BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2325
                                                                  Page  1

          Date of Hearing:   April 19, 2010

                      ASSEMBLY COMMITTEE ON BANKING AND FINANCE
                                   Mike Eng, Chair
                     AB 2325 (Lieu) - As Amended:  April 8, 2010
           
          SUBJECT  :   Mortgage foreclosure consultants: loan audits.

           SUMMARY  :   Provides that foreclosure consultant services include  
          the audit of any obligation secured by a lien on a residence in  
          foreclosure.  Specifically,  this bill  :  

          1)Requires a foreclosure consultant who provides an audit of any  
            obligation secured by a lien on a residence in foreclosure to  
            register with the Department of Justice (DOJ).  

           EXISTING LAW  

          1)Defines "foreclosure consultant" as any person who makes any  
            solicitation, representation, or offer to any owner to perform  
            for compensation or who, for compensation, performs any  
            service which the person in any manner represents will in any  
            manner do any of the following:

             a)   Stop or postpone the foreclosure sale;

             b)   Obtain any forbearance from any beneficiary or  
               mortgagee;

             c)   Assist the owner to exercise the right of reinstatement  
               provided in Section 2924c;

             d)   Obtain any extension of the period within which the  
               owner may reinstate his or her obligation;

             e)   Obtain any waiver of an acceleration clause contained in  
               any promissory note or contract secured by a deed of trust  
               or mortgage on a residence in foreclosure or contained that  
               deed of trust or mortgage;

             f)   Assist the owner to obtain a loan or advance of funds;

             g)   Avoid or ameliorate the impairment of the owner's credit  
               resulting from the recording of a notice of default or the  
               conduct of a foreclosure sale;








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             h)   Save the owner's residence from foreclosure; or,

             i)   Assist the owner in obtaining from the beneficiary,  
               mortgagee, trustee under a power of sale, or counsel for  
               the beneficiary, mortgagee, or trustee, the remaining  
               proceeds from the foreclosure sale of the owner's  
               residence. [Civil Code, Section 2945-2945.11]

          2)Defines "residence in foreclosure" as residential real  
            property consisting of one- to four-family dwelling units, one  
            of which the owner occupies as his or her principal place of  
            residence, and against which there is an outstanding notice of  
            default.  [Civil Code Section 2945.1]
           
          3)Requires a foreclosure consultant to register with, and obtain  
            a certificate from the DOJ to provide foreclosure consultant  
            services.  

             a)   Makes it a crime to perform foreclosure consultant  
               services without being registered with the DOJ.  [Civil  
               Code Section 2945.45]

          4)Prohibits foreclosure consultants from claiming, demanding,  
            charging, collecting, or receiving any compensation before  
            fully performing the services which the foreclosure consultant  
            was contracted to perform.  [Civil Code Section 2945.4]

          5)Allows the homeowner to cancel the contract with the  
            foreclosure consultant until midnight on the fifth business  
            day.  [Civil Code Section 2945.2.]

          6)Requires that every contract be in writing and fully disclose  
            the exact nature of the foreclosure consultant's services and  
            the total amount and terms of compensation.  Requires further  
            than the contract be accompanied by a notice of the right of  
            cancellation.  [Civil Code Section 2945.3.]

          7)Requires that the contract shall be written in the same  
            language as principally used by the foreclosure consultant to  
            describe his or services or to negotiate the contract.  [Civil  
            Code Section 2945.3 (c).]

          8)Limits the manner, amount, and form of compensation that the  
            foreclosure consultant may claim or demand, and generally  








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            prohibits the foreclosure consultant from acquiring any  
            interest in the residence subject to foreclosure.  [Civil Code  
            Section 2945.4 (a)-(e).]

          9)Prohibits a foreclosure consultant from taking any power of  
            attorney from an owner for any purpose, except to inspect  
            documents as provided by law. [Civil Code Section 2945.4]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

          This bill stems from an advisory that went out in February,  
          2010, by the California Attorney General along with the  
          California Department of Real Estate (DRE) and the State Bar of  
          California.  The advisory warned consumers to avoid companies  
          advertising to provide forensic loan audits.  The loan  
          modification industry has evolved into providing forensic loan  
          audits in which homeowners pay up-front fees for a forensic  
          review of their lender's practices, but are provided no actual  
          foreclosure relief. 

          Individuals and businesses who offer forensic loan audits use  
          inflated and misleading claims to convince homeowners to pay  
          up-front fees for services that produce no actual foreclosure  
          relief. Homeowners are encouraged to pay for an audit of their  
          mortgage loan file to determine their lender's compliance with  
          state and federal mortgage-lending laws. This audit is pitched  
          to homeowners as a tool they can use to gain leverage and speed  
          up the loan-modification process.  

