Monthly Archives: June 2018

Mortgage Licensing Update

States are finally starting to finish off their attempts to legislate the housing problem. There are still many proposed foreclosure rescue plans in the state and federal legislatures, but most state licensing bills have been either passed or voted against. There is still some talk of a federal licensing requirement for mortgage companies if the state has not complied with the federal governments minimum requirements. There is also a lot of discussion about FHA Reform, which could affect FHA Licensing, and RESPA and GSE Reform. Be ready for some major changes. Their still appears to be more to happen before the end of this congressional session.

NMLS Transition Deadlines (Nationwide Mortgage Licensing System) Very important! See transition deadlines for NMLS transitions starting July 1.

HUD Reminds Lenders of FHA Rules for Dealing with Mortgage Brokers HUD recently issued a mortgagee letter reminding lenders of various payment and service restrictions when dealing with non-FHA-approved mortgage brokers for forward mortgage. The letter states that although a borrower may engage a non FHA-approved mortgage broker for counseling services, loan origination services may not be performed by the broker and the FHA-approved mortgagee may not compensate the broker for the counseling services. Such a payment would violate RESPA’s prohibition on duplicative fees and may even be considered an illegal referral fee. To the extent a borrower receives counseling from a non-FHA-approved mortgage broker, the services must constitute “meaningful counseling” and the fees must be paid from the borrower’s own available assets and disclosed on the HUD-1. In addition, a copy of the service contract must be included in the loan file submitted for insurance endorsement. See Mortgagee Letter 08-17.

Maryland New Surety Bond and Net Worth Requirements

There are two new provisions of law governing Maryland mortgage lender licensees (“Licensees”) that went into effect June 1, 2008. The first is an amendment to Md. Code Ann., Fin. Inst. (“FI”) § 11-508 which increases the amount of the surety bond, letter of credit or trust account required to be maintained by Licensees. The second is a new minimum net worth requirement that must be maintained by Licensees which is codified at FI § 11-508.1.

Surety Bond, Letter of Credit, or Trust Account

The new required surety bond, letter of credit, or trust account amounts are as follows:

$50,000 Bond, etc: Required where the aggregate principal amount of mortgage loans is $3,000,000 or less for the preceding twelve (12) months;

$100,000 Bond, etc: Required where the aggregate principal amount of mortgage loans is more than $3,000,000 but not more than $10,000,000 for the preceding (12) months;

$150,000 Bond, etc: Required where the aggregate principal amount of mortgage loans is more than $10,000,000 for the preceding twelve (12) months;

$750,000 Bond, etc: Required blanket surety bond when an applicant files five (5) or more original or renewal applications at the same time and chooses to submit a blanket bond.

Under Maryland law, surety bond, letter of credit, trust account amounts are based on the volume of the Licensee’s mortgage business for the preceding twelve (12) months.

  • Effective June 1, 2008, the new surety bond, letter of credit, or trust account requirements apply to each applicant for a new license or for the renewal of a license. These new requirements apply to applicants for original and branch location licenses. Any addition of a new branch location to an existing blanket bond will require the blanket bond to be increased to the new $750,000 bond amount or the option to post an individual bond for the new branch in the new amount required by law.

Minimum Net Worth

Another new provision of law requires Licensees to meet and maintain a specified minimum net worth. A summary of the required amounts are as follows:

$25,000 Minimum Net Worth: No lending activity;

$25,000 Minimum Net Worth: Not more than $1,000,000 in lending secured by residential real property for the preceding 12 months;

$50,000 Minimum Net Worth: More than $1,000,000 but not more than $5,000,000 in lending secured by residential real property for the preceding 12 months;

$100,000 Minimum Net Worth: More than $5,000,000 in lending secured by residential real property for the preceding 12 months.

The foregoing minimum net worth requirements take effect June 1, 2008. An additional net worth requirement of $250,000 where a licensee has engaged in more than $10,000,000 in lending secured by residential real property for the preceding 12 months will take effect January 1, 2009.

Please review Chapters 7 and 8 of the 2008 Laws of Maryland (codified at FI § 11-508.1) for important additional information regarding the new net worth requirements, including rules governing the use of lines of credit by Licensees that lend money to satisfy up to 75% of their minimum net worth requirements.

This office will require proof from Licensees that they meet the minimum net worth at the time of application for a new or renewal license and at the time of a compliance examination.

Alaska Finally Adopts Mortgage Lending Licensing Regulations The much-awaited regulations implementing Alaska’s Mortgage Lending Regulation Act have finally been adopted. The regulations implement new licensing and registration requirements for persons engaged in mortgage lending activities, requiring that any non-exempt person acting as a mortgage lender must be licensed and any non-exempt person acting as a small mortgage lender be registered with the state. The regulation also includes application, competency testing, and continuing education requirements on licensees and registrants. Other obligations imposed by the regulations include annual reporting, record-keeping, and supervision requirements. The regulations also enumerate a number of practices that are considered unfair or deceptive advertising or mortgage lending practices, and provide for disciplinary action taken by the Department. Finally, the regulations provide for the establishment and operation of an originator surety fund. The new regulations become effective on July 1.

If you are already operating as a mortgage lender, mortgage broker, or originator, you do not have to be licensed under the AMLRA until March 1, 2009. This means that if you are operating as a mortgage lender, mortgage broker, or originator in AK on June 30, 2008, you are not required to be licensed until March 1, 2009. The Division of Corporations, Business, and Professional Licensing will consider a person to be operating in AK on June 30, 2008, if the person is engaging in business as a mortgage lender, mortgage broker, or originator pursuant to a current AK business license issued for that purpose. For example, if an AK business license has been issued to a mortgage company prior to June 30, 2008, that would indicate the company was doing business prior to July 1, 2008. If you enter the mortgage business as a lender, broker, or originator in AK after June 30, 2008, you are subject to the AMLRA that takes effect on July 1, 2008.

