of the Middle Ages.

Startups usually involve technology, so much so that the phrase “high-tech startup” is almost redundant. A startup is a small company that takes on a hard technical problem.

Lots of people get rich knowing nothing more than that. You don’t have to know physics to be a good pitcher. But I think it could give you an edge to understand the underlying principles. Why do startups have to be small? Will a startup inevitably stop being a startup as it grows larger? And why do they so often work on developing new technology? Why are there so many startups selling new drugs or computer software, and none selling corn oil or laundry detergent?

The Proposition

Economically, you can think of a startup as a way to compress your whole working life into a few years. Instead of working at a low intensity for forty years, you work as hard as you possibly can for four. This pays especially well in technology, where you earn a premium for working fast.

Here is a brief sketch of the economic proposition. If you’re a good hacker in your mid twenties, you can get a job paying about $80,000 per year. So on average such a hacker must be able to do at least $80,000 worth of work per year for the company just to break even. You could probably work twice as many hours as a corporate employee, and if you focus you can probably get three times as much done in an hour. [1] You should get another multiple of two, at least, by eliminating the drag of the pointy-haired middle manager who would be your boss in a big company. Then there is one more multiple: how much smarter are you than your job description expects you to be? Suppose another multiple of three. Combine all these multipliers, and I’m claiming you could be 36 times more productive than you’re expected to be in a random corporate job. [2] If a fairly good hacker is worth $80,000 a year at a big company, then a smart hacker working very hard without any corporate bullshit to slow him down should be able to do work worth about $3 million a year.

Like all back-of-the-envelope calculations, this one has a lot of wiggle room. I wouldn’t try to defend the actual numbers. But I stand by the structure of the calculation. I’m not claiming the multiplier is precisely 36, but it is certainly more than 10, and probably rarely as high as 100.

If $3 million a year seems high, remember that we’re talking about the limit case: the case where you not only have zero leisure time but indeed work so hard that you endanger your health.

Startups are not magic. They don’t change the laws of wealth creation. They just represent a point at the far end of the curve. There is a conservation law at work here: if you want to make a million dollars, you have to endure a million dollars’ worth of pain. For example, one way to make a million dollars would be to work for the Post Office your whole life, and save every penny of your salary. Imagine the stress of working for the Post Office for fifty years. In a startup you compress all this stress into three or four years. You do tend to get a certain bulk discount if you buy the economy-size pain, but you can’t evade the fundamental conservation law. If starting a startup were easy, everyone would do it.

Millions, not Billions

If $3 million a year seems high to some people, it will seem low to others. Three million? How do I get to be a billionaire, like Bill Gates?

So let’s get Bill Gates out of the way right now. It’s not a good idea to use famous rich people as examples, because the press only write about the very richest, and these tend to be outliers. Bill Gates is a smart, determined, and hardworking man, but you need more than that to make as much money as he has. You also need to be very lucky.

There is a large random factor in the success of any company. So the guys you end up reading about in the papers are the ones who are very smart, totally dedicated, and win the lottery. Certainly Bill is smart and dedicated, but Microsoft also happens to have been the beneficiary of one of the most spectacular blunders in the history of business: the licensing deal for DOS. No doubt Bill did everything he could to steer IBM into making that blunder, and he has done an excellent job of exploiting it, but if there had been one person with a brain on IBM’s side, Microsoft’s future would have been very different. Microsoft at that stage had little leverage over IBM. They were effectively a component supplier. If IBM had required an exclusive license, as they should have, Microsoft would still have signed the deal. It would still have meant a lot of money for them, and IBM could easily have gotten an operating system elsewhere.

Instead IBM ended up using all its power in the market to give Microsoft control of the PC standard. From that point, all Microsoft had to do was execute. They never had to bet the company on a bold decision. All they had to do was play hardball with licensees and copy more innovative products reasonably promptly.

If IBM hadn’t made this mistake, Microsoft would still have been a successful company, but it could not have grown so big so fast. Bill Gates would be rich, but he’d be somewhere near the bottom of the Forbes 400 with the other guys his age.

There are a lot of ways to get rich, and this essay is about only one of them. This essay is about how to make money by creating wealth and getting paid for it. There are plenty of other ways to get money, including chance, speculation, marriage, inheritance, theft, extortion, fraud, monopoly, graft, lobbying, counterfeiting, and prospecting. Most of the greatest fortunes have probably involved several of these.

The advantage of creating wealth, as a way to get rich, is not just that it’s more legitimate (many of the other methods are now illegal) but that it’s more straightforward. You just have to do something people want.

Money Is Not Wealth

If you want to create wealth, it will help to understand what it is. Wealth is not the same thing as money. [3] Wealth is as old as human history. Far older, in fact; ants have wealth. Money is a comparatively recent invention.

Wealth is the fundamental thing. Wealth is stuff we want: food, clothes, houses, cars, gadgets, travel to interesting places, and so on. You can have wealth without having money. If you had a magic machine that could on command make you a car or cook you dinner or do your laundry, or do anything else you wanted, you wouldn’t need money. Whereas if you were in the middle of Antarctica, where there is nothing to buy, it wouldn’t matter how much money you had.

Wealth is what you want, not money. But if wealth is the important thing, why does everyone talk about making money? It is a kind of shorthand: money is a way of moving wealth, and in practice they are usually interchangeable. But they are not the same thing, and unless you plan to get rich by counterfeiting, talking about making money can make it harder to understand how to make money.

Money is a side effect of specialization. In a specialized society, most of the things you need, you can’t make for yourself. If you want a potato or a pencil or a place to live, you have to get it from someone else.

How do you get the person who grows the potatoes to give you some? By giving him something he wants in return. But you can’t get very far by trading things directly with the people who need them. If you make violins, and none of the local farmers wants one, how will you eat?

The solution societies find, as they get more specialized, is to make the trade into a two-step process. Instead of trading violins directly for potatoes, you trade violins for, say, silver, which you can then trade again for anything else you need. The intermediate stuff– the medium of exchange– can be anything that’s rare and portable. Historically metals have been the most common, but recently we’ve been using a medium of exchange, called the dollar, that doesn’t physically exist. It works as a medium of exchange, however, because its rarity is guaranteed by the U.S. Government.

The advantage of a medium of exchange is that it makes trade work. The disadvantage is that it tends to obscure what trade really means. People think that what a business does is make money. But money is just the intermediate stage– just a shorthand– for whatever people want. What most businesses really do is make wealth. They do something people want. [4]

The Pie Fallacy

A surprising number of people retain from childhood the idea that there is a fixed amount of wealth in the world. There is, in any normal family, a fixed amount of money at any moment. But that’s not the same thing.

When wealth is talked about in this context, it is often described as a pie. “You can’t make the pie larger,” say politicians. When you’re talking about the amount of money in one family’s bank account, or the amount available to a government from one year’s tax revenue, this is true. If one person gets more, someone else has to get less.

I can remember believing, as a child, that if a few rich people had all the money, it left less for everyone else. Many people seem to continue to believe something like this well into adulthood. This fallacy is usually there in the background when you hear someone talking about how x percent of the population have y percent of the wealth. If you plan to start a startup, then whether you realize it or not, you’re planning to disprove the Pie Fallacy.

What leads people astray here is the abstraction of money. Money is not wealth. It’s just something we use to move wealth around. So although there may be, in certain specific moments (like your family, this month) a fixed amount of money available to trade with other people for things you want, there is not a fixed amount of wealth in the world. You can make more wealth. Wealth has been getting created and destroyed (but on balance, created) for all of human history.

Suppose you own a beat-up old car. Instead of sitting on your butt next summer, you could spend the time restoring your car to pristine condition. In doing so you create wealth. The world is– and you specifically are– one pristine old car the richer. And not just in some metaphorical way. If you sell your car, you’ll get more for it.

In restoring your old car you have made yourself richer. You haven’t made anyone else poorer. So there is obviously not a fixed pie. And in fact, when you look at it this way, you wonder why anyone would think there was. [5]

Kids know, without knowing they know, that they can create wealth. If you need to give someone a present and don’t have any money, you make one. But kids are so bad at making things that they consider home-made presents to be a distinct, inferior, sort of thing to store-bought ones– a mere expression of the proverbial thought that counts. And indeed, the lumpy ashtrays we made for our parents did not have much of a resale market.

Craftsmen

The people most likely to grasp that wealth can be created are the ones who are good at making things, the craftsmen. Their hand-made objects become store-bought ones. But with the rise of industrialization there are fewer and fewer craftsmen. One of the biggest remaining groups is computer programmers.

A programmer can sit down in front of a computer and create wealth. A good piece of software is, in itself, a valuable thing. There is no manufacturing to confuse the issue. Those characters you type are a complete, finished product. If someone sat down and wrote a web browser that didn’t suck (a fine idea, by the way), the world would be that much richer. [5b]

Everyone in a company works together to create wealth, in the sense of making more things people want. Many of the employees (e.g. the people in the mailroom or the personnel department) work at one remove from the actual making of stuff. Not the programmers. They literally think the product, one line at a time. And so it’s clearer to programmers that wealth is something that’s made, rather than being distributed, like slices of a pie, by some imaginary Daddy.

It’s also obvious to programmers that there are huge variations in the rate at which wealth is created. At Viaweb we had one programmer who was a sort of monster of productivity. I remember watching what he did one long day and estimating that he had added several hundred thousand dollars to the market value of the company. A great programmer, on a roll, could create a million dollars worth of wealth in a couple weeks. A mediocre programmer over the same period will generate zero or even negative wealth (e.g. by introducing bugs).

This is why so many of the best programmers are libertarians. In our world, you sink or swim, and there are no excuses. When those far removed from the creation of wealth– undergraduates, reporters, politicians– hear that the richest 5% of the people have half the total wealth, they tend to think injustice! An experienced programmer would be more likely to think is that all? The top 5% of programmers probably write 99% of the good software.

Wealth can be created without being sold. Scientists, till recently at least, effectively donated the wealth they created. We are all richer for knowing about penicillin, because we’re less likely to die from infections. Wealth is whatever people want, and not dying is certainly something we want. Hackers often donate their work by writing open source software that anyone can use for free. I am much the richer for the operating system FreeBSD, which I’m running on the computer I’m using now, and so is Yahoo, which runs it on all their servers.

