I’ve been peppered with questions about a rather alarming article being circulated over the past couple of weeks, written by a well-respected real estate attorney in the Atlanta market area. The thesis of the article is that real estate agents may be committing a felony when assisting sellers seeking short sales by participating in any negotiations with the sellers’ lien holders. This is supposedly because the Georgia Residential Mortgage Act of 2007 requires any person who negotiates mortgage loans to have a mortgage license (which 99% of real estate licensees lack) and that working with the sellers’ lien holders is “negotiating a mortgage”.
Why raise this alarm now, in 2010? It’s being whispered that some (not all) mortgage brokers and lenders are angry at being required to become licensed in Georgia and are looking to make examples of real estate practitioners who they see as encroaching into lender territory.
March 31, 2010 marks the “drop dead” date by which mortgage brokers, mortgage lenders and the independent contractors working with them who solicit, process, place or negotiate mortgage loans for others or who work on renewing or refinancing mortgage loans for others must be licensed by the state or exit the mortgage business. The state and federal exams each applicant must pass are onerous, to say the least. I’m hearing that over 70% of the applicants are not passing either the state or federal exam and having to retest prior to March 31, 2010. It’s high stress time in the Georgia mortgage business, especially for the less reputable mortgage companies.
Why would real estate licensees be suddenly singled out for retribution? Well, could it be that REALTORS, those real estate licensees who join a Board or Association of REALTORS and pledge to adhere to a National Code of Ethics, were supportive of the efforts to force licensure upon the mortgage industry?
Real estate practitioners have been required to be licensed in Georgia since 1925. Anyone printing a business card or setting up a web site could call themselves a mortgage lender until the 2007 passage of the Act. And those active in the mortgage business prior to 2007 were “grandfathered” until the upcoming March 31 deadline.
Coincidental to the 2007 passage of the Act, the mortgage meltdown gained momentum in Georgia. Reasonable people have discerned that unknowledgeable buyers and homeowners over-borrowed on over-valued properties. No one wants to allow that to ever happen again and the reins have been tightened by all parties involved in the real estate financing transaction – the real estate licensees, the appraisers, the lenders, the closing attorneys and the title companies. Please note that all the participants listed were licensed by the state in 2007 except the lenders.
Please don’t misunderstand me; this is not a blanket criticism of mortgage lenders. The reputable lenders will survive both the licensing process and the current economic downturn.
Today, though, real estate licensees are being threatened with prosecution for listing properties with outstanding mortgage obligations in excess of the current market value and assisting those owners in the process of proving to their lenders that an offer to partially pay off the total indebtedness may be better than forcing the lender to eventually foreclose on the property.
Since when is paying off a loan “negotiating”? And, since most mortgage loans have been packaged, sold and resold, perhaps multiple times, exactly which lender would negotiate with the final mortgage holder of a specific mortgage? The mortgage lender which originated the loan? And are they still in business?
Keith Hatcher, the Governmental Affairs Officer for the Georgia Association of REALTORS (GAR) has stated that it is his opinion and the opinion of key elected officials who serve on the Ways and Means and Banking and Finance committees that it would be a stretch to interpret the Act in this fashion and that this is not the intent of the Act. GAR is, in fact, working with the chairman of the Ways and Means committee to draft an amendment to the Act which would clarify that it is not a violation of the law for real estate licensees to assist in the negotiation of short sales.
Can’t happen soon enough in my opinion.
What are your thoughts?