FTC gets MARS involved, where is NAR in all this?

In the past month you can read not many but still a few posts on the new rule by the Federal Trade Commission that gets MARS (Mortgage Assistance Relief Services) involved with the processing of Short Sales and who processes them. I love when you talk to agents and they say "I don't negotiate short sales I just submit the paperwork" or "I provide the offer to the bank". Come on people, I was born in the day but not yesterday. As soon as you submit the offer and it's approved you negotiated the note. Meaning you took a 30 year note and now it's going to end at 5 years, End of story. You negotiated the terms of that note. According to the new FTC rule; a "provider" includes any person who provides, offers to, or arranges for others to negotiate, obtain or arrange a short sale of a dwelling.

I like what Attorney Richard Zaretsky, says in his post on AR;

Although the MARS Rule does not prevent real estate agents from performing MARS services, if they choose to perform MARS, it does make them comply with all of the requirements of the Rule. This will definitely change the way real estate agents work with short sales. To stay outside the Rule, a real estate agent should not contract with an entity that does the work of a seller's short sale negotiator nor have any contact the lender's short sale negotiator. The client must contract with a short sale negotiator or attorney independent of the real estate agent for the negotiations to be undertaken and to keep the real estate agent out of that transaction and outside of the MARS scope of application. Since lenders deal with real estate agents all the time in short sale negotiations, because a great number of real estate agents will now not want to be subject to the MARS Rule, I foresee a significant restructuring of the way short sales are accomplished.

My response was;

Richard,
Good stuff as always. I have been in touch with our local Realtors boards and the Florida Association of Realtors and the National Association of Realtors all last month. This went into play late in December and they have still not informed all the Realtor members.
We really need to educate these associations or we are going to see a lot of Realtors getting sued this year. I saw this start to happen when we had to become compliant with the SAFE Act and now the FTC gets involved. I already have almost 10 addendums and disclosures for myself, my attorney and my firm and now we are putting together the three new ones from MARS.
The only saving grace I can see in the entire plot is that lately many of the banks, or at least the big 4, are now doing more and more Pre-Approved short sales. In other words, all the negotiating is gone. The bank tells us where to price and we submit the offer. Just like an REO, except they don't own the property yet. This may become the loop hole. What do you think?

The FTC Website has this;

Homeowners will be protected by a new Federal Trade Commission rule that bans providers of mortgage foreclosure rescue and loan modification services from collecting fees until homeowners have a written offer from their lender or servicer that they decide is acceptable.

"At a time when many Americans are struggling to pay their mortgages, peddlers of so-called mortgage relief services have taken hundreds of millions of dollars from hundreds of thousands of homeowners without ever delivering results," FTC Chairman Jon Leibowitz said. "By banning providers of these services from collecting fees until the customer is satisfied with the results, this rule will protect consumers from being victimized by these scams."

The FTC is issuing the Mortgage Assistance Relief Services (MARS) Rule to protect distressed homeowners from mortgage relief scams that have sprung up during the mortgage crisis. Bogus operations falsely claim that, for a fee, they will negotiate with the consumer's mortgage lender or servicer to obtain a loan modification, a short sale, or other relief from foreclosure. Many of these operations pretend to be affiliated with the government and government housing assistance programs. The FTC has brought more than 30 cases against operations like these, and state and federal law enforcement partners have brought hundreds more.

There are 3 key elements to this new rule.

FIRST ELEMENT - DISCLOSURE

"The Rule requires mortgage relief companies to disclose key information to consumers to protect them from being misled and to help them make better informed purchasing decisions. In their advertising and in communications directed at individual consumers (such as telemarketing calls), the companies must disclose that:

·they are not associated with the government, and their services have not been approved by the government or the consumer's lender;

·the lender may not agree to change the consumer's loan; and

•if companies tell consumers to stop paying their mortgage, they must also tell them that they could lose their home and damage their credit rating.

Companies also must explain in their communications to consumers that they can stop doing business with the company at any time, can accept or reject any offer the company obtains from the lender or servicer, and, if they reject the offer, they don't have to pay the company's fee. The companies also must disclose the amount of the fee."

SECOND ELEMENT - ADVANCED FEE BAN

"The most significant consumer protection under the FTC's new rule is the advance fee ban. Under this provision, mortgage relief companies may not collect any fees until they have provided consumers with a written offer from their lender or servicer that the consumer decides is acceptable and a written document from the lender or servicer describing the key changes to the mortgage that would result if the consumer accepts the offer. The companies also must remind consumers of their right to reject the offer without any charge."

THIRD ELEMENT - PERFORMANCE REPRESENTATIONS

"The MARS Rule prohibits mortgage relief companies from making any false or misleading claims about their services, including claims about:
•the likelihood of consumers getting the results they seek;

•the company's affiliation with government or private entities;

•the consumer's payment and other mortgage obligations;

•the company's refund and cancellation policies;

•whether the company has performed the services it promised;

•whether the company will provide legal representation to consumers;

•the availability or cost of any alternative to for-profit mortgage assistance relief services;

•the amount of money a consumer will save by using their services; or

•the cost of the services.

In addition, the rule bars mortgage relief companies from telling consumers to stop communicating with their lenders or servicers. Companies also must have reliable evidence to back up any claims they make about the benefits, performance, or effectiveness of the services they provide."

The rule applies to all types of mortgage and relief assistance services, including anything having to do with or about mortgage loan modifications AND/OR short sales or Deed-in-Lieu settlements. Penalties for non-compliance with the Federal Trade Commission's MARS rule are $11,000 PER DAY.

Paul Antonelli
www.ThatShortSaleGuy.com