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DISCLOSURES:  CLEAR AS MUD
Focus on the relative value of disclosures.

While talking with someone recently about the predatory lending problem they raised the question about disclosures, specifically, how could a consumer not be aware  of the various harmful components of the documents they signed.  How could they claim they did not know there was a prepayment penalty, no escrow provision for taxes and insurance  and a possible balloon payment?   A reasonable question would be, “didn’t they sign the proper disclosures on this loan?”  Of course, the answer is, yes, they did.  In the case of a predatory situation where the intent of the transaction is to take unfair advantage of the consumer, there clearly is no real intention to help them understand the paperwork.  These transactions usually involve a re-finance loan with a Sub prime lender and no real estate practitioner is involved.

This discussion led me to spend some time focused on disclosures; What purpose do they serve? Who benefits?  Are changes in order? A typical transaction includes disclosures on : agency relationship, right to inspection, lead paint, affiliations, truth-in-lending, planned unit development, mandatory homeowners association, mortgage broker agreement and fees, tax exemptions, terms of the note, right to a copy of the appraisal and more. Several of these disclosures are rather simplistic but most are more complex and more likely to confuse than clarify.

In transactions with reputable lenders involving reputable REALTORS® I wonder how often consumers sign disclosures where they fail to grasp the essence of what is being disclosed.  As an experienced agent, sadly, I suspect that real estate documents were not created to be “understood”.  Most agents would probably be overjoyed if their clients grasped the “essence” of what was being relayed to them.  There is a growing number of REALTORS® becoming frustrated because someone with whom they have worked has signed papers with a lender or builder without understanding what they had signed. The consumer seeks advice from the REALTOR® AFTER they signed the paperwork because

they now realize that they need help.  One could make a good case that the purpose of disclosures seems to be to protect all parties from legal action without a committed effort to help the consumer make a more informed choice.

As real estate professionals we have all been taught to be sure we have the proper signatures on all disclosures.  We all understand whether we have been told by company attorneys or not that a major concern is to avoid lawsuits.  Has there been an equally concerted effort to be sure our clients KNOW what the disclosures mean?  Do we KNOW what the typical disclosures mentioned above mean?  Could you explain each of them if you needed to?

In our hurry up world I humbly submit the possibility that slowing down the process could be beneficial, used as an opportunity to provide valuable education to our clients and another agent/client “bonding” experience.  If closing documents were provided 24-48 hours prior to closing for review instead of our current practice, then the agent and client would have the chance to go over the paperwork and all important disclosures could be re- viewed at this time.  It is not enough for all parties to rush a client because of THEIR schedule and say “this is the variable rate disclosure, you need to sign here.”  The consumer has been given a directive and no real disclosure occurred.

I can appreciate that this might cause some discomfort to many REALTORS® who themselves have not learned what the disclosures really say and therefore could not adequately explain it to their clients.  Accustoming to leaving the details of the transaction to the builder’s sales person (who is not your client’s agent)  or the title closing person (who is not your client’s agent) many of today’s REALTORS® have slipped into negligence by default. I vaguely recall something about fiduciary responsibility in the Code of Ethics of the National Association of REALTORS® related to looking out for your client’s best interests.

This discussion of disclosures is at the heart of today’s foreclosure problem. I carefully used the word foreclosure, not predatory lending.  Many of the loans which are leading to foreclosures in this area not sub prime and would not be identified as predatory.  Foreclosures in new construction, with FHA And VA loans, made by prime lenders are seeing foreclosures in record numbers in the past 3 years.  At the same time that Indiana is making the news with unprecedented new housing starts, unprecedented numbers of consumers who are building are losing those homes within 3-5 years of taking possession.    New fangled loan programs, many with no down payment from the buyer and woefully inadequate reserves for taxes, coupled with variable rates and higher income/debt ratios are pushing a lot of people over the edge.  Many consumers say they would not have gotten the loan had they understood the __________________ disclosure ( fill in the blank—prepayment penalty, variable rate rider, escrow account, balloon payment, choose one for yourself).

The foreclosure rate is Indiana is at epidemic  proportions.  While legislation is being debated back and forth and education efforts are gaining support, the  real estate industry might do well to raise discussions about how to clear the mud which covers disclosures.  It’s yet another opportunity for REALTORS® to take the lead in taking corrective action to help stem the growth of this problem which threatens to undermine the financial stability of our communities.

We might start the new year with the really radical idea of a major overhaul of the entire closing process so that 2 hours were allowed for the closing so that consumers could have the documents explained at a pace and in a way which was meaningful.   Dramatic change and with a cost, but is the cost less  than what we are currently paying in the way of foreclosures?  Would the use of attorneys by both parties at all closings be a better option as several states currently do? The foreclosure situation is serious enough to demand new and creative solutions. LET THE TALKS BEGIN !!!

Mildred Wilkins is President of Home Ownership Matters.  HOM offers professional training and Education for real estate professionals and consumers on financial literacy and predatory lending.

Contact Mildred at (317)  251-3362. 

 

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