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Regulated
July 12, 2009
Do you assist clients in modifying their home loans? If so, the way you do business is about
to change. New restrictive laws went into effect on July 1st of this year and there are more
coming soon. To better understand and interpret these laws you must first understand the
perspective of the legislature. To understand where the legislature is coming from you need
only look to Civil Code §2945 which states in pertinent part:
Some of you may say that you are not a “foreclosure consultant” because you are a real
estate broker. Albeit there is an exception to the application of “foreclosure consultant”
regulation to real estate brokers, this exception is a very narrowly drawn. The exception for
real estate licensees is set forth in Civil Code §2945.1 subd. (b)(3) which provides in pertinent
part:
So, if a real estate licensee is acting as a loan modifier then they are considered a
“foreclosure consultant” and subject to regulation.
The most onerous requirement is that a foreclosure consultant must obtain and maintain a
surety bond in the amount of $100,000.00. A surety bond is not the same thing as an
insurance policy. Usually with a surety bond you are required to pledge security in the form
of assets to securitize the bond. If a claim is made to the bond by a client and the surety
company pays on the claim then the surety company will take the property that was pledged
as security for the bond.
What happens if a foreclosure consultant does not comply with these new requirements?
First, they will be fined somewhere between $1,000.00 and $25,000.00. Second, they are
subject to imprisonment in the county jail for up to one year. Third, they will be liable for the
homeowner’s damages, as well as his attorneys’ fees and costs. Civil Code §§2945.45(d)
and 2945.6.
Keep in mind that Civil Code §2945.45 is a new requirement and it is in addition to all the
other regulation set forth in Civil Code §§2945 et seq.
<b>Lawyers remain exempt from regulation as a foreclosure consultant; but not for
long</b>
Senate Bill 94 is presently before the State Assembly awaiting a vote. Among other things,
Senate Bill 94 does the following: (i) It ends the exemption for attorneys thereby subjecting
attorneys to regulation as a foreclosure consultant; (ii) it ends the fee schedule approval
process by the Department of Real Estate; (iii) it removes the exemption for real estate
licensees thereby making them a “foreclosure consultant”; (iv) it provides homeowners a
private right of redress against the foreclosure consultant inclusive of attorneys’ fees and
costs; and (v) it requires the Department of Real Estate to report back to the legislature every
three months on the number of real estate licensees that have violated the new laws under
this regulation and the enforcement action taken.
Senate Bill 94 has not yet become law. However, I believe that it will. It was approved in the
Senate on May 21, 2009, by a vote of 21 to 14. It is very likely to pass in the assembly and to
be signed by the Governor.
<b>For profit loan modification companies may become a business of the past</b>
The $100,000.00 bonding requirement alone will put many loan modification businesses out
of business. Many loan modifiers will not have the assets to pledge as security for the surety
bond. Moreover, the bonding requirement and the private right of redress (which allows
homeowners to recover their attorneys’ fees and costs) make loan modification companies
attractive targets for lawyers. There are many non-profit HUD approved loan modification
companies that provide loan modification services to homeowners free of charge. It seems
clear that the legislature is making every effort to steer homeowners away from for profit loan
modification companies and steer them toward these non-profit HUD approved loan
modification organizations. In light of the foregoing, one must ask himself/herself the
question:
If you are in the loan modification business and you remain determined to remain in the loan
modification business then take measures to protect yourself. Make sure that you obtain the
certificate of registration and make sure that you have adequate errors and omissions
insurance coverage. Do not mistakenly believe that the surety bond acts as an insurance
policy.
Attorney Jon Alan Enochs is an attorney that has practiced in the area of real estate for ten
years. His practice areas include real estate, bankruptcy and business litigation. He can be
reached at 619-421-3956 should you have any questions for him. Please also visit his
website at http://www.enochslaw.com for additional information.
<a href="http://www.enochslaw.com/">www.enochslaw.com</a>