Important Information for Brokers and Agents who Handle Short Sales

The Federal Bureau of Investigation (FBI) is investigating short sale transactions to determine whether or not a fraud was committed against a lender.

The FBI is focusing its attention on real estate brokers to see whether or not all offers are being submitted to the lender in a short sale transaction. A real estate broker who does not submit all offers to the lender could be charged with being involved in a conspiracy to commit fraud against the lender. When contracts are submitted to the lender, whether approved or not by the lender, the real estate broker must continue to submit subsequent offers to the bank up until closing.
 
It is recommended that listing brokers, to protect themselves, document by certified letter, e-mail or some other verifiable writing that they submitted to the lender all the offers received on the property. Cooperating brokers must also protect themselves by documenting by some verifiable writing that all offers were submitted to the listing broker.
 
In the instances where the lender’s website does not accept subsequent offers after the contracts have been submitted, the correspondence should contain the following language: “We have received a subsequent offer. Your website is not receiving additional offers. We feel duty-bound to communicate the enclosed offer to you for whatever use you deem appropriate”.
 
The main goal for both the listing broker and the cooperating broker is to create a paper trail so that they are not charged with a breach of the fiduciary duty of full disclosure. Furthermore, under the New York State Law of Agency, brokers and agents have a duty to disclose all offers up until the date of closing!
 
Importantly, in short sale transactions, the FBI may view a seller’s instruction to a listing broker not to submit any further offers to the lender as an unlawful instruction. Therefore, a listing broker should advise the seller as soon as it becomes apparent that the listing is a short sale that the listing broker is obligated to submit to the lender all offers that come in on the property. It would be wise for the listing broker to document in writing that he so advised the seller of this obligation.
 
Another area on the FBI’s radar is house “flipping” when there is a short sale.
 
If an investor purchases a short sale and then immediately sells the property, particularly without doing any improvement, the government is looking at all parties involved. In particular, the investigations are focusing on “flipped” deals, where the investor is putting the property on the market as a “contract vendee.”
 
If a buyer is attempting to make a profit by placing the property on the market while waiting for the bank to approve a short sale, that buyer is defrauding the bank by allowing the bank to believe the price the buyer has offered is the best price the bank can hope to obtain. Real estate licensees who facilitate such transactions are considered to be part of a conspiracy to defraud the bank. Even if the salesperson is a buyer broker, he is still held to this same standard and faces the same consequences.
 
Salespersons and brokers who are parties to these transactions in any way can be held to be part of this conspiracy to defraud the bank. Brokers must be very careful to make sure all disclosures have been made to all parties and that the bank is made fully aware of the circumstances of the sale. All such disclosures and all attendant information should be in writing!
 
Additionally, the Federal Trade Commission (FTC) is imposing strict requirements on real estate professionals involved in short sale transactions under certain circumstances.
 
The FTC has published the Mortgage Assistance Relief Services (MARS) rule. The MARS rule is directed at companies that offer loan modification services to consumers. The MARS rule requires that the MARS provider make certain disclosures to consumers.
 
If a real estate professional represents clients in short sales, takes any fees for his loan modification services, or promotes himself to potential short sale sellers, the real estate professional needs to be aware of the MARS rule and the disclosure requirements.
 
A real estate professional who specifically markets MARS (loan modification services) to consumers must make the MARS disclosures in all advertisements promoting the MARS services. Therefore, any broker who specifically solicits business from short sale sellers will need to include the disclosures in all of its advertisements, including telephone solicitations.
 
A real estate brokerage that isn’t specifically seeking to be a MARS provider yet wants to mention its short sale experience or qualifications in its marketing materials may or may not need to provide the MARS disclosures. The FTC’s practice is to review ads on a case-by-case basis, and determine the impression that a particular ad would make upon a “reasonable” consumer.
 
An advertisement listing the accomplishments of a licensee and the types of services that the licensee provides to his clients which mentions experience with short sale transactions, among other services, may not need to comply with the MARS rules. Similarly, an advertisement identifying a licensee as having the SFR designation, without advertising MARS services, is also likely outside of the MARS rules. However, an advertisement promoting a real estate professional’s short sale brokerage business will likely need to comply with the MARS rules, since the average consumer would have the impression that these advertisements are from a MARS provider.
 
Also, real estate brokerages that currently take up-front fees for their services need to be aware of the MARS rule. The MARS rule bans the receipt of up-front fees for loan modification services.
 
