NAR: New FTC Rules May Impact Brokerages

New FTC Rule May Impact Brokerages

The Federal Trade Commission (“FTC”) has recently issued its Mortgage Acts and Practices – Advertising, or “MAP”, rule (“Rule”). The Rule imposes requirements on those that provide information about mortgage credit products to consumers by prohibiting misrepresentations during these communications and also imposing recordkeeping requirements. The Rule will impact real estate professionals that provide this information to consumers, such as giving a consumer a lender’s rate sheet. The Rule takes effect on August 19, 2011.

Click here to read the Rule’s text and accompanying commentary.

Background

The FTC published an Advance Notice of Proposed Rulemaking in 2009, and issued a proposed rule relating to unfair or deceptive acts and practices that may occur with regard to mortgage advertising in September 2010. NAR filed a comment letter seeking an exemption for real estate professionals from the Rule- click here to read NAR’s comment letter.

The Rule is intended to regulate unfair or deceptive practices in the advertising of mortgage products, and covers all entities involved in the process such as mortgage brokers, lenders, and home builders. The Rule will also cover real estate professionals when they are providing information about a mortgage credit product to a consumer, as outlined in this article.

Rulemaking authority for the Rule has now transferred to the Consumer Financial Protect Bureau (“CFPB”). Enforcement authority for the Rule rests with the CFPB, FTC, and state attorneys general.

Rule’s Requirements

The Rule prohibits misrepresentations in a commercial communication about any term of a mortgage credit product. A “commercial communication” is broadly defined within the Rule, covering both oral and written statements designed to “create an interest in purchasing goods or services”, which in this case would be a mortgage credit product. A “mortgage credit product” is “any form of credit” that is offered to a consumer and secured by the consumer’s dwelling. The Rule’s coverage will include information about all mortgage terms and the Rule contains an extensive list of possible mortgage terms, including interest rates, products sold in conjunction with a mortgage such as credit insurance, amount of taxes, variability of interest rates, and prepayment penalties.

Application of Rule to Real Estate Professionals

The Rule will apply when a real estate professional provides information about a specific mortgage product to a consumer. An example would be providing a consumer with rate sheets containing the current interest rate from a lender or providing a consumer with applications or other information for a specific mortgage product. All statements about the terms of a mortgage will be covered by the Rule, and will need to be retained for two years. In addition, the statements should have the disclaimer language discussed in this article in order to protect against later misrepresentation claims.

The FTC has stated in its comments that the Rule does not apply to purely informational communications not designed to cause the purchase of a good or service because these are not commercial communications. So, providing a consumer general information about market rates for different types of mortgages products will likely not be subject to the Rule because these are not related to a specific mortgage product. However, providing a consumer with the daily rates from a specific lender would trigger compliance with the rule. Similarly, going through the prequalification process with a consumer in order to determine the range of properties that a consumer may be eligible to purchase won’t require compliance with the Rule; however, providing a consumer with the documentation needed to apply for a preapproval from a lender for a mortgage loan will be covered by the Rule.

Disclaimer or Qualifying Statement

In the preamble to the final Rule, the FTC notes that a disclaimer provided with a covered statement “may correct a misleading impression, but only if it is sufficiently clear and prominent to convey the qualifying information effectively”. Therefore, real estate professionals should always include a disclaimer when providing information to consumers about the terms of a mortgage credit product, as a properly crafted disclaimer can protect against later misrepresentation claims.

The disclaimer will need to be prominent, as the FTC notes in its comments that disclaimers in small type placed at the bottom of a document will not protect against misrepresentation claims. The disclaimer text should be separated from the other text in the covered statement, as language buried within the text may not be effective to protect against misrepresentation claims. Click here for a model disclaimer.

Note that the disclaimer should be tailored to the type of information that you are providing to a client. If you are providing other services beyond transmitting basic mortgage information, you will need to tailor your disclaimer to cover those services.

Recordkeeping Requirements

If a real estate professional is subject to the Rule, the real estate professional is required to keep all covered commercial communications for 2 years from the date that the communication was made to the consumer. In order to comply with this section, the real estate professional should put all covered statements into writing and include the statements in each consumer’s file (paper or electronic) with the brokerage. This record retention system should become part of the brokerage’s overall record retention program.

Identity Theft Red Flag Rules start May 1

The Federal Trade Commission (FTC) recently launched a new webpage designed to help “creditors” and “financial institutions” comply with “red flag” rules which go into effect on May 1, 2009. The “red flag” rules are designed to identify and prevent identity theft. The website, “Fighting Fraud with the Red Flags Rule: A Guide for Business,” describes the entities covered and how to comply with its provisions.

Mortgage brokers and mortgage lenders that provide credit, or arrange for credit to be provided, are required to establish policies and procedures to prevent identity theft. A real estate agent may be considered a “creditor” if s/he regularly arranges for credit to be extended, e.g. regularly pulls credit reports, suggests potential lenders, helps with the loan applications. See NAR’s FAQs for further guidance.

FIGHTING FRAUD WITH THE RED FLAGS RULE
A How-To Guide for Business

As many as nine million Americans have their identities stolen each year. Identity thieves may drain their accounts, damage their credit, and even endanger their medical treatment. Th e cost to businesses – left with unpaid bills racked up by scam artists – can be staggering, too.Th e “Red Flags” Rule, in eff ect since January 1, 2008, requires many businesses and organizations to implement a written Identity Th eft Prevention Program designed to detect the warning signs – or “red fl ags” – of identity theft in their day-to-day operations, take steps to prevent the crime, and mitigate the damage it infl icts.

By identifying red fl ags in advance, they will be better equipped to spot suspicious patterns when they arise and take steps to prevent a red fl ag from escalating into a costly episode of identity theft.

Th e Red Flags Rule is enforced by the Federal Trade Commission (FTC), the federal bank regulatory agencies, and the National Credit Union Administration. If you work for a bank, federally chartered credit union, or savings and loan, check with your federal regulatory agency for guidance. Otherwise, this booklet has tips for determining if you are covered by the Rule and guidance for designing your Identity Theft Prevention Program.