Undisclosed Short Sale Payments May Be Illegal

by Michelle Lind on April 8, 2010

The following information comes from the California Association of REALTORS® (CAR) legal e-newsletter, Realegal. CAR has given AAR permission to share the information with our members here in Arizona:

Undisclosed payments in short sale transactions, especially those paid outside of escrow, may violate the law, including RESPA, laws against loan fraud, and licensing laws. Short sale agents have increasingly reported to C.A.R. about requests for agents and their clients to pay junior lienholders and others, oftentimes outside of escrow.

One common scenario is when a short sale seller’s senior lender authorizes a payment of $3,000, for example, to extinguish a junior lien, but the junior lender demands that the buyer pays an additional $9,000 outside of escrow. Not only would it be risky for a buyer to pay outside of escrow, but concealing this additional payment from a federally-insured senior lender may constitute loan fraud, which is a crime punishable by 30 years imprisonment plus a $1 million fine (18 U.S.C. section 1014). Furthermore, omitting from the HUD-1 Statement any charges paid at settlement by either a buyer or seller may violate the Real Estate Settlement Procedures Act (RESPA) (Appendix A to 24 C.F.R. Part 3500). Depending on the specific circumstances, carrying out these payment requests may also violate other laws and regulations, and an agent’s participation in the scheme may be subject to license revocation by the Department of Real Estate or other disciplinary action.

Agents and their clients are encouraged to file any complaints regarding fraudulent activities to the proper authorities, including the following agencies:

*Arizona Attorney General’s Office
Maricopa Co. 602-542-5025 | Pima Co. 520-628-6504 | Other Areas 800-352-8431 http://www.azag.gov/consumer/MailInInstructionsEng.html

Department of Housing and Urban Development (HUD)
HUD Office of Inspector General Hotline (GFI)

Federal Bureau of Investigation (FBI)

This information was reprinted with permission from CAR. (* The California Attorney General’s contact information was replaced with Arizona’s.) It was originally published in CAR’s Realegal email on March 16, 2010. All rights reserved.

Charlie Rens April 12, 2010 at 2:04 pm

If full disclosure of all monies charged or credited, is and should be presented on the HUD closing statement, why is it not required that the banking institution have to disclose any insurance or government recovery they may receive from sale of the asset? It is only my thought, but if all the behind the scene numbers were disclosed we might be able to come to a better view of valuation of properties and the market. If a foundation of value is not created, every day that the appraisals drift lower due to recorded comp sales, there will become a time when the majority of properties will be behind the equity curve, thus allowing the owner no option other than short sale or REO. I would appreciate your thoughts.

Jackie McDermott April 12, 2010 at 4:56 pm

I totally agree with Charlie Rens’ question. I WANT AN ANSWER. On my last sale, the appraiser used ONLY 3 REO’s, when in fact there were non-distressed sales which he should have used. This is unconscionable. If the REO lenders were getting government rebates, those rebates should be added to the price of the REO sales. Then we might have a fighting chance for a reasonable recovery. PLEASE follow up on this. Oh by the way, I understand that FHA does not follow the Hvcc “guidelines”. They apparently get to call whichever appraiser they are comfortable with. Ever hear…”What’s good for the goose…?”

Sage Dillon April 13, 2010 at 11:43 am

First, thank you for taking the time to comment. We value your feedback on this blog and hope it can be a place where Arizona’s REALTORS® share issues and ideas with each other and with the association.

I wish that I could say AAR has a solution to the problems you raise. Instead, I can tell you that your comments have been read and that we are aware of these issues and understand the frustrations you’re expressing. AAR continues to work with the National Association of REALTORS® as well as state officials to address the issues confronting our members in this market.

These are challenging times, but we’ll continue to hammer away. Thanks for keeping these concerns at the forefront.

Jo July 10, 2010 at 6:04 pm

I have a question. I am dealing with a short sale in Fla. My husband and I offered a little less than the so called listed price. It took 4 months for the realtor to tell us that the bank made a counter-offer of 5,000 MORE than the listed price. Not only does this seem unethical, but it smacks of illegal to us. We have been told by some that it is very common, while other say that this should not happen. PLEASE help. We need to come to some kind of determination by this coming week (7/12). We have been told that we need to act immediately, even though they have taken months and months to make this decision which is again, unethical, at least. Thank you.

Sage Dillon July 12, 2010 at 10:56 am

Jo, have you talked with your REALTOR® about the situation? S/he will have the best understanding of the details involved and trends in your local market. Good luck!

Lisa Paffrath August 30, 2010 at 8:41 pm

What about a seller, who is also a realtor, requesting (and then demanding) a 25% referral at close of escrow? If a seller is not to “benefit at all” from the sale of their residence, why would a realtor think they are exempt from this? I have not seen much on this topic, though I have spoken to numerous agencies, experts, Department of Real Estate, etc. who all say the same thing …. A SELLER CANNOT BENEFIT FROM THE SALE OF THEIR HOME and real estate agents are not exempt from this. Isn’t this considered fraud?

Previous post:

Next post: