THE REAL ESTATE CRASH PART VI: “INVASION OF THE MEN FROM M.A.R.S.

Eckley & Associates Video ArticleTHE REAL ESTATE CRASH PART VI: “INVASION OF THE MEN FROM M.A.R.S.
IN JANUARY, 2011, A SPACESHIP FROM M.A.R.S. PASSED MENACINGLY OVER YOUR REAL ESTATE PRACTICE! DID YOU SEE IT OR FEEL IT? YOU WILL!

REPRINTED FROM “COUNSELOR’S CORNER”,  Ed. 46
Current Circulation: 59,111 per Month



© ECKLEY & ASSOCIATES, P.C., 2011
FEBRUARY 1, 2011


EDITOR'S  VITAL NOTE: THIS EDITION OF COUNSELOR’S CORNER IS DIRECTED MORE  INDUSTRY MEMBERS THAN CONSUMERS.  IT IS THE VERY FIRST COMPREHENSIVE COMMENTARY ON THE NEW M.A.R.S. RULES NOW IN EFFECT PUBLISHED ANYWHERE IN THE U.S.  IT IS LIKELY THAT NONE OF YOUR TRANSACTIONAL DOCUMENTATION, INCLUDING THAT PROVIDED BY YOUR AFFFILIATION OR THE INDUSTRY, COMPLIES.  THERE ARE STRONG CIVIL AND CRIMINAL PENALTIES FOR VIOLATIONS.   READ NOW AND REAL CAREFULLY!

 

THE MEN FROM MARS: 

Just when everyone thought the real estate mess might evaporate at least a bit this year,  multiple-headed people from M.A.R.S. drop right out the of political sky and zap the entire residential mortgage work-out landscape, a factor (between modifications, short sales, deed-in-lieu and REOs) now composing over 60% of most residential marketplaces!  The annihilation powers of the weaponry wielded by these otherworldly intruders is devastating and there is no where for the industry to hide.  Without a new bomb shelter composed  of some entirely new dense and exotic alloy to resist the death rays, it’s going to be a blood bath.  Read on if you dare.

M.A.R.S., better-known the FTC’s new Mortgage Assistance Relief Services Rule (”MARS") is the Fed’s new secret regulatory Weapon of Shock and Awe, unleashed to correct the miserable failure the Banks have made of the Fed’s HAMP, HAFA and 2MP programs by not following any of the Program rules and deadlines and by defeating its every objective and thereby trashing the market, the industry and the consumers.  In terrible retribution for that malefaction and with teeth bared, nostrils flared and weapons of mass professional destruction leveled at who it has identified as the culprits, the Feds  have decided to don the alien Darth Vader costume and vigorously nuke…..the real estate community.

Yes, that’s what I said.  The Men from MARS have decided that the trouble in getting this country started again is....YOU!


A THUNDERCLAP IN THE REAL ESTATE INDUSTRY:

After examining a few anecdotal worst-case horror-story examples“ provided primarily by the banking and pro-banking community, the Feds have come to the bizarre conclusion that the real problem in the Grand Recovery is not the failure of the Regulators to properly oversee the banking industry, not the  Bollixed Bailout Program the Feds cobbled together to “recover it”,  not that the Banks are incompetent or just plain crooks, but that real estate licensees and other marketeers  are not doing a good enough job disguising  this political pig as an economic silk purse to their clients and  customers.   Moreover, though virtually everyone else in the entire chain of culprits who caused the collapse are getting paid huge sums of money to repair the damages they have themselves wreaked whether or not the bailout of consumers is successful, the Feds have decided to make it harder for the last and most critical professional in the resolution chain, you, to get paid for the final work-out, the only one who ever did any good for the consumer by reducing or liquidating a dead mortgage or  residential asset.

They did this by quietly giving the FTC new and unprecedented direct jurisdiction over real estate licensees and by making entirely new and very onerous real estate disclosure and compensation rules which supersede even those of state law enforcement and state Real Estate Commissioners.  All provisions of the Rule, below, except the advance-fee ban, below, will became effective December 29, 2010. The advance-fee ban provisions became effective January 31, 2011.


