A foreclosure negotiation with a bank

This is a step-by-step through an actual negotiation process where I was representing the buyer dealing with a bank for a foreclosure property. You should also know that this bank purchased the loan in a package from the actual original lender, or at least the one holding it when the default happened. At times during the negotiations, which took a little over a week and half, I was frustrated with the bank's seeming intentional disregard of the problems of the home they were trying to unload. Some facts:

In better times, the value of this home was between $225k and $300k. The original list price by the bank was $179k. We made our offer six months or so later when it was listed at $119,900. In an area with very strict environmental laws, the home needs a new septic system on a lot too small for any leach field, thus holding tanks. The process to receive the variance for holding tanks takes 30-45 days, with an outcome that isn't guaranteed. The bank is very clear in all their documents that they know nothing and make no representations as to condition, and will pay for no repairs. We received some initial ballpark estimates for the septic work before our first offer.

That's the situation on the day we made our offer. There were no other offers out there, though the home was being shown a bit. It was in surprisingly good condition, requiring the addition of a heater for immediate occupancy if the septic was right. Let's walk through the process with the basic main points and items of importance:

Offered $108,000 with 20% down financing. Contingent upon the granting of the septic variance. Contingent upon the seller paying $10,000 for septic installation before closing, as new lender was requiring that.

Those are the highlights of the offer, and it was pretty bold, as the home is a steal at the full asking price, even if the septic must be replaced after closing at the buyer's expense. However, this person did not have the cash to do that, so we needed it done by the seller, or at least financed in the price. We went through six counter offers with the following items of contention:

Bank would only use their counter offer forms, reiterating every negotiation item in each one, computer generated. Bank wanted a closing date too soon to guarantee the variance could be approved and septic installed before closing, and they wanted $100/day from the buyer if we went past that date "at no fault of the seller." Their first counter iterated that they wouldn't pay for a survey, but would credit the buyer $1500 toward their closing costs. Their first counter offered to pay nothing toward the septic installation. Their first counter was at full list price of $119,900.

I won't go through every counter, but our negotiations centered around sale price, septic cost, survey/closing costs and the $100/day damages clause with the short period until closing. Every counter from us asked for more and to remove any payment of damages if the buyer couldn't get the items done in time due to delays at the county.

At the end, it took some creativity to get the deal done, and we did get the deal done. Here's the way we made our final counter, and they came back with an OK on it:

Selling price to be $120,500, though we had during the process gotten them all the way down to $112,000. You'll see why. Seller will pay an up-front fee of $1500 to get the septic varianc process done. Seller will pay $10,000 for a new septic system. Seller will pay $500 toward buyer closing costs. And, closing date was extended.

As you can see, by sending our final counter to them with the sale price increased from $112,000 with almost no other concessions, we got them to take it and shell out $12,000. That's a net selling price of $108,500, but the buyer won't need any more cash than the 20% for down payment and other closing costs. It's a great deal for the client, who'll close on a home ready to live in with about $50k+ in immediate equity. The point is to never quit with a bank. As long as they keep coming back with counter offers, you do the same. At some point, you'll make a deal, and it might be better than you ever expected.

Four Lessons If you must negotiate, Gotbaum offers four key lessons: 1. Look at yourself as a negotiator. A good negotiator needs certain attributes or characteristics: authority (from position, intelligence, reputation, or just plain attitude); a source of power; principles; intellect; awareness of limitations; and sensitivity. 2. Know and be prepared for your adversaries' negotiating style and ability.Will they be authoritarian and confrontational or deceptively passive yet unbudging? 3. Evaluate the stakes and the need for the talks. Understand what's at stake not only for the people you represent but for the adversaries as well. 4. Understand the context of the talks. Context can range from the economic and political environment to the effect of an immovable deadline.

Negotiation In The Real World

Negotiation is a process, whereby we try to resolve differences of opinion or conflicting interests. Knowingly or unknowingly, we negotiate almost every day, with our friends, family members, colleagues, superiors, business partners, strangers and sometimes even with ourselves.