What a Job Is

In industrialized countries, people belong to one institution or another at least until their twenties. After all those years you get used to the idea of belonging to a group of people who all get up in the morning, go to some set of buildings, and do things that they do not, ordinarily, enjoy doing. Belonging to such a group becomes part of your identity: name, age, role, institution. If you have to introduce yourself, or someone else describes you, it will be as something like, John Smith, age 10, a student at such and such elementary school, or John Smith, age 20, a student at such and such college.

When John Smith finishes school he is expected to get a job. And what getting a job seems to mean is joining another institution. Superficially it’s a lot like college. You pick the companies you want to work for and apply to join them. If one likes you, you become a member of this new group. You get up in the morning and go to a new set of buildings, and do things that you do not, ordinarily, enjoy doing. There are a few differences: life is not as much fun, and you get paid, instead of paying, as you did in college. But the similarities feel greater than the differences. John Smith is now John Smith, 22, a software developer at such and such corporation.

In fact John Smith’s life has changed more than he realizes. Socially, a company looks much like college, but the deeper you go into the underlying reality, the more different it gets.

What a company does, and has to do if it wants to continue to exist, is earn money. And the way most companies make money is by creating wealth. Companies can be so specialized that this similarity is concealed, but it is not only manufacturing companies that create wealth. A big component of wealth is location. Remember that magic machine that could make you cars and cook you dinner and so on? It would not be so useful if it delivered your dinner to a random location in central Asia. If wealth means what people want, companies that move things also create wealth. Ditto for many other kinds of companies that don’t make anything physical. Nearly all companies exist to do something people want.

And that’s what you do, as well, when you go to work for a company. But here there is another layer that tends to obscure the underlying reality. In a company, the work you do is averaged together with a lot of other people’s. You may not even be aware you’re doing something people want. Your contribution may be indirect. But the company as a whole must be giving people something they want, or they won’t make any money. And if they are paying you x dollars a year, then on average you must be contributing at least x dollars a year worth of work, or the company will be spending more than it makes, and will go out of business.

Someone graduating from college thinks, and is told, that he needs to get a job, as if the important thing were becoming a member of an institution. A more direct way to put it would be: you need to start doing something people want. You don’t need to join a company to do that. All a company is is a group of people working together to do something people want. It’s doing something people want that matters, not joining the group. [6]

For most people the best plan probably is to go to work for some existing company. But it is a good idea to understand what’s happening when you do this. A job means doing something people want, averaged together with everyone else in that company.

Working Harder

That averaging gets to be a problem. I think the single biggest problem afflicting large companies is the difficulty of assigning a value to each person’s work. For the most part they punt. In a big company you get paid a fairly predictable salary for working fairly hard. You’re expected not to be obviously incompetent or lazy, but you’re not expected to devote your whole life to your work.

It turns out, though, that there are economies of scale in how much of your life you devote to your work. In the right kind of business, someone who really devoted himself to work could generate ten or even a hundred times as much wealth as an average employee. A programmer, for example, instead of chugging along maintaining and updating an existing piece of software, could write a whole new piece of software, and with it create a new source of revenue.

Companies are not set up to reward people who want to do this. You can’t go to your boss and say, I’d like to start working ten times as hard, so will you please pay me ten times as much? For one thing, the official fiction is that you are already working as hard as you can. But a more serious problem is that the company has no way of measuring the value of your work.

Salesmen are an exception. It’s easy to measure how much revenue they generate, and they’re usually paid a percentage of it. If a salesman wants to work harder, he can just start doing it, and he will automatically get paid proportionally more.

There is one other job besides sales where big companies can hire first-rate people: in the top management jobs. And for the same reason: their performance can be measured. The top managers are held responsible for the performance of the entire company. Because an ordinary employee’s performance can’t usually be measured, he is not expected to do more than put in a solid effort. Whereas top management, like salespeople, have to actually come up with the numbers. The CEO of a company that tanks cannot plead that he put in a solid effort. If the company does badly, he’s done badly.

A company that could pay all its employees so straightforwardly would be enormously successful. Many employees would work harder if they could get paid for it. More importantly, such a company would attract people who wanted to work especially hard. It would crush its competitors.

Unfortunately, companies can’t pay everyone like salesmen. Salesmen work alone. Most employees’ work is tangled together. Suppose a company makes some kind of consumer gadget. The engineers build a reliable gadget with all kinds of new features; the industrial designers design a beautiful case for it; and then the marketing people convince everyone that it’s something they’ve got to have. How do you know how much of the gadget’s sales are due to each group’s efforts? Or, for that matter, how much is due to the creators of past gadgets that gave the company a reputation for quality? There’s no way to untangle all their contributions. Even if you could read the minds of the consumers, you’d find these factors were all blurred together.

If you want to go faster, it’s a problem to have your work tangled together with a large number of other people’s. In a large group, your performance is not separately measurable– and the rest of the group slows you down.

Measurement and Leverage

To get rich you need to get yourself in a situation with two things, measurement and leverage. You need to be in a position where your performance can be measured, or there is no way to get paid more by doing more. And you have to have leverage, in the sense that the decisions you make have a big effect.

Measurement alone is not enough. An example of a job with measurement but not leverage is doing piecework in a sweatshop. Your performance is measured and you get paid accordingly, but you have no scope for decisions. The only decision you get to make is how fast you work, and that can probably only increase your earnings by a factor of two or three.

An example of a job with both measurement and leverage would be lead actor in a movie. Your performance can be measured in the gross of the movie. And you have leverage in the sense that your performance can make or break it.

CEOs also have both measurement and leverage. They’re measured, in that the performance of the company is their performance. And they have leverage in that their decisions set the whole company moving in one direction or another.

I think everyone who gets rich by their own efforts will be found to be in a situation with measurement and leverage. Everyone I can think of does: CEOs, movie stars, hedge fund managers, professional athletes. A good hint to the presence of leverage is the possibility of failure. Upside must be balanced by downside, so if there is big potential for gain there must also be a terrifying possibility of loss. CEOs, stars, fund managers, and athletes all live with the sword hanging over their heads; the moment they start to suck, they’re out. If you’re in a job that feels safe, you are not going to get rich, because if there is no danger there is almost certainly no leverage.

But you don’t have to become a CEO or a movie star to be in a situation with measurement and leverage. All you need to do is be part of a small group working on a hard problem.

Smallness = Measurement

If you can’t measure the value of the work done by individual employees, you can get close. You can measure the value of the work done by small groups.

One level at which you can accurately measure the revenue generated by employees is at the level of the whole company. When the company is small, you are thereby fairly close to measuring the contributions of individual employees. A viable startup might only have ten employees, which puts you within a factor of ten of measuring individual effort.

Starting or joining a startup is thus as close as most people can get to saying to one’s boss, I want to work ten times as hard, so please pay me ten times as much. There are two differences: you’re not saying it to your boss, but directly to the customers (for whom your boss is only a proxy after all), and you’re not doing it individually, but along with a small group of other ambitious people.

It will, ordinarily, be a group. Except in a few unusual kinds of work, like acting or writing books, you can’t be a company of one person. And the people you work with had better be good, because it’s their work that yours is going to be averaged with.

A big company is like a giant galley driven by a thousand rowers. Two things keep the speed of the galley down. One is that individual rowers don’t see any result from working harder. The other is that, in a group of a thousand people, the average rower is likely to be pretty average.

If you took ten people at random out of the big galley and put them in a boat by themselves, they could probably go faster. They would have both carrot and stick to motivate them. An energetic rower would be encouraged by the thought that he could have a visible effect on the speed of the boat. And if someone was lazy, the others would be more likely to notice and complain.

But the real advantage of the ten-man boat shows when you take the ten best rowers out of the big galley and put them in a boat together. They will have all the extra motivation that comes from being in a small group. But more importantly, by selecting that small a group you can get the best rowers. Each one will be in the top 1%. It’s a much better deal for them to average their work together with a small group of their peers than to average it with everyone.

That’s the real point of startups. Ideally, you are getting together with a group of other people who also want to work a lot harder, and get paid a lot more, than they would in a big company. And because startups tend to get founded by self-selecting groups of ambitious people who already know one another (at least by reputation), the level of measurement is more precise than you get from smallness alone. A startup is not merely ten people, but ten people like you.

Steve Jobs once said that the success or failure of a startup depends on the first ten employees. I agree. If anything, it’s more like the first five. Being small is not, in itself, what makes startups kick butt, but rather that small groups can be select. You don’t want small in the sense of a village, but small in the sense of an all-star team.

The larger a group, the closer its average member will be to the average for the population as a whole. So all other things being equal, a very able person in a big company is probably getting a bad deal, because his performance is dragged down by the overall lower performance of the others. Of course, all other things often are not equal: the able person may not care about money, or may prefer the stability of a large company. But a very able person who does care about money will ordinarily do better to go off and work with a small group of peers.

Technology = Leverage

Startups offer anyone a way to be in a situation with measurement and leverage. They allow measurement because they’re small, and they offer leverage because they make money by inventing new technology.

What is technology? It’s technique. It’s the way we all do things. And when you discover a new way to do things, its value is multiplied by all the people who use it. It is the proverbial fishing rod, rather than the fish. That’s the difference between a startup and a restaurant or a barber shop. You fry eggs or cut hair one customer at a time. Whereas if you solve a technical problem that a lot of people care about, you help everyone who uses your solution. That’s leverage.

If you look at history, it seems that most people who got rich by creating wealth did it by developing new technology. You just can’t fry eggs or cut hair fast enough. What made the Florentines rich in 1200 was the discovery of new techniques for making the high-tech product of the time, fine woven cloth. What made the Dutch rich in 1600 was the discovery of shipbuilding and navigation techniques that enabled them to dominate the seas of the Far East.

Fortunately there is a natural fit between smallness and solving hard problems. The leading edge of technology moves fast. Technology that’s valuable today could be worthless in a couple years. Small companies are more at home in this world, because they don’t have layers of bureaucracy to slow them down. Also, technical advances tend to come from unorthodox approaches, and small companies are less constrained by convention.

