Getting your player ready...
Mars is the red planet, but MARS has some real estate professionals seeing red. The National Association of Realtors is working to fine-tune MARS – the acronym for Mortgage Assistance Relief Services Act – regarding real estate brokers, although some brokers already are cheering MARS.
The act, sponsored by the FTC, with relatively little fanfare, went into effect on Jan. 31 to help protect distressed homeowners from mortgage relief scams. Only now, does it appear to have started appearing on the radar screen of many Realtors.
MARS lands on Realtors who do short sales
The 54-page MARS document defines “mortgage assistance relief service” to include “negotiating, obtaining or arranging a short sale of a dwelling.” A short sale is when a bank accepts less than the mortgage amount, and is seen as a less costly alternative to a foreclosure. There were more than 3,300 short sales in the Denver area last year.
Among other things, MARS:
Outlaws charging advanced fees or passing along a short sale coordinator’s fee to homeowners prior to the seller receiving a written notice from the lender saying the offer is acceptable.
Broker and others involved in the short sale process must disclose that they and their companies are not associated with the government.
Consumers must be reminded that it is within their right to reject the offer.
Mortgage relief companies are prohibited from making a false or misleading claims in about a dozen specific areas. Among other things, misrepresentations are not allowed regarding the likelihood of consumers getting the results they are seeking; the consumer’s payments and other obligations; and the amount of money a consumer will save by using their services. In short: Do not mislead consumers on any aspect of the process.
All disclosures must be clear and prominent. It even goes as far to say that text advertisements must have the heading IMPORTANT NOTICE in bold font that is at least two-point type larger than other type in the document.
Sellers cannot be advised to not contact or communicate with their lenders or loan servicers.
MARS also imposes record-keeping and compliance requirements. Indeed, one criticism has been that the FTC went a bit over-board with multiple disclosures.
There is no exception in MARS for real estate brokers, as there is in the Colorado Foreclosure Protection Act, although there is an exception in MARS for lawyers.
“This means real estate brokers working with short sellers or any seller in foreclosure need to understand and comply with MARS,” according to Damian Cox, a Denver real estate lawyer.
Indeed, violators of MARS could face fines of up to $11,000 per day.
Although it has been in effect for two months, the gravity of it is only now starting to sink in.
Consumers may be hurt
“It was adopted with no real fanfare,” said Cox. “It was intended to help consumers, but, unfortunately, I think it could hurt the ability to get a short sale done. I think it is overly broad. Realtors are starting to become more aware of it, and they should. It is a big deal.”
It’s a national rule and has had a national response.
Earlier this month, Jim Schneider, a Realtor in the Chicago area, criticized the National Association of Realtors for not making a bigger deal about MARS.
“They didn’t do much to rally the troops to change this ruling to make (it) something less difficult to implement; they issued their findings long after the ruling came into effect, and they haven’t exerted any effort to make the Realtor community aware that this exists. Trifecta!” Schneider wrote.
NAR looks to tweak ruling
However, Laurie Janik, an attorney with the NAR, this morning told InsideRealEstateNews that it she is working with the FTC regarding required disclosures under MARS by real estate brokers who are working on short sale transactions.
“The rule is not a good fit,” for real estate brokers as far as some disclosure requirements, Janik said. “We are working with the FTC to get some additional guidance. The FTC has been most willing to engage in conversations with us.”
Some Realtors like MARS
But MARS already has its fans.
Bobby Burnett, principal of Keller Williams Realty-DTC, for example, thinks MARS is just what the industry needs.
“I think it is a good thing,” said Burnett, who expects to complete at least 100 short sales this year. He estimates short sales account for 50 percent to 60 percent of the activity by his Burnett Team at Keller Williams.
“No. 1, it has a prohibition of upfront fees, and I like that,” Burnett said. “You can get paid at the closing or after the lender has accepted the offer, but it is illegal to charge upfront fees. I agree with that.”
He also said that he likes the disclosure requirements, such as saying you are not representing the government and that consumers can reject offers.