We use negotiation to achieve our goals, realize our expectations, protect our interests, work out a compromise or simply avoid trouble with others. Sometime we negotiate on behalf of others to resolve their problems. Negotiation is a decision making or problem solving process, involving two or more parties, who are in a state of conflict with each other because of opposing interests, concerns, values, beliefs, emotions, justifications and expectations, the resolution or irresolution of which would weigh heavily upon their future and their well being. In simple terms, negotiation is a kind of conflict resolution or a settlement process, in which the parties to the negotiation try to achieve their respective goals by various means, using effective communication and strategy. From a negotiators point of view, negotiation is a balancing act, in which emotions need to be managed, conflicting ideas and interests need to be prioritized, solutions need to be found and expectations need to be tempered, before the parties concerned arrive at an acceptable solution. The almost impossible task of people involved in a negotiation process is how to maximize gains and minimize losses for one or more parties, with minimum friction, so that in the end everyone feels comfortable with what has been agreed upon. It is agreed that negotiation is a process and that the first stage of any negotiation, the pre-negotiation stage, is very essential in the planning process for negotiations. But the stage of pre-negotiations, as scholars have come to agree, is in itself also a process. Since the pre-negotiation stage is so crucial there are therefore certain essential steps to proceed on in order to ensure success. While scholars are not agreed on the exact labeling of the different phases of pre-negotiation, nor on how many specific steps there are to be followed, they generally agree on the essential elements that must come into play during pre-negotiations. Peterson Lucas (2001) identified four stages of pre-negotiations. Other writers have classified the processes involved in pre-negotiation into five categories and even some have limited their categories to only three components. Scholars agree that the first step to take in pre-negotiations is for the parties to identify and define the exact nature of the problem and conduct necessary intelligence gathering procedures. This first phase is basically the framing phase .Furthermore, in this first step, parties are able to demonstrate whether or not they are willing to negotiate address the issues .The next step is the formulation aspects where the parties begin to search for available options or alternatives to the issue from the perspective of both parties Each party will have to anticipate the possible options that the other could propose. In the third step there is first some amount of commitment to negotiate among the parties, whether formally or informally

based on the information gathered and the alternatives identified. There is following this commitment a concrete agreement or decision to negotiate by both parties. Here the negotiating parties decide on the parameters under which such negotiations would take place. The final step in the pre-negotiation process is the structuring phase where negotiation strategies are developed and plans are made by each side as how best to tackle the actual negotiation .Formal negotiations begin as soon as the parties agree to negotiate and appoint a committee over the negotiations. One important factor that impacts greatly on the process and outcome of negotiations is the individual characteristics of the negotiators. While no scholar has proposed a particular model of the best characteristic traits for a successful negotiator, they have identified several factors that could swing negotiation outcomes either in favor of or against the party for with the individual is negotiating. Among the individual characteristics of negotiators the most commonly identified are negotiation experience, age, sex, education and training as well as culture and beliefs. Other variable characteristics could also have an impact on how well a negotiator performs. Irritability, tension, historical relationship between negotiators, physical health among others factors have been noted to affect the negotiation process. All negotiations do not happen alike, as each negotiation has a character of its own, depending upon the people involved and what is at stake. However, broadly speaking, many negotiations confirm to a definite pattern and pass through the following four phases, namely, perception, preparation, resolution and post resolution. Parties Steve Madden.com Steve Madden is easily America's most successful shoe designer. Considered the fashion footwear mogul of the 21st century, Madden has been responsible for the design and marketing of the company's trendsetting shoes for the past two decades. His vision to give young, fashion forward women a unique way to express their individuality through style resulted in millions of customers worldwide and propelled his designs to the forefront of the fashion industry. In 1990, with a mere $1,100 in his bank account, Madden started crafting shoe designs from his Queens-based factory and the Steve Madden brand was born. With sheer guts, years of experience in the footwear industry, and unique creative designs, Steve Madden formed his own successful enterprise. A year later, Madden introduced a redefined version of platform shoes, resulting in one of the most spectacular success stories in the early 1990's.