The area of concern recently is whether or not a real estate professional who becomes involved in a short sale transaction in the routine course of doing business, either from the inception of a listing or during the course of handling a listing, must comply with the MARS rules. This is because the FTC has determined that a listing broker who communicates with a lender about the possibility of a short sale transaction involving a consumer’s loan falls within the definition of a MARS provider and so would be subject to the MARS rule and disclosure requirements.
 
The National Association of Realtors (NAR) is aware of the burden that this could have on brokers who are simply involved in a short sale transaction through the usual course of a listing. NAR has met with the FTC in an attempt have real estate brokers who are involved in short sales in the regular course of a listing exempt from the MARS rule.
 
NAR has recently advised that the FTC has stated that a listing broker listing a property in the routine course of doing business which is or becomes a short sale does not have to provide the consumer with the MARS consumer specific disclosure and does not have to provide the consumer with the MARS disclosure when the lender approves the short sale.
 
However, the FTC still requires the MARS disclosures and the MARS rule to be followed when a broker advertises himself/herself as a short sale specialist or charges a fee for loan modification services or short sale negotiation services. Also, the FTC stated that no broker should charge an up-front fee if the broker’s services include short sale negotiations.
 
We will continue to monitor this issue and keep you informed of any further official changes as they occur as rapidly as possible.
 
If a real estate professional comes under the MARS rule, there are three types of disclosures that must be made to consumers.
 
1. A real estate professional that advertises MARS services which are not directed at a specific consumer will need to include in all advertisements a clear and prominent discloser with the following:

IMPORTANT NOTICE (in two point-type larger than the font size of the disclosure): (Name of company) is not associated with the government, and our service is not approved by the government or your lender. Even if you accept this offer and use our service, your lender may not agree to change your loan. If you stop paying your mortgage, you could lose your home and damage your credit rating.

2. The second disclosure is required in all communications that the MARS provider directs to specific “prospective” clients, and so these disclosures may need to be made by brokers who represent sellers in a real estate transaction. The disclosure must include the following language:

IMPORTANT NOTICE (in two point-type larger than the font size of the disclosure): You may stop doing business with us at any time. You may accept or reject the offer of mortgage assistance we obtain from your lender (or servicer). If you reject the offer, you do not have to pay us. If you accept the offer, you will have to pay us (insert amount or method for calculating amount) for our services. (Name of company) is not associated with the government, and our service is not approved by the government or your lender. Even if you accept this offer and use our service, your lender may not agree to change your loan. If you stop paying your mortgage, you could lose your home and damage your credit rating.

3. The third disclosure needs to be provided, in a clear and prominent manner, at the time the real estate professional presents his client with the lender’s short sale approval letter. The disclosure must be provided on a separate page and state:

IMPORTANT NOTICE: Before buying this service, consider the following information (in two point-type larger than the font size of the disclosure): this is an offer of mortgage assistance we obtained from your lender (or servicer). You may accept or reject the offer. If you reject the offer, you do not have to pay us. If you accept the offer, you will have to pay us (same amount as disclosed previously) for our services. If you stop paying your mortgage, you could lose your home and damage your credit rating.

In conclusion, real estate professionals who specifically solicit business from short sale sellers, who take any fees for MARS services, or who represent short sale clients need to be aware of the MARS rule and the disclosure requirements. Please go to “documents on demand” on the realtors only section of www.lirealtor.com to find a sample MARS disclosure form.

Update 5/6/2011

FTC – MARS Rule Update

As previously reported, the Federal Trade Commission (FTC) requires Mortgage Assistance Relief (MARS) specific written disclosures by real estate professionals in short sale transactions.

While there have been discussions between the National Association of Realtors (NAR) and the FTC, there have been no published changes.

As a result, any real estate broker who is involved in a short sale transaction in the routine course of doing business must comply with the MARS rules and disclosure requirements.

We will continue to keep you informed of any further official changes.

Update 5/12/2011

NAR’s Q&A on MARS Rules

Please visit NAR's official website to view their Q&A on MARS Rules

Update 5/20/2011

FTC – MARS Rule Update

Based on conversations with FTC officials, NAR states that they are optimistic that the FTC will make changes to the MARS disclosure requirements that will make the language more relevant for real estate professionals or provide another meaningful accommodation. NAR states that, in the meantime, they do not expect the FTC to crack down on real estate professionals who are involved in short sales in the course of providing traditional real estate services to sellers.

However, if a real estate professional advertises his/her short sales expertise, he/she must comply with the MARS disclosures.

Also, no up-front fees can be charged to handle short sales.

Update 6/26/2011

Update on MARS Rules

Please visit NAR's official website to view their updated Q&A on MARS Rules