Auction House Bidding & Selling

In the comments on the article Auction Laws in the U.S.A., a couple of great questions have been asked by Frank Ceresi. While I posted a response in the comments, I thought this would be a good topic and may generate its own comments and questions.

Frank asks:
Is it lawful for the principal owners of an auction house to consign items in their own live and/or internet auction?
Is it lawful for the principals in an auction house to bid in their own live or internet auction?

Response:
I’m not aware of anything unlawful with an auction house selling items they have purchased to resell. Why should it be? This is how most resellers operate in the first place, from flea markets to major department stores, whether they sell used or new goods. I wouldn’t understand why anyone would consider this to be an unacceptable practice. The auction house purchases items and sells them to the highest bidder. This is the purest form of capitalism and free enterprise. After all, companies sell their own stocks and commodities by auction everyday, through the New York Stock Exchange.

Now, the second question requires a little clarification. Of course, while the laws can vary from state to state, I would also recommend that you carefully read the laws for your particular state to determine any variances from most other state laws. So, keep in mind, my following comments are for majority of state laws, but there could be the possibility of a few states that may indicate otherwise. Keep in mind, at auction, the buyer must perform their own due diligence and know the laws, as well as the terms of the auction.

In most states, the seller or their agent (which can certainly include the auctioneer) may be allowed to bid on behalf of any minimum reserve prices set by the seller, as long as “SUCH BIDDING IS DISCLOSED” to the bidders. This is also the primary difference between “shilling” and “protecting the reserve”.

There are basically two ways to “protect the reserve”. One method method is to “Pass” the item, if it does not meet the reserve. The other is “bidding on behalf of the reserve” and may only be done if DISCLOSED to the bidders (note the emphasis). Some auctioneers may also use a consignor bidder number or “house number”, in such cases that the reserve is not met, to keep things flowing smoother and allows for tracking during settlement of the auction.

The key point is “DISCLOSURE”. If the auctioneer has not disclosed that such bidding may be allowed, then it would be considered “shilling” and would be considered fraudulent bidding.

This disclosure may be in the form of written “Terms and Conditions” which may be posted or otherwise made available to the bidders, or may be statements made during the “Opening Statements” of the auction, which is why it is always a good idea to be present at the beginning of an auction and listen closely to everything the auctioneer says, at that time. If you arrive late, you are still bound by those oral statements, even though you may not have actually heard them being made. This falls under the same basis as you’ve probably heard before, concerning your responsibilities to know the law prior to any actions you take… “ignorance is no excuse”. So, if they have written terms and conditions, you should read them carefully, in their entirety. However, there is no requirement that the terms must be written. For that matter, the auctioneer is also allowed to set forth the conditions of each sale, as each item is being offered, which may also superceed any previous statements made or modify the terms for that particular sale.

It should also be noted that the auctioneer is not required to state whether any item has a reserve or not, much less how much the minimum reserve price may be for any item. In fact, at most auctions, any reserve is kept secret and is not disclosed. There are several reasons for this and experience has certainly born out a couple of those most prominently… one is that it “sets a maximum price in the mind of the buyer” and we all know that an item is worth what the highest bidder is willing to pay on a particular day.

This is not to say that the item may not bring more on a different day, with different buyers and the seller is not required to sell their item for less than they are willing to accept. This goes back to the definition of “Fair Market Value” which is “the price a willing buyer and willing seller agree on”. Therefore, this is the basis of the “reserved minimum” which must be met, before the seller agrees to sell.

Another reason why most auctioneers don’t disclose reserves, is due to another element of human nature… if the minimum amount is disclosed, most won’t even offer a starting bid at the reserve price. It’s as though they automatically deem the price to be “too high”. (Of course, then there are those that don’t understand auction laws and think everything has to sell regardless of price and think that if it starts lower, they might get it anyway.) However, from experience, if the item has a “reasonable” reserve, the bidders will usually meet or exceed it, if there are two or more truly interested bidders and they are allowed to start the bidding where ever they wish and bid accordingly. Of course, if there is only one interested bidder, the seller’s agent may bid against them until it reaches the reserve (if such bidding was properly DISCLOSED, as discussed above).

Of course, if you have attended auctions, you also know that you may set your own price prior to bidding, only to find yourself bidding more than you initially intended, as you felt it was worth more than you hoped someone else would pay.

Unfortunately, one of the myths that many people have about auctions, is that “everything must sell regardless of price” and they go looking for a “steal of a deal”. While there are often plenty of great deals to be had, there is no requirement that everything must be sold regardless of price. The U.C.C. states that “all auctions are considered to be WITH Reserve, UNLESS stated to be Absolute”. Therefore, the auctioneer may still cancel the sale of any item prior to announcing ’sold’, if he/she feels that the item has not met a reasonable value, even if it does not have a minimum reserve price. However, the ethical auctioneer would not bid against you in such cases (since there is no specific reserve), but only ‘Pass’ the item if a reasonable value was not reached.

Government Siezed Property Auctions

In one of the comments, Seth asks “If a loan balance is owed to the bank on a vehicle seized by the IRS, if you buy that vehicle at auction does the bank lose its lien on the vehicle?”.