Inspired by his favorite rock and roll stars of the 1970s, the thick, chunky heel became Steve Madden's signature and a phenomenon in women's shoes. Today, the Steve Madden brand represents a lifestyle. It is about embracing fashion while still maintaining that funky independence that first defined the brand 20 years ago. Expanding now into apparel and other accessories such as dresses, handbags, belts, sun wear, cold weather, outerwear and hosiery, Steve Madden is always looking toward to the future. As 2010 begins, more exciting opportunities are on the horizon including re-packaging, new store design rollout and expansion in global markets. Steve Maddens main business is the designing, sourcing, marketing, and selling fashionable footwear brands for men women and children. Steve Madden distributes their products through four major venues. The four venues are their online e-commerce website, its retail stores, department stores, and specialty stores. The company has core brands along with updated styles that are constantly being changed in order to capitalize on market trends. Being a trend setter in the shoe market has propelled Steve Madden to a top name brand. In Romania, stevemadden.com is represented by an outsourcing office and call centre where people across the world, US especially, call to either buy or track their order.

UPS
Over time, UPS has become a leader in global supply chain management. At UPS, global distribution and logistics involves managing not only the movement of goods, but also the information and funds that move with those goods. UPS customers repeatedly asked to tap into this expertise, which ultimately led to the development of a full-service business. UPS Supply Chain Solutions is a streamlined organization that provides logistics, global freight, financial, and mail services to enhance customers' business performance and improve their global supply chains. Over the past 100 years, UPS has become an expert in transformation, growing from a small messenger company to a leading provider of air, ocean, ground, and electronic services. The most recent public change came in 2003, when the company introduced a new brand mark, representing a new, evolved UPS, and showing the world that its capabilities extend beyond small package delivery. The company went another step further, adopting the acronym UPS as its formal name, another indicator of its broad expanse of services. Ever true to its humble origins, the company maintains its reputation for integrity, reliability, employee ownership, and customer service. For UPS, the future promises even more accomplishments as the next chapter in the company's history is written.

Conflict. Interests
SteveMadden.com began the collaboration with UPS in order to have their shoes delivered across the world in a very efficient manner. Believing in UPS experience and availability to support the supply chain, SteveMadden.com was assured that their shoes will be delivered all over the world in due time and with maximum responsibility. The problems started when UPS lost some of the packages, refusing to admit so and refund the value of the packages. In the cases in which the packages value was rather small, the refund was sent almost immediately and no negotiation was necessary. However, there are still many other cases in which the value of the packages is higher and UPS is not willing to pay so easily the entire value. Here is where the negotiation starts. Even though the packages are easily tracked on UPS website, sometimes the packages dont reach the destination. Nevertheless, on the website they even have a signature to prove that the package was delivered safely on time. Assuring SteveMadden.com that they had other packages delivered at that address with the same signature provided, UPS will not take the responsibility of losing the package. Therefore, SteveMadden.coms interest is to get the entire value of the package at its original price, even though some packages had shoes on sale, at a smaller price. Consequently the BATNA is the value of the shoes at the original prices shown in the websites catalogue. UPS BATNA is 0, of course. Their interest is not to pay anything to SteveMadden.com, insisting on the fact that the packages were safely delivered to their destination. Most of the times, the negotiation process that is being triggered by what we call an UPS issue is a two sided time consuming procedure. It would not be completed in just one day. It so happens that we might not reach a mutual agreement within a week either. For us as a company that stands both as a provider to our customers and as an UPS client, the entire situation is quite inconvenient and our status not to be envied. On the other hand, we are attempting to get the customer more time for us to be able to finalize the investigation with UPS before providing her with a solution while also taking further action with UPS. Interests involved are various and concurrent most of the times. Steve Madden interest as a company is to keep our regular customers and prove that we are able to handle issues and provide them with the solutions they are expecting from us so basically it is a matter of public image and of the way we are being generally perceived from the outside. Simultaneously, we are also attempting to reach a conclusion with UPS that would enable us to receive a certain sort of compensation that would make up for the unsatisfactory experience and of course, refund us for part of the investment incurred by

