Special offer

Long & Foster CEO's Email To Agents Not Using Prosperity Mortgage. Going too far?

By
Real Estate Broker/Owner with Northern Virginia Homes - FRANKLY REAL ESTATE Inc

I rarely write commentary about news articles but this one stood out.

I was intrigued by Dina ElBoghdady's exposé today: Realtor Discourages Use of Outside Lenders, Long & Foster Pushes Own Mortgages, where she questions an email sent by P. Wesley Foster Jr. Mr. Foster to all Long & Foster agents.

She (Dina, not Frank) wrote, "[The email] chastised his workers for funding mortgages through Bank of America more than 2,200 times last year [vs using L&F owned Prosperity Mortgage]."

Flashback/Prognostication (wow that really is a word!), I wrote about this topic months ago with my "Affiliated Business" or Illegal Kickbacks? post.

RESPA is a rule that  bans kickbacks in real estate transactions. However some companies have gone the technicality route and found ways to comply with the law, but perhaps not with the intent.

While using an "affiliated partner" should not result in money being put directly in an agent's pockets (Remax  found a way to give partial ownership in title companies to Remax agents), how is that different than what Foster said when he says he "wrote the memo to make agents understand that each time they use Prosperity, they're helping Long & Foster, which in turn enables the company to provide better resources and more advertising for agents."

Let me break it down:

"Illegal" as per RESPA:

  1. Agents tell customers to use partner.
  2. Agents receive a cash kickback or profit sharing. 

"Legal"? 

  1. Agents tell company to use partner.
  2. Company receives benefit.
  3. Company gives agent more advertising (indirect benefit). 

Um... Ok, got it! 

Now there is nothing wrong with having reliable partners (lenders, title companies etc.). And Wes Foster even had a great marketing program that offered $5,000 in mortgage payments if a deal went sour with their lender. As an agent, you don't want your client using some web bank that has no loyalty to the customer, or agent. Somebody that won't care if they pull the rug out from under you at the last second. Instead you want accountable partners with track records for getting the deal done.

But there is a fine line from a recommendation from an agent receiving ANY benefit, direct or indirect from that referral. And even if the client signs 37 disclaimers saying they are being referred to a partner.

I have loan partners. I don't allow them to give me kickbacks (direct or indirect) beyond a $10 sandwich (trust me, I could get free lunches for a year if I wanted to let any lender take me to lunch). 

Also I know a top producing agent at Weichert that isn't allowed to say that she is #1 in the office since she doesn't use the partnering lender or title companies. While this isn't a monetary incentive (kickback), it is similar in that it is a penalty for not funneling deals to their partners.

Why this is important for buyers:

You need to know who is recommending what, and what benefits that person is getting. Otherwise abuse in the system can lead to price gouging. There is currently a case against Coldwell Banker where even though their agents got disclaimers signed, the suit questions whether the agent acted in their fidiciary duty and routed clients to overpriced partners.

Have you experienced pressure from your broker to use "partners?"

- Written by Frank  Borges LL0SA- Broker FranklyRealty.com 

(please report typos)

Anonymous
brucerealtor (at) gmail
Frank -- thank you for you clear and interesting interpretation of RESPA.

As I understand what you have said, a broker operating within the LETTER of the law [RESPA] may provide 'semi-indirect' benefits to ALL AGENTS in the form of marketing money.

When I was with L&F,
such funds were available to agents who used them CONSISTENTLY. Bethesda Avenue new agents were also eligible for 'Dottie Dollars' for marketing efforts and while it was never explained where those Dollars came from, one would usually presume they came from the broker's cut of commissions, though they might possibly come from corporate as well.

Even though Wes is [or was] a lawyer, attempts by way of any civil action to penalize a lawyer for skirting the 'intent' of the law, would require both clear proof of the 'intent' [legislative history with no dissent] and a disciplinary proceeding to boot, since only there might a hearing committee go for such an argument. Lawyers who are primarily businessmen and who have corporate counsel[s] should not be held to account IN MY OPINION for a law's intent, where they comply with its letter.

Speaking only for myself, I would hope to never see such a complaint to the GCAAR Grievance Committee, for absent far more, I would argue for its summary dismissal.
Nov 06, 2007 06:04 AM
#42
David Conaway
MetLife Home Loans - Bethesda, MD

I don't think we're talking about litigation.  I think there is a need to address the intent of RESPA and whether or not ABA's allow for an ethical and legal loophole under the intentions of the original Act.  Clearly RESPA is dead as we once knew it.  

Someone noted that buyers are presented with all the required disclosures.  A few disclosures may make it legal but is it ethical?  Under RESPA a lender can charge excessive points and as long as the borrower signs a high cost loan disclosure, three days prior to close, it's "ok".    They signed the disclosure therefore its ethical?  No.  It may be legal but it isn't right. Today RESPA is an obstacle easily avoided with cumbersome business arrangements that clearly act opposite of its intentions.

Then again, it all depends on what your definition of is is.

