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Mortgage foreclosure rescue scams (finally) blocked by feds

New rules from the Federal Trade Commission will make it more difficult and costly for bogus loan modification and foreclosure rescue companies to operate nationwide. Unfortunately, the rules are weaker than the standards now used by several states.

Under the Mortgage Assistance Relief Services rule, the FTC says that mortgage foreclosure rescue and loan modification services cannot collecting fees until homeowners have a written offer from their lender or servicer that they decide is acceptable. Individuals and organizations that violate the rule will be subject to FTC civil penalties. Excluded from the ruling are banks, savings and loans, federal credit unions, common carriers, and insurance companies. Attorneys may charge advance fees — but such fees must be held in an escrow (trust) account.

The MARS rule will be a substantial problem for foreclosure rescue companies and loan modifiers. Without the ability to quickly collect up front — and with a requirement to show results — most will instantly go out of business.

However, the new FTC regulations do not go as far as some states. For instance, in Maryland if a foreclosure rescue specialist sells a distressed property within 18 months after acquisition then 82 percent of any profit must be paid back to the original owner. Illinois and Minnesota have similar regulations.

The FTC further explains the details of the new regulation as follows:

The MARS rule applies to for-profit companies that, in exchange for a fee, offer to work on behalf of distressed consumers to help them obtain modifications to the terms of mortgage loans or to avoid foreclosure on those loans. The Final Rule, among other things, would: (1) prohibit providers of such mortgage assistance relief services from making false or misleading claims; (2) mandate that providers disclose certain information about these services; (3) bar the collection of advance fees for these services; (4) prohibit anyone from providing substantial assistance or support to another they know or consciously avoid knowing is engaged in a violation of the Rule; and (5) impose recordkeeping and compliance requirements.

Advance 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.

Disclosures

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.


Prohibited claims

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.

Attorney exemption

Attorneys are generally exempt from the rule if they meet three conditions: they are engaged in the practice of law, they are licensed in the state where the consumer or the dwelling is located, and they are complying with state laws and regulations governing attorney conduct related to the rule. To be exempt from the advance fee ban, attorneys must meet a fourth requirement — they must place any fees they collect in a client trust account and abide by state laws and regulations covering such accounts.

All provisions of the rule except the advance-fee ban will become effective December 29, 2010. The advance-fee ban provisions will become effective January 31, 2011.

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Posted in: Foreclosures

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