Big companies can develop technology. They just can’t do it quickly. Their size makes them slow and prevents them from rewarding employees for the extraordinary effort required. So in practice big companies only get to develop technology in fields where large capital requirements prevent startups from competing with them, like microprocessors, power plants, or passenger aircraft. And even in those fields they depend heavily on startups for components and ideas.

It’s obvious that biotech or software startups exist to solve hard technical problems, but I think it will also be found to be true in businesses that don’t seem to be about technology. McDonald’s, for example, grew big by designing a system, the McDonald’s franchise, that could then be reproduced at will all over the face of the earth. A McDonald’s franchise is controlled by rules so precise that it is practically a piece of software. Write once, run everywhere. Ditto for Wal-Mart. Sam Walton got rich not by being a retailer, but by designing a new kind of store.

Use difficulty as a guide not just in selecting the overall aim of your company, but also at decision points along the way. At Viaweb one of our rules of thumb was run upstairs. Suppose you are a little, nimble guy being chased by a big, fat, bully. You open a door and find yourself in a staircase. Do you go up or down? I say up. The bully can probably run downstairs as fast as you can. Going upstairs his bulk will be more of a disadvantage. Running upstairs is hard for you but even harder for him.

What this meant in practice was that we deliberately sought hard problems. If there were two features we could add to our software, both equally valuable in proportion to their difficulty, we’d always take the harder one. Not just because it was more valuable, but because it was harder. We delighted in forcing bigger, slower competitors to follow us over difficult ground. Like guerillas, startups prefer the difficult terrain of the mountains, where the troops of the central government can’t follow. I can remember times when we were just exhausted after wrestling all day with some horrible technical problem. And I’d be delighted, because something that was hard for us would be impossible for our competitors.

This is not just a good way to run a startup. It’s what a startup is. Venture capitalists know about this and have a phrase for it: barriers to entry. If you go to a VC with a new idea and ask him to invest in it, one of the first things he’ll ask is, how hard would this be for someone else to develop? That is, how much difficult ground have you put between yourself and potential pursuers? [7] And you had better have a convincing explanation of why your technology would be hard to duplicate. Otherwise as soon as some big company becomes aware of it, they’ll make their own, and with their brand name, capital, and distribution clout, they’ll take away your market overnight. You’d be like guerillas caught in the open field by regular army forces.

One way to put up barriers to entry is through patents. But patents may not provide much protection. Competitors commonly find ways to work around a patent. And if they can’t, they may simply violate it and invite you to sue them. A big company is not afraid to be sued; it’s an everyday thing for them. They’ll make sure that suing them is expensive and takes a long time. Ever heard of Philo Farnsworth? He invented television. The reason you’ve never heard of him is that his company was not the one to make money from it. [8] The company that did was RCA, and Farnsworth’s reward for his efforts was a decade of patent litigation.

Here, as so often, the best defense is a good offense. If you can develop technology that’s simply too hard for competitors to duplicate, you don’t need to rely on other defenses. Start by picking a hard problem, and then at every decision point, take the harder choice. [9]

The Catch(es)

If it were simply a matter of working harder than an ordinary employee and getting paid proportionately, it would obviously be a good deal to start a startup. Up to a point it would be more fun. I don’t think many people like the slow pace of big companies, the interminable meetings, the water-cooler conversations, the clueless middle managers, and so on.

Unfortunately there are a couple catches. One is that you can’t choose the point on the curve that you want to inhabit. You can’t decide, for example, that you’d like to work just two or three times as hard, and get paid that much more. When you’re running a startup, your competitors decide how hard you work. And they pretty much all make the same decision: as hard as you possibly can.

The other catch is that the payoff is only on average proportionate to your productivity. There is, as I said before, a large random multiplier in the success of any company. So in practice the deal is not that you’re 30 times as productive and get paid 30 times as much. It is that you’re 30 times as productive, and get paid between zero and a thousand times as much. If the mean is 30x, the median is probably zero. Most startups tank, and not just the dogfood portals we all heard about during the Internet Bubble. It’s common for a startup to be developing a genuinely good product, take slightly too long to do it, run out of money, and have to shut down.

A startup is like a mosquito. A bear can absorb a hit and a crab is armored against one, but a mosquito is designed for one thing: to score. No energy is wasted on defense. The defense of mosquitos, as a species, is that there are a lot of them, but this is little consolation to the individual mosquito.

Startups, like mosquitos, tend to be an all-or-nothing proposition. And you don’t generally know which of the two you’re going to get till the last minute. Viaweb came close to tanking several times. Our trajectory was like a sine wave. Fortunately we got bought at the top of the cycle, but it was damned close. While we were visiting Yahoo in California to talk about selling the company to them, we had to borrow a conference room to reassure an investor who was about to back out of a new round of funding that we needed to stay alive.

The all-or-nothing aspect of startups was not something we wanted. Viaweb’s hackers were all extremely risk-averse. If there had been some way just to work super hard and get paid for it, without having a lottery mixed in, we would have been delighted. We would have much preferred a 100% chance of $1 million to a 20% chance of $10 million, even though theoretically the second is worth twice as much. Unfortunately, there is not currently any space in the business world where you can get the first deal.

The closest you can get is by selling your startup in the early stages, giving up upside (and risk) for a smaller but guaranteed payoff. We had a chance to do this, and stupidly, as we then thought, let it slip by. After that we became comically eager to sell. For the next year or so, if anyone expressed the slightest curiousity about Viaweb we would try to sell them the company. But there were no takers, so we had to keep going.

It would have been a bargain to buy us at an early stage, but companies doing acquisitions are not looking for bargains. A company big enough to acquire startups will be big enough to be fairly conservative, and within the company the people in charge of acquisitions will be among the more conservative, because they are likely to be business school types who joined the company late. They would rather overpay for a safe choice. So it is easier to sell an established startup, even at a large premium, than an early-stage one.

Get Users

I think it’s a good idea to get bought, if you can. Running a business is different from growing one. It is just as well to let a big company take over once you reach cruising altitude. It’s also financially wiser, because selling allows you to diversify. What would you think of a financial advisor who put all his client’s assets into one volatile stock?

How do you get bought? Mostly by doing the same things you’d do if you didn’t intend to sell the company. Being profitable, for example. But getting bought is also an art in its own right, and one that we spent a lot of time trying to master.

Potential buyers will always delay if they can. The hard part about getting bought is getting them to act. For most people, the most powerful motivator is not the hope of gain, but the fear of loss. For potential acquirers, the most powerful motivator is the prospect that one of their competitors will buy you. This, as we found, causes CEOs to take red-eyes. The second biggest is the worry that, if they don’t buy you now, you’ll continue to grow rapidly and will cost more to acquire later, or even become a competitor.

In both cases, what it all comes down to is users. You’d think that a company about to buy you would do a lot of research and decide for themselves how valuable your technology was. Not at all. What they go by is the number of users you have.

In effect, acquirers assume the customers know who has the best technology. And this is not as stupid as it sounds. Users are the only real proof that you’ve created wealth. Wealth is what people want, and if people aren’t using your software, maybe it’s not just because you’re bad at marketing. Maybe it’s because you haven’t made what they want.

Venture capitalists have a list of danger signs to watch out for. Near the top is the company run by techno-weenies who are obsessed with solving interesting technical problems, instead of making users happy. In a startup, you’re not just trying to solve problems. You’re trying to solve problems that users care about.

So I think you should make users the test, just as acquirers do. Treat a startup as an optimization problem in which performance is measured by number of users. As anyone who has tried to optimize software knows, the key is measurement. When you try to guess where your program is slow, and what would make it faster, you almost always guess wrong.

Number of users may not be the perfect test, but it will be very close. It’s what acquirers care about. It’s what revenues depend on. It’s what makes competitors unhappy. It’s what impresses reporters, and potential new users. Certainly it’s a better test than your a priori notions of what problems are important to solve, no matter how technically adept you are.

Among other things, treating a startup as an optimization problem will help you avoid another pitfall that VCs worry about, and rightly– taking a long time to develop a product. Now we can recognize this as something hackers already know to avoid: premature optimization. Get a version 1.0 out there as soon as you can. Until you have some users to measure, you’re optimizing based on guesses.

The ball you need to keep your eye on here is the underlying principle that wealth is what people want. If you plan to get rich by creating wealth, you have to know what people want. So few businesses really pay attention to making customers happy. How often do you walk into a store, or call a company on the phone, with a feeling of dread in the back of your mind? When you hear “your call is important to us, please stay on the line,” do you think, oh good, now everything will be all right?

A restaurant can afford to serve the occasional burnt dinner. But in technology, you cook one thing and that’s what everyone eats. So any difference between what people want and what you deliver is multiplied. You please or annoy customers wholesale. The closer you can get to what they want, the more wealth you generate.

Wealth and Power

Making wealth is not the only way to get rich. For most of human history it has not even been the most common. Until a few centuries ago, the main sources of wealth were mines, slaves and serfs, land, and cattle, and the only ways to acquire these rapidly were by inheritance, marriage, conquest, or confiscation. Naturally wealth had a bad reputation.

Two things changed. The first was the rule of law. For most of the world’s history, if you did somehow accumulate a fortune, the ruler or his henchmen would find a way to steal it. But in medieval Europe something new happened. A new class of merchants and manufacturers began to collect in towns. [10] Together they were able to withstand the local feudal lord. So for the first time in our history, the bullies stopped stealing the nerds’ lunch money. This was naturally a great incentive, and possibly indeed the main cause of the second big change, industrialization.

A great deal has been written about the causes of the Industrial Revolution. But surely a necessary, if not sufficient, condition was that people who made fortunes be able to enjoy them in peace. [11] One piece of evidence is what happened to countries that tried to return to the old model, like the Soviet Union, and to a lesser extent Britain under the labor governments of the 1960s and early 1970s. Take away the incentive of wealth, and technical innovation grinds to a halt.