“I was doing most of this stuff before,” Burnett said. “You know how much I hated these guys that were cheating people and double-selling properties. I hated those guys.”
Regulations inevitable
Ryan Lantz, who works with a number of companies that provide short sale services to brokers, as well as Realtors, months ago said it was inevitable the industry would face more regulations.
Lantz, co-founder and managing director of Claremont Information Systems, which developed Short Sale ProLogic, a software program that helps brokers identify short-sale listings and unsold homes in the shadow market, thinks that MARS is on the right track. He said outlawing upfront fees is a good move, for example.
“I think it is better for the consumer and the industry,” Lantz said. “I think that makes everyone 100 percent incentivized to get the deal closed. Some of the good companies out there are already dong that. PMH Financial, for example, has a fee structure that they only collect their fees at the closing.
“There are other good (short sale companies) out there that collect their fees upfront, and they are going to have to adjust,” Lantz said. “And the good companies will. They will adapt and it won’t be a problem. Some of the other companies, which depend solely on front-end fees, will go out of business. That is a good thing. We want to get the bad actors out of the business, which will be better for the good guys. Honestly, I don’t think this is going to have any impact on the market’s ability to get short sales closed.”
Tara Rogers is chairwoman of RealtyTMS, one of the biggest players is the short sale service field. She emphasized that RealtyTMS is completely MARS-compliant and will follow all of the rules set out by the FTC. She and her lawyers will continue to monitor the ruling.
Bad apples caused problems
“Unfortunately, there were several bad apples out there who were using predatory practices to take advantage of homeowners,” during a very vulnerable time, Rogers said. “We are taking the position that anything that gets rid of those predatory folks is a good thing. That will allow people to get the help they need from legitimate companies and Realtors.”
The act traces its roots to March 11, 2009, when President Obama signed the Omnibus Appropriations Act. A section of the act directed the FTC to seek comments to come up with new rules to combat mortgage fraud.
The ban on charging upfront fees, though, could have a downside for some short-sale coordinators who help brokers navigate the time-consuming and complex short-sale process, said real estate lawyer Cox.
“Upfront fees are now prohibited,” Cox said. “That is going to change the market. I think it could have a chilling effect on the completion of short sales.”
Cox said many brokers use short-sale coordinator firms that help brokers and sellers deal with the banks, when it comes to such things as finding the correct forms to fill out.
“These are the people who will sit on the phone for hours with the bank,” Cox said.
Many of these companies charge an upfront fee for their time and effort, while the broker only gets paid if the home is sold.
Most distressed consumers may suffer
He said he expects that some short-sale transaction firms will “cherry pick,” cases, and only take on the ones that seem almost certain to close. That could mean some of the most distressed homeowners – those with multiple liens on their houses, for example – will be forced into foreclosure.
“It is amazing to me that the government on one hand is encouraging short sales as an alternative to a foreclosure, but on the other hand is making it more difficult to accomplish them,” Cox said.
Colorado Attorney General John Suthers is not only a big fan of MARS, but played an important role in creating the act.
Suthers and the Illinois Attorney General were the lead state attorneys who helped shape MARS in April 2010, when the FTC was considering comments from various groups. Comments by the National Association of Attorneys General group called the ban on advanced fees as the “linchpin” of the new rule.
MARS another tool for Suthers
“We support the FTC rule,” Suthers said through a spokesman. “We believe the rule complements the Colorado Foreclosure Protection Act,” and does not preclude any actions that his office can take under the Colorado act he said.
Suthers said he welcomes MARS as “another tool we have to pursue individuals or companies defrauding Colorado homeowners seeking foreclosure-relief services.”
Ron Woodcock, a broker with RE/MAX Southeast, who has completed more than 400 short sales during the past 22 years in Florida and Colorado, also supports MARS.
“I believe, overall, it is good legislation,” Woodcock said. “It is coming on the scene a little late, but is good legislation. Hopefully, it will help put the brakes on most of the scams out there where people are paying thousands of dollars upfront for mortgage modifications that never happen and were never going to happen, anyway.”
