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Settlement Fraud Rare, but Protect Yourself All the Same

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | September 27th, 2013

In little-noticed proceedings earlier this year, 11 people pleaded guilty in a federal court in northern Virginia to a scam that fleeced banks out of millions of dollars.

According to the charging documents, the defendants were involved in overlapping conspiracies in which they would systematically alter the terms of real estate closings so lenders would send more money than they actually needed to. The thieves would then pocket the difference.

The case shines some light on perhaps the shadiest side of mortgage fraud. Shady because very few people know about it, and of those who do, few are willing to talk about it.

Settlement fraud, aka escrow or closing fraud, doesn't occur very often, says Steve Gottheim of the American Land Title Association, the trade group for people who review and insure titles and handle the lion's share of real estate closings.

"It's extremely rare," Gottheim says. "Less than one half of 1 percent of all real estate transactions involve any type of fraud." But it does happen, he concedes.

Andrew Liput of Secure Settlements, a company that vets otherwise unsupervised closing professionals on behalf of lenders (who deliver billions into the hands of closing agents with little or no protection against fraud), estimates that 15 percent of the $4 billion lost by lenders to mortgage fraud last year -- some $600 million – occurred at the closing table.

We're not talking about illegal or even questionable flipping arrangements, or even straw buyers. Those schemes are counted elsewhere. Rather, we're talking about nickel-and-dime cases where the closing sheet you sign and the one sent to the lender are different, and the closing agent keeps the difference.

Maybe they change the amount of a single line-item closing cost, or perhaps two or three. You might pay $10 more here than you should have, or $25 more there. Or maybe the sales price you actually paid is lower than the amount the lender is asked to fund. Thieves can do wonders with Wite-Out.

Often, the difference is pocket change compared to the hundreds of thousands of dollars involved in the overall transaction. But alter enough settlement documents and pretty soon you're talking serious money.

Last year, for example, a South Florida closing agent was charged with falsifying HUD-1 settlement statements in 32 separate closings and stealing more than $3 million.

Big money is also lost when the closing agent fails to pay off a seller's lien and takes off with the money. The seller receives his due -- the difference between the selling price and the mortgage or mortgages he had on the property -- but the old lender gets nothing. And until that loan is actually paid off, the new lender -- your lender -- doesn't have a first position mortgage.

An already disbarred Massachusetts lawyer was sentenced last year to 51 months in prison for failing to pay off existing liens and diverting more than $3 million into his own accounts. And Liput has "seen several cases" in the last six months in which nefarious title agents doctor their reports so the prior liens remain invisible.

Generally in cases of closing fraud, it's the lender who's on the hook. As long as you purchase owner's title insurance at settlement, or at least what's called a "closing protection letter," the lender will bear the brunt of the loss, says ALTA's Gottheim. But even if you decline to buy your own policy, he says, you'll "get some ancillary benefits from the lender's policy."

"Ninty-nine percent of the time when escrow funds are taken, the lender or the title insurance company bears the risk," Gottheim says. "And in many states, title agents buy into what's called 'crime bonds.'"

The lender's policy, which you pay for at closing, protects the lender against fraud and defects in the title. An owner's policy, which protects you and guarantees that the title insurance company will work on your behalf to correct problems, should cost about $250 when issued simultaneously with the lender's policy. The closing protection letter is sometimes free; other times, there's a small fee.

Your real headache comes when you go to sell your property, or perhaps refinance, and find out there's an existing mortgage or two on it that have never been paid off. If that happens, it could hold up your sale, perhaps delaying the deal for so long that your buyer decides to drop out and find a house elsewhere.

Here are some basic steps to take to protect yourself against this kind of "back-end" fraud:

-- Obtain your loan papers early, and then make sure the numbers line up with the documents you are given at closing.

-- Shop for a trustworthy professional. Don't be steered. Call your state regulator to make sure the agent's license is current, and ask if there have been any complaints lodged against him. But even then, be careful. Liput says "nearly all the bad actors" his firm has unearthed were licensed, and were members of a trade association.

-- Ask for a color ID, and look for some kind of seal on the door or stationary that shows the agent has been vetted by an independent third party. In many instances, charlatans set up bogus companies that don't really exist. They just hang out a shingle and start doing business. Then, before you know it, they split, only to set up shop under another name somewhere else.

-- When interviewing closing agents, ask how long they've been in business, if they are insured and if there have been any claims against them. You'll also want to know if they've ever been sued or lost their licenses. All of this is public information and can be discovered with what Liput calls a little "basic ground-level investigation."

-- Finally, to protect yourself from being manipulated, schedule the closing a few days in advance of your move. If something smells fishy, walk away. You have every right to stop the show at any time.