Remember what a startup is, economically: a way of saying, I want to work faster. Instead of accumulating money slowly by being paid a regular wage for fifty years, I want to get it over with as soon as possible. So governments that forbid you to accumulate wealth are in effect decreeing that you work slowly. They’re willing to let you earn $3 million over fifty years, but they’re not willing to let you work so hard that you can do it in two. They are like the corporate boss that you can’t go to and say, I want to work ten times as hard, so please pay me ten times a much. Except this is not a boss you can escape by starting your own company.

The problem with working slowly is not just that technical innovation happens slowly. It’s that it tends not to happen at all. It’s only when you’re deliberately looking for hard problems, as a way to use speed to the greatest advantage, that you take on this kind of project. Developing new technology is a pain in the ass. It is, as Edison said, one percent inspiration and ninety-nine percent perspiration. Without the incentive of wealth, no one wants to do it. Engineers will work on sexy projects like fighter planes and moon rockets for ordinary salaries, but more mundane technologies like light bulbs or semiconductors have to be developed by entrepreneurs.

Startups are not just something that happened in Silicon Valley in the last couple decades. Since it became possible to get rich by creating wealth, everyone who has done it has used essentially the same recipe: measurement and leverage, where measurement comes from working with a small group, and leverage from developing new techniques. The recipe was the same in Florence in 1200 as it is in Santa Clara today.

Understanding this may help to answer an important question: why Europe grew so powerful. Was it something about the geography of Europe? Was it that Europeans are somehow racially superior? Was it their religion? The answer (or at least the proximate cause) may be that the Europeans rode on the crest of a powerful new idea: allowing those who made a lot of money to keep it.

Once you’re allowed to do that, people who want to get rich can do it by generating wealth instead of stealing it. The resulting technological growth translates not only into wealth but into military power. The theory that led to the stealth plane was developed by a Soviet mathematician. But because the Soviet Union didn’t have a computer industry, it remained for them a theory; they didn’t have hardware capable of executing the calculations fast enough to design an actual airplane.

In that respect the Cold War teaches the same lesson as World War II and, for that matter, most wars in recent history. Don’t let a ruling class of warriors and politicians squash the entrepreneurs. The same recipe that makes individuals rich makes countries powerful. Let the nerds keep their lunch money, and you rule the world.

Notes

[1] One valuable thing you tend to get only in startups is uninterruptability. Different kinds of work have different time quanta. Someone proofreading a manuscript could probably be interrupted every fifteen minutes with little loss of productivity. But the time quantum for hacking is very long: it might take an hour just to load a problem into your head. So the cost of having someone from personnel call you about a form you forgot to fill out can be huge.

This is why hackers give you such a baleful stare as they turn from their screen to answer your question. Inside their heads a giant house of cards is tottering.

The mere possibility of being interrupted deters hackers from starting hard projects. This is why they tend to work late at night, and why it’s next to impossible to write great software in a cubicle (except late at night).

One great advantage of startups is that they don’t yet have any of the people who interrupt you. There is no personnel department, and thus no form nor anyone to call you about it.

[2] Faced with the idea that people working for startups might be 20 or 30 times as productive as those working for large companies, executives at large companies will naturally wonder, how could I get the people working for me to do that? The answer is simple: pay them to.

Internally most companies are run like Communist states. If you believe in free markets, why not turn your company into one?

Hypothesis: A company will be maximally profitable when each employee is paid in proportion to the wealth they generate.

[3] Until recently even governments sometimes didn’t grasp the distinction between money and wealth. Adam Smith (Wealth of Nations, v:i) mentions several that tried to preserve their “wealth” by forbidding the export of gold or silver. But having more of the medium of exchange would not make a country richer; if you have more money chasing the same amount of material wealth, the only result is higher prices.

[4] There are many senses of the word “wealth,” not all of them material. I’m not trying to make a deep philosophical point here about which is the true kind. I’m writing about one specific, rather technical sense of the word “wealth.” What people will give you money for. This is an interesting sort of wealth to study, because it is the kind that prevents you from starving. And what people will give you money for depends on them, not you.

When you’re starting a business, it’s easy to slide into thinking that customers want what you do. During the Internet Bubble I talked to a woman who, because she liked the outdoors, was starting an “outdoor portal.” You know what kind of business you should start if you like the outdoors? One to recover data from crashed hard disks.

What’s the connection? None at all. Which is precisely my point. If you want to create wealth (in the narrow technical sense of not starving) then you should be especially skeptical about any plan that centers on things you like doing. That is where your idea of what’s valuable is least likely to coincide with other people’s.

[5] In the average car restoration you probably do make everyone else microscopically poorer, by doing a small amount of damage to the environment. While environmental costs should be taken into account, they don’t make wealth a zero-sum game. For example, if you repair a machine that’s broken because a part has come unscrewed, you create wealth with no environmental cost.

[5b] This essay was written before Firefox.

[6] Many people feel confused and depressed in their early twenties. Life seemed so much more fun in college. Well, of course it was. Don’t be fooled by the surface similarities. You’ve gone from guest to servant. It’s possible to have fun in this new world. Among other things, you now get to go behind the doors that say “authorized personnel only.” But the change is a shock at first, and all the worse if you’re not consciously aware of it.

[7] When VCs asked us how long it would take another startup to duplicate our software, we used to reply that they probably wouldn’t be able to at all. I think this made us seem naive, or liars.

[8] Few technologies have one clear inventor. So as a rule, if you know the “inventor” of something (the telephone, the assembly line, the airplane, the light bulb, the transistor) it is because their company made money from it, and the company’s PR people worked hard to spread the story. If you don’t know who invented something (the automobile, the television, the computer, the jet engine, the laser), it’s because other companies made all the money.

[9] This is a good plan for life in general. If you have two choices, choose the harder. If you’re trying to decide whether to go out running or sit home and watch TV, go running. Probably the reason this trick works so well is that when you have two choices and one is harder, the only reason you’re even considering the other is laziness. You know in the back of your mind what’s the right thing to do, and this trick merely forces you to acknowledge it.

[10] It is probably no accident that the middle class first appeared in northern Italy and the low countries, where there were no strong central governments. These two regions were the richest of their time and became the twin centers from which Renaissance civilization radiated. If they no longer play that role, it is because other places, like the United States, have been truer to the principles they discovered.

[11] It may indeed be a sufficient condition. But if so, why didn’t the Industrial Revolution happen earlier? Two possible (and not incompatible) answers: (a) It did. The Industrial Revolution was one in a series. (b) Because in medieval towns, monopolies and guild regulations initially slowed the development of new means of production.

Appraisal fraud

I. APPRAISALS AND APPRAISER LIABILITY.

A. Area Summary:

There have been significant developments in appraiser liability since the mid-
1980s (discussed below). As brokers look to professional appraisers to value prospective security
for the broker and the broker’s investors, appraiser liability has become an important issue.

1. Appraisals for Lender Purchaser Disclosure Statements. Business and Professions Code
§10232.5 provides that the Lender- Purchaser Disclosure Statement (“LPDS”) to be given to the investor/purchaser must contain:

“(a)(2) Estimated fair market value of the securing property as determined by an appraisal, a copy
of which shall be provided to the lender. However, a lender may waive the requirement of an
independent appraisal in writing, on a case-by-case basis, in which case, the real estate broker
shall provide the broker’s written estimated fair market value of the securing property, which
shall include the objective data upon which the broker’s estimate is based.”

(Emphasis added; See, similar provision for sales of existing loans, Bus. & Prof. Code §
10232.5(b)(2).) The question of whether the broker’s written estimate of value and supporting data
must meet the standards of a certified appraiser’s appraisal remains unanswered.

2. Impact of New SB 223 (Machado) 2007 Stats. Ch. 291, Real Estate Appraisals.

SB 223 (Machado), which because effective on October 5, 2007, as urgency statute, added
Civil Code § 1090.5, which provides:

“(a) No person with an interest in a real estate transaction involving an appraisal shall
improperly influence or attempt to improperly influence, through coercion, extortion, or bribery,
the development, reporting, result, or review of a real estate appraisal sought in connection with
a mortgage loan.

(b) Subdivision (a) does not prohibit a person with an interest in a real estate transaction from
asking an appraiser to do any of the following:

(1) Consider additional, appropriate property information.

(2) Provide further detail, substantiation, or explanation for the appraiser’s value conclusion.
(3) Correct errors in the appraisal report.

(c) If a person who violates this section is licensed under any state licensing law and the
violation occurs within the course and scope of the person’s duties as a licensee, the violation
shall be deemed a violation of that state licensing law.

(d) Nothing in this section shall be construed to authorize communications that are
otherwise prohibited under existing law.”

Comment: This bill raises a number of questions. What does no person “with an interest in a real
estate transaction involving an appraisal”? Does it just refer to the parties to the real estate
transaction (e.g., lender-borrower)? Does it include the mortgage broker? Does it include the
sales/listing real estate licensees involved in the sales transaction for which the mortgage loan
is being obtained? What is “an interest in a real estate transaction involving an
appraisal? Does it mean a person with an ownership or lien interest in the real property?

Similarly, the word “coercion” is grouped with “extortion” and “bribery” as prohibited acts.
Everyone has a basic understanding of what “extortion” or “bribery” is, however, “coercion” is
vague. To be found to have “coerced” the appraiser may involve as little as the implication that
the broker/lender will not continue to use the appraiser if the “property does not appraise” (i.e.,
implying it must meet a certain minimum to make the sales or loan transaction close successfully).

By specifying conduct that is not prohibited, it raises the specter that unlisted conduct may be
prohibited. For example, giving the appraiser the purchase agreement or information on the loan
being sought may not be thought of as coercion but, on the other hand, it does not fall within the
express permitted categories. That is, the sales price or financing amount may not be “additional,
appropriate property information” for an appraiser to consider in reaching his/her opinion of value

It is unclear to what extent SB 223, will impact the ability of a broker to give an opinion of
value (e.g., Bus. & Prof. Code § 10232.5), if a broker in the transactions is viewed as
being a person with an “interest in a real estate transaction involving an appraisal”

Where the lender/broker uses one or a small group of independent appraisers on a regular or
repeated basis, it may be the better practice not to give sales or loan information to the
appraiser to eliminate any implication of coercion at least until some of the terms in SB 223 have
be clarified by the legislature or by the courts.