Some highlights of the new law are: All mortgage brokers or lenders that make or provide mortgage loans to AK residents shall be required to obtain a license. This includes all companies that operate on the internet or provide remote lending from another state by mail, or telephone. All mortgage originators will be required to pass a background investigation and a competency test prior to providing service to AK residents. All mortgage originators will be required to complete 24 hours of continuing education every biennial licensing period. All mortgage originators will be required to pay into a surety fund. The fund will be used to compensate consumers for losses they may incur due to unethical or illegal behavior on the part of an originator. The division will conduct examinations of licensed entities on a three-year cycle, or sooner if a complaint is made by a consumer. Under the AMLRA, mortgage lenders and mortgage brokers must obtain a “mortgage license” and individual originators must obtain an “originator license.” An individual who is the principal owner or legally authorized manager of the applicant may apply for a dual license as a mortgage licensee and the single designated originator for the mortgage licensee.

Massachusetts Adopts Regulations for New Mortgage Loan Originator Law The Massachusetts Division of Banks recently adopted implementing regulations to establish procedures and requirements for licensing under its new mortgage loan originator law. Under the new regulations, loan originator applicants are required to submit documentation of their financial responsibility, character and fitness and proof of completion of pre-licensing coursework. In addition, under the new regulations, a loan originator must disclose his/her mortgage loan originator license number in writing to all potential borrowers and residential mortgage loan applicants at the time a fee is paid or when a mortgage loan application is accepted. The implementing regulations became effective on May 30, 2008.

All individuals currently working as loan originators for a Massachusetts licensed Mortgage Lender or Mortgage Broker must submit a Mortgage Loan Originator license application filing to Massachusetts through the NMLS before Monday, June 30th at 11pm, in order to continue to operate in the capacity of a loan originator. Please note that all individuals who meet the definition in M.G.L. c. 255F, section 1 must be licensed. Control persons, owners, executive officers and directors of licensed mortgage lenders or mortgage brokers must also obtain licensure as mortgage loan originators, if they meet the definition. Prior to becoming licensed, applicants must complete a residential mortgage lending course that has been approved by the Division of Banks. However, individuals may submit their application filings to Massachusetts through NMLS prior to completing a course. Individuals who submit an application before July 1st will have until August 31, 2008 to complete a residential mortgage lending course. If such an individual fails to complete a course prior to September 1, 2008, his/her mortgage loan originator license application will be terminated.

Please be advised that the effective licensing date of mortgage loan originators is July 1, 2008. Mortgage lender and mortgage broker licensees may not employ or retain any mortgage loan originator on and after July 1st unless the individual has an application pending with or approved by the Division of Banks.

Connecticut House Bill 5577 Becomes Effective July 1, 2008 Increases the bond requirements for lenders and brokers from $40,000 to $80,000 starting on August 1, 2009Moves up the effective date of the National Mortgage Licensing System provisions of PA 07-156 and changes the name of the system to the Nationwide Mortgage Licensing System (“NMLS”).

The bill converts existing “first” and “second” mortgage professional licenses to the combined license on July 1, 2008. The bill requires those licensed on that date to transition to the NMLS before October 1, 2008. All filings must be submitted exclusively through the system starting on July 1, 2008. (Initial applications submitted on the system between October 1 and December 31, 2008 cannot be approved before January 1, 2009.) Changes the expiration date for licenses and designates licensing fees. Under PA 07-156, starting October 1, 2008, all licenses must expire on December 31st of the year following issuance and all licensees must pay the required licensing and processing fee to the national system. For lender and broker licenses that expire on September 30, 2008, the bill extends the expiration to December 31, 2008. Starting on July 1, 2008, lender and broker licenses must expire at the close of business on December 31st of the year in which they are approved, unless the license is renewed. However, licenses approved after November 1st expire on December 31st of the following year. The bill requires a renewal application to be filed between November 1st and December 31st of the year in which the license expires, provided a licensee may file a renewal application by March 1st of the following year together with a late fee of $100. Any filing by that date with the fee is deemed timely and sufficient.

The Benefits of Using an Independent Mortgage

Types of mortgage advice

So what are the different types of mortgage advice and where would you expect to find them?

Non-advice

This type of mortgage broker offers the least consumer protection, they will simply ask a set of questions to narrow the customers requirements and thus filtering the number of mortgages available. They then present the customer with a small list of possible mortgages for the consumer to choose one appropriate. The consumer protection here is based on the script of questions the broker asks. The script is a process determined prior to the consumer appointment, and is impersonal. Therefore specific personal circumstances are unlikely to be assessed. It also assumes that the customers answers are factually correct and the final choice is made solely by the consumer. Although no advice is offered these brokers do handle the arranging of the mortgage on the consumers behalf, and therefore dealing with all the chasing and removing stress from the process.

Where would you expect non-advised brokers to exist?

Well believe it or not many non-advised brokers are within the high street banks and building societies.

Advice-only

This type of services is where a mortgage adviser uses their knowledge and skills to provide the most suitable mortgage to suit a consumers personal circumstances. This will involve a full fact finding interview, affordability assessment, discussion on the consumers future plans and aspirations, all of which provide key facts on a consumers requirements, and therefore a means for the adviser to identify suitable products. The adviser will not however, handle the arranging of the mortgage, and therefore the consumer would need to deal directly with the bank or buildings society to arrange the mortgage.

Where would you expect advice-only advisers to exist?