-- If you feel the need, hire an attorney to represent you at the settlement table. Even if the title pro you pick is legit, he represents the lender's interests, not yours.

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Berkshire Hathaway Joins Crowded Field

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | September 20th, 2013

A new real estate franchise under the fabled Berkshire Hathaway brand marks its official launch this week.

The name Berkshire Hathaway adds some mustard to an otherwise bland real estate landscape. After all, the conglomerate is one of the world's most admired companies, according to Forbes, with Warren Buffet -- widely considered the most successful investor of the 20th century -- at its head.

But it may surprise you to know that the National Association of Realtors counts 32 national and regional franchise brands currently in operation across the land. And that does not include the handful of start-ups that seem to pop up every year and then fade away.

Another surprise, perhaps, is that only slightly more than half the nation's realty agents work under a franchise banner. The rest -- 41 percent, according to NAR's latest membership profile -- choose to remain independent.

At the same time, 84 percent of all real estate firms are independent, NAR reports. The rest are franchises or subsidiaries of national or regional firms. The reason: Most realty firms are one- or two-office shops with only a handful of agents, whereas the franchises are larger offices with bunches more agents.

There are good reasons to join a franchise, for both the brokers whose names are on the door as well as the agents who hang their shingles on the wall.

Banners like Century 21, RE/MAX and the others give a business instant recognition. Branding is a way to define who you are, according to the experts, and allows real estate brokers to say, "We are different from the rest of the pack."

That's why many newly minted brokers who are just starting their companies decide to affiliate with a franchise. Even though it may cost thousands of dollars to join, working under the Coldwell Banker or Realty Executives label gives them an immediate identification that they would otherwise have to spend years building.

A brand like ERA or Keller Williams also gives brokers a certain edge in recruiting. New agents and industry veterans alike often decide to work under a national trademark in order to receive the training, leads and other benefits the nationals have to offer. And in real estate, unlike, say, McDonald's and numerous other franchises, brokers are free to run their businesses as they like (within certain parameters).

But even independent brokers have a brand, and their agents do, too. They communicate their lineage, trust, expertise and other qualifications through their signs, business cards and marketing materials.

At the same time, the company an agent works for doesn't seem to hold much sway with clients. According to NAR's latest profile of buyers and sellers, just 3 percent picked an agent because he or she was associated with a particular shop or franchise.

More important factors include honesty (24 percent), reputation (21 percent), friend or family member (15 percent), knowledge of the neighborhood (12 percent) and a caring personality (9 percent). Of the other less material reasons, including timely responses and accessibility, only the agent's professional designations was less important than the agent's company.

So what does Berkshire Hathaway HomeServices (BHHS) bring to the already crowded realty landscape?

The name has "a huge reputation," says Earl Lee, the industry veteran who heads HSF Affiliates, which operates the BHHS, Prudential and Real Living networks. "It promises integrity, trust and competence."

As Lee sees it, "consumers today are looking for someone they can trust. They want to know they are working with an organization that stands behind its agents. And the strength of Berkshire Hathaway's reputation of integrity and financial stability is behind everything we do."

The company doesn't expect to be the largest, but it does expect to be the best, says Lee, attracting the most qualified companies and agents. Certainly, it will hit the ground running.

Already more than two dozen brokerages affiliated with the Prudential Real Estate brand have agreed to transition to Berkshire Hathaway, including the three that will "go live" next week: Prudential California Realty, Prudential Connecticut Realty and Prudential Florida Realty.

Other brokerages -- including Fox & Roach Realtors, a Philadelphia-based chain with some 4,000 agents that the BHHS brand purchased in August -- will make the official switch in the coming weeks. "It's happening, and it's happening fast," said HFS spokesman Kevin Ostler.

Here are some other facts and figures about real estate franchises from NAR:

-- The oldest is Real Estate One, which began franchising in 1971. The Southfield, Mich.-based company has 74 offices under its wing with 1,622 agents.

-- The newest is United Real Estate of Kansas City, which launched this year and has seven offices and 1,025 agents.

-- Keller William is the largest in terms of agents, with some 83,000 sales associates in 662 offices. Coldwell Banker is a close second with 82,000 agents, though it has more offices, with nearly 2,300.

-- Century 21 is the largest in terms of offices, with 2,500.

-- RE/MAX agents sell the most houses, according to marketing research specialists at the MMR Strategy Group, followed by Coldwell Banker, Keller Williams, Century 21 and Prudential Real Estate.

NAR doesn't keep count anymore, but in 2009 it listed NRT, the parent of Coldwell Banker, ERA and Southeby's International, the leader in "sides" with nearly 275,000. A listing is considered one side; a sale, another. Home Services of America had nearly 124,000 sides in '09, followed by Long and Foster Real Estate with almost 70,000.

