The Mortgage Assistance Relief Services Act (MARS) is a ruling that residential real estate professionals must comply with. The MARS act was issued by the Federal Trade Commission (FTC) to protect consumers and took effect on January 31, 2011. Whether you are a Realtors or not, you must understand and obey the MARS Rule whenever you approach homeowners in distress or else you will risk heavy fines being levied against us. If you violate the MARS act, you could face fines up to $11,000 dollars per occurrence and $11,000 for each day that you are not in compliance. Has MARS your attention now?
MARS was mainly meant to prevent people from taking up-front fees to negotiate with homeowners' mortgage lenders to get loan modifications, short sales, or other relief from foreclosure. There has been numerous scammers who have often claimed to be affiliated with a government agency or government housing assistance programs.
The easiest way to comply with the regulations is to know what we can and can't do in negotiations. Even if we outsource our short sale or loan mod negotiations to a third-party company, we fall under FTC jurisdiction regarding MARS and must obey these rules. The main thing to know is that we can't charge up-front fees. Now be sure to have your real estate attorneys verify these but here's the breakdown of the rules as given by the FTC website:
MARS Advance Fee Ban
A person may not collect any fees until after they have provided homeowners with a written offer from their lender or servicer that they decide is acceptable and a written document from the lender or servicer describing the key changes to the mortgage that would result if they accept the offer. We must also remind consumers of their right to reject the offer without any charge. The easiest thing to do is to do not charge advance fees. One should only be paid upon satisfactory resolution of the problem
Disclosures Required By MARS
In all of our communications, we must disclose the following in 12-point font or ½ the size of the largest letter advertising the name of the company providing the MARS disclosures, whichever is bigger:
1. We are not associated with the government or endorsed by the government; 2. The lender can refuse to modify the homeowner's loan; 3. If a homeowner stops paying their mortgage, they could lose their home and damage their credit; 4. The homeowner can walk away from the deal at any time before accepting the lender's offer and they are not required to pay a negotiation fee (if you happen to be someone who charges these fees, that is) if they do kill the deal; 5. What the fees are for negotiating the terms of the short sale or loan modification (if you happen to be someone who charges these fees, that is);
Prohibited by MARS
The MARS Rule prohibits one from making any false or misleading claims about our services, including claims about:
• The likelihood of homeowners getting the results they want; • Any affiliation with government or private entities (unless you really are affiliated with any of them, of course); • The homeowner's payment and other mortgage obligations; • Refund and cancellation policies; • Whether or not they have performed the services promised; • Whether or not they will provide legal representation to consumers; • The availability or cost of any alternative to for-profit mortgage assistance relief services; • The amount of money a consumer will save by using our services; or • The cost of our services.
NEVER tell our prospective homeowner customers to stop communicating with their lenders or servicers without letting them know that the lender can totally kick them to the curb, take their house, and damage their credit or else we will be in violation of MARS. Also, if we claim that we can help a homeowner, the FTC says we have to have “reliable evidence” of our claims about the benefits, performance or effectiveness of how we negotiate.
Attorneys may be exempt from the MARS
Realtors tried to get exemption from it but this idea was rejected so Realtors must now obey MARS just like us common folk. Other entities exempt from the MARS Rule include banks, savings and loans, federal credit unions, common carriers, and entities engaged in the business of insurance.
For creative financing, there are especially two scenarios where the MARS rules will most likely apply: “subject to” and “carry back” loans. In both cases, we are either taking over financing or making a loan modification so we must obey MARS. The final FTC ruling for MARS can be seen on the FTC website.
Real estate can be a fun business as long as we can do it without having to wear handcuffs, leg irons, and orange jumpsuits. So let's just be ethical, treat homeowners with respect, and obey MARS laws
Duncan Wierman is an Ex software company CEO turned Real Estate Investor. Duncan founded The Wierman Group in 2003, and now manages real estate investment funds created for conservative investors who want returns and tax savings that exist in multifamily real estate in emerging markets. For more information about his company, please go to http://www.TheWiermanGroup.com