These advisers generally do not exist alone this is often a service provided through the ‘Independent Mortgage Adviser’ type below. And often comes about when the most suitable mortgage is only offered direct through high street (i.e. not through mortgage advisers/brokers). The adviser would therefore offer an advice-only option to the client and often charge a fee for this service. Although the client must deal directly with the bank or building society their mortgage adviser often provides support to the consumer.

Tied mortgage advisers

Tied mortgage advisers come in two forms ‘only offering mortgages from one lender or its own mortgages’ or multi-tied ‘only offer mortgages from a limited number of lenders’. This clearly limits the number of mortgage products available to match a consumers personal circumstances and in a lot of cases they may not be able to offer the most suitable mortgage product and therefore advice may result in the best mortgage they can offer, being woefully inadequate.

Where would you expect tied mortgage advisers?

High street branches. A consumer calls into their local building society branch and their in house mortgage adviser can only offer mortgage products from that building society. Consumer choice and mortgage product suitability are considerably reduced. Whats more, high street branches often offer low mortgage rates/fees as a loss leader (marketing term to bring in business) and then try to sell their tied insurance products which are often also woefully inadequate and expensive.

Whole of market advice By far the best coverage these advisers can offer mortgages from all the UK mortgage lenders (having mortgage adviser/broker routes). The vast amount of mortgages available through these advisers is likely to cover the individual circumstances of a consumer. Whole of market mortgage advisers offer advice through conducting a full fact finding interview, affordability assessment, discussion on the consumers future plans and aspirations and then can arrange the mortgage through the lender thus alleviating the stress which comes when purchasing a house.

Where would you expect whole of market advisers?

These advisers are usually separate firms often found in the yellow pages or through the internet they are sometimes linked to estate agents. On an initial meeting mortgage advisers should declare if they are whole of market and this will be disclosed in the ‘Initial Disclosure Document’ they provide you. If you are not sure if an adviser is whole of market then ask them.

Independent whole of market mortgage adviser

Finally this type of adviser has the ultimate scope of the mortgage market, not only can they offer mortgage advice from the whole of market (lenders with mortgage adviser routes) but can also offer an advice only process if they identify a high street direct deal is more suitable. The ‘Independent’ statement indicates that the adviser must offer the consumer a fee based service if required. This means that rather than the adviser taking commission as payment for the mortgage advice, the consumer can opt for paying a broker fee and any commission is rebated to the consumer. The benefit of the fee based service is the consumer knows the adviser will not be swayed by higher commission mortgage products when selecting a suitable mortgage, however these days this is highly unlikely as the mortgage adviser must prove to the regulator why a particular mortgage is most suitable. Some occasions where the commission is quite considerable this would mean the consumer could receive more money than the broker fee paid and therefore would be better off taking the fee based approach.

Where would you expect to find Independent Whole of Market Advisers?

Like the author of this document Independent Mortgage Advisers are usually separate firms often found on the high street, yellow pages or through the internet and they are sometimes linked to estate agents. On an initial meeting an independent mortgage adviser would declare that they are whole of market and that they offer a fee based approach if required and this will be disclosed in the ‘Initial Disclosure Document’ they provide you. If you are not sure if an adviser is independent and/or whole of market then ask them.

What do independent whole of market mortgage advisers do for consumers?

The benefits of opting for an independent whole of market mortgage adviser include but are not limited to the following: –

  • Treat customers fairly.
  • Take time to gain key factual details of the consumers personal circumstances and aspirations.
  • Support and inform the consumer from initial enquiry right through to completion and beyond.
  • Provide an informed view on the housing market in general (price negotiation, leasehold issues etc).
  • Provide a individually tailored service specific to the customers needs, not a faceless “one size suits all” (non-advised) service.
  • Advise consumers to thing about their long-term interests as well as the short-medium term thus minimising risks.
  • Work for the consumer – estate agents, lenders and insurance providers have a different agenda.
  • Explain the features and benefits of different mortgage and protection options.
  • Free to act based on conscience and fairness as not usually directly targeted on specific areas.
  • Protect consumers data and privacy.
  • Provide general support during what is acknowledged to be one of the most stressful events in life.
  • Provide a knowledgeable “Ally” in what can be a very worrying process.
  • Provide proficient, impartial, examination of mortgage products.
  • Identify when specific lending criteria restricts consumers personal circumstances.
  • Expert guidance in complex scenarios (shared ownership/shared equity, right-to-buy, adverse credit).
  • Identify the potential lender in unusual situations, thus avoiding the need for multiple credit checks.
  • Select the best protection providers for consumers with health issues or unusual insurance histories.
  • Choose the most appropriate products, from the whole of market for each aspect of a consumers mortgage and protection needs, and thus increasing their ability to afford their commitments, even when things go wrong.
  • Highlight unusual exclusions on protection and general insurance products.
  • Ensure the provision of appropriate and customized protection products.
  • Quickly find an alternative lender if declined without wasting the consumers time.
  • Can arrange property insurance in ample time to be ready for exchange of contracts on purchases.
  • Encourage competition and innovation from lenders.
  • Assist in calculating affordability, ensuring that consumers can afford their mortgage and protection commitments, along with their other commitments.
  • Perform data input/entry for the consumer, reducing errors, omissions and most importantly non-disclosure.
  • Take responsibility for the advice and recommendation provided, thus increasing consumer protection.
  • Protect the consumer from corporate sales tactics used by some lenders and estate agency chains.
  • Understanding the urgency of some transactions and “go the extra mile” to meet deadlines.
  • Collate, verify and supply documentation for the lender, thus reducing delays in processing and expedite the process for the consumer.
  • Liaise with third parties in the transaction, tracking progress and any developments updating consumers throughout.
  • Use past knowledge and awareness to predict problems and resolve them in advance.
  • Act as advocate for the consumer during the application process.
  • Explain the mortgage offer and assist in fulfilling the offer conditions.
  • Can find appropriate lenders and insurers for unusual properties ( thatched roof, flying freehold flats etc).
  • Protect consumers from aggressive third-party marketing.
  • Often personally available outside of normal working hours to answer questions or resolve issues.
  • Care about consumers and provide an ongoing long-term service, often several generations of the same family.