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Nar Pilot Program Rates Agents' Service

The Housing Scene by by Lew Sichelman
by Lew Sichelman
The Housing Scene | September 13th, 2013

A system for rating real estate agents is being tested by the National Association of Realtors, the trade association for realty pros and, at more than a million members, the largest trade group in the country.

Under the pilot program, clients of participating agents are being asked by a third-party vendor to complete a survey about their experiences in the transaction. Brokerage firms sign on to the program, but their agents are not required to participate.

Even those who decide to take part have the authority to block the results from being posted online. At the same time, though, agents cannot pick and choose which results they want posted. It's all in, or all out.

To some, the NAR program smacks of the proverbial wolf watching the hen house. To others, it is seen as a thinly veiled attempt to get ahead of the private market, where there is no shortage of ratings websites. There's even a site that offended agents can use to remove complaints from popular consumer site RipoffReport.

But NAR officials say the rating service is just one aspect of a larger "Realtor Excellence Program" designed to help brokers identify agent shortcomings and provide whatever education is necessary to bring them up to industry standards.

"Everyone seems to be focusing on the rating service, but I'm focusing on getting good consumer feedback," says Laurie Janik, NAR's chief counsel. "The bigger picture is that this is a way to enhance professionalism and have more satisfied buyers and sellers. Using the surveys, brokers can spot problems and weaknesses early on and get the agent the help or training they need."

Under the pilot program, brokers are able to use the survey results solely as internal feedback. But agents are given the choice of whether to participate or not. And they also are given the choice of whether to allow the results to be made public on the website RatedAgent.

In and of themselves, those parameters seem to limit the rating system as a true and open measure of an agent's abilities. In addition, the surveys are being sent only to participants of closed transactions, meaning that buyers or sellers who are dissatisfied with their agents' performance and failed to close a deal for one reason or another are left out of the loop.

But Janik says that is an effort to make sure survey respondents are truly clients. "This program is set up so that it can't be gamed," she says. "It's real buyers and sellers rating the agent they worked with in a transaction that has closed. Therefore, the ratings have validity. We don't want agents' mothers and friends rating them."

While NAR's general counsel plays down the ratings aspect of the excellence program, Quality Service Certification -- the San Juan Capistrano, Calif. company that designed the survey and sends it to participants -- says "agent ratings are coming," whether agents like it or not.

Agents ratings "are an important element of the decision-making process," says Larry Romito of Quality Service Certification in a white paper. "Denial of consumer interest or an unwillingness to participate will not change what's happening or even slow it down."

Consequently, the white paper says, realty professionals can "take the ball or give it to someone else." Either way, it adds, "the game will go on."

In an interview, Romito says the purpose of the surveys is to make real estate transactions more about buyers and sellers and less about their deals. "Currently, there is no measure, no common standards for feedback," he says. "So this is a provider-centric business that is only incidently about consumers."

Unlike other ratings systems, NAR's is designed not only to shed light on bad practices but also reinforce good things, according to Romito. "When agents know their brokers are seeing real-time data, it dramatically changes human behavior. Then, it becomes not 'because I say' but 'because consumers are saying so through an independent source.'"

Romito defends the decision to survey only participants in completed transactions, saying that agents' behavior is "fairly consistent," whether the deal closes or not, because they "have no way of knowing" in advance whether a transaction will lead to a successful outcome.

To date, the nearly year-old experiment has had mixed results among the 20 or so participating state realtors' associations and multiple listing services.

The Mainstreet Organization of Realtors (MORe) was one of the first to sign on to the Realtors' Excellence Program. But only about 3,000 of MORe's 14,500 member-agents have agreed to participate in the ratings aspect, according to the group's chief executive officer, Pam Krieter.

Krieter says the hot real estate market has hindered development of the ratings system. "It's a great time to launch something like this," she says. "But it's also a tough time because the market is good and agents' main focus is there."

The MORe executive said educating agents on the program's benefits is an ongoing effort. "It's going to take time to get this in place," she says. "But as we get the word out, more companies will see that this is the way to go."

Don Faught, president of the California Association of Realtors, NAR's largest state affiliate, is also "a big proponent" of the program. But, he concedes, there "hasn't been a whole lot of acceptance" among CAR's 155,000 members, either.

"It's been a struggle for us," says Faught, who works for Alain Pinel Realtors in Pleasanton, Calif. "Some (agents) like it and some don't. But whether they like it or not, this is the way people find out about you."

Meanwhile, there are any number of sites that purport to rate and/or review realty professionals, including Zillow, Redfin, ZipRealty, Homethinking, AgentRank and Yelp, among others.

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