3. Safe Harbor For Appraisals by licensed or Certified Appraisers who are Not Employees of the
Broker.

The legislature passed Business and Professions Code §10232.6 which provides:

“(a) A real estate broker, acting within the course and scope of his or her license, who arranges
for or engages the services of an appraiser licensed or certified by the Office of Real Estate
Appraisers for the applicable transaction, and delivers the resulting appraisal to the prospective
lender and prospective purchaser as required by Section
10232.5, has met the broker’s obligation of full and complete disclosure solely pursuant
to paragraph (2) of subdivision (a) of Section 10232.5 and paragraph (2) of
subdivision (b) of Section
10232.5, and is not required to provide a separate estimate of fair market value under Section
10232.5.”

“(b) This section shall not apply in instances where the licensed or certified appraiser is an
employee of the broker. However, the duty of disclosure shall not be deemed met where the broker
knew or should have known that the referral was negligently made or that the fair market value
provided by the appraiser was inaccurate.”

These statutes create incentives to retain appraisers who are not employees of
the broker and for adopting hiring practices for independent contractor appraisers that would
dispel any assertion of negligent referral. Section 10232.6(b) is not clear as to what
knowledge would render the “value of the appraiser” to be inaccurate. At this point, the licensee
should always determine whether they have information that may render the appraiser’s valuation
inaccurate. Where there are multiple lenders on a loan, the multi- lender rule as reconstituted in
Business & Professions Code §10237, et seq. provides:

“(1) Except as provided in paragraph (2), the aggregate principal amount of the notes or
interests sold, together with the unpaid principal amount of any encumbrances upon the real
property senior thereto, shall not exceed the following percentages of the current market value of
the real property, as determined in writing by the broker or appraiser pursuant to Section 10232.6,
plus the amount for which the payment of principal and interest in excess of the
percentage of current market value is insured for the benefit of the holders of the notes or
interests by an insurer admitted to do business in this state by the Insurance Commissioner:

(A) Single family residence, owner-occupied 80%

(B) Single family residence, not owner-occupied 75% (C) Commercial and
income-producing properties 65%
(D) Single family residentially zoned lot or parcel which has installed off site improvements including drainage, curbs, gutters, sidewalks, paved roads, and
utilities as mandated by the political subdivision having jurisdiction over the lot or Parcel 65%

(E) Land that has been zoned for (and if required, approved for subdivision as) commercial
or residential development 50%

(F) Other real property 35%”

“(2) The percentage amounts specified in paragraph (1) may be exceeded when and to the extent that
the broker determines that the encumbrance of the property in excess of these percentages is
reasonable and prudent considering all relevant factors pertaining to the real property. However,
in no event shall the aggregate principal amount of the notes or interests sold, together
with the unpaid principal amount of any encumbrances upon the property senior thereto, exceed
80 percent of the current fair market value of improved real property or 50 percent of the
current fair market value of unimproved real property, except in the case of a single-family zoned
lot or parcel as defined in paragraph (1), which shall not exceed 65 percent of the current fair
market value of that lot or parcel, plus the amount insured as specified in paragraph (1). A
written statement shall be prepared by the broker that sets forth the material considerations and
facts that the broker relies upon for his or her determination, which shall be retained as a part
of the broker’s record of the transaction. Either a copy of the statement or the information
contained therein shall be included in the disclosures required pursuant to subdivision
(k).” [Emphasis added.]

In Christiansen v. Roddy (1986) 186 Cal.App.3d 780, an investor sued the mortgage broker and the
appraiser after losing money in a loan investment. The court of appeal upheld a judgment against
the loan broker for negligent misrepresentation, while reversing the judgment against the appraiser
for negligent misrepresentation on the grounds that the appraiser had prepared the appraisal for
the broker and could not have anticipated the identity of the individual investor at the time that
he prepared the appraisal. This case seemed to limit any recovery against the appraiser to that of
negligence in preparing the appraisal but it has been impliedly overruled by Soderberg v. McKinney,
discussed below.

In the case of Bily v. Arthur Young & Co. (“Bily”) (1992) 3 Cal.4th 370 the California Supreme
Court held that an accountant, acting as an auditor, was not liable under general negligence theory
to investors in a computer company. The Court limited the accountant’s general negligence
liability to the person or entity that had contracted for the audit services. However, the Supreme
Court did acknowledge that the auditor could be liable for negligent misrepresentation to that
class of persons whom the auditor knows or should know will be receiving the audit report and acting in reliance on it. The Bily court indicated that a supplier of information
is liable for negligence to a third party “only if he or she intends to supply the information for
the benefit of one or more third parties in a specific transaction or type of transaction
identified to the supplier.” (Bily, supra, 3 Cal.4th at 392; emphasis added.)

In Soderberg v. McKinney (1996) 44 Cal.App.4th 1760, the court of appeal extended the Supreme
Court’s reasoning in Bily to an action by an investor against a broker and the appraiser. The
court held that the investor was in fact part of the class of persons that the appraiser knew would
be relying on his appraisal report, despite the fact that he did not know the identities
of the potential investors. The court of appeal rejected the appraiser’s reliance on Christiansen
v. Roddy, supra, and also found that the appraiser could be held liable to the investor under third
party beneficiary contract analysis.

B. Copy of Appraisal to Borrower and Investor.

1. Where Borrower Charged for Appraisal.

Any time a fee is charged by a broker to a borrower for an appraisal, a copy of the appraisal must
be given by or on behalf of the broker to both the borrower and the lender at or before the closing
of the loan transaction. (Bus. & Prof. Code
§10241.3).

2. Lender Must Give Borrower Notice of Right to Receive Copy of
Appraisal.

a. 1-4 Residential loans notice and right to receive a copy of appraisal.

A lender on a loan secured by a 1-4 family residence in California must provide notice to a loan
applicant of the applicant’s right to receive a copy of the appraisal, provided he or
she has paid for the appraisal. (Bus. & Prof. Code §
11423(a)&(b).)

An applicant’s written request for a copy of an appraisal must be received by the lender no later
than 90 days after (1) the lender has provided notice of the action taken on the application,
including a notice of incompleteness, or (2) the application has been withdrawn.

The lender shall mail or deliver a copy of an appraisal within 15 days after receiving a written
request from the applicant, or within 15 days after receiving the appraisal, whichever occurs
later. (Bus. & Prof. Code § 11423(c).)

The notice of the applicant’s right to a copy of the appraisal as provided in subdivision (b) shall
be given in at least 10-point boldface type, as a separate document in a form that the applicant
may retain, and no later than 15 days after the lender receives the written application. The notice
shall specify that the applicant’s request for the appraisal must be in writing and must be
received by the lender no later than 90 days after the lender provides notice of the action taken on the
application or a notice of incompleteness, or in the case of a withdrawn application, 90 days after
the withdrawal. An address to which the request should be sent shall be specified in the notice.
Release of the appraisal to the applicant may be conditioned upon payment of the cost of the
appraisal.

b. Nonresidential real Property Notice and right to receive a copy of appraisal.

Where the loan is proposed to be secured by nonresidential real property, the notice of the
applicant’s right to a copy of the appraisal shall be given within 15 days of receiving the
appraisal. The notice shall specify that the applicant’s request for a copy of the appraisal must
be in writing and that the request must be made within 90-days. Release of the appraisal to the
applicant may be conditioned upon payment of the cost of the appraisal and the cost of duplicating
the appraisal. (Bus. & Prof. Code § 11423(e).)

Compliance with the ECOA Regulation is deemed to be compliance with
Business and Professions Code 10241.3. (Bus. & Prof. Code § 11423(h).)

(i) This section is in addition to any right of access to appraisals that exists under any other
provision of state or federal law.

c. ECOA Rules.

Where a loan is secured by a lien on a dwelling, under the Federal Equal Credit Opportunity Act (15
U.S.C. §§ 1691 et seq. and Reg. B), a lender or a broker must give a borrower a copy as part of the
lender or broker’s standard process, or when the borrower requests a copy. (See, 12 CFR §§
202.14.) The creditor must mail or deliver a copy of the appraisal report promptly (generally
within 30 days) after the creditor receives an applicant’s request, receives the report, or
receives reimbursement from the applicant for the report, whichever is last to occur. A creditor
need not provide a copy when the applicant’s request is received more than 90 days after
the creditor has provided notice of action taken on the application under 12 CFR § 202.9 or 90 days
after the application is withdrawn.

C. Appraiser, Lender and Broker’s Duty to Borrower regarding
Appraisal.

Occasionally, the borrower may sue the broker and the appraiser for some error contained in the
appraisal report. In most loan situations, the appraisal report is necessary for the
decision-making of the broker and the investor in determining whether or not to make the loan.
Generally, the actual fair market value of the property is not as critical to the borrower, except
as a limiting factor on how much he/she can borrow. Indeed, the borrower has necessarily already
made the decision to seek a loan prior to the time that he/she initially contacts the broker. In
Nymark v. Heart Federal Savings (1991) 231 Cal.App.3d 1089, the court ruled that a borrower could not rely on an appraisal prepared for a lender in connection with a loan
transaction, and could not sue the lender for negligence regarding the contents of the appraisal
report.

Comment: Nymark involved a direct lender e.g., bank, savings and loan, credit union or CFL, who
unlike a licensed real estate broker, does not have a fiduciary duty to the borrower. It may be
advisable to have the borrower execute a statement that they are not applying for the loan
in reliance on the appraisal.

Actions by investors against brokers start with the basic rule that the broker owes a fiduciary
duty of care to the investor. An investor may sue the broker for negligence, negligent
misrepresentation, and breach of contract in the event of a negligently prepared appraisal (Bily v.
Arthur Young, supra) or for fraud in the event of a fraudulently prepared appraisal (Barry
v. Raskov (1991) 232 Cal.App.3d 447). In Barry v. Raskov, the court of appeal determined that an investor lender could
sue its broker for fraud, negligent misrepresentation and breach of fiduciary duty. The court of
appeal held the broker responsible for the appraiser’s fraud in preparing the appraisal report
reasoning that the broker had far greater control over the appraisers that it chose to
recommend to its investors, and could verify their work product through audits, etc. An
important part of the court’s analysis was that the broker has a non-delegable duty of care with
respect to valuing the security (i.e., liability cannot be shifted to the appraiser). While part
of the Barry v. Raskov decision has been superseded by Business and Professions Code §10232.6, the
broker must still be concerned, as that exception does not prevent the broker from being sued where
he/she “knew or should have known that the referral was negligently made or that the fair market
value provided by the appraiser was inaccurate.” (Emphasis added.)