A Review For SC Criminal Attorneys, Lawyers & Law Firms

Mortgage fraud is problem that has reached epidemic proportions in the United States (US) in general and in South Carolina (SC) in particular. The white collar practitioner should be aware that mortgage fraud is generally investigated by the United States Federal Bureau of Investigation (FBI), although other agencies routinely assist the FBI and/or take the lead in investigating a case. Some of the other federal agencies which investigate mortgage fraud crimes for criminal prosecution include, but are not limited to, the Internal Revenue Service-Criminal Investigative Division (IRS-CID), United States Postal Inspection Service (USPIS), U.S. Secret Service (USSS), U.S. Immigration and Customs Enforcement (ICE), U.S. Department of Housing and Urban Development-Office of the Inspector General (HUD-OIG), Federal Deposit Insurance Corporation-Office of the Inspector General (FDIC-OIG), the Department of Veterans Affairs-Office of the Inspector General (DVA-OIG) and U.S. Bankruptcy Trustees.

The FBI works extensively with the Financial Crimes Enforcement Network (FinCEN). FinCEN is a bureau of the United States Department of the Treasury, created in 1990, that collects and analyzes information about financial transactions in order to fight financial crimes, including mortgage fraud, money laundering and terrorist financing. The FinCEN network is a means of bringing people and information together to combat complex criminal financial transactions such as mortgage fraud and money laundering by implementing information sharing among law enforcement agencies and its other partners in the regulatory and financial communities. South Carolina lawyers can keep abreast of mortgage fraud developments by visiting the respective websites of the FBI and FinCEN.

In South Carolina, mortgage fraud is generally prosecuted by federal prosecutors. The United States Attorney’s Office (USAO) and the U.S. Department of Justice’s (DOJ) Criminal Fraud Section handle the criminal prosecutions of mortgage fraud cases. The USAO in South Carolina has about 50 prosecutors in the state, and has offices in Charleston, Columbia, Florence, and Greenville. In the investigation stage, a person with possible knowledge or involvement in a mortgage fraud may be considered a witness, subject or target of the investigation. A subject is generally a person the prosecutor believes may have committed a mortgage fraud crime, whereas a target is a person the prosecutor believes has committed a crime such as mortgage fraud and the prosecutor has substantial evidence to support a criminal prosecution. Criminal prosecutions of mortgage fraud felony cases are usually initiated through the federal grand jury process. A federal grand jury consists of between 16 and 23 grand jurors who are presented evidence of alleged criminal activity by the federal prosecutors with the aid of law enforcement agents, usually FBI special agents. At least 12 members of the grand jury must vote in favor of an indictment charging mortgage fraud. South Carolina criminal defense lawyers are not allowed entry into the grand jury at any time, and prosecutors rarely fail to obtain an indictment after presentment of their case to the grand jury.

Often targets of a mortgage fraud prosecution are invited by the prosecution to avail themselves of the grand jury process and to testify in front of the grand jury. Generally, a South Carolina criminal defense attorney should not allow a named target of a federal criminal mortgage fraud investigation to testify before the grand jury. Subjects and witnesses in a mortgage fraud prosecution are often subpoenaed by the prosecutors to testify before the grand jury. A criminal defense attorney should likewise generally advise a witness or subject to not testify if any part of the testimony would possibly incriminate the client. With respect to a federal mortgage fraud investigation, when a citizen receives a target letter, subject letter, or a subpoena to testify before the grand jury, or is contacted in person by a law enforcement officer such as an FBI special agent, a South Carolina criminal lawyer who is experienced in federal prosecutions should be consulted immediately. One of the biggest mistakes a mortgage fraud target, subject or witness can make is to testify before the grand jury or speak to criminal investigators prior to consulting with a criminal defense attorney. The 5th Amendment to the Constitution allows any person, including a target, subject or witness in a mortgage fraud prosecution, to not incriminate himself or herself. Interestingly, there is no 5th Amendment protection for a corporation. Obviously, if a defendant has been indicted or arrested for a federal mortgage fraud crime in South Carolina, an experienced SC mortgage fraud lawyer should be consulted immediately.

An important practice tip for South Carolina attorneys representing clients who have decided to testify before the grand jury is to accompany the client to the grand jury court room. While not allowed in the grand jury proceeding itself, the attorney can wait just outside of the court room and the client is allowed to consult with the attorney for any question which is posed to the client by prosecutors or grand jurors. This is an effective way to help minimize any potential damaging statements by the client, and a great way to learn the focus of the prosecutor’s case. This approach makes it much easier to gain insights from the client as to the questions asked during the grand jury proceeding as opposed to debriefing the client after a sometimes long and grueling question and answer session which can last for hours.

South Carolina white collar criminal attorneys need to be aware of the types of mortgage fraud that are prevalent in the state in order to effectively identify and represent clients who are involved in mortgage fraud activities. Consumers need to be aware of the variations of mortgage fraud so that they do not unwittingly become a part of a scheme to defraud a bank or federally backed lending institution. Federal mortgage fraud crimes in South Carolina are punishable by up to 30 years imprisonment in federal prison or $1,000,000 fine, or both. It is unlawful and fraudulent for a person to make a false statement regarding his or her income, assets, debt, or matters of identification, or to willfully overvalue any land or property, in a loan or credit application for the purpose of influencing in any way the action of a federally backed financial institution.