WHY MARS HAS ATTACKED:

What the FTC was “trying” to reach (assuming as argument for a moment that its motives may have had some spark of integrity) was those few (usually unlicensed) Very Bad Boys out there who are running short sale and debt repair boiler rooms and taking huge upfront fees on the false claim that they “guarantee to fix everything” for the desperate residential consumer mired in an underwater home.  These creeps naturally go on to disappear with the money and deliver nothing to the consumer except a sorry lesson an even deeper misery.  The point is that those kinds of criminals are few in comparison to the enormous community of rule-following, honest Good Guys and have been around forever and local law enforcement and licensure officials have put them away regularly and successfully for the last 50 years as one of their central enforcement roles.  Apparently, though, not fast enough for the FTC, and there lies some troubles.   Without any real proof of failure by the state authorities to find and shut down these few renegades, the FTC has decided to become The New Super Federal Real Estate Commissioner, to declare everyone in the short sale industry a “suspect” (including the Commissioners it seems by taking over their roles) and by thereafter attacking everyone in the industry as Bad-Guy-By-Licensure-Alone.  To deter or catch a handful of Bad Boys that the states already had laws to handle and have always gotten around to prosecuting anyway, the FTC has decided instead to overthrow the Commissioners and to impose transactional processes and punishments on the entire licensed real estate industry by the imposition of broad new and superseding Federal Super Disclosure and Licensee Compensation Rules.  In the marines, they used to call it “a Code Red”.  But that usually meant roughing up a single errant recruit who simply could not “Get it Right”.  This administration of Code Red bloodies everyone in the corps--Good and Bad--indiscriminately.


WHO IS THE FTC AND WHY DID IT UNLEASH THE WRATH OF MARS?

The Federal Trade Commission (“FTC”) has jurisdiction over most real estate lending through the interstate commerce clause of the U.S. Constitution and the federal regulation and insuring of lenders and by the might of the new federal Consumer Protection agency that Congress made law last year.  These rules have been stretched to affect the acts of state-level real estate brokers and sales licensees and to affect “work out” companies that are not necessarily real estate brokerages, but purport to assist in debt work-outs for real estate and other debts.  Essentially, the new MARS rules the FTC passed take the short sale industry to the wood shed for a serious licking. For the most part, gratuitously.


FTC RULES REGARDING REAL ESTATE LICENSEES:

The FTC has taken the position that a real estate broker or salesperson negotiating a mortgage, modification, short sale or deed-in-lieu or any other accommodation with a lender on behalf of the seller (and even the buyer’s agent as part of that process) should comply with MARS.  MARS applies to any person that “provides, offers to provide, or arranges for others to provide, any mortgage assistance relief service.” A “mortgage assistance relief service” includes “..any service, plan, or program, offered or provided to the consumer in exchange for consideration, that is represented, expressly or by implication, to assist or attempt to assist the consumer” in negotiating a modification of a dwelling loan that reduces the amount of interest, principal balance, monthly payments, or fees; stopping, preventing, or postponing a foreclosure or repossession; or obtaining one of several other types of relief to avoid delinquency or foreclosure. Sections 322.2(i)(3)–(6) define these additional types of relief to include obtaining: (1) A forbearance or repayment plan; (2) an extension of time to cure default, reinstate a loan, or redeem a property;  (3) a waiver of an acceleration clause or balloon payment; and (4) a short sale, deed-in-lieu of foreclosure, or any other disposition of the property except a sale to a third party that is not the loan holder. The Rule covers instances in which a third party itself works with lenders or servicers to obtain mortgage relief as well as instances in which a third party markets services to aid consumers who themselves work with lenders or servicers to obtain relief. Accordingly, § 322.2(i) is intended to apply to every service MARS providers offer, expressly or by implication, for the purpose of obtaining loan concessions, avoiding foreclosure, or saving their homes.  Entities, like a brokerage or other type of entity, which hold themselves out as specializing or “experts” in this kind of work will be considered as Mortgage Relief Companies (“MRCs”) and will have additional duties and limitations as noted, below.