Nov 06, 2007 07:19 AM
Scott Daniels Florida Real Estate 2.0. Agents Earn 100% Commission.
Florida List For Less Realty, Inc. Broker/Owner. - Cooper City, FL

Frank,

I think P. Wesley Foster Jr. has a point! many owners feel the same way about their agents doing something like this as well.

I fail to grasp where Mr. Foster`s opinion is wrong.

"He chastised his workers for funding mortgages through Bank of America more than 2,200 times last year and through Wells Fargo instead of using Long & Foster's affiliate, Prosperity Mortgage. This comes at a time when home sales have slowed significantly.

 

Neither of these companies do anything to support Long & Foster over its competitors, nor does SunTrust, Chevy Chase, or any of the other many lenders in your marketplace," Foster wrote in the e-mail sent Wednesday. In fact Bank of America recommends other companies as their preferred realty firm over each of you right on their own Website."

If this company gave that much business to Bof A, i`d be yelling and screaming as well, and you know what, so would the majority of people here..

Nov 06, 2007 09:30 AM
Tracy Santrock
Santrock Realty Group Inc. , - Cary, NC
Raleigh - Cary Broker
My corporation was recently purchased by Long and Foster and we, too, have our own lending group.  I certainly hope they don't take it this far.  I know there have been "subtle" hints about using FM Mortgage but never anything blatant.
Nov 06, 2007 10:27 AM
Anonymous
brucerealtor@gmail.com

Frank

 

Thank you for the invite to this web site.

 The reason for the 'rule of 3' when it comes to 'referrals,' is actually quite simple.

 

It is the TORT known as NEGLIGENT REFERRAL and it is alive and well in most jurisdictions.  Now I don't believe it was ever really intended in any negligent referral case, for a PROFESSIONAL [Licensed] person to MERELY hand out 3 totally unknown names to anyone.  Implicit in the term 'referral,' is both a conscious decision to direct [or redirect] a CLIENT [or anyone with whom a fidicuary relationship may exist] to another COMPETENT professional [usually licensed] for further assistance.

 

The problem with the SINGLE referral is WHAT IF that individaul has either an alcohol or drug problem, presumably not known to the referring source, who during the course of rendering counsel, advice or a product suddenly is rushed to the hospital as a result of excessive use.  What if an 'intervention' is done, where POSSIBLY one of the 'incentives' is avoiding being charged with a crime CONDITIONED ON IMMEDIATE entry into a rehab, etc.  With lawyers suppose a case is never completed and a statute of limitations is passed?

 

Courts have virtually universally held that SO LONG AS 3 or more names were offered to the referred individual, where THEY make the choice, there is then NO DEEP POCKET available from any referring individual's E&O coverage.  Now offer 3 names and wisper, 'but  REALLY suggest X,' no problen -- until there's a problem.

 

Pain in the ass it is perhaps, but the remedy is to know OF at least 3 highly competent folks you can refer to.

 

Now as far as Wes goes, managing independent contractors is still like 'herding cats.'  MIAO 

Nov 06, 2007 10:42 AM
#46
New Jersey Real Estate James Boyer Morris, Essex & Union County NJ Realtor
RE/MAX Properties Unlimited, Real Estate - Morristown, NJ
I like to refer business to my friends and allies in the business, not the company related mortgage people.  I always give 3 or 4 choices and let the customer decide for themself who is best for them.
Nov 07, 2007 12:23 AM
David Conaway
MetLife Home Loans - Bethesda, MD

"There is only one lender that is solely dedicated to you. Prosperity Mortgage was created and still exists today with the primary purpose of serving you. Many other Real Estate companies will not use Prosperity because they are tied to this Long & Foster name, but that's okay with me. When we started this mortgage company, we created it to serve our agents - each of you."

 

I may be wrong but isn't the primary goal to serve the client?  This email reminds me of the Bad Idea Jeans ad on Saturday Night Live. 

Actually it's not as bad as the post made it out to be.  Still think ABA's are a joke but that's me.

Nov 07, 2007 07:07 AM
FRANK LL0SA Esq.- Northern Virginia Broker .:. FranklyRealty.com
Northern Virginia Homes - FRANKLY REAL ESTATE Inc - Arlington, VA

Hey David,

Great comment.

One could interpret it that way. I'm sure the counter-argument will be the "serving you" refers to "helping the client with a great transaction."

Frank 

Nov 07, 2007 07:57 AM
Fran Gaspari
Patriot Land Transfer, Inc. - Limerick, PA
"The Title Man" - Title Insurance - PA & NJ

Frank,

Reading between the lines and cutting to the chase, this line says it all: "This year, Bank of America was used over 2,200 times for mortgages by our agents". Did it ever dawn on anyone that maybe, just maybe in more than a few of those 2200 times, that it was the consumers exerting their rights to choose Bank of America??? Or any other real estate service provider for that matter...so much for 'bungled', errr I mean 'bundled' services! Let's give the consumer credit for doing some things right!!! Thanks,   Fran

 

Nov 07, 2007 08:26 AM
FRANK LL0SA Esq.- Northern Virginia Broker .:. FranklyRealty.com
Northern Virginia Homes - FRANKLY REAL ESTATE Inc - Arlington, VA

Check out the post from Shawn Harris Response to The Washington Post Article entitled "Realtor Discourages Use of Outside Lenders"

She talks about her experienceas a top producer at Long and Foster and the awards that agents received for referring deals to the ABA. Sounds like bonuses to SPECIFIC agents that give business.