Some of the applicable federal criminal statutes which may be charged in mortgage fraud indictments include, but are not limited to, the following:

• 18 U.S.C. § 1001 – Statements or entries generally
• 18 U.S.C. § 1010 – HUD and Federal Housing Administration Transactions
• 18 U.S.C. § 1014 – Loan and credit applications generally
• 18 U.S.C. § 1028 – Fraud and related activity in connection with identification documents
• 18 U.S.C. § 1341 – Frauds and swindles by Mail
• 18 U.S.C. § 1342 – Fictitious name or address
• 18 U.S.C. § 1343 – Fraud by wire
• 18 U.S.C. § 1344 – Bank Fraud
• 18 U.S.C. § 2 – Aiding and Abetting
• 18 U.S.C. § 371 – Conspiracy
• 42 U.S.C. § 408(a) – False Social Security Number

While states experiencing the highest number of mortgage fraud cases are California, Florida, Georgia, Illinois, Indiana, Michigan, New York, Ohio, Texas, Utah, Arizona, Colorado, Maryland, Minnesota, Missouri, Nevada, North Carolina, Tennessee, and Virginia, the state of South Carolina has seen a huge rise in the number of mortgage fraud cases being prosecuted by the USAO, DOJ and FBI.

In South Carolina, a disproportionate number of mortgage fraud cases have occurred in the coastal region. Some of the South Carolina counties with high concentrations of mortgage fraud or bank fraud cases include Horry County, Florence County, Georgetown County, Charleston County, Berkeley County, Dorchester County, Beaufort County, Colleton County and Jasper County. Some of the South Carolina cities with high concentrations of mortgage fraud or bank fraud cases include Little River, North Myrtle Beach, Myrtle Beach, Murrells Inlet, Georgetown, Awendaw, Mt. Pleasant, Charleston, North Charleston, James Island, Isle of Palms, Sullivan’s Island, Folly Beach, Kiawah Island, Hollywood, Ravenel, Beaufort, Bluffton and Hilton Head Island. The reason for the increased number of mortgage fraud and bank fraud criminal prosecutions in these areas is because large number of condominium, condotels, townhouse and similar real estate projects which proliferated in these areas. These real estate developments were popular in areas close to the waterfront and bank lenders were willing to loan money at a furious pace due to a perceived enormous demand.

There are a wide variety of schemes, artifices and conspiracies to perpetrate mortgage frauds and band frauds with which the South Carolina white collar criminal defense lawyer and consumers must be familiar. Typical mortgage fraud schemes or conspiracies that have occurred in South Carolina and elsewhere throughout the United States include the following:

Air Loans. The air loan mortgage fraud scheme is a loan obtained on a nonexistent property or for a nonexistent borrower. Professional scam artists often work together to create a fake borrower and a fake chain of title on a nonexistent property. They then obtain a title and property insurance binder to present to the bank. The scam artists often set up fake phone banks and mailboxes in order to create fake employment verifications and W-2s, home addresses and borrower telephone numbers. They may establish accounts for payments, and maintain custodial accounts for escrows. Phone banks are used to impersonate an employer, an appraiser, a credit agency, a law firm, an accountant, etc…, for bank verification purposes. The air loan scam artists obtain the loan proceeds and no property is ever bought or sold, and the bank is left with an unpaid loan that never had any collateral.

Appraisal fraud. Appraisal fraud is often an integral part of most mortgage fraud scams and occurs when a dishonest appraiser fraudulently appraises a property by inflating its value. In most cases, after the seller receives the closing proceeds, he will pay a kickback to the appraiser as a quid pro quo for the fake appraisal. In most cases, the borrower doesn’t make any loan payments and the house or property goes into foreclosure.

Equity Skimming. In an equity skimming mortgage fraud scheme, an investor often uses a straw buyer, false income documents, and false credit reports to obtain a mortgage loan in the straw buyer’s name. After the closing, the straw buyer signs the property over to the investor in a quit claim deed which relinquishes all rights to the property and provides no guaranty to title. The investor does not make any mortgage payments, and rents the property until foreclosure takes place several months later. Equity skimming also occurs when a scam artist purchases a residential property whose owner is in default on his mortgage and/or his real estate taxes, and then diverts rental income from the property for personal gain and does not apply this rental income toward mortgage payments, the payment of taxes and other property-related expenses.

Flipping. A flipping scheme occurs when the seller intentionally misrepresents the value of a property in order to induce a buyer’s purchase. Flipping mortgage fraud schemes usually involve a fraudulent appraisal and a grossly inflated sales price.

Foreclosure schemes. Foreclosure scheme scam artists prey on people with mounting financial problems that that place them in danger of losing their home. Homeowners in the early stages of foreclosure may be contacted by a fraudster who represents to the homeowner that he can get rid of his debt and save his house for an upfront fee, which the scam artist takes and then disappears. In a similar foreclosure scheme, Homeowners are approached by a scam artist who offers to help them refinance the loan. The homeowners are fraudulently induced to sign so-called “refinance” documents only to later find out that they actually transferred title to the house to the fraudster and then face eviction.

Nominee Loans/Straw buyers. One of the most frequent types of mortgage fraud occurs when a “straw buyer” is used to hide the identity of the true borrower who would not qualify for the mortgage. The straw buyer or nominee buyer generally has good credit. The scam artist usually fills out the loan application for the straw buyer, and falsifies the income and net worth of the straw buyer in order to qualify for the loan. These fraud scams were popularized with the advent of the “stated income” loans which did not require a borrower to prove his true income and net worth – the bank just believed the income and net worth that was “stated” on the loan application. Straw buyers are often duped into thinking that they’re investing in real estate that will be rented out, with the rental payments paying the mortgage, and are sometime paid a nominal fee outside of closing. In most case, no payments are made and the lender forecloses on the loan. Sometimes straw buyers are actually in on the scam and are getting a cut of the proceeds.