          Those who offer forensic loan audits portray that the audit is a  
          comprehensive review of all documentation, legal paperwork,  
          transaction data, and other evidence pertaining to a real estate  
          loan that has already been funded in the near, or distant past,  
          as well as, identifies any illegalities performed by the lender,  
          their broker, or other parties in conjunction with the loan. 

          In truth, there is no evidence or statistical data to support  
          claims that forensic loan audits-even if performed by a  
          licensed, legitimate and trained auditor, mortgage professional  
          or lawyer-will help homeowners obtain loan modifications or  
          provide any other foreclosure relief. 

          AB 2324 does provide additional clarity that this type of  








                                                                  AB 2325
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          behavior will not be tolerated but whether or not this bill will  
          sway scammers from portraying themselves in this manner is  
          another issue.  The foreclosure crisis brought an influx of bad  
          apples who wanted to get rich quick at the expense of desperate  
          homeowners.  The first and most prevalent scams were seen over  
          the past 3 years related to collecting advance fees for loan  
          modifications for little to no work completed.  It seems the  
          scamming industry has now evolved into providing forensic loan  
          audit services.  The upside with this new breed is the fact that  
          current law is very clear by stating advance fees cannot be  
          collected whether you are a foreclosure consultant, real estate  
          broker or attorney.  Forensic loan audits are not defined under  
          current law but these scammers offer the simple service of  
          merely looking at your loan papers for fraudulent behavior.  It  
          seems those who want to scam homeowners will continue to evolve  
          by changing the types of services provided and the names of  
          these services.  Homeowners need to continue to be very wary of  
          any person or business who is trying to offer them any solutions  
          to homeownership especially if requesting an up-front fee. 

          By law, all individuals and businesses offering  
          mortgage-foreclosure consulting, loan-modification and  
          foreclosure-assistance services must register with Attorney  
          General's office and post a $100,000 bond.   It is also illegal  
          for loan-modification consultants and businesses to charge  
          up-front fees for their services.  Foreclosure consultants are  
          prohibited by law from collecting money before services are  
          performed

          The Attorney General has shut down more than 30 fraudulent  
          foreclosure-relief companies and has brought criminal charges  
          and obtained lengthy prison sentences for dozens of deceptive  
          loan-modification consultants. 

          In 2009, the DRE investigated more than 2,000 complaints  
          involving loan-modification scams. Nearly 350 individuals and  
          companies received a Desist and Refrain Order to stop illegal  
          activity. 


          According to the author, "AB 2325 provides greater protections  
          for vulnerable homeowners by stipulating that foreclosure  
          consultant services include the audit of any obligation secured  
          by a lien on a residence in foreclosure.  AB 2325 also requires  
          a foreclosure consultant to register with the DOJ to provide a  








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          forensic loan audit.  With record unemployment persisting and  
          foreclosures continuing to devastate our economy, we need to be  
          as vigilant as we can and adapt the law to account for new scams  
          designed to rip of homeowners.  AB 2325 does this by  
          strengthening current law to address a new scam. It will ensure  
          people offering a forensic loan service to a homeowner comply  
          with existing consumer protection requirements, including a ban  
          on advance fees.  This will result in fewer homeowners falling  
          victim to this phony scam."

          Overall, homeowners should not be paying up-front fees at all  
          whether it is for an audit or a loan modification.  



           
           RECOMMENDED AMENDMENTS:

          On page 4, line 18, delete "including" and delete lines 19-20  
          and insert "."

          On page 5, below line 13, insert

          "(9) Arranging or attempting to arrange an audit of any  
          obligation secured by a lien on a residence in foreclosure."

          PREVIOUS LEGISLATION: 

          AB 180 (Bass & Lieu) Statues of 2008, Chapter 278) prohibits a  
          foreclosure consultant from entering specified pre-foreclosure  
          agreements with a homeowner, allows a homeowner to cancel within  
          five days of signing a contract with a foreclosure consultant,  
          and requires the foreclosure consultant to maintain a surety  
          bond.  Measure includes translation provisions to allow owners  
          to request a completed copy of the contract if any language  
          described in Civil Code Section 1632 (Spanish, Chinese, Tagalog,  
          Vietnamese, and Korean).

          SB 1277 (Ackerman) Chapter 177, Statutes of 2004 made minor and  
          technical changes to the civil code related to foreclosure  
          consultants.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 








                                                                 AB 2325
                                                                  Page  6

           
          None on file.

           Opposition 
           
          None on file.
           
          Analysis Prepared by  :    Kathleen O'Malley / B. & F. / (916)  
          319-3081