choosing to have UPS as a provider. On the one hand, we are attempting to gain more time, while on the other we are seeking for financial relief. The customers interest is to be provided with a solution to his problems as soon as possible. He has no interest in which entity is to blame. From his point of view, his duty and contribution as a buyer had already been completed accordingly. What would go on from that point on is no longer his responsibility. He followed the basic steps of being a buyer in the contemporary age. That is ordering something online, paying for his purchase, and from that point on, his only concern is to just sit back and wait for his expectations to be met accordingly. That is receiving his package most of all and also the merchandise he had paid for in the condition it is supposed to be delivered. To him it makes no difference at all who messed up. He is expecting from us as a company to take care of his needs first of all and show him our appreciation for him as a customer and then take further action in the required direction. It is time consuming and most inconvenient for him to have to wait for our investigations to be concluded first in order to be able to receive the response he is looking for. His mentality can be summarized as following: I am not to be blamed for any of this, therefore it is not fair for me to have to suffer the consequences of your faulty services. Please deliver what you have committed yourself as a company to. It should be your concern and yours only how this situation is finalized and how it affects your company and it should not influence me in any way. Considering his righteous point of view, it makes it even harder for us to decline his request, yet our policy compels us to follow the necessary steps in solving the issue. As far as UPS is concerned, their goals are rather simple. They are seeking to find a way not to be held responsible for anything that had happened. I am not entirely sure whether this comes from their concern for their reputation, but after having several opportunities to compare our companies approaches regarding similar matters, it makes no sense for me why they should act the way they do. First of all, they seem to be from the very beginning quite unwilling to grant the matter their full attention for the purpose of coming up with the best solution and as soon as possible under the given circumstances. It appears that their main concern is to have their responsibility waived and possibly for the pursuit to be dropped in the meantime. This also depends on the type and value of the package in question. If the content value of the package is less than $100, they turn out to be more flexible in approving our claims and providing us with a response. However, when it comes to overall amounts higher than the $100 threshold, is becomes our primary concern not to leave matters to them but rather constantly follow up with their service and make sure that the solution to the matter is actually coming eventually.

BEFORE THE NEGOTIATION

The usual negotiation process is normally being initiated at the customers request. Up to the point when we are being notified that the package was not received or delivered accordingly, we stand little chance for detecting these issues in due time. Most of the times, the only information we have available lies in the updates received from UPS at their earliest convenience. Let us assume for one thing that the status of a particular package appears as having been delivered accordingly to the shipping address provided according to UPS records. Yet, the customer contacts us back complaining that she had never received the parcel. The next step that is to be taken in regard to this matter would be filing an official complaint by going online and submitting the claim. Basically, this means that we, as an UPS customer, are disputing their resolution for that particular case. There is a standard process with preestablished steps that need to be taken and quite clear instructions that guide you through the entire procedure. For us to be more specific, this is basically a procedure that is to be finalized via Internet Therefore, filing online the damaged or lost claim represents the preliminary stage of the negotiation process and it is the only phase that takes place online. Once this step is being completed, all the rest will take place over the phone up to the point when an agreement is reached. Most likely, UPS will be in contact with us shortly. One of their representatives would call us back and request to speak to the person that filed the lost claim. For the purpose of better illustrating these issues, please allow us to present a specific case that has all the required features. Let us consider for instance the case of Mr. Jose Gonzales. He placed an order for a pair of shoes. Nothing too cheap, nothing way too expensive. He could have had multiple reasons for buying them online. Maybe he needed them for an upcoming event, in order to match a particular outfit that he had in mind or simply he wanted to indulge himself in buying something nice for a change yet never got to a store and purchase them the old fashioned way. However, this would not be the case and this only leads to making matters worse. The item bought was from the Womens section and the shoes were a gift for his wife. So he placed the order online several days in advance as compared to the date he had in mind, simply to ensure that the purchase would be received in due time. He submitted his credit card information, received his purchase confirmation and checked the tracking information assigned to the parcel and then lied back assured and waited for the shoes to arrive. However, it so seems that his purchase was made under a bad sign. Several weeks had passed from the moment the order was placed, yet his package still remained to be delivered. His wifes birthday was coming up soon so the customer needed to know exactly what was going on and what he should expect further. So he decides to call us and the first contact attempt is made via e-mail on

10/28/2010 at 1:36:53 PM One of our representatives checks the package status according to UPS and notices that their records show that delivery had been completed on a particular date at a certain time and that signature was also available upon delivery. According to our policy in such cases, the preliminary suggestion we offer to customers is to check with either the doorman or building responsible or with neighbors, family members, basically anybody that might be in the possession of the package at that point. Also inform the customer that in case he would still experience difficulties in locating the parcel, he should contact us back and we would gladly file a claim with UPS on both his and our behalf.