APPLICATION OF THE TERM “RESIDENTIAL DEBT EXPANDED

Mortgage assistance relief services” under the Rule are extended to services that are offered to consumers who are obligated under loans secured by a “dwelling” or residence. A “dwelling” is defined in Section 322.2(e) of the Rule to be a residential structure containing four or fewer units, regardless of whether it is attached to real property.  The term dwelling includes “..an individual condominium unit, cooperative unit, mobile home, manufactured home, or trailer…”  In response to comments on the Rule from bankers, the Rule adds the term "manufactured home" to the definition of "dwelling" to ensure that the Rule's protections extend to consumers whose homes is constructed at a site (e.g., factory floor) other than the final location of the structure. Finally, the definition of “dwelling “applies only to residences that are "primarily for personal, family, or household purposes." The definition of “dwelling” includes second homes and rental properties of consumers, because the FTC’s law enforcement experience indicates that consumers who own such properties may seek help to avoid foreclosure on these properties.  However, “dwelling” does not cover MARS offered in connection with commercial properties. It does include both conventional and non-conventional transactions such as sale-Leaseback and title reconveyance transactions and others.  This expansion even to manufactured homes and trailers being assembled on factory floors goes well beyond local real estate licensure laws.


PAYMENT OF COMMISSIONS AND FEES:

The FTC has taken the position that a listing broker or salesperson cannot charge a seller a non-refundable retainer fee in a governed workout transaction nor can a fee be taken until success is obtained.  In addition, and most importantly, MARS requires that the real estate licensee make a number of disclosures for client and customer protection and to earn any compensation payable, including advising the client or customer of the substantive effects and the legal, tax and credit ramifications of the work-out and by giving certain other specific notices, below.  So now by federal law the real estate licensee becomes investment advisor, credit counselor, lawyer and accountant.  All in violation of state licensure law prohibiting the real estate licensee from doing anything of the kind!


REQUIRED NOTICES:

So here are the notices:

A written notice, something like the following, is required RIGHT NOW (not someday, TODAY) in all applicable deals:

Your real estate agent(s) or workout Company in this transaction advises you as follows:

  •  they are not associated with the government, and their services have not been “reviewed” or “approved” by the government or your lender;

  •  the lender may not agree to change your loan; and

  •  if you elect to stop paying your trust deed or mortgage other loan debt for any reason, whether because you are advised to do so by the agent or workout Company, elect on your own to do so, or simply because you cannot pay, you could lose your home and damage your credit rating.”

There is more, below.  This is just a tip of the iceberg!


FTC RULES REGARDING MORTGAGE RELIEF COMPANIES "MRCs":

If the deal is a modification or a short sale for a fee with a brokerage or other entity that holds itself out as a Mortgage Relief Company (an “MRC”), which may be an unlicensed entity but is also a real estate brokerage which holds itself out as doing deals like this), the client or customer cannot be requested to pay an advance fee for the work; they only need to pay when the MRC has provided them with an offer from the lender or servicer that they find acceptable and the lender or servicer offer must be contained in a written document from the lender or servicer describing the key changes to the mortgage that would result if the consumer accepts the offer.  That writing must be given to the client or customer in advance of approval and the legal and financial ramifications of acceptance must be disclosed in writing.

In addition, if the agency is an MRC, the client or customer can stop doing business with the MRC at any time and can accept or reject any offer the MRC obtains from the lender or servicer, and, if the offer is rejected, the customer or client does not have to pay the brokerage’s or licensee’s fee. The MRC also must disclose in advance and in writing the exact amount of the fee. The MARS Rule prohibits mortgage relief companies from making any false or misleading claims about their services, including claims about matters such as:

= 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 MRCs 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.  All of these issues must be covered in writing and upfront with the client or customer.


USE OF THE TERM “EXPERTS”:

Licensees or brokerages calling themselves “certified” distressed property “experts” or “Short Sale Experts” and other commercial denominations will likely be treated as having clearly declared themselves as MRCs.  And collateral businesses dealing with them such as title and escrow companies, multi-list systems, etc., will be deemed entities collaborating with MRCs and thus bound by the above rules, too.  Note:  Many states and the FTC are already moving to regulate (and frankly to abolish) the use of the word “experts” in this area of practice as deceptive advertising and a deceptive trade practice.  The Code of Ethics for the National Association of Realtors© has long provided that Realtors© should not hold themselves out as having special talents or expertises that they do not have or certifications that are misleading.   Most states have followed suit in the licensure laws by prohibiting the same conduct.  In Arizona, for example, see Commissioner’s Rule R4-28-1101.


