The Federal Trade Commission (FTC) recently issued a statement that it would no longer enforce several provisions of the widely scrutinized Mortgage Assistance Relief Services (MARS) Rule. The MARS Rule required all real estate agents working on short sales to make certain disclosures to homeowners as well as banned the collection of up-front fees. In a July 15 press release, the FTC conceded that the MARS disclosures were "confusing customers and inaccurate in some contexts." The Commission issued an immediate stay on the enforcement of the MARS provisions to ensure the guidelines did not "inadvertently discourage real estate professionals from helping consumers with [short sale] transactions." The stay applies only to real estate professionals who: 1) are licensed and in good standing under state licensing requirements; 2) comply with state laws governing the practices of real estate professionals; and 3) assist or attempt to assist consumers in obtaining short sales in the course of securing the sales of their homes. The stay exempts real estate professionals who meet these requirements from the obligation to make disclosures and from the ban on collecting advance fees. These professionals, however, will remain subject to the Rule’s ban on misrepresentations.
History Of The MARS Rule
Enacted in December of 2010, the MARS Rule prohibited real estate professionals from making false or misleading claims and outlined several disclosures that had to be made by individuals offering foreclosure relief services, including short sales. The ban on advance fees went into effect in January, 2011. The rule applied to all individuals, as well as companies, who provided mortgage assistance relief services:
Section 322.2 DEFINITIONS (i) ‘‘Mortgage Assistance Relief Service’’ means 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 with any of the following: and followed by subsection (6) Negotiating, obtaining or arranging:
(i) A short sale of a dwelling,
(ii) A deed-in-lieu of foreclosure, or
(iii) Any other disposition of a dwelling other than a sale to a third party who is not the dwelling loan holder.
While the authors of the MARS Rule specifically exempted attorneys from complying with the rule, they failed to provide a similar exemption for real estate agents. As a result, a number of real estate professionals immediately sought clarification as to whether they were considered a MARS provider and, therefore, subject to the rule.
Failure to Exempt Real Estate Professionals From MARS
As mentioned above, the FTC refused to explicitly exempt real estate agents from the MARS Rule because they felt real estate agents did not qualify as mortgage assistance relief service providers:
“The Commission concludes that an exemption for real estate agents is not necessary. Real estate agents customarily assist consumers in selling or buying homes and perform functions such as listing homes for sale, showing homes, and finding desirable homes for consumers. The Commission is aware that real estate agents may perform these functions when properties are bought or sold through a short sale transaction, but does not consider these services to be MARS.”
On the one hand, the FTC clearly intended for the rule apply to any real estate professional working on short sales. On the other, the failure to specifically exempt Realtors created widespread confusion among real estate agents as to whether they had to comply with the rule if they were obtaining, arranging or negotiating a short sale. The FTC's reluctance to provide an exemption for Realtors, as they did for attorneys, essentially deferred interpretation of the MARS Rule to local and national real estate boards.
NAR Interpretation of MARS
The National Association of Realtors (NAR) broadly interpreted the MARS rule to conclude that “negotiating a short sale of a dwelling includes any communications with a lender about the possibility of a short sale transaction involving a consumer’s loan.” Consequently, “anyone who provides short sale negotiation services is considered a MARS provider and subject to the disclosure requirements”. Based on this interpretation, NAR expressly stated that “the MARS rule could have an impact on real estate professionals who represent short sale clients or market themselves as a MARS provider or a short sale specialist”. The NAR opinion strongly encouraged all individuals handling short sales, while working under their licensed capacity as a real estate professional, to comply with the MARS disclosure requirements. As a result, real estate agents throughout the country were required to update their advertising materials and consumer disclosures.
The Revised MARS Rule And The Realtor Exemption
Less than seven months after enactment of the rule, the FTC stated that “the stay on enforcement applies only to real estate professionals who are licensed, in good standing under state requirements and in compliance with all laws. Anyone who meets these requirements is now exempt from "the obligation to make disclosures and from the ban on collecting advance fees.” The Commission said that the stay does not apply to real estate professionals who provide other types of mortgage assistance relief, such as loan modifications. While the stay of enforcement provides some relief to real estate agents working on short sale transactions, in that they no longer have to issue short sale disclosures, the FTC made it clear that they will closely monitor this industry and continue to bring enforcement actions against all real estate professionals who engage in unfair or deceptive acts or practices.
FTC MARS Exemption: Is it Good Or Bad For Short Sale Agents?
As someone who exclusively negotiates Massachusetts short sales, I depend on local real estate agents for a large portion of my business. Since the inception of the MARS Rule last December, I found that very few real estate agents were aware of the rule, let alone compliant. Seeing as many agents didn't issue the required MARS short sale disclosures, the exemption likely won't have much of an affect on individual short sale transactions. By exempting real estate agents from the advertising disclosures, however, the FTC may have opened the door for more inexperienced real estate professionals to market themselves as short sale specialists without having any short sale experience.
Many real estate agents who were aware of the MARS Rule were reluctant to enter the short sale market because the disclosure requirements were extremely prohibitive with regard to advertising and marketing materials. Granted, the MARS rule will still be enforced against any real estate professionals engaging in unfair or deceptive practices, but it won't prohibit inexperienced agents from targeting distressed homeowners through mass marketing campaigns. One of the biggest problems in the short sale industry is the spread of misinformation, and by lowering the barrier of entry into the short sale market, the FTC MARS exemption may have the opposite result than that which the Commission intended.
Related Posts
National Association of Realtors: LIFE ON MARS
Are Realtors Subject To The FTC MARS Ruling?
About the Author: Greater Boston Short Sales, LLC(GBSS) is Massachusetts’ leading short sale negotiator. GBSS assists buyers, sellers, real estate agents and attorneys with getting their short sales closed. Contact us today if you are a homeowner facing foreclosure or a Realtor seeking assistance with a short sale transaction. GBSS is a MARS provider. Please read our disclaimer HERE.
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Comments
Good post. I might add that allowing agents to advertise themselves as experts when they have no "expertise" other than a certificate for attending a 2 day internet course" is also very misleading to the public. I think that if an agent is going to market themselves as a short sale expert, they should have to make their "record" of short sales available to the public.
"expert" designations opened the door for inexperienced short sale agents to market themselves as experts.
By exempting real estate agents from the advertising disclosures, however, the FTC may have opened the door for more inexperienced real estate professionals to market themselves as short sale specialists without having any short sale experience.