D. Impact of Full Credit Bids at Foreclosure on Liability.

In many cases, the investor’s suit against the broker and the appraiser follows a foreclosure of
the underlying loan. In such a circumstance, the full credit bid rule plays an important part in
determining whether the investor can state a claim. The effect of a full credit bid is to establish
the value of the property. Since it is a full credit bid, it by definition satisfies the
underlying loan obligation and extinguishes the lien. If the investor sues the broker for
negligence or breach of contract regarding an appraisal report following a full credit bid at a
trustee’s sale, the investor’s action is precluded by the full credit bid. (Pacific Inland Bank v.
Ainsworth (1995) 41 Cal.App.4th 277.)

1. Fraudulent Inducement to Credit Bid (Full Credit Bid Rule Does
Not Apply)

However, the analysis changes when the investor’s allegations relate to waste, fraud, conversion,
or misrepresentations regarding the condition of the property, i.e., matters that are not readily
discernible prior to the trustee’s sale. In the case of Alliance Mortgage v. Rothwell (1995) 10 Cal.4th 1266, the California Supreme Court carved out a
limited exception to the full credit bid rule. The Supreme Court held that a lender is not barred
by the full credit bid rule from stating a fraud action against an appraiser where the claim is for
fraudulent inducement to make the full credit bid. The appraiser was part of a deliberate scheme
to induce the lender into making what turned out to be fictitious loans on nine properties. The
appraiser prepared reports that deliberately inflated the fair market value of the properties.
Upon default on the loans, the lender entered a full credit bid at the trustee’s sales, relying on
the values set forth in the original appraisals. Following the trustee’s sales, the lender
discovered that the values of the properties were far less than the values set forth in the
appraisals. The Supreme Court’s exception to the full credit bid rule was related to the fact that
the lender’s action against the appraiser was for fraudulent inducement to make the full credit
bid, as opposed to fraudulent inducement to make the loan itself.

2. Fraudulent Inducement to Make a Loan (Full Credit Bid Rule
Applies except Where Lender Relied on the Appraisal ).

In the case of Michelson v. Camp (1999) 72 Cal.App.4th 955, the court of appeal found that the full
credit bid precluded an action by a lender against third parties, such as appraisers, for
negligence, negligent misrepresentation, and fraud. In this case, the appraiser had been retained
by the borrower, not by the lender. However, the appraiser had recertified the appraisal for the
lender, but did not mention the lender’s investors. The lender might have been able to state a
claim against the appraiser for negligent misrepresentation (Soderberg v. McKinney, supra), but was
precluded from doing so by the full credit bid rule (Pacific Inland Bank v. Ainsworth, supra). As
to the fraud cause of action, the allegation was that of fraudulent inducement into making the
loan, as opposed to fraudulent inducement to make the full credit bid. The lender could have
protected itself by underbidding at the trustee’s sale, or by obtaining a new appraisal of the
property prior to determining its bidding strategy at the trustee’s sale. Consequently, the full
credit bid rule precluded the lender’s fraud cause of action.

The exceptions to the full credit bid rule expanded further in First Commercial Mortgage Company v.
Reece (2001) 89 Cal.App.4th 731. In that case, the court allowed the lender to sue the appraiser
and loan broker for fraud, negligent misrepresentation and breach of contract. The fraud
action was allowed because the original lender was fraudulently induced to make the loan by the
bogus appraisal and suffered damages when it was forced under its contract with its assignee
beneficiary (which made a full credit bid at the foreclosure sale of the loan) to take the property
back. On resale of the property by the original lender, the original lender suffered damages
because the property was worth not what the appraisal showed but much less. Negligent
misrepresentation was allowed because the court found the original lender justifiably relied on the
false appraisal in making the loan and not because of its assignee’s full credit bid.

3. Full Credit Bid Rule Applies).

However, the full credit bid rule did not preclude a lender’s action following foreclosure for
negligence and negligent misrepresentation against the appraiser in Kolodge v. Boyd (2001) 88
Cal.App.4th 349. When the lender credit bids at the foreclosure sale, if it can show it relied on
the questionable appraisal in determining the amount of his bid, his action for negligence and
negligent misrepresentation is not barred.

In transactions where the broker hires the appraiser, the broker has potential claims against the
appraiser for breach of contract, negligence, negligent misrepresentation, and fraud. In
transactions where the appraiser has been retained by a third party (i.e., by the borrower or
referring broker), then the better practice would be for the broker to obtain a separate appraisal
or to have the appraisal recertified by the appraiser for use by the broker for loan purposes. Mere
recertification alone, however, may not assure the broker of not being challenged with respect
to the appraiser’s qualifications. If the appraiser performs appraisals on a regular basis
for the broker, and knows that the broker’s investors rely on the appraisal, the appraiser may also
be liable directly to the broker’s investors.

Special attention must be paid to establishing a bidding strategy at the trustee’s sale. As is
clear from the above summary, a full credit bid at a trustee’s sale generally precludes the
bidder from suing the appraiser for most causes of action, such as breach of contract,
negligence, negligent misrepresentation, and fraud. The only exception, as established in the
Alliance Mortgage v. Rothwell case, is in those cases where the claim is for fraudulent inducement
to make a full credit bid, as opposed to inducement to enter into the loan. This will be
difficult in most cases, for the lender or broker must establish such justifiable reliance on the
appraisal report as to justify the failure to underbid or the failure to obtain an appraisal prior
to the time of sale.

Recent News and fundings

 

Trust Deed Investment Closed in Carson, California

March 22nd

A hard money loan recently closed on a home in Carson, CA.  The trust deed investment is at 12% and here are the details: Loan amount: $160,000 Appraised Value: $338,000 Loan to Value: 47.337% Monthly Payment to Trust Deed Investor: $1,600.00 Term of loan…

Trust Deed Investment Closed in Moreno Valley, California

March 21st

A hard money loan recently closed on a home in Moreno Valley, CA.  The trust deed investment is at 12% and here are the details: Loan amount: $75,000 Appraised Value: $125,000 Loan to Value: 60.000% Monthly Payment to Trust Deed Investor: $750.00 Term of …

Trust Deed Investment Closed in Los Angeles, California

March 20th

A hard money loan recently closed on a home in Los Angeles, CA.  The trust deed investment is at 12% and here are the details: Loan amount: $200,000 Appraised Value: $340,000 Loan to Value: 58.824% Monthly Payment to Trust Deed Investor: $2,000.00 Term of…

Trust Deed Investment Closed in Yucaipa, California

March 19th

A hard money loan recently closed on a home in Yucaipa, CA.  The trust deed investment is at 9% and here are the details: Loan amount: $68,000 Appraised Value: $112,000 Loan to Value: 60.714% Monthly Payment to Trust Deed Investor: $510.00 Term of loan: 8…

Trust Deed Investment Closed in Moreno Valley, California

March 18th

A hard money loan recently closed on a home in Moreno Valley, CA.  The trust deed investment is at 9% and here are the details: Loan amount: $69,000 Appraised Value: $115,000 Loan to Value: 60.000% Monthly Payment to Trust Deed Investor: $690.00 Term of l…

 

The Silver lining in a Bad real estate market

California’s tortured real estate market has brought heartbreak and ruin, but some investors, speculators and first-time home buyers are also dreaming big and finding opportunities — a silver lining in the Golden State’s epic housing crash.

For many young couples, plummeting prices and near record-low interest rates make it possible to own a home in California for the first time.

Investors and real estate speculators, meanwhile, can snap up foreclosed properties on the cheap to sell during the next boom in California’s boom-and-bust real estate cycle, a boom they believe is inevitable and possibly not far off.

“This is the buying opportunity of our lifetime,” said Timothy McCandless, who heads an investment group that expects to purchase some 100 homes this year in Southern California’s Inland Empire region.

California — which would be the world’s eighth largest economy if it were a country — saw a near-doubling in home sales in the fourth quarter, a pace surpassed only by Nevada’s 133.7 percent growth.

But experts warn it’s a dangerous game to play when nobody is really sure how low home prices will go or when they will rebound as the recession lingers, jobs dry up and residents pour out of the state in search of better prospects.

Norris concentrates on the Inland Empire of Southern California, made up mostly of Riverside and San Bernardino counties, one of the fastest-growing areas of the country during the housing boom, driven partly by immigrant families who couldn’t afford pricier coastal cities.

It’s now one of the hardest-hit. In the past 18 months, the median home price in Riverside and San Bernardino, pummeled by the subprime meltdown and now recording some of the highest foreclosure rates in the state, has plummeted 55 percent.

Cal Western Investments looks for homes built between 1980 and 1990, typically under 2,000 square feet (186 sq meters). Older houses come with too many maintenance “surprises,” McCandless says, and larger places can be tough to sell or rent in hard times.

Last month the group paid $55,000 for a foreclosed home that was worth $360,000 at the top of the market. Norris expects to spend $30,000 on repairs and rent it for $1,200 a month until the market turns around.

The group also hopes to minimize risk by owning the homes free and clear, thus accruing little debt.

“You cannot have this (low) level of pricing be permanent because it costs too much to build a home here,” Norris said. “That’s how you know you’re making a logical decision when everything is falling around you. When you can buy a finished product someone will want to live in for $55,000, that just has to make somebody pretty wealthy someday.”

‘DARK MOMENTS’

Experts agree California home prices will ultimately rebound but caution that real estate investing in this economy — the worst contraction since 1982 — should not be undertaken by amateurs or the faint of heart.

“You have to have a pretty strong feeling about where this is all going,” Stuart Gabriel, director of the Ziman Center for Real Estate at the University of California, Los Angeles, he said. “This cycle is so different from prior cycles that it’s very difficult to extrapolate.”

