Cautionary Checklist in Choosing Modification Counsel

Jeana Morrissey, fellow Arizona attorney, wrote the following excellent article on her firm’s web site, www.keytlaw.com

“Beware of Unlicensed Loan Modification Services

If you are considering using the services of a loan modification service for a loan secured by Arizona real property, make sure that the service is licensed by the Arizona Department of Financial Institutions as a mortgage broker.  A loan modification company that is compensated for providing loan modification services in connection with Arizona real estate secured loans must be licensed as a mortgage broker with the Arizona DFI or it is violating Arizona law.  An attorney licensed to practice law in Arizona is exempt from this requirementARS § 6-902.5

To determine if a loan modification service is licensed by the Arizona Department of Financial Institutions  See the list of licensed mortgage brokers maintained on the DFI website.

Arizona Revised Statutes Section 6-903.A states “A person shall not act as a mortgage broker if the person is not licensed under this article.”  Section 6-901.8 states “‘Mortgage broker’ means a person who is not exempt under section 6-902 and who for compensation or in the expectation of compensation either directly or indirectly makes, negotiates or offers to make or negotiate a mortgage loan.”  A mortgage loan is “a loan secured by a mortgage or deed of trust or any lien interest on real estate located [Arizona] created with the consent of the owner of the real estate.”  ARS § 6-901.9.  Compensation means

If you pay compensation for Arizona loan modification services to a person or entity that is not licensed by the Arizona Department of Financial Institutions as a mortgage broker, you should sent a written demand for a refund.  Arizona law provides:

“A person is not entitled to receive compensation in connection with arranging for or negotiating a mortgage loan if such person is not licensed pursuant to this article.”

ARS § 6-909.B.  You should also be wary of any loan modification service that claims to be “affiliated” with a licensed mortgage broker.  Arizona law also provides that “A mortgage broker shall not pay compensation to, contract with or employ as an independent contractor a person who is acting as a mortgage broker or mortgage banker but who is not licensed under this chapter.  ARS § 6-909.B

How to File a Complaint with the Arizona Department of Financial Institutions

If you have been the victim of an unlicensed Arizona mortgage broker, you can file a complaint with the Arizona Department of Financial Institutions.  You may also email the DFI at fraudline@azdfi.gov if you are a victim of mortgage fraud or know somebody who is a victim.  The ADFI is located at:

Consumer Affairs
Arizona Department of Financial Institutions
2910 N. 44th Street, Suite 310
Phoenix, AZ  85018

Arizona Attorney General License Enforcement Action

On March 3, 2009, the Arizona Department of Financial Institutions and Arizona Attorney General Terry Goddard notified all people and companies acting as a mortgage broker in Arizona without a license that the State of Arizona will sue to enforce Arizona’s mortgage broker law.  The Attorney General filed Arizona vs. Winer, a lawsuit against Richard Winer and Colleen Winer, Taken Care of Investments, LLC, Homeowner Solutions, LLC, Bourbon Street Property Management, LLC, and Filibuster, LLC., in which he alleged that one or more defendants violated:

  1. Arizona’s Consumer Fraud Act (ARS § 44-1521 et. seq),
  2. Arizona’s Debt Management Companies Act ( ARS § 6-701 et. seq),
  3. Arizona’s Mortgage Broker Act (ARS § 6-901 et. seq) by acting as a mortgage broker without being licensed as a mortgage broker, and
  4. Arizona’s Mortgage Banker Act (ARS 941 et. seq).

The State of Arizona is seeking the following from the defendants:

  1. An injunction prohibiting further violations of the laws that were violated.
  2. Refund to ALL victims ALL money and property paid to the defendants.
  3. A fine of $10,000 for each violation of the Consumer Fraud Act.
  4. A fine of $5,000 for each violation of the Debt Management Companies Act, the Mortgage Broker Act and the Mortgage Banker Act AND EACH DAY OF VIOLATION IS A SEPARATE OFFENSE.
  5. Reimburse the Attorney General and Department of Financial Institutions for their costs of investigation and attorneys’ fees for the lawsuit.

Arizona Consumer Fraud Act

Arizona’s Consumer Fraud Act prohibits “the act, use or employment by any person of any deception, deceptive act or practice, fraud, false pretense, false promise, misrepresentation, or concealment, suppression or omission of any material fact with intent that others rely upon such concealment, suppression or omission, in connection with the sale or advertisement of any merchandise . . . .”  ARS § 44-1522.  This is another Arizona law that many loan modification services are violating.

Beware of Loan Modification Services Without an Office

Maybe I am too cautious, but I personally would not use the services of a loan modification company that only has a presence on the internet.  Do you really want to do business with a company that does not list its office address on its website?  If the company does display its address on its website, it means it either does not have an office or it does not want the public to know where it is located.  In either case, it is a red flag and I would never do business with the company.