DURING THE NEGOTIATION

Later that very same day, the customer also contacts us back via phone and the person in charge with the case takes the call. He informs us that he had checked with everybody as advised, yet the package is nowhere to be found. He requests of us to take actions further and to provide him with a solution as soon as possible since the item was purchased as a gift. At this point, the customers approach is still calm, as he does expect to have that solution soon. He genuinely trusts the well established company he is dealing with and also the quality of the services provided. As soon as the customer notified us that he was still unable to locate the package, the next step that is to be taken by us is to start the investigation with UPS and submit the tracer for lost (never received package) Indeed, at a closer look, it is noticed that the address to which the package was delivered was actually entirely different from the correct one. The shipping address provided by the customer when placing the order was 10577 N. MacArthur Blvd #2177, Irving, TX 75063 yet the package was sent to 1834 E PETERS COLONY RD 2 1906 CARROLLTON, TX, US 75007 The reason for that was quite simple. One of the shipping labels that were supposed to be affixed outside the shipping box was missing and when the package was returned to be held to the local facility due to the fact that delivery was attempted but failed, the information was updated automatically from UPS records with a similar address to which previous deliveries took place to a person by the same name. This is, from our point of view, the worst policy ever and a great number of problems could be avoided if UPS simply took the time to check with us, the sender, first, and confirm the address before taking matters into their own hands. However, the fact is that they never do and that, furthermore, getting them to admit that the problem was actually caused by a fault of theirs is a struggling, time-consuming process in itself. The next step is allowing one additional day once the tracer for the package is started for UPS to call back and ask for additional details and this is also when the negotiation process starts as well. In case they fail to contact us back, it

our responsibility as a Steve Madden employee in charge with the case to reach them and proceed with the investigation. We call and begin by confirming details regarding the lost package. We state the problem once more and attempt to retrieve from them what would be at least a preliminary promise regarding the final resolution. They assure us that the case will also be forwarded to the local facility and schedule a date for that final resolution for November the 11th. As soon as we are being provided with it, we need to contact the customer back either via phone or e-mail and notify him regarding these updates. Our negotiation with the customer in these cases has the main purpose of gaining more time on his part for us to be able to conclude the investigation accordingly. The disadvantage in such cases as far as the customer is concerned is that we can never actually provide him with a definite answer if the tracer is still in progress. Our policy regarding these matters is quite prohibitive in this respect. Several business days have passed. It is now November the 9th and there still appears to be nothing new with UPS. The status of the tracer is checked daily by us. Information, if any, is constantly updated on their tracking page. Unless this happens following their initiative, it is useless to attempt contacting them again and demand an alternative to the current situation. They would only inform us that the resolution date had not been reached yet and that only then is it possible for us to take the next step further. When we do call them back, and demand the required updates, we are being informed that the driver actually requested a signature upon delivery, that the receiver had actually signed for the package, thus confirming its receipt, and that as far as they are concerned, the tracer would be closed positive that very same day. We need to explain and state our point of view quite clearly that the problem is not solved as far as we are concerned and that we would request for the tracer to be reopened. UPS usually asks until the end of the business days for further checking. When it comes to negotiating with the customer, issues become even more difficult. It is almost certain that the customer had already lost his patience entirely by now. Therefore, he would most likely be deeply dissatisfied when hearing us say that for the purpose of having the company send out a new pair of shoes to him, he would need to place a new order, be charged again for the purchase, and also wait for several additional days for the new delivery to take place. He would request instead for you to make the necessary arrangements for a replacement pair to be shipped out directly to him, and possibly have it overnighted, sent via express shipping or next day air, in order to ensure that delivery is made in due time. The only thing we can reply when facing all the above mentioned requests is No. No to having a replacement pair sent out. No to having the shipping for the new order

expedited. It is by no means difficult to put ourselves in the customers shoes and understand that the whole situation is most frustrating to him. In order to be able to do that, we also need to get a little bit inside the American psychology and come to terms with the fact that when it comes to customer service issues, they would not take No for an answer. Basically, there is not much of a compromise to be done under the circumstances. The only way in which we can settle each case is by driving the other party to give in. For that purpose, we need first to have the customer calm down. Tell him or her that we can put ourselves in his position and that we understand perfectly his disappointment under the circumstances. Make him feel that our apologies as a company come from the heart and assure him that we are there to do your best in order to better assist him. It does help a lot in changing the tone of the conversation within which the bargaining is being conducted to a much lighter, easier to handle one. For instance, it helps me relax and better focus on the goal of those 15 minutes of conversation. As it was previously mentioned, there is pretty much nothing that we are allowed to give in to in such cases. The company policy, at least the way it looks now, would totally prohibit us from doing so. We need to work with the little we have. The best answer I have managed to come up so far is making the other party reach the conclusion that, on the second thought, the same solution I had suggested from the beginning and that he had fiercely rejected from the start is actually not that bad. We need to get him to think that way either if it concerns allowing more time for the package to be found and redirected to him or that the only step that we can take further is issue a full refund for the purchase back to his account. In such cases, discounts for future purchases offered as a way of apologizing can help as well.

