December 15, 2006

LOAN FRAUD ALERT


JON GOODMAN Esq.
Frascona, Joiner, Goodman & Greenstein, P.C.

Loan fraud comes in many forms, but one of the most common—valuation loan fraud—occurs when any party to the transaction, including the real estate practitioner, misrepresents information about the transaction to the mortgage lender. In general, lenders make mortgage loans based upon the creditworthiness of the borrower and the value of the home or other property involved. Lenders estimate the value by having the property appraised and by examining the price the buyer is willing to pay for it. The true purchase price is material because appraising isn’t an exact science. Buyers don’t intentionally overpay for a property—unless they’re engaged in mortgage fraud.


Slow markets frustrate sellers and increase temptation to turn a blind eye to fraud. And without rapid appreciation, fraud becomes more apparent when loans are analyzed on the secondary market.

If fraud happens, how can you protect yourself from unwilling participation? The first step is to educate yourself about some common scenarios. Consider this situation: A buyer has entered into a contract to purchase a property for $200,000, but, after learning about a roof problem, asks for and gets a price concession of $10,000 from the seller. At a $190,000 sales price, the buyer might obtain a 90 percent loan-to-value mortgage for $171,000 and bring approximately $19,000 to close.

However, let’s say the buyer has only $10,000 in cash and needs to get a loan of $180,000 to buy the property. The seller proposes a rebate plan to get the deal closed. On the sales contract, the seller will keep the price at $200,000. In that way, the buyer will be able to borrow $180,000 with a 90 percent loan. At closing, the seller rebates $10,000 to the buyer. Aware that the lenders will probably treat the $10,000 rebate as a price concession, the deal participants agree not to tell the lender about the rebate. That’s fraud.

Even more subtle schemes have evolved in attempts to make deceptions seem less like fraud. For example, a mortgage broker might charge the borrower $10,000 in points and fees (the charges are a disguise for fraud). The seller agrees to pay for those loan charges, and discloses this payment to the lender. Unbeknownst to the lender, the mortgage broker then rebates the $10,000 to the buyer outside of the closing. Again, this is fraud.

Another example is that instead of the buyer bringing $20,000 in cash to the closing, the seller agrees to carry a second mortgage for $10,000. The seller discloses the second mortgage to the lender. However, the seller and buyer agree that the second mortgage will never be paid. Again, the buyer gets a loan based on an inflated price. Once more, it’s fraud.

More subtle still

One of the truisms about mortgage fraud is that if the seller’s concession is shown on the HUD-1 settlement statement, there’s no fraud. But that’s true only if the description on the HUD-1 is accurate.

Among the gimmicks used to create the illusion of disclosure is a debit from the seller’s proceeds suggesting a charitable contribution by the seller or the payment of a debt owed by the seller. If the deducted money is being used to satisfy real debt of the seller or make a real contribution, then it’s perfectly legal. But if the debit and payment to the third party are really a disguise to route money from the seller back to the buyer or other promoter of fraud, such as the mortgage broker, again, it’s fraud.

Routing the payment through a so-called charitable organization doesn’t avoid the fraud because the stated contract price exaggerates the true price received by the seller. In the worst cases, the scammers steal the identity of a creditworthy borrower, transferring it to the person who shows up at closing. In other instances, the buyer is simply a dupe, who doesn’t understand that fraud is taking place.

Being a dupe doesn’t protect you or anyone else in a transaction from liability. Make sure the true facts of a deal are reflected in the contract (with all its amendments) and on the HUD-1.

Jon Goodman is a shareholder at Frascona, Joiner, Goodman and Greenstein P.C., in Boulder, Colo. This article is provided as general information. For advice in a specific case, consult your legal counsel. You can contact the author at jon@frascona.com.

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