Silent Second. In the silent second mortgage fraud scheme, the buyer borrows the down payment for the purchase of the property from the seller through the execution of a second mortgage which is not disclosed to the lending bank. The lending bank is fraudulently led to believe that the borrower has invested his own money for the down payment, when in fact, it is borrowed. The second mortgage is generally not recorded to further conceal its status from the primary lending bank.

A mortgage fraud is usually reported to the FBI by the financial institution upon which the fraud has been committed. Pursuant to the Bank Secrecy Act of 1970 (BSA), a bank must file a Suspicious Activity Report (SAR) with FinCEN if a customer’s actions indicate that the customer is laundering money or otherwise violating a federal criminal law such as committing mortgage fraud. See 31 C.F.R. § 103.18(a). A bank is required to file a SAR no later than 30 calendar days after the date of initial detection by the bank of facts that may constitute a basis for filing a SAR, unless no suspect was initially identified on the date of the detection, in which case the bank has up to 60 days to file the SAR. See 31 C.F.R. § 103.18(b). Once FinCEN has analyzed the information contained in the SAR, if a criminal activity is found to have occurred, then the case is turned over to the FBI and the DOJ or AUSO for investigation and prosecution. The rise in FBI SARs reports involving mortgage fraud went from approximately 2,000 in 1996 to over 25,000 in 2005. Of those 2005 SARs reports, 20,000 of involved borrower fraud, approximately 7,000 involved broker fraud, and approximately 2,000 involved appraiser fraud.

The FBI has identified a number of indicators of mortgage fraud of which the South Carolina criminal white collar lawyer needs to be aware. These include inflated appraisals or the exclusive use of one appraiser, increased commissions or bonuses for brokers and appraisers, bonuses paid (outside or at settlement) for fee-based services, higher than customary fees, falsifications on loan applications, explanations to buyers on how to falsify the mortgage application, requests for borrowers to sign a blank loan application, fake supporting loan documentation, requests to sign blank employee forms, bank forms or other forms, purchase loans which are disguised as refinance loans, investors who are guaranteed a re-purchase of the property, investors who are paid a fixed percentage to sell or flip a property, and when multiple “Holding Companies” are used to increase property values.

One of the first and biggest South Carolina mortgage fraud prosecutions occurred in the Charleston Division in the 1990’s. It involved nominee borrowers and straw loans made by Citadel Federal Saving and Loan. Over 10 straw purchasers were enticed into the real estate loans by getting paid fees for signing up for the loans. They did not put up any of their own money as part of the deal and when the loans went sour the bank was left with properties that were upside down, that is, the real estate was worth less the the amount of the loan. Some bank insiders were part of the scheme and got convicted for their respective roles.

The range of defendants that a SC criminal lawyer will represent in a typical mortgage fraud case may include straw borrowers or nominee borrowers, real estate agents, developers, appraisers, mortgage brokers, and sometimes even closing attorneys and bankers. Bankers often get involved in mortgage fraud scams because they are receiving kickbacks from the borrowers or are paid bonuses for the volume of loans made and thus ignore proper banking loan requirements and protocols in order to make more money. Close scrutiny should be given to bank loan applications, appraisals, HUD-1 closing statements, borrower’s W-2 and tax returns when analyzing a potential mortgage fraud case for a potential client.

Federal judges who impose sentences for mortgage fraud normally rely upon the United States Sentencing Guidelines, which are now advisory as a result of the U.S. v. Booker case, when determining a sentence. A federal court calculates a particular guideline range by assessing a defendant’s criminal history, the applicable base offense level, and the amount of the actual or intended loss. Section 2B1.1 of the USSG sets forth a loss table which increases the base offense level according to the amount of money involved in the mortgage fraud. Generally, the more money which is lost in a mortgage fraud scam, the greater the sentence the defendant receives. In some cases, a defendant may be subjected to sentencing enhancements which means the defendant receives a greater sentence. A defendant may receive an enhancement for the role in the offense if the court determines that the defendant was an organizer, supervisor, or a recruiter, or used a sophisticated means to facilitate a crime, abused a position a trust, or targeted a vulnerable victim such as a disabled or elderly person. However, federal judges now have wide latitude for imposing a sentence because they must consider the broad statutory factors set forth in 18 U.S.C. 3553(a)which include the nature and circumstances of the offense and the history and characteristics of the defendant, the need for the sentence imposed to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense, the need to afford adequate deterrence to criminal conduct, the need to protect the public from further crimes of the defendant, the need to provide the defendant with needed educational or vocational training, medical care, or other correctional treatment in the most effective manner, the kinds of sentences available, the sentence recommended by the Sentencing Guidelines and any applicable guidelines or policy statement therein, the need to avoid sentence disparities, and the need for restitution.

There are some important strategic decisions which need to be made for the defendant who has been charged or indicted for mortgage fraud. The defendant and his lawyer should seriously consider the consequences of pleading guilty if he has in fact committed the crime. A mortgage fraud defendant can receive up to a 3 level downward departure for pleading guilty. A criminal lawyer representing a mortgage fraud defendant can also file a motion for a downward departure and/or a motion for a variance and argue factors to the court in support of an additional decrease in a defendant’s sentence. The mortgage fraud defendant’s criminal attorney should closely scrutinize the circumstances of the case and the defendant’s background and criminal history in order to help minimize the amount of time to be served. A valuable tip for an attorney representing a criminal mortgage fraud defendant in South Carolina is to consider mitigating factors such as disparate sentences, 5K departures for cooperation, aberrant behavior, property values, family ties, extraordinary rehabilitation, diminished mental capacity, extraordinary restitution should be considered as possible justifications for a lesser sentence.