“Most would argue that California is not going into the sea,” he said. “On the other hand it’s not totally out of the question that this particular period of weakness could extend for a while, and that means multiple years.”

California’s roller-coaster real estate cycles can be traced to the 1970s, when home prices tripled, ignited in part by foreign investment and the end of the gold standard following decades of explosive population growth.

Home prices plunged in the early 1980s, turned around and doubled within 10 years, slumped in the mid-1990s and then blasted off again at the end of the decade. The subprime meltdown and recession pushed them back off the cliff.

“It’s a great time to buy for people who are willing to risk a little more and be optimistic when everybody else is doom and gloom,” said Daren Blomquist, marketing and communications manager for RealtyTrac, an online foreclosure data service.

But he warned: “They will probably have to wait it out, possibly for several years.”

Chris Twoomey and his wife Jennifer illustrate the risk underlying the perceived opportunities. They moved to California from the Midwest in 2004 to pursue acting careers and had just begun to think the dream of home ownership was out of reach when the crash came and they saw their chance.

The couple pounced in January, right after Jennifer, 39, learned she was pregnant with their first child, making an offer on a small, bank-owned home in suburban Los Angeles.

But the day after the Twoomeys’ offer was accepted, Chris was called into the cafeteria at his job in a cosmetics company warehouse and laid off.

“Sometimes in our dark moments we sit around and say to ourselves, ‘Look, forget the acting, forget everything, this is the time to bail’ (from California). We can be doing this someplace else that’s still warm but doesn’t cost as much,”

“But we’re sticking it out,” he said. “It’s perverse, but something inside of us does want to stay here. It’s sort of a belief that because it is Southern California and because it is the kind of place where everybody wants to be, it will come back eventually.”

Trust Deeds as an investment (Be the Bank)

Introduction

Chapter 1

  • Cal Western Funding
  • Cal Western  Funding and Trust Deed Investing

Chapter 2

  • The Basics of Trust Deeds
  • The difference between trust deeds and other investment types

Chapter 3

  • Typical Borrowers

Chapter 4

  • Legal Issues for Investors
  • Real Estate Law
  • TILA – Section 32

Chapter 5

  • Loan Underwriting
  • Loan-to-Value
  • Borrowers

Chapter 6

  • Title Insurance

Chapter 7

  • Collection and Distribution of Loan Payments

Chapter 8

  • Lien Priority

Chapter 9

  • Loan Documents
  • Information Regarding Notes
  • Construction Loans

Chapter 10

  • Escrow
  • Escrow instructions
  • Important facts about escrow to keep in mind
  • Closing Escrow

Chapter 11

  • Loan Enforcement
  • Foreclosure
  • Bankruptcy

Chapter 12

  • Pitfalls for Investors to Watch For

Chapter 13

  • Frequently Asked Questions

Conclusion

Chapter 13

Frequently Asked Questions

Since you are new to mortgage investing, you may have questions in regards to what it is, what it can do for you, and if mortgage investing is really worth it in the long run.  While all of your questions may not be answered, the following is a short list of the most frequently asked questions that pertain to mortgage investing, and should provide you with a good idea of what you can expect.

What is the Mortgage Investment Yield?

The standard yield is 11 – 14% per annum.  However, it is not uncommon for some mortgages to have higher yields.

How long is a Mortgage Investment Term?

You have complete control over the term of the loan.  While some loans can have a 15 year term, many have a three year term or less.  Ultimately, the choice is yours.

Is a Mortgage Investment Safe?

Yes!  In fact, of all the investments you can make, mortgage loans are rated as one of the safest.  For this reason, home interest rates are far lower in comparison to credit card rates.  Private money loans are generally based on the real estate value itself, to the degree of the individual borrower’s credit.

Is a Mortgage Investment Liquid?

A mortgage investment is not as liquid as a stock or bond.  That being said, it is recommended that you only invest money you will not need returned to you quickly.

How much money is required to make a Mortgage Investment?

To give you a general idea, most mortgages range from $10,000 – $50,000.  However, you are in complete control over your investment, because you are the only one who owns your mortgage.  The closing should occur at your attorney’s office, or at a Title Company.  Make sure you obtain title insurance and an independent property appraisal, as well as other significant documents that are required.  Your check should be given directly to your attorney or the Title Company.

Is a Mortgage Investment more Trouble than it’s Worth?

No.  With a mortgage investment you have control over when you receive your checks, which allows you to obtain your money as quickly as possible.  Furthermore, if it is your wish to not be in direct contact with the borrower, simply set up your mortgage investment plan with a third party, such as a collection firm or your bank, and they will collect the payments and contact the borrower on your behalf.

What about IRA’s and other Retirement Programs?

A mortgage investment is a great investment for your Pension Plan or self-directed IRA (Individual Retirement Account).  The reason is because if you use your Pension Plan or IRA, your income is tax deferred and can increase faster, as you will not have to pay taxes so you will have more money for gaining interest.

Are their Precautions I should take?

First and foremost, you need to familiarize yourself with the meaning of Loan to Value (LTV).  Remember, all things being equal, the greater the Loan to Value, the more risky the loan.  LTV is the percentage of the loan to the property value.  Therefore, a $70,000 loan to a property worth $100,000 has a 70% LTV.

Most lenders are in agreement that on certain types of loans, you would require a lower Loan to Value.  Loans that involve the least amount of risk are those to –

® Homeowners living in their own home

® Second homes

® Rental properties

® Commercial properties

® Vacant Land

While most lenders will only lend 50% or less of the actual value of vacant land, it is also true that many lenders will not lend to corporations or trusts.  Thus, it is highly recommended that if you do decide to lend to either of the above mentioned entities, you require a larger money down payment and/or a lower Loan to Value.  In addition, it is highly recommended that you always insist the Borrower takes personal responsibility on the promissory note.

Conclusion

By now you should have a good understanding of what is involved when it comes to trust deed investing, and should feel confident that with the knowledge you have in your possession, you can properly assess the risks involved.  In addition, you should also have a good idea of what to expect from your mortgage broker, and should be able to make educated decisions in regards to the loans you wish to invest in.

Don’t forget, the more you learn about trust deed investments, the safer the risk and the higher the potential for excellent return.  Thus, make the effort to keep these seven trust deed investing tips in mind when you are making an investment:

  1. Know the market value and equity of the real property, as well as your loan security.
  1. Know your borrower’s financial status and their credit worthiness.
  1. Understand the escrow process.
  1. Find out the experience, knowledge and integrity of the broker with whom the transaction will be arranged or made.
  1. Keep all documents and important papers that describe, and provide evidence and security for the loan, in a safe and accessible place.
  1. Know how to recover your investment when the borrower does not meet payment.
  1. Understand loan servicing authority, provisions and compensation.

Always remember, although trust deed investments are one of the safer investment risks you can take, and have the potential to provide you with high return, ultimately the risk is yours.  That being the case, you may find it in your best interest to first speak with a qualified professional or a mortgage loan broker before you make any commitments with your money.

Chapter 12

Pitfalls for Investors to Watch For

 

Although a trust deed investment is one of the safer investments you can make, it is imperative that you understand there are still risks involved.  The best way to ensure that you avoid pitfalls is to learn as much as you can about trust deed investing and everything it involves.  However, to give you an idea of some of the pitfalls you should watch out for, the following are a few tips:

 

It is always in your best interest to physically inspect any real estate you are intending to invest in, even if the property has already been checked out by the appraiser, broker or title company.

 

Take the time to establish your personal opinion regarding the value of the real estate collateral.  You can do this by using a number of approaches such as:

®         Ask your realtor for information on closed sales of comparable properties

®         If you were to purchase the property today, what would it be worth to you?

®         Read the appraisal

 

Take the time to learn the difference between personal and real property.  You don’t want to confuse personal property for real property when you are establishing your opinion in regards to value.  Real property is that which is considered to be “affixed to the earth”.  However, don’t mistake all property that is fastened to the ground to be real property; some of these items are personal.

 

You should make it a point to know how the borrower is planning to pay the private money loan.  Just because short term loans are primarily funded based on real estate equity, you should discover what the borrower has already pre-approved for their take out loan.

 

When it comes to Loan to Value Ratio that concerns homes occupied by owners, you should never lend out a LTV that exceeds 60%, even if the home appears to be the most ideal of owner occupied homes.  Likewise, as far as non-owner occupied homes are concerned, the LTV should not exceed 50%

 

You should never rely on future promises regarding improvements unless the proper draws for the upcoming work that is to be completed is officially set up.

 

Make sure you do not want or require any final, additional documentation before you close.  Such documentation can include, but is not limited to following:

®         Certificate of occupancy

®         Well report

®         Proof of purchase cost

®         Notice of completion

®         Closing statements

®         Roof reports

®         Toxic reports

®         Sign off of final permit card

®         Etc.

 

Take the time to research everything you can about trust deed investments.  Speak to qualified professionals, and don’t be afraid to ask questions, or rethink your decisions before making an investment.  By following these guidelines, you will lower the risk you take when making a trust deed investment, and will be less likely to experience a pitfall.


Chapter 11

Loan Enforcement

 

 

While it is true that trust deed investing is one of the safer ways in which to obtain an excellent return on an investment, there is always the chance that the borrower may default.  When a borrower fails to pay their debt or violates the agreement, there are ways in which the investor can remedy the situation.  This remedy is a process known as foreclosure, and simply put; it is the process through which the property in question is sold in order to satisfy the debt owed to the lender.  (Note:  Keep in mind that each state may have their own process of foreclosure, so the following information may not apply to your area)

Foreclosure

 

There are two types of foreclosure processes that are used in regard to trust deed investments:

 

  1. Judicial Foreclosure – this process is the more costly method and is when the courts are utilized to foreclose on the property, and an attorney is required.

 

  1. Non-judicial Foreclosure – This process is usually simple and fast, and is the one that is commonly used for trust deed investments.  A non-judicial foreclosure can be handled by just about any title company or an independent foreclosure company that has a good reputation.

