Dick Hargis Presentation June 2011 Legal Update
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Transcript of Dick Hargis Presentation June 2011 Legal Update
HAR MANAGEMENT CENTRALLEGAL UPDATE
Dick HargisVincent Lopez Serafino Jenevein, PCJune 22, 2011
THE NEW, IMPROVED DTPA (At Least For Real Estate Licensees)
Important Federal Issues
Ethics Citation Program
THE NEW DTPA
THE NEW DTPA
Exempts real estate brokers and salespersons from DTPA claims except for claims of:
A) an express misrepresentation of a material fact that cannot be characterized as advice, judgment, or opinion;
B) a failure to disclose information in violation of Sec. 17.46 (b)(24); or
C) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion.
THE NEW DTPA
The below laundry list items typically form the bases of a DTPA claim against brokers. (5) representing that goods or services have sponsorship, approval,
characteristics, ingredients, uses, benefits, or quantities which they do not have or that a person has a sponsorship, approval, status, affiliation, or connection which he does not;
(7) representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another;
(12) representing that an agreement confers or involves rights, remedies, or obligations which it does not have or involve, or which are prohibited by law;
(24) failing to disclose information concerning goods or services which was known at the time of the transaction if such failure to disclose such information was intended to induce the consumer into a transaction into which the consumer would not have entered had the information been disclosed;
New law knocks out (5) (7) and (12). That’s something, but not the whole ball of wax.
THE NEW DTPA
So, What’s left? A) an express misrepresentation of a
material fact that cannot be characterized as advice, judgment, or opinion;
B) a failure to disclose information in violation of Sec. 17.46 (b)(24); or
C) an unconscionable action or course of action that cannot be characterized as advice, judgment, or opinion.
IMPORTANT FEDERAL ISSUES
Issue 1 – Reauthorization of the National Flood Insurance Program (NFIP)
NAR’s top priority issue for HAR Urge passage of H.R. 1309 - The Flood Insurance
Reform Act of 2011(Biggert, R-IL; Waters, D-CA) Extends for 5 years, NFIP’s authority to issue flood
insurance which is not available in the private insurance market, except for the wealthiest property owners.
Reform the NFIP to strengthen participation and put the program back on the path to fiscal solvency.
IMPORTANT FEDERAL ISSUES
Issue 2 – Qualified Residential Mortgage (QRM) Standard
Dodd-Frank and Consumer Protection Act Requires financial institutions to retain at least 5%
of the credit risk. Exempts qualified residential mortgages (QRMs)
from the requirement
IMPORTANT FEDERAL ISSUES
Issue 2 – Qualified Residential Mortgage (QRM) Standard (cont’d)
Now federal banking regulators have released a proposal to create qualified residential mortgages or QRMs. The proposed standards would require an 80% loan-to-value, which requires a 20% down
payment would limit the mortgage payment to 28% of gross income and
limit all debt to 36% Federal Regulators are accepting comments on the
proposed rules through August 1, 2011 39 U.S. Senators signed a letter to regulators
expressing the Senatorial intent on QRM and opposing the imposition of a sizable down payment
163 House Members signed a similar letter
IMPORTANT FEDERAL ISSUES
Issue 3 – Preserve the Mortgage Interest Deduction (MID) Urge Members of Congress to Co-Sponsor H.Res. 25,
expressing the sense of Congress that the current MID should be preserved AS IS
The following Houston-area Members of Congress have signed on: John Culberson Al Green Gene Green Shelia Jackson Lee Ron Paul Ted Poe
Average MID per home owner is $2,489 in Texas Estimates of a loss of 19% of home value in Texas Curtailment of MID is a new tax on home owners
IMPORTANT FEDERAL ISSUES
Issue 4 – Government Sponsored Enterprise (GSE) Reform Major issue on the horizon Preservation of 30-year fixed rate mortgage, requires some
federal government role NAR supports the objectives, though not all the specifics, of
H.R. 1859 – The Housing Finance Reform Act of 2011 Preserves the 30-year fixed rate mortgage Unwinds Fannie Mae and Freddie Mac, replacing them with private
companies Maintains federal-government backed securities
NAR opposes H.R. 1182 (Hensarling, R-TX) and S. 693 (McCain, R-AZ) – The comprehensive GSE reform bills would effectively shut down Fannie Mae and Freddie Mac.
CITATION PROGRAM
Effective January 1, 2011
Faster Resolution of Ethics Complaints
Anonymous Complaints an Option
CITATION PROGRAM (cont’d)
What articles are bases for citation Art. 3 - Cooperation with other brokers
except when not in best interest of client
Art. 4 - Disclose ownership interest when buying or selling property
CITATION PROGRAM (cont’d)
Art. 5 - No professional services for property
REALTORS have a present or
contemplated interest without full
disclosure
Art. 6 - No commission, rebate or profit on expenditure for
client without client knowledge or consent
Art. 12 - Present true picture in advertising
CITATION PROGRAM (cont’d)
Art. 14 - REALTOR must cooperate in professional standard
proceedings
Art. 16 - REALTOR shall not interfere with
exclusive representation agreement
that other REALTORS have with
clients
CITATION PROGRAM (cont’d)
REALTOR who receives citation can ask for full hearing
Salesperson’s Designated REALTOR is notified of citation
Fines 1st offense - $300 and NAR Ethics Course 2nd offense - $600 3rd offense - $900