Of course, there is a lot of misinformation or at least, a lot of ambiguities in the information, that is the subject of many books and other “information guru” offerings, which try to get consumers to buy their offerings, in the hopes of “How To Get Rich At Auction”.

The short answer to Seth’s question is, “NO!”.

When purchasing seized assets, you are only buying the government’s “interest” or in other words, the government’s portion of “claim to the property”. It does not preempt other claims, such as loans from a mortgage company or lender, which may still be entitled to foreclose for lack of payment.

In the case of the IRS, we can look at their specific regulations and the terms and conditions used for such auctions. You will also note, that the original taxpayer still has the “right of redemption” for 180 days. This means, they can pay you what you paid, plus interest and reclaim their property from you, within 6 months of your purchase. So, don’t run off and sell it too quickly or you may be liable for returning the property to them.

IRS Terms of Sale:
Nature of Title: The right, title and interest of the taxpayer in and to the property is offered for sale subject to any prior valid outstanding mortgages, encumbrances, or other liens in favor of third parties against the taxpayer that are superior to the lien of the United States. All property is offered for sale “where is” and “as is” and without recourse against the United States. No guaranty or condition of any of the property, or its fitness for any use or purpose. No claim will be considered for allowance or adjustment or for rescission of the sale based on failure of the property to conform with any expressed or implied representation.

Title Offered: Only the right, title and interest of the taxpayer in and to the property will be offered for sale. If requested, the Internal Revenue Service will furnish information about possible encumbrances, which may be useful in determining the value of the interest being sold.

IRS Sections regarding the Rights of Sale & Redemption:
Redemption Rights: The rights of redemption, as specified in Internal Revenue Code Section 6337, are quoted as follows:
* Sec. 6337. Redemption of Property.
(a) Before Sale. – Any person whose property has been levied upon shall have the right to pay the amount due, together with the expenses of the proceeding, if any, to the Secretary at any time prior to the sale thereof, and upon such payment the Secretary shall restore such property to him, and all further proceedings in connection with the levy on such property shall cease from the time of such payment.

(b) Redemption of Real Estate After Sale.
(1) Period. – The owners of any real property sold as provided in Section 6335, their heirs, executors, or administrators, or any person having any interest therein, or a lien thereon, or any person in their behalf, shall be permitted to redeem the property sold, or any particular tract of such property at any time within 180 days after the sale thereof.

(2) Price. – Such property or tract of property shall be permitted to be redeemed upon payment to the purchaser, or in case he cannot be found in the county in which the property to be redeemed is situated, then to the Secretary, for the use of the purchaser, his heirs, or assigns, the amount paid by such purchaser and interest thereon at the rate of 20 percent per annum.

Section 6339(c). Effect of Junior Encumbrances.
A certificate of sale of personal property given or a deed to real property executed pursuant to section 6338 shall discharge such property from all liens, encumbrances, and titles over which the lien of the United States with respect to which the levy was made had priority.

Iconic House sells for $1

Of course, this headline caught my eye and I had to read the story, but figured there had to be a catch. Of course, my intuition was correct. Yes, the house was sold for $1 (and other due consideration, as the deed likely reads), but it is going to cost the new owners $100,000 to have it moved! However, considering the house, they are probably still getting a “good deal” on it. Read about it here:
Iconic House Sells for $1
Or Here:
Iconic NJ beach house ready to sail to NY

Everyone has heard the tales of buying a Mercedes (Jaguar or which ever model was used in the tale) at auction for A STEAL OF A DEAL! Of course, they only hear part of the story… what they don’t hear, is that is was a burned-out car or it was at the bottom of a river and they had to pay to get it dredged out.

While the actual story may not be a “myth”, such things usually reach mythical proportions as the story evolves into those “Buy for Pennies on the Dollar! Go To Auction” books, DVDs, and other such information being offered for sale to unwitting buyers looking for those “STEALS of a Lifetime”.

While you may find some great deals and occasionally someone may get a “steal” on something, most items typically bring what they are worth at an auction. This is the reason that auctions have been used for over two-thousand years (auctions have been traced back to as early as 500 B.C.). Of course, it’s also why the Stock Exchange is the biggest daily auction, as commodities and stocks are sold for their current value. Now, if you bought stock when prices were skyrocketing and it was selling at $50, but now it’s sitting there, selling for only $25, you might be asking yourself one of two questions… 1.) did I pay too much? or 2.) should I buy now? It all depends on which side of the fence you’re sitting. What if you buy it now and the price falls further? Did you get a good deal?

Auctions are the best method to determine the current market value. However, it doesn’t matter what you paid for it or what you think it’s worth, the free market will let you know what it’s actually worth today. So, you may think that if you hold on to it, it will go up in value… well, almost everyone bought newspapers, magazines, etc., when JFK was assassinated, with that same thought. All it means, is there are a lot of old newspapers and magazines collecting dust, somewhere. I probably find at least one or more, at almost every estate I’ve ever cleaned out. So, what do you think they are worth? How much would you pay for another one? What do you consider a “bargain”?