 

When beginning the non-judicial foreclosure process, there are certain documents that the investor will be required to give the foreclosing officer.  Some of these documents include the original or conformed copy of the recorded trust deed and the original note secured by the trust deed.

 

In addition, the agent will request a written statement regarding the default amount, the date up to which the interest is paid, the due date of the payment, and the unpaid principal balance.  As soon as the officer obtains all of this information, they will then be able to organize the foreclosure documents and prepare for the process.

Reasons why foreclosure is initiated

 

There are a number of reasons for foreclosure, including both monetary and non-monetary reasons.  As far as monetary is concerned, the defaults include are as follows:

®         Nonpayment of a balloon payment (when all the payment is due at one time)

 

®         Nonpayment of a due monthly amount

 

®         Advancements for each provision of the trust deed in regards to nonpayment of a senior lien, which would jeopardize the position of the foreclosing trust deed

 

®         Advancements for each provision of the trust deed in regards to insurance or taxes.

 

As for a non-monetary default, reasons for foreclosure could include an acceleration clause default because the borrower transferred the encumbering or title property in violation of the provisions outlined in the deed of trust.  Another reason is the borrower destroyed the property value by removing or demolishing the building(s), or by failing to keep the property in top condition.

 

Necessary documents for foreclosure

 

There are documents that you will require in order to begin the foreclosure process and include the following:

 

®         Declaration of Default (DOD) Notice of Breach (NOB) and the election to sell under the deed of trust.

 

®         Subsection of Trustee (SOT) (required if there is any officer other than the initial named trustee) or Non-military affidavit (required if an individual)

 

Under the beneficiary’s instructions, the foreclosure officer will prepare the above documents.  Once prepared, the officer will have all beneficiaries involved sign the DOD, NOB, SOT and the Non-military Affidavit with the attached notarization.   Note: Property can also be foreclosed by a senior lienor or through a deed in lieu.

 

Trustee Sale

In a non-judicial foreclosure, the trustee has the power to advertise and sell the property to a bidder.  The successful purchaser receives a signed trustee’s deed, which is recorded at the county recorder’s office by the trustee under the trust deed.  After the sale, there is no equitable right of redemption to the trustee or any other possible junior lien-holder.

 

When all is said and done, the entire foreclosure process takes approximately 110 days to complete (usually 90 days for the redemption term and 12 more for the advertising).  It is usually common for foreclosure to start, but does not carry all the way into sale.  The reason is because when an investor takes the foreclosure action, the borrower often realizes the seriousness of the matter and will make the effort to make the agreed payments on time.

 

 

Bankruptcy

 

Sometimes, in order to avoid the selling of their property through foreclosure, a borrower will try to obtain protection from what is known as an “automatic stay”.  In short, the borrower will file a petition for bankruptcy.

 

A bankruptcy petition that is filed in a federal bankruptcy court before the foreclosure sale of property stops the trustee, in a foreclosure process, from selling the property until the automatic stay is lifted.  At this time, a Temporary Restraining Order will be set in place and will delay the trustee’s sale until the state court can determine whether or not a preliminary injunction will be granted, until a trial or a full hearing can take place regarding the matter.

 

When it comes to bankruptcy, the investor will require the assistance of an attorney to appear in court, in order to request that relief be granted from the automatic stay.  An attorney will also be required to respond to the Temporary Restraining Order.

 

Should a borrower file for bankruptcy, it is always in your best interest to respond as quickly as possible to ensure that you receive full payment of the amount owed to you. This includes all legal costs, fees and expenses that you had to endure while processing the foreclosure, as well as those costs linked to having to take action in responding to the bankruptcy petition.


Chapter 10

Escrow

 

 

When you fund a loan or purchase a promissory note, this transaction should be done through escrow.  Escrow is a specific process in which a title of transfer and a funds transfer take place via a neutral third party during a real estate transaction.  The company providing escrow acts as the middle person in the transaction, and the escrow agent is the one who will process the transaction in accordance to the initial escrow instructions that were agreed on by the lender and the borrower.

 

The instructions provided by escrow determine the conditions that need to be met or waived before the escrow officer can take action and disburse your money to either the note holder or the borrower.  Some of these conditions include, but are not limited to –

 

  1. Delinquent taxes are paid
  2. Certain liens are removed
  3. Choosing title insurance coverage
  4. Completion and handing over of the deed of trust or promissory note, or the completion and handing over of the endorsement or assignment of the promissory note.

Escrow instructions

 

Due to the fact that escrow usually involves the transfer of an investment in land, all conditions regarding the transfer need to be in writing.  That being said, the following is a list of the criteria that is required to be stated within the escrow instructions:

 

  1. Name of the escrow agent, third party or depository
  2. Names of both the buyer and seller as well as their proper title (ex: joint partnership, corporation, individual person, and so on)
  3. A legal description of the property that is to be transferred
  4. The price at which the property was purchased
  5. Set conditions in regards to transfer and payment
  6. Distribution of cost, insurance costs, taxes and assessment
  7. The signature of both the seller and buyer

All of the transaction details, including the agreement made by the seller and buyer, need to be written in the escrow instructions so that it is clearly understood by all parties involved.  Even promises made orally should be written down.

 

When the instructions have been completed, it is then important for the investor to read the preliminary title report more than once to ensure that everything is understood and nothing has been overlooked or missing.  The investor (you) should also check and see that the trust deeds and notes, as well as the amount of indebtedness are all in proper order.

 

If the investor has the first deed of trust, then there will be no other lien before theirs.  Furthermore, the investor should also make it a point to ask questions in the event they discover certain wording or restrictions they fail to comprehend.  Should this occur, the investor should ask the escrow agent to produce copies of the listed documents in the title report.  As an investor, you should never feel embarrassed to ask questions.  Remember, only through asking questions will you learn all the facts of purchasing a trust deed.

Important facts about escrow to keep in mind

Legal advice –

Be advised that while an escrow company will assist you, escrow’s purpose is not to provide advice on legal matters.  Nevertheless, an investor may ask the advice of a broker or escrow company, and they may or may not tell the investor how a similar problem was resolved in past escrows.  However, if an escrow involves tax and legal problems and is extremely technical, than the investor should seek the advice of an attorney.

Casualty and Fire Insurance –

Insurance is imperative when it comes to making a trust deed investment; because as an investor you will want to ensure that you have sufficient insurance to protect your investment.  The investor should check with the escrow agent to ensure that when the close of escrow occurs, an endorsement will follow.

Notice request –

A notice request must be placed in the agreement to make sure that the investor will be notified should a default action start on one of the previous loans.  If in the event the investor held a second deed of trust, and the initial trust deed holder began a foreclosure action, the investor would receive notification.  The reason why such foreclosure actions are started is due to the fact that payments on the promissory note have not been made, or it could be that taxes and insurance are overdue.

 

Include important conditions

Should a late charge be included as part of the note, the investor needs to ensure that the conditions regarding the late charge, are included in both the escrow instructions and the note.

Acceleration Clause –

An acceleration clause should be apart of the escrow documents.  This clause indicates that full payment of the loan is required to be made upon liens, change of ownership or a transfer.

Escrow number –

Should it become necessary in the future, for the investor to discuss a section of the escrow with the agent in charge, if the investor has the escrow account number it will be easier for the agent to locate the escrow file in question.  Furthermore, it is in the investor’s best interest to safely secure the escrow agent’s card, and inset the escrow number on it.  Thus, this will ensure that the investor has the escrow number, the name of the escrow company, as well as the name of the individual responsible for the documentation.

 

To make things easier, investors should keep all loan escrow documents/papers in a single folder, and to ensure the protection of the original deed of trust and note, secure these documents in a place safe from theft, fire or other potential hazards that could lead to their loss.  Finally, the investor should make copies of all the important documents (for example- escrow instructions, trust deed, promissory note), and keep them at home where they can be easily accessed and referred to when needed.

 

Obtain certified copy of escrow papers –

The investor needs to obtain a certified copy of escrow papers, which is an escrow file that has been verified and signed by an agent of the escrow company and is considered to be a valid and accurate copy of the original document.  Once the investor has the certified copy, the escrow company recognizes that the investor expects all conditions and terms of the escrow to be completed precisely.  A certified copy of escrow papers is especially important when it comes to cash transactions where the investor wants to ensure the trail of cash is carefully documented.

Closing Escrow

 

Once you have completed all of the necessary instructions and requirements for escrow, and it begins to take its normal course, you are now ready to close escrow which is often referred to as “close of escrow”, “closing” or “settlement”.    Regardless of the term used, the closing of escrow is when all of the final papers are signed, and the closing officer is prepared to record the deed to the property, and the sale goes to the seller.

 

The instructions for escrow that you will be requested to sign could be unilateral (separate set of instructions for the buyer and separate ones for the seller) or bilateral (one set of instructions for the seller and one for the buyer).  Different areas use different methods.  Those that use unilateral escrow instructions generally sign at the end of the escrow term, while those that use bilateral escrow instructions usually draw up and sign in the initial opening of escrow.

 

Be advised that once the escrow documents have been signed, if you try to cancel, regardless of the reason, you may be subject to penalties or even legal consequences.  Therefore, it is imperative that you carefully read and re-read all the closing documents.  Double check the documents for clerical or mathematical errors.

 

Sometimes issues may arise that can cause a delay in the closing process, such as one party may be not be able to sign the papers at the closing time, because they are unavailable.  Although this can be a problem, it is one that can be dealt with in several different ways such as:

 

  1. The documents can be sent to the unavailable party ahead of time and pre-signed.
  2. A power of attorney can be implemented to allow another individual to act on behalf of the absent party and sign for them.

 

When everything is in the clear, and the documents have been appropriately signed, the escrow officer will inform the title company to record the trust deed, who will then deliver the loan package (all the executed loan documents) to the lender.  As soon as the lender is in possession of these documents, they will then release to the title or escrow agent their loan proceeds.  The title attorney or escrow agent will ensure that the exchange of documents and funds runs smoothly.

 

Thus, escrow closes when every condition of the escrow instructions have been met or waived, the documents have been recorded, and the funds have been released.  A closing statement will be sent to you, which describes how and to whom the documents and funds were distributed.