AFTER THE NEGOTIATION

Once the requested deadline is reached, we call them again and this time usually ask directly for a supervisor. In this particular case, we have been notified that the Tracers Department had already been contacted, yet, even if the entire situation was their fault, there was no possible way for them to expedite the tracer. However, we are promised that they would attempt to retrieve the package from where it was delivered and have it shipped to the customer. In case they would not be able to find the package, they would notify us and provide us with the financial compensation required. So, basically, we will be able to receive our money back and also refund our customer. This finalizing procedure usually takes some additional business days itself, yet the only difference is that this time we also have their official commitment that the problem would be solved accordingly in the end. As soon as we have their written confirmation also, all that remains to be done on our behalf is to submit the required documents and notify the customer and also

follow up from there. The documents required for finalizing the process consist of the UPS letter, which is basically a formal memo that summarizes the entire situation and states that the report was filed accordingly and that all steps had been followed in the process, along with the receipt that was issued by Steve Madden for that particular package and also the UPS tracking information that they had assigned to the parcel.

CONCLUSIONS TO BE DRAWN
To sum up, this would basically be pretty much it when it comes to the negotiating with both UPS and the American customer. Every call that we take and each e-mail that we write is merely one step further into the bargaining process or an entirely carried out bargaining process altogether. Whether the question that remains is if there is any room for improvement, the answer is obviously yes. We were not trained into becoming good negotiators, but merely in being reliable and efficient customer support representatives. We were initiated into the basics of what this position involves, and trusted with acquiring the remainder of the required knowledge and skills along the way. It should come in naturally when to back down in order to reorganize your strategies for the purpose of pushing your arguments further afterwards. We do need to teach ourselves how to make the best use of what we have to offer within such process. We need to perfect the way in which we conduct our speech and keep focused on the ultimate goal. Our success in such a negotiation process represents, the same way the success of any other employees does, a further gain to a greater scale for the company. Basically, we were able to outline the following key point that should we focus on: Always prepare. Enter a negotiation without proper preparation and you've already lost. Start by making sure we are clear on what we really want out of the arrangement. Research the other side to better understand their needs as well as their strengths and weaknesses. Pay attention to timing. Timing is important in any negotiation. Sure, we must know what to ask for. But we should be more sensitive to when we ask for it. There are times to press ahead, and times to wait. When the situation is to my advantage then it is the time to press for what we want. But we should refrain from pushing too hard and poisoning the desired long-term relationship with the customer. Ramp up listening skills. The best negotiators are often quiet listeners who patiently let others have the floor while they make their case. They never interrupt. We should always encourage the other side to talk first. That helps set up one of negotiation's oldest maxims: Whoever mentions numbers first, loses. While that's not always true, it's generally better to sit tight and let the

other side go first. Even if they don't mention numbers, it gives you a chance to ask what they are thinking. Anticipate compromise. We should expect to make concessions and plan what they might be. Of course, the other side is thinking the same, so never take their first offer. Even if it's better than wed hoped for, practice my best look of disappointment and politely decline. You never know what else you can get. Offer and expect commitment. The glue that keeps deals from unraveling is an unshakable commitment to deliver. We should offer this comfort level to the other party. Likewise, I should avoid deals where the other side does not demonstrate commitment. Stick to the companys principles. As an individual and an employee, you likely have a set of guiding principles that belong to the company values that you just won't compromise. If we find negotiations crossing those boundaries, it might be a deal we can live without. Close with confirmation. At the close of any meeting even if no final deal is struck recap the points covered and any areas of agreement. We should always make sure everyone confirms. Follow-up with appropriate letters or emails and never leave behind loose ends

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