Hi folks. I’ve been having a discussion over at www.ShortSaleSuperStars.com on whether or not having the Buyer of a Short Sale pay off part of a junior lien “outside of closing” without disclosing to the 1st lien holder and without placing the payment as a P.O.C. (paid out of closing) item on the HUD is Mortgage Fraud and/or a violation of RESPA.
The article is presenting a scenario where the 1st lender does not agree to pay the 2nd $7,000 from the sale. They only agree to pay $3,000. So to skirt around this the agent suggest having the buyer pay the additional $4,000 needed to remove the 2nd lien outside of closing. It’s my opinion, that this $4,000 is compensation to the seller for the purchase of the property. This fact, that is pertinent to the sale, is being withheld from the 1st lender. Therefore, in my opinion, it is both Mortgage Fraud and a violation of RESPA.
The definition of Mortgage Fraud as per the FBI is: “material misstatement, misrepresentation, or omission of information relied upon by an underwriter or lender to fund, purchase or insure a loan. “.
Also, a Title company that does this without placing these funds on the HUD could very well be breaking the law. Title Companies exist to protect lenders and borrowers. The lien is a title issue and therefore the monies needed to “clear title” need to be shown on the HUD.
THE HUD-1 MUST STATE, WITH COMPLETE ACCURACY, THE FULL FINANCIAL ACCOUNTING OF THE TRANSACTION. Read the rest of the article here.
Not disclosing this $4,000 payment to the first lien holder is fraud. If it weren’t ….then disclosing it would not be an issue. Would it?
Now having said all of that I know these types of transactions happen every day. The chance of being caught and prosecuted are probably slim to none. BUT…..it’s still fraudulent and it’s still wrong. Of course I am NOT an Attorney and this is just my opinion.
Here’s some more great info:
HUD promulgates regulations to enforce RESPA, known as Regulation X (24 C.F.R. section 3500, et seq.). Regulation X includes the requirement that settlement statements be prepared in the form of the HUD-1. The regs include line-by-line instructions and rules as to how the HUD-1 is to be completed. The following is from the “General Instructions” (24 C.F.R section 3500, Appendix A):
“The settlement agent shall complete the HUD-1 to itemize all charges imposed upon the Borrower and the Seller by the Lender and all sales commissions, whether to be paid at settlement or outside of settlement, and any other charges which either the Borrower or the Seller will pay for at settlement. Charges to be paid outside of settlement, including cases where a non-settlement agent (i.e., attorneys, title companies, escrow agents, real estate agents or brokers) holds the Borrower’s deposit against the sales price (earnest money) and applies the entire deposit towards the charge for the settlement service it is rendering, shall be included on the HUD-1 but marked `P.O.C.’ for “Paid Outside of Closing” (settlement) and shall not be included in computing totals. P.O.C. items should not be placed in the Borrower or Seller columns, but rather on the appropriate line next to the columns.”
The “P.O.C.” requirement is also set forth in the upper part of the first page of the HUD-1 form.
So what do you think? Fraud? RESPA Violation? Or neither?
Do NOT be foreclosed on! Avoid foreclosure. Short Sales DO close.
Want to find out more? www.CentralFloridaShortSales.com
***I am NOT an Attorney nor do I play one on TV.