by Calculated Risk on 3/18/2010 07:59:00 PM

In a recent email to agents on March 16th, the California Association of Realtors (C.A.R.) points out that making undisclosed 2nd lien payments in a short sale transaction could be a crime and punishable by up to 30 years in prison.

The email points out that undisclosed payments might violate HUD's RESPA (Real Estate Settlement Procedures Act) and laws against loan fraud.

In addition any agent participating in the scheme might be subject to disciplinary action and could have their license revoked.

Apparently the requests by 2nd lien holders are common. The C.A.R. reported: "Short sale agents have increasingly reported to C.A.R. about requests for agents and their clients to pay junior lienholders and others, often times outside of escrow."

Although the email doesn't address possible criminal activity of 2nd lienholders, it would appear the junior lienholders are soliciting a crime if they ask for a payments and suggest that the payment not be disclosed on the settlement documents. Properly disclosed payments to junior lienholders are perfectly fine and legal.

I doubt law enforcement will pursue individual homeowners, so probably the best way to end this practice is to report the requests for payments outside of escrow by 2nd lien holders (name of person and company holding the junior lien) to either HUD or the FBI.

This possible fraud was first reported by Eric Wolff at the North County Times: Wrinkle raises questions in home short sales, and by Diana Olick at CNBC: Big Banks Accused of Short Sale Fraud

Perhaps this version of short sale fraud is finally getting the attention it deserves ...