BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 1762
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          Date of Hearing:   March 23, 2010 

                   ASSEMBLY COMMITTEE ON BUSINESS AND PROFESSIONS
                                 Mary Hayashi, Chair
                 AB 1762 (Hayashi) - As Introduced:  February 9, 2010
           
          SUBJECT  :   Real estate.

           SUMMARY  :   Redefines "advance fee" to exclude fees charged or  
          collected for advertising or promotion, for referral fees to  
          other real estate brokers or salespersons in connection with  
          mortgage loan origination, or fees associated with prepaid  
          rental listings.

           EXISTING LAW  : 

          1)Provides for the regulation and licensure of real estate  
            brokers and salespersons by the Department of Real Estate  
            (DRE). 

          2)Defines "advance fee" as a fee, regardless of the form,  
            claimed, demanded, charged, received, or collected by a  
            licensee from a principal before fully completing each and  
            every service the licensee contracted to perform, or  
            represented would be performed. 

           FISCAL EFFECT  :   Unknown.  This bill is keyed non-fiscal.

          COMMENTS  :   
           
          Purpose of this bill  .  According to the author's office, recent  
          legislation [SB 94 (Calderon), Chapter 630, Statutes of 2009]  
          "prohibited persons from charging advance fees to borrowers in  
          connection with a loan modification.  Loan modification  
          companies were increasingly charging homeowners thousands of  
          dollars in advance fees without following through on services.  

          "However, following the enactment of SB 94, DRE began receiving  
          numerous questions regarding the effect, scope, and  
          applicability of the bill.  For example, the advance fee has  
          most commonly been an issue in loan modification or loan  
          brokerage contracts, but can apply to other arrangements such as  
          a Prepaid Rental Listing Service.  Unfortunately, SB 94 can be  
          broadly interpreted to include a real estate listing agreement  
          or any contract involving progressive or 'fee for service'  








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          payment, as a prohibited advance fee, even though the  
          transactions are legitimate.  AB 1762 resolves these unintended  
          consequences."
          
           Background  .  SB 94 prohibited any person, including real estate  
          licensees and attorneys, from demanding or collecting advance  
          fees for loan modification or mortgage loan forbearance services  
          affecting residential dwellings with four units or less.  Prior  
          to SB 94's enactment, attorneys and real estate brokers with  
          DRE-approved agreements were able to collect advance fees.  

          As of October 2009, DRE was investigating over 1,300 loan  
          modification complaints.  DRE issued nearly 400 desist and  
          refrain orders and accusations against individuals for illegally  
          collecting advance fees for the prior year.  Most of these cases  
          involved a person who fraudulently collected an advance fee in  
          exchange for a promise that the homeowner would receive a  
          sustainable loan modification.  However, once the fee was paid,  
          little or nothing was done to get the borrower's loan modified.   


           Support  .  According to the sponsor, the California Association  
          of Realtors, "The bill is needed to make it clear that so-called  
          'fee for service' or 'cafeteria' real estate services contracts  
          are not advance fee arrangements requiring advance review.   
          These non-traditional marketing arrangements will become more  
          and more common as home buyers and sellers become increasingly  
          sophisticated and the marketplace continues to put downward  
          pressure on commission-based services?.It should be noted that  
          this legislation does not change the special prohibition on  
          advance charges for loan modification that was enacted last  
          year, nor does it change the substance of any of the  
          pre-existing exceptions to the rule such as tenant security  
          deposits or pass through fees." 

          The Orange County Association of Realtors state, "AB 1762 would  
          clarify the law established through SB 94, to make clear that  
          fee for service contracts, such as the listing agreement, do not  
          trigger the advance fee requirements." 

           Prior Legislation  .  SB 94 (Calderon), Chapter 630, Statutes of  
          2009, prohibited persons from charging advance fees to borrowers  
          in connection with a loan modification, and requires those who  
          wish to charge a fee for loan modification services to provide a  
          notice to borrowers regarding other options available to the  








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          borrower.

          AB 2384 (Kuykendall), Chapter 469, Statutes of 1996, excluded  
          from the definition of "advance fee", the terms "security" and  
          "screening fee."

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          California Association of Realtors (C.A.R.) (sponsor)
          Orange County Association of Realtors

           Opposition 
           
          None on file. 
           
          Analysis Prepared by  :    Joanna Gin / B. & P. / (916) 319-3301