California Department of Real Estate
THE SHORT VERSION: There have been laws put in place about advance fee collection from Real Estate professionals and ATTORNEYs. At least read the beginning of the article, this will give you some great information.
CONSUMER ALERT **
1. FRAUD WARNING REGARDING LAWSUIT MARKETERS REQUESTING UPFRONT
FEES FOR SO-CALLED “MASS JOINDER” OR CLASS LITIGATION PROMISING
EXTRAORDINARY HOME MORTGAGE RELIEF
By Wayne S. Bell
Chief Counsel, California Department of Real Estate
I. HOME MORTGAGE RELIEF THROUGH LITIGATION (and “Too Good to Be True”
Claims Regarding Its Use to Avoid and/or Stop Foreclosure, Obtain Loan Principal
Reduction, and to Let You Have Your Home “Free and Clear” of Any Mortgage).
This alert is written to warn consumers about marketing companies, unlicensed entities,
lawyers, and so-called attorney-backed, attorney-affiliated, and lawyer referral entities
that offer and sell false hope and request the payment of upfront fees for so-called “mass
joinder” or class litigation that will supposedly result in extraordinary home mortgage
relief.
The California Department of Real Estate (“DRE” or “Department”) previously issued a
consumer alert and fraud warning on loan modification and foreclosure rescue scams in
California. That alert was followed by warnings and alerts regarding forensic loan audit
fraud, scams in connection with short sale transactions, false and misleading
designations and claims of special expertise, certifications and credentials in connection
with home loan relief services, and other real estate and home loan relief scams.
The Department continues to administratively prosecute those who engage in such fraud
and to work in collaboration with the California State Bar, the Federal Trade
Commission, and federal, State and local criminal law enforcement authorities to bring
such frauds to justice.
On October 11, 2009, Senate Bill 94 was signed into law in California, and it became
effective that day. It prohibited any person, including real estate licensees and attorneys,
from charging, claiming, demanding, collecting or receiving an upfront fee from a
homeowner borrower in connection with a promise to modify the borrower’s residential
loan or some other form of mortgage loan forbearance.
Senate Bill 94’s prohibitions seem to have significantly impacted the rampant fraud that
was occurring and escalating with respect to the payment of upfront fees for loan
modification work.
Also, forensic loan auditors must now register with the California Department of Justice
and cannot accept payments in advance for their services under California law once a
Notice of Default has been recorded. There are certain exceptions for lawyers and real
estate brokers.
2 On January 31, 2011, an important and broad advance fee ban issued by the Federal
Trade Commission became effective and outlaws providers of mortgage assistance relief
services from requesting or collecting advance fees from a homeowner.
Discussions about Senate Bill 94, the Federal advance fee ban, and the Consumer
Alerts of the DRE, are available on the DRE’s website at www.dre.ca.gov.
Lawyer Exemption from the Federal Advance Fee Ban
The advance fee ban issued by the Federal Trade Commission includes a narrow and
conditional carve out for attorneys.
If lawyers meet the following four conditions, they are generally exempt from the rule:
1. They are engaged in the practice of law, and mortgage assistance relief is part of
their practice.
2. They are licensed in the State where the consumer or the dwelling is located.
3. They are complying with State laws and regulations governing the “same type of
conduct the [FTC] rule requires”.
4. They place any advance fees they collect in a client trust account and comply with
State laws and regulations covering such accounts. This requires that client funds
be kept separate from the lawyers' personal and/or business funds until such time
as the funds have been earned.
It is important to note that the exemption for lawyers discussed above does
not allow
lawyers to collect money upfront for loan modifications or loan forbearance services,
which advance fees are banned by the more restrictive California Senate Bill 94.
But those who continue to prey on and victimize vulnerable homeowners have not given
up. They just change their tactics and modify their sales pitches to keep taking
advantage of those who are desperate to save their homes
. And some of the frauds
seeking to rip off desperate homeowners are trying to use the lawyer exemption above to collect
advance fees for mortgage assistance relief litigation.
This alert and warning is issued to call to your attention the often overblown and
exaggerated “sales pitch(es)” regarding the supposed value of questionable
“Mass Joinder” or Class Action Litigation.
Whether they call themselves Foreclosure Defense Experts, Mortgage Loan Litigators,
Living Free and Clear experts, or some other official, important or impressive sounding
title(s), individuals and companies are marketing their services in the State of California
and on the Internet.
They are making a wide variety of claims and sales pitches,
and offering impressive sounding legal and litigation services, with quite
extraordinary remedies promised, with the goal of taking and getting some of your
money.
3 While there are lawyers and law firms which are legitimate and qualified to handle
complex class action or joinder litigation, you must be cautious and BEWARE. And
certainly check out the lawyers on the State Bar website and via other means, as
discussed below in Section III.
II. QUESTIONABLE AND/OR FALSE CLAIMS OF THE SO-CALLED MORTGAGE LOAN
DEFENSE OR “MASS JOINDER” AND CLASS LITIGATORS.
A. What are the Claims/Sales Pitches?
They are many and varied, and include:
1. You can join in a mass joinder or class action lawsuit already filed against your
lender and stay in your home. You can stop paying your lender.
2. The mortgage loans can be stripped entirely from your home.
3. Your payment obligation and foreclosure against your home can be stopped when
the lawsuit is filed.