Beware of Firms with “Lawyer on Staff”

Watch out for loan mod companies that say they have a “lawyer on staff” or are affiliated with an attorney.  If you do not sign an engagement agreement with an attorney, you are not being represented by an attorney and the attorney client privilege does not apply.  You can check to see if an attorney is licensed to practice law in Arizona by going to the Arizona State Bar’s website and using it’s “Find a Lawyer” feature.  All licensed Arizona lawyers are listed on the State Bar’s website.

Beware of Non-lawyers Who Claim to Be Affiliated with an Arizona Attorney

Patricia A. Sallen, Ethics Counsel for the State Bar of Arizona, and Lynda Shely, an Arizona attorney whose practice involves advising Arizona attorneys on the rules of ethics wrote an article called “Loan modification: The not-so-golden business opportunity for lawyers.”  The article states:

“Non-lawyers are soliciting lawyers with business opportunities to provide help to
distressed homeowners. This “help” can be in the form of renegotiating loans,
documenting short sales or filing actions to stave off foreclosure.”

“While these business opportunities may be a good deal from the non-lawyer’s
perspective, lawyers need to remember that the ethical rules generally dictate otherwise for lawyers. In short, going into business with a non-lawyer or going to work for a nonlawyer to provide these kinds of services is ethically dangerous.”

“If you’re thinking about the loan-modification business, keep these ethics tips in
mind:

bullet

Lawyers may not form a business with a non-lawyer if any part of the
business will include the practice of law . . .

 

 

bullet

Lawyers may not split or share fees with non-lawyers . . .

 

 

bullet

Lawyers cannot pay ANYTHING OF VALUE for referrals . . .

 

 

bullet

Lawyers who employ non-lawyers or otherwise affiliate with non-lawyers
must supervise the non-lawyers and all of their advertising . . .

 

 

bullet

Lawyers cannot provide legal services to a business that then conveys the
advice to the business’ customers . . .”

 

 

These two experts on Arizona’s lawyer ethics rule believe that Arizona lawyers who affiliate with non-attorneys to work together on or to refer loan modification work must navigate an ethical minefield.

A February 2, 2009, California State Bar ethics opinion warns California lawyers about ethics violations arising from lawyers working with non-lawyer foreclose consultants.  The opinion states:

Distressed homeowners may need legal assistance. California lawyers should be wary, however, of non-lawyers – such as foreclosure consultants – who, seeking to capitalize on the vulnerability of distressed homeowners, offer to provide distressed homeowners assistance in renegotiating their loans and/or assessing and protecting their legal rights. These non-lawyers may propose arrangements that would violate one or more of a lawyer’s ethical obligations. They may attempt to loop California lawyers into their businesses with promises of large numbers of referrals and/or “easy money,” that is, fees for the lawyer for little or no work. They may request that a lawyer pay them a referral or marketing fee. They may propose an agreement to split legal fees obtained from the distressed homeowners. They may request that the lawyer enter into a joint venture with them and a distressed homeowner. They may request that a lawyer approve loan modification documentation. They may request that a lawyer serve as the general counsel to their business in order to provide legal advice to homeowners. They may ask that the lawyer file a frivolous lawsuit on behalf of a homeowner with whom the lawyer has had little or no contact in order to buy time so that the foreclosure consultant will have more time to negotiate a loan modification directly with a homeowner’s lender. As noted above, much of this conduct – accepting referral fees, fee splitting, forming a business with a non-lawyer that performs legal services, helping a non-lawyer engage in the unauthorized practice of law, filing frivolous lawsuits – violates the Rules of Professional Conduct and/or ethics rules set forth in the Business and Professions Code. A California lawyer should consider carefully the applicable ethical rules before agreeing to participate in any such venture involving people acting as foreclosure consultants or in a similar capacity. Failure to do so may result in lawyer discipline.

The Arizona State Bar has not issued a similar opinion, but the issues discussed and the conclusions contained in the California ethics opinion would probably apply to Arizona lawyers because the underlying applicable lawyer ethics rules for Arizona lawyers are similar to the rules for California lawyers.

Beware of Loan Modification Scammers

Because of the large number of foreclosures and the depressed values of real estate, loan modifications and short sales are hot.  It seems likes everybody and his or her brother is offering loan modification, short sales and foreclosure rescue services.  Don’t sign an agreement or pay any money to anybody without having an experienced real estate attorney review the contract.  Unfortunately, there are too many unscrupulous people and businesses whose main objective is to take advantage of people while they are desperate.  You must always perform appropriate due diligence to determine that person or business who promises wonderful things is on the up and up.

I believe you should never hire anybody to negotiate a loan modification for you unless he or she is an attorney licensed in the state in which the real property is located.  An important reason to hire an attorney is because of the attorney – client privilege.  This privilege provides that information give and statements you make to your attorney in confidence is protected from disclosure.  This is not true when you are dealing with a non-lawyer.  Anything you say or give to a non-lawyer can be discovered and offered into evidence in a court of law and used against you.”

 

 

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