DISCLOSURES TO PREVENT UNFAIR AND DECPETIVE PRACTICES:

As detailed in the Federal Register, the Final Rule prohibits and seeks to prevent “unfair and deceptive acts and practices” in connection with mortgage assistance relief services. Thus, It includes provisions applicable to all MARS-subject persons and entities which:

1. Define in very all-encompassing manners several key terms, including “mortgage assistance relief service and “mortgage assistance relief service provider”;

2. Prohibit providers from instructing consumers to cease communication with their lenders or servicers;

3. Bars providers from misrepresenting any material aspect of their services, including but not limited to several specific misrepresentations (see some of them above);

4. Mandate that providers disclose in writing:
(a) That they are for-profit businesses not affiliated with the consumers’ lenders or the government,
(b) that consumers’ lenders or servicers may not agree to change their loans,
(c) that consumers could lose their homes and damage their credit ratings if they stop making their mortgage payments (disclosure triggered if providers instruct consumers to stop making payments), and
(d) that consumers are not required to stay in the service or accept the results delivered, and the total cost of the service if they do accept the results.

5.  require providers to have: (a) secured a written and executed agreement between the consumer and the lender or servicer and, (b) before that agreement has been executed,
(i) disclosed that the  consumer can accept or reject the lender’s or servicer’s offer for mortgage relief and
(ii) provided a separate written notice from the consumer’s lender or servicer summarizing the material differences between the consumers current mortgage loan and the relief offered (and explaining that to the customer or client);

6. Enjoin persons from providing substantial assistance or support to another whom they know or consciously avoid knowing is engaged in a violation of the Rule (this reaches title and escrow companies, web hosts, schools, advertisers, financiers, fellow licensees, Multi-list, professional liability insurers, real estate commissioners, others who aid and abet or promote those engaged in MARS-applicable activities);

7. Require that providers maintain records and monitor Rule compliance (and in this case for longer than what most real estate Commissioners require, 5 years, to what is usual for federal law, 7 to 10 years).

Compliance with mandates 3, 4 and 5, above, will require very, very comprehensive written, upfront disclosure from the MARS-applicable person or entity.  Respectful observation:  This panorama of disclosure subjects is not a “disclosure”.  It’s a treatise.  A legitimate question at this point:  How many real estate professionals are ready or even capable of attacking this monumental disclosure duty?  How many can afford the battery of lawyers, accountants and financial analysts it will require to competently draft one?  What client or customer is going to read or understand a phonebook-sized "Disclosure?"  And what happened to the client or customer going to see (and pay) their OWN lawyers, accountants and financial analysts?

This is where the napalm-bomb FTC approach to ferreting out Good Guys from Bad Guys sounds a lot like what the helicopter captain commanded his gunship crews to do in the movie "Apocalypse" when he could not make out from the air whether the people on the ground were "friend or foe":  "Gun 'em ALL down, Boys, Heaven will know who's INNOCENT!"


FLAT BAN ON ADVANCE FEES

The most significant compensation change under the FTC’s new rule is the advance fee ban. Under this provision, MRCs (that means most brokerages doing this kind of work) 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.  Many licensees have usually taken compensation as a commission paid only after a successful sale and closing, but some have taken deposits in whole or part and this practice is over (no matter what it is called “advertising fee,” ”expenses,” archiving fee,” “XYZ Fee,” etc.--all could be construed as a disguised advance fee).