4. The litigation will take the power away from your lender.
5. A jury will side with you and against your lender.
6. The lawsuit will give you the leverage you need to stay in your home.
7. The lawsuit may give you the right to rescind your home loan, or to reduce your
principal.
8. The lawsuit will help you modify your home loan. It will give you a step up in the
loan modification process.
9. The litigation will be performed through “powerful” litigation attorney
representation.
10. Litigation attorneys are “turning the tables on lenders and getting cash settlements
for homeowners”.
In one Internet advertisement, the marketing materials say, “the damages sought in your
behalf are nothing less than a full lien strip or in otherwords [sic] a free and clear house if
the bank can’t produce the documents they own the note on your home. Or at the very
least, damages could be awarded that would reduce the principal balance of the note on
your home to 80% of market value, and give you a 2% interest rate for the life of the
loan”.
B. Discussion.
Please don’t be fooled by slick come-ons by scammers who just want your money. Some
of the claims above might be true in a particular case, based on the facts and evidence
presented before a Court or a jury, or have a ring or hint of truth, but you must carefully
examine and analyze each and every one of them to determine if filing a lawsuit against
your lender or joining a class or mass joinder lawsuit will have any value for you and your
situation. Be particularly skeptical of all such claims, since agreeing to participate in
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such litigation may require you to pay for legal or other services, often before any legal
work is performed (
e.g., a significant upfront retainer fee is required).
The reality is that litigation is time-consuming (with formal discovery such as
depositions, interrogatories, requests for documents, requests for admissions,
motions, and the like), expensive, and usually vigorously defended. There can be
no guarantees or assurances with respect to the outcome of a lawsuit.
Even if a lender or loan owner defendant were to lose at trial, it can appeal, and the
entire process can take years. Also, there is no statistical or other competent data
that supports the claims that a mass joinder and class action lawsuit, even if
performed by a licensed, legitimate and trained lawyer(s), will provide the
remedies that the marketers promise.
There are two other important points to be made here:
First, even assuming that the lawyers can identify fraud or other legal violations
performed by your lender in the loan origination process, your loan may be owned by an
investor – that is, someone other than your lender. The investor will most assuredly
argue that your claims against your originating lender do not apply against the investor
(the purchaser of your loan). And even if your lender still owns the loan, they are not
legally required, absent a court judgment or order, to modify your loan or to halt the
foreclosure process if you are behind in your payments. If they happen to lose the
lawsuit, they can appeal, as noted above. Also, the violations discovered may be minor
or inconsequential, which will not provide for any helpful remedies.
Second, and very importantly, loan modifications and other types of foreclosure relief are
simply not possible for every homeowner, and the “success rate” is currently very low in
California. This is where the lawsuit marketing scammers come in and try to convince
you that they offer you “a leg up”. They falsely claim or suggest that they can guarantee
to stop a foreclosure in its tracks, leave you with a home “free and clear” of any
mortgage loan(s), make lofty sounding but hollow promises, exaggerate or make bold
statements regarding their litigation successes, charge you for a retainer, and leave you
with less money.
III. THE KEY HERE IS FOR YOU TO BE ON GUARD AND CHECK THE LAWYERS OUT
(Know Who You Are or May Be Dealing With) - Do Your Own Homework (Avoid
The Traps Set by the Litigation Marketing Frauds).
Before entering into an attorney-client relationship, or paying for “legal” or litigation
services, ascertain the name of the lawyer or lawyers who will be providing the services.
Then check them out on the State Bar's website, at www.calbar.ca.gov. Make certain
that they are licensed by the State Bar of California. If they are licensed, see if they have
been disciplined.
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Check them out through the Better Business Bureau to see if the Bureau has received
any complaints about the lawyer, law firm or marketing firm offering the services (and
remember that only lawyers can provide legal services). And please understand that this
is just another resource for you to check, as the litigation services provider might be so
new that the Better Business Bureau may have little or nothing on them (or something
positive because of insufficient public input).
Check them out through a Google or related search on the Internet. You may be
amazed at what you can and will find out doing such a search. Often consumers
who have been scammed will post their experiences, insights, and warnings long
before any criminal, civil or administrative action has been brought against the
Scammers.
Also, ask them lots of specific, detailed questions about their litigation experience, clients
and successful results. For example, you should ask them how many mortgage-related
joinder or class lawsuits they have filed and handled through settlement or trial. Ask
them for pleadings they have filed and news stories about their so-called successes. Ask
them for a list of current and past “satisfied” clients. If they provide you with a list, call
those people and ask those former clients if they would use the lawyer or law firm again.
Ask the lawyers if they are class action or joinder litigation specialists and ask them what
specialist qualifications they have. Then ask what they will actually do for you (what
specific services they will be providing and for what fees and costs). Get that in writing,
and take the time to fully understand what the attorney-client contract says and what the
end result will be before proceeding with the services. Remember to always ask for and
demand copies of all documents that you sign.
IV. CONCLUSION
Mortgage rescue frauds are extremely good at selling false hope to consumers in trouble
with regard to home loans. The scammers continue to adapt and to modify their
schemes as soon as their last ones became ineffective. Promises of successes through
mass joinder or class litigation are now being marketed.
Please be careful, do your own diligence to protect yourself, and be highly suspect if
anyone asks you for money up front before doing any service on your behalf. Most
importantly,
DON’T LET FRAUDS TAKE YOUR HARD EARNED MONEY.
This is from the Department of Real estate. www.dre.gov