A white collar criminal defense attorney in South Carolina must have an understanding of the basics of the mortgage fraud in order to adequately represent clients who have been charged or indicted with mortgage fraud violations. Recognizing the difference between the status of being a target, subject or witness can have important consequences in how a case is handled. A white collar bank fraud or mortgage fraud criminal conviction can have life altering consequences for those defendants convicted of the same. A defendant who is charged or indicted with the federal crime of mortgage fraud should consult with a SC criminal lawyer who is knowledgeable about the different types of these scams, how the scams are carried out, the law enforcement investigatory process, the grand jury process, substantive law regarding mortgage fraud, the applicable federal sentencing guidelines and approaches available to minimize a defendant’s potential sentence.

Tips For Locking in the Best Home Mortgage

Tip #1: Always Shop For Home Mortgage Rates

Don’t blindly accept a Realtor or Builder referral to apply for a Home Mortgage through their preferred lender. Many times they will say, “We work closely with this guy and he gets the job done”. Translation: “We play golf together and he buys the beer”. Remember, the Realtor won’t be paying the bill each month for the next 30 years, you will.

Mortgage Loan Officers that work off of a referral network of Realtors and Builders don’t have to have competitive Home Mortgage Rates because they have a steady stream of “Drones” (people who are referred to them and don’t shop) calling them. Shop around, get the lowest cost Home Mortgage Rate, then if you are inclined, approach the “preferred” Loan Officer you were referred to and ask him to match the quote.

If you apply for a Home Mortgage through a preferred lender without shopping, you will pay hundreds or even thousands of dollars in additional costs.

Tip #2: Call For Home Mortgage Quotes After 11:00 a.m. Eastern Time

Mortgage Rates change each day and sometimes midday. The previous day’s rates typically expire by 8:30 a.m. the next morning. Generally, Home Mortgage Rates are published each day by 11:00 a.m. Eastern time. This varies from lender to lender. To make sure you are getting Home Mortgage Rates from the current day and not a mixture of rates from the previous day from some lenders and the current rates from other lenders, always do your rate shopping after 11:00 a.m. Eastern time.

Get all your quotes after 11:00 a.m. Eastern time.

Sometimes Home Mortgage Rates change midday due to a volatile bond market. When this happens, some Home Mortgage Lenders will adjust the Discount Points for their rates in accordance with the new bond prices and publish new Home Mortgage Rates for that day. Other Lenders may continue to honor their morning rates.

Tip#3: Always Tell The Mortgage Loan Officer You Are Prepared To Apply For A Loan NOW

If you are buying a home, tell the Home Mortgage Loan Officer you are Rate shopping and you have a “ratified contract” to purchase a house. Tell him you intend to make a decision and Lock-In a rate on that day, but you have to check a few other lenders. If he asks you how his rates compare to the others, tell him he’s the first person you’ve called. If you are refinancing, tell the Home Mortgage Loan Officer you are ready to apply for a Refinance Home Mortgage today. If you don’t tell him that, he may provide a fake Home Mortgage Rate quote.

Loan Officers know you will probably talk to another lender with lower Home Mortgage Rates and the only way he can be sure for you to call him back is to give you a fake quote that appears to be the lowest. He’s expecting you will rate shop for several days and figures you will call him back in a day or two because he provided a low, bogus rate quote. Also, since Home Mortgage Rates change daily and are subject to change at any time, he’s not concerned about giving you a fake quote.

How will you compare quotes if you don’t know which quotes are real and which are part of a bait and switch plan? The only way to ensure getting real quotes is to box in the Home Mortgage Loan Officers by making them think you are ready to Lock-In a Home Mortgage Rate immediately.

Tip#4: Ask For The Total Points And The Total Fees

When you call a Mortgage Lender, ask for the “Total Points” (Discount Points, Loan Origination Fee, Broker Points) for each Home Mortgage Rate. Some lenders will only quote the Discount Points and deliberately leave out the Loan Origination Fee. You won’t find out about the 1.00 Point Loan Origination Fee until you apply for the Home Mortgage. By that time, the Loan Officer figures you will just accept it because he’s got your application and pulled your credit report. In addition, Mortgage Brokers often neglect to mention their Broker Fee.

Some lenders do not charge a Loan Origination Fee.

When you are quoted the Total Points, specifically ask them if there is an additional Loan Origination Fee or Broker Fee being charged. You truly have to nail this down when you talk to a Home Mortgage Loan Officer.

Also, ask for a list of ALL other fees that will appear on the Good Faith Estimate that you will be paying to the Lender or Broker. Make sure they include their Credit Report and Appraisal Fees. Some lenders charge one lump sum fee and that includes the Credit Report and Appraisal Fees while other lenders will itemize each fee. Keep it simple and ask for all fees, including the cost of the credit report and appraisal fees.

Don’t get confused by Title Company, Attorney Fees or Escrows. A lender will estimate these on your Good Faith Estimate, but these charges are not related to costs associated with a Mortgage Rate quote. The amount required for your escrow account will not change from lender to lender and Title Company and Attorney Fees are not being charged by the lender. Don’t include them in your comparison.

Tip#5: Always Confirm The Rate Lock Period When Asking For A Rate Quote

If you are buying a home and you need 60 days to close, make sure you specifically request Mortgage Rate quotes with a 60 Day Lock period. Some Home Mortgage Loan Officers will quote rates with 15 Day or 30 Day Lock periods because the Discount Points for shorter lock periods are less than rate locks for longer periods. Quoting a Home Mortgage Rate with a 15 Day lock period obviously gives that Loan Officer an unfair edge. It is also a waste of your time because the quote isn’t real if you can’t settle on your loan within 15 days. Always specify a 60 Day Lock-In if you are buying a home. Ask for 45 Days if you are refinancing, but you may be able to get it done within 30 days if you are very diligent and call your Home Mortgage Loan Officer twice a week for a status of your application.