USE OF AN ATTORNEY

Yes, attorneys wrote most of this FTC rule so, as you can imagine, the "Justice Provision" (read "Ju$t-U$") is in there.  Sending the client to an attorney and directing the attorney to worry about these disclosures as part of his or her service to the client can be a great shield from the MARS Death Ray if done right.    The Rule provides that if the client or customer is actually (at some point prior to signing up the consumer, marketing and closing the deal) represented by a licensed attorney approaching these debt matters as part of a fuller normal legal representation of the client, usually on an hourly basis, with all advance deposits kept in the attorney’s trust account until earned, then the burden of proper advice can shift to the attorney and this kind of client-attorney relationship is exempt from the FTC rule (that is to say that the attorney will not be then deemed subject to MARS or become an MRC) and the client counseling will meet MARS standards.  Even if the attorney is acting as or working with an MRC, provided that the attorney is actually doing work that is specifically that which attorneys typically are licensed to do and is actually rendering such services directly to that client as opposed to the workout firm, most attorneys are excluded from this rule.  This does not, however, excuse the situation where attorneys and a MARS-governed company composed of real estate licensees, mortgage brokers or others teams up to do for-profit workouts and pool and split the fees.  In that case, it would be an unlawful splitting of fees by both attorneys and other licensees, who cannot receive fees from activities for which they are not specifically licensed.  All real estate licensees must direct their fees for professional real estate activity through their designed broker in all states.  In Arizona for example see ARS 32-2155.

In addition, just because the licensee refers the client or customer to an attorney does not entirely meet the “safe harbor”.  The attorney must actually advise in the above disclosure areas and give the written disclosures or the licensee is still on the hook.  Conclusion:  Get a competent, arm’s-length real estate lawyer involved up front who knows something about MARS!  Divorce and accident lawyers won’t do.  Neither will lawyer brother-in-laws.


OVERLAP WITH STATE REAL ESTATE DISCLOSURE RULES:

Not only does MARS trump local real estate licensure and disclosure rules, it makes an entirely new body of rules.  First, note that it applies to anyone who engages in the regulated acts (whether or not licensed in anything) or those who assist anyone engaged in the noted acts (title companies and lawyers), not just any licensees or solely real estate licenses.  But, second, and most notably, it certainly does apply with a fiery vengeance to all mortgage real estate, law and other associated licensees not because of the FTC, but because of pre-existing licensure laws and standards in all states.  In Arizona, a written disclosure of “any matter that might tend to affect the consideration to be paid or the decision to engage in the transaction” has always been required under Commissioner’s Rule R4-28-1101.  A law that grants clients and customers specific rights and which require disclosure of them would certainly fit there.  Arizona ARS 32-2153 B. 10, goes further and requires that in all dealings with anyone-not just clients or customers-all real estate licensees must comply with state and federal law and regulations.  The FTC Disclosure and Compensation Rules would certainly be that and only as an addition to all of the disclosure that was always required.  Commissioner’s Rule R4-28-502c requires that no misrepresentations or omissions be made in any advertisement (and "advertisement" is defined in Arizona licensure law as virtually every form of communication, not just hard copy and even just between as few as two people and not just communication touting the property, see ARS 32-2101 2.).  By way of further example, it’s an Arizona felony to intentionally or recklessly make misrepresentations of matters in real estate matters.  See ARS 32-2153 A 1. and 4 and ARS 13-2203.  So the disclosure duty has always been there in the law of all states.  It’s just that MARS has enlarged it 4-fold and taken it into legal, accounting and financial advisory areas it was never in before.


PENALTIIES FOR VILOLATNG MARS:

The federal law allows suits for damages, disgorgements of monies and injunction against offending parties and allows any government authority, client or consumer to pursue them, whether or not affected by the misdeeds.  It is also a federal crime to make misrepresentations in violations of the FTC Rules or against regulated governmental agencies, such as banks and entities regulated by FDIC.  Most states, including Arizona, make misrepresentations actionable both as a crime and eligible for private civil suits and actionable by the state government policing and licensing bodies having jurisdiction, for damages, disgorgement, injunction and revocation of licensure.


BUT AS IF MARS WAS NOT ENOUGH, ANOTHER TIME BOMB WAITING TO BLOW:

Most state laws contain a dirty little secret that the regulators and the real estate industry in general have largely elected to creatively ignore.  And that mystery is whether real estate licensees--those with a real estate license, alone--are even properly licensed to engage in mortgage modifications, short sales and other workouts, at all, let alone the question of whether they are qualified or licensed to give disclosures that amount to legal and accounting advice (see above).  These state laws all start with the mandate that all persons engaged in residential loan workouts must have either a general or specialty mortgage brokering license. The laws typically contain a few "exclusions" for "related professionals", i.e. usually real estate licensees and attorneys and sometimes title and escrow companies and always banks. But on closer inspection the mortgage brokering exclusion” for real estate licensees simply is not one that would allow the kind of client counseling (complex legal or accounting advice regarding the debt, tax and credit effects of the client), hard-ball mortgage negotiations and debt re-writing that most successful residential workout licensees have to deploy under Hope for Homeowners, HAMP, HAFA and 2MP and all of the others.  For all the world, that kind of work sounds like nothing less than law, accounting or financial planning practice.  At least it does not sound like the traditional work of a residential real estate licensee before the Big Real Estate Crash came around.

Reading the small print, though, the mortgage brokering statutes may not be as far afield of the traditional as that and this existing limitation is what plants the licensure time-bomb.  These mortgage-brokering statutes usually qualify the “exception” for the real estate licensee by adding that the exception only applies if the separate real estate licensure statute permits it. Turning to the typical real estate licensure statute, the big problem becomes abundantly clear.  The real estate licensee is NOT permitted to do anything more than the diminimus credit arrangement associated with a traditional sale.  What this means in historic practice is something like the every day practice of referring the buyer to a bank or mortgage broker for a purchase money loan.  But between the statutes, it is a complete disconnect.  It never meant all the rest of the counsel associate with loan modifications and short sales.  It sure never meant getting as deeply involved in multi-discipline professional counseling as MARS seems to require.  So the dirty little secret is that there is no legal support whatsoever giving the real estate licensee any legal authority to do the multi-professional-licensure work that is clearly what is happening in loan workouts, today.

Arizona, again as example, is right in the middle of that confusion.  ARS 44-1378 provides that anyone who does this kind of negotiation, loan-rewriting and debt workouts needs to have a special mortgage modification broker’s license and subsection 44-1378.01 excludes the “usual” two other “related professionals” (lawyers and real estate licensees under subparagraph 6. from that rule). Real estate licensees are only excused, though “ so long as Arizona real estate licensure permits it.”  The problem is that it doesn’t.  ARS 32-2101 48 (k) of the Arizona real estate licensure rule, made law decades before there ever was a Real Estate Crash or a government restoration plan, allows the licensee to ONLY engage in mortgage negotiation  activity “incident to the sale or transfer of real estate” in the ordinary course of the business of normal marketing and sales.  Modifications do not involve a sale or transfer and modifications and short sales are anything but “ordinary course” in traditional licensee marketing and sales.   They are high-end legal practice having a massive whole-life effect on consumers far beyond that of a pedestrian real estate deal and containing a lot more technical substance and breadth than selling a house or closing a sale.   ARS 32-2155 C. makes it clear that if a fee is being paid for these hard-ball debt rewriting services , then the licensee has to have at least a mortgage brokers license.  The Arizona statute governing the unlicensed practice of law would require anyone doing such things to have or to be supervised by someone having a law license.  To make it absolutely conclusive, sub section k.  of ARS 32-2101 concludes by making it clear that the licensee is not to stray into services requiring licensure as a mortgage broker under ARS 44-1378.

The truth is, there really is no reliable authority allowing this kind of blatantly cross-licensure practice activity by real estate licensees.  MARS ignores those licensee prohibitions, probably unconstitutionally, by demanding that the real estate licensee, even though in violation of local law, mortgage-brokering, investment advisory and accounting licensure laws, give “full and accurate advice and disclosures” of the legal, credit and tax ramifications of the deal.   If one refuses to do that, they violate MARS; if they do, they certainly appear to violate at least three local licensing restrictions in almost every jurisdiction, some of which constitute state felonies.  Footnote:  Fortunately, for the moment, in Arizona, the Real Estate Commissioner has interpreted there to be no such "conflict" (the Commissioner’s response to this author and the audience when asked if the Commission felt there was a conflict between these statutes at a seminar), "The Short Sale Tsunami" had February 23, 2011, in Phoenix, Arizona.  With all due respect to Arizona’s highly respected Commissioner:  The problem is that the Commissioner’s softer interpretation is not reflected clearly in the statutes and is not one any court or MARS has to endorse in prosecuting the hapless offender.


THERE IS FAR, FAR MORE!

The above has only scratched the surface of MARS. To review the MARS rule in full, go to http://www.ftc.gov/opa/2010/11/mars.shtm.