If your rate lock expires, the lender will re-lock you at the higher of either the original rate or the current rate when you decide to re-lock. That’s a LOSE/LOSE situation for you. Never let your rate lock expire.

Tip#6: Compute The Dollar Cost Of The Points And Add All Fees

After you’ve spent some time talking to a bunch of Mortgage Loan Officers, you will have lots of Rates, Points and Fees on a sheet of paper. You will need to compute the dollar cost of the Points (multiply the mortgage amount X the Total Points expressed as a percent; For example, multiply 400,000 mortgage amount X.625% for.625 Points). Then add the dollar cost of the points to the Total Fees. You can then compare each Home Mortgage Lender’s Total Cost (dollar cost of the points + all lender related fees) for a given rate. That will show you which Home Mortgage Lender has the lowest cost Home Mortgage Rates.

If Mortgage Insurance (not to be confused with mortgage life insurance) is required on a Conventional Home Mortgage, ask for the cost per year expressed as a percent and compare it from lender to lender. Some lenders require different levels of coverage and this will affect your monthly Mortgage Insurance payment. In addition, lenders use several different mortgage insurance companies and they charge different rates for their coverage. The lender will select the mortgage insurance company.

The cost of Mortgage Insurance can vary from lender to lender even though most Home Mortgage Loan Officers will say, “We don’t determine the Mortgage Insurance coverage, Fannie Mae and Freddie Mac do”. Your can just say, “Please humor me and provide the Monthly Mortgage Insurance expressed as a percent”.

You will want to check the quoted percent with what is on your initial application documents and final loan documents to make sure the Monthly Mortgage Insurance payment isn’t higher than what you were quoted. If it is, get it reduced immediately. If they won’t do that, then ask them to reduce your Home Mortgage Rate by.125% and that should cover the difference.

If you are getting a government insured mortgage (FHA or VA), you don’t have to get into a comparison of the FHA MIP or the VA Funding Fee. This is a cost you will be paying, however every lender MUST use the same costs, so there is no reason to attempt to compare these costs from lender to lender.

Tip#7: When You’ve Found The Lowest Cost Rate, Apply and Lock The Rate

While you were looking for houses or thinking about refinancing, you may have shopped around and gotten some quotes from lenders and narrowed down your search to the best 5 Home Mortgage Lenders or Brokers. But when it is time to apply for your Mortgage, make sure you update your quotes for the 5 lowest priced Home Mortgage Lenders. After you identify the Home Mortgage Lender with the lowest cost rate, call and apply for the loan. Tell the Home Mortgage Loan Officer you want to Lock-In your Home Mortgage Rate and apply NOW. If the quote has changed since you updated your quotes a couple of hours before, tell the Loan Officer you want him to honor the previous quote. If he won’t do it, tell him you may call back. Then call the next cheapest Home Mortgage Lender on your list. If that lender tells you the same thing, you can go back to the first lender and proceed with the application process.

Before you provide your application information, make sure the Home Mortgage Loan Officer agrees to provide you with an actual Rate Lock confirmation via email or fax on the same day you apply for your loan. When you receive the Rate Lock confirmation, check it and make sure you are Locked-In for the number of required days (30, 45 or 60), with the correct Loan Type (30 Year Fixed, 15 Year Fixed, etc.), with the correct Total Points quoted. It’s normal for a lender to require you to apply over the phone before they will Lock-In your Home Mortgage Rate.

TIP#8: Never Float The Rate

If the Mortgage Loan Officer thinks you might be inclined to FLOAT your Rate and Points, he may say, “I think the rates are going to be coming down, so you might want to FLOAT”. Remember this, never FLOAT your Home Mortgage Rate. Never. Always Lock-In the Rate and Points. If you FLOAT, and the Discount Points for Home Mortgage Rates drop, you will only realize the benefit of a small part of that drop in the Points, if any at all. The Home Mortgage Loan Officer will keep the rest of the savings as a fat commission.

Here’s how they increase their commission when you FLOAT. Originally, the lender quoted 4.875% with 1.00 Total Point when you applied for your loan. Then 45 days later you called to Lock-In. Keep in mind that over the 45 day period that you were FLOATING, the actual Points for 4.875% dropped to.250 Total Points. So you should have saved.75 Total Points on your 4.875% rate. Right? No! First, you don’t know if his company’s points have dropped or by how much they might have dropped. So, instead of giving you 4.875% for.250 Total Points, the Home Mortgage Loan Officer tells you his rates only dropped a little bit. He says you can Lock-In 4.875% for.75 Total Points. You are happy because it is.25 lower than what it was when you applied for your loan, but the Home Mortgage Loan Officer is ecstatic because he keeps half of the “overage” you paid. That overage is.50 points and he splits this with his company. If the mortgage amount was $400,000, he just earned.25% which is an additional $1,000 commission. That’s not bad for a five minute phone conversation.

If you FLOAT and the Discount Points for Mortgage Rates increase, you will pay for the increase. FLOATING is a LOSE/LOSE proposition for you and a WIN/WIN for the Home Mortgage Loan Officer.

Some companies quote very low rates and attract lots of applications, but they don’t let you Lock-In until 15 Days prior to loan closing. If you apply for a Mortgage through a company with that policy, you will get screwed. When it’s time to Lock-In your Mortgage Rate, you will pay an “overage” that will go straight to the Mortgage Loan Officers pocket. You will either pay more points for the rate you requested at the time of application or you will get a higher rate. Either way, you will get screwed and the Loan Officer will get a fat overage added to his commission.