CONCLUSION AND URGENT ADMONITION

Colleagues!:  These issues are not “interesting movements that may come to hamper the industry--someday.”  The FTC auditors--the Men from MARS--are here, now.  They will be looking for that mandatory “Listing and Disclosure Thesis” in your deal file that has to remain there for up to ten years.   So, by law, will any auditors from the Real Estate Commissioner, since this is now part of federal law and the Commissioners have to enforce it, too.  Brokers:  Better buy a hell of a lot more file cabinets!

This referral to getting your MARS-complaint agreements and disclosures in order does not mean getting a another box of the Realtor-made listing agreement or seller disclosure forms, seller and buyer advisories, or short sale addendums in use right now.  They are fine for what they do, but they do not “go to MARS” as they are currently drafted. Not even close.  Yes, MARS can include that comparatively tiny existing packet, but it also includes the tome of companion MARS disclosure documents, above!

Do you have these disclosures and advisories?  Ahem.  Well, we all know the answer to that, don’t we? So what are you going to do to get these?  A wise trip would be to a competent attorney RIGHT NOW to read MARS and to draft complying documentation forms for your operation.  A wise and shorter trip for the time being, at least as to the mountainous disclosure requirements (since the compensation rules will apply to listing and buyer broker agreements which are usually a smaller in-house practice and procedure) would be in this Planet Earth Emergency to get the free MARS Advisory Disclosure Form by writing to education@eckleylaw.com and asking for one (specify state).    Especially before the very next deal. And for God’s Sake definitely before Darth shows up to gleefully toast you, your license, your practice, your colleagues and every asset you have in the world with a single disintegrating blast of the Death Ray from MARS! 

Regrettably, friends, the MARS (read "Ma$$ive Attorney Recovery $cheme") invasion has only just started!  The best and most exotic “Bomb shelter Alloy” for the firewall, the one that will keep most of the Good Guys safe and dry for the time being,  is MARS-COMPLIANT WRITTEN

DISCLOSURE.  NOT STARTING TOMORROW. STARTING RIGHT NOW!  It’s ALREADY the "11th hour!"

Last, someday, hopefully, the citizens of this country will get it.  Really get it.  The Great Bush-Obama Real Estate Recovery Plan is broken and inoperable solely because it came that way, because Washington made it that way and because the bank, stock and insurance lobbyists wanted it that way until all of the bailout funds--about $14 trillion--were sucked from taxpayer coffers into their silken purses--the Big Money Forces that created the collapse in the first place.  It’s the biggest rip-off in the history of humankind--the wealth ransom from victim to kidnapper of the multi-millennium.  And its myriad stupidities and self-inflicted defects are impliedly blamed on the professional real estate industry by MARS while the banks remain uncastigated for their central role in intentionally undermining the "Recovery Plans" these back-alley sabotages were not caused by failures in the real estate sales industry.  MARS is just one of the first tries in the Big Money plot in the face of coming consumer ire to recast the Good Guy professionals in this industry into the National Scapegoats.  It’s not their last try, so the industry needs to be vigilant.  Most of all, the industry needs the political moxie to call out “B.S.” when it smells it in the coming path!  The needlessly broad-brushed regulation of MARS and the further “chilling” it will inflict on the consumers by ham-handedly and gratuitously complexifying an already sick marketplace is precisely the dung heap of which I speak.

Nuff said!


ABOUT THE AUTHOR:

J. Robert Eckley is a multi-state real estate, agency and banking law attorney, successful litigator, popular writer, educator, economist, past Realtor and national speaker with an immense personal and professional involvement in forefront issues over the past three decades. He has established precedent at the Supreme Court and co-founded transactional laws, rules and forms that guide practitioners today. He has been a real estate licensee and a former Realtor for three decades, was named to numerous Commissioner's Advisory Committees and Governor’s Agency Advisory Committees, received a host of leadership and instructor awards, is a CCIM Affiliate, testified in Congress against the due-on-sale clauses in 1982, fought the clause in state and federal courts, fought against all and defended a half dozen state and nationally chartered banks and thrifts, and has received leadership awards and honors from U.S. President Reagan and former Arizona Governor Napolitano, to cover just a few of the miles he has gone.  Often as entertaining as he is practical and enlightening!  See more at eckleylaw.com