Is that crossing the line? 

Nov 26, 2007 01:18 PM
Lewis Poretz
Apex Home Loans - Annapolis, MD
Business Development Manager

wow -  just read the L & F letter......      i have no intentions of playing favorites or stirring anything up other than give my opinion -   which is as  follows...

it seems as if business is down for L & F and they are trying to maximize profits by keeping lending in house. That is all good but the letter to me comes off as a plea. If Prosperity is all that good, it should go without saying that L & F agents would use them. Maybe if the leaders at L & F concentrated on quality employees at Prosperity they could keep those loans with their sister company???  I have yet to meet a L & F agent with anything good to say about Prosperity mortgage consultants.

I also know that if I opened a title company and composed a letter like the one we all have read above, my office would become a mutiny. I think that letter came off more as a plea than anything else.

With all that said, I think what that letter really does is open up more selling opportunities for mortgage companies like mine. Thank you Mr Foster.


Nov 26, 2007 02:06 PM
Mike Norvell Sr
Morris Williams Realty - Leesburg, FL
Norvell Consulting Group

I started my career with an ER _(A) franchise. There was considerable pressure to use the inhouse mortgage company whose name started just like ours did. If you had a customer who had a relationship with any other lender, was pre approved with check in hand, it did not matter. The in house lenders agent would be in their face attempting to roll them over into that company. If it was a cash deal, they would take our files and call the customer and attempt to convert them. I thought this was a breach of ethics, privacy, and respa rules. I made it clear that I did not wish to use the lender, and actually ran an ad in a local glossy color magazine with another local mortgage company that had been doing a great job for me.

I got called in for a Private Chat, to which I asked them to please put this conversation in writing and I would forward it on to DPR. Furthermore, I made it clear I did not want any further interference on my deals with the inhouse lender...SO for those who say there is no pressure to use ABA vender's, they are naive. My partner and I quit there and went somewhere else, and our first question was do we have to use a certain lender to get our deals done...Of course not was the reply...We signed up

Nov 30, 2007 04:28 AM
FRANK LL0SA Esq.- Northern Virginia Broker .:. FranklyRealty.com
Northern Virginia Homes - FRANKLY REAL ESTATE Inc - Arlington, VA

Good for you MIKE!

Thanks for sharing

Frank

Nov 30, 2007 05:31 AM
Fran Gaspari
Patriot Land Transfer, Inc. - Limerick, PA
"The Title Man" - Title Insurance - PA & NJ

Frank,

Check out this recent post!!! Thanks,   Fran

Nov 30, 2007 05:46 AM
Kate Elim
Dockside Realty - Spotsylvania, VA
Realtor 540-226-1964, Selling Homes & Land a

Frank...Through the years I have worked for three companies, one a small locally owned company, one a major company and now with a RE/MAX franchise.  None of them have ever asked me to use a particular lender.  I am very thankful because I would have had to move on.

Thanks for posting this.  I wasn't even aware this happens.

Kathleen

Dec 02, 2007 01:04 PM
Tchaka Owen
Galleria International Realty - Hollywood, FL

Frank, an interesting Prosperity thing happened that I thought I'd share with you.  I spoke with a friend in Maryland very recently who considered buying a condo and wanted my opinion.  She'd submitted an application with Prosperity Mortgage in Olney, MD and when I asked if she'd been dealing with a L&F agent, in a very surprised voice she asked how I knew (hmmmm.....).  I probed her about all that occurred and I can report positively about the agent and negatively about the loan officer.

The agent has a preferred lender (not Prosperity) she provided to my friend.  When my friend couldn't get through, the agent gave the Prosperity LO as a backup.  Now I realize that an agent should provide 3 lenders, nevertheless I won't hold that against this agent as she did provide a primary and secondary choice.

Unfortunately, the loan officer did not perform to the level of the agent.  Due to unfortunate circumstances my friend has a BK from several years ago.  The LO said that she needed to write a letter of explanation.  I informed her that if so, it's not a big deal, just tell why and be forthright about her situation.  She informed me that the LO told her to write some tale about her boyfriend screwing her over and leaving her with all these debts that overwhelmed her, etc.  I'm thinking "WHAT?!!"  Why in the world would she have to lie?  I told her there was  no reason whatsoever to fabricate anything and to always be honest with a mortgage application.  She was so disgusted she decided to rent for another year.  Fortunately for this person she's not reporting him.

 

Dec 19, 2007 06:53 PM
Tchaka Owen
Galleria International Realty - Hollywood, FL

Let's get a few things clear:

1.  What is written in this post is true.  

2.  If you see it as self-serving, that's your problem. 

3.  I will use terms like "friend" because I will respect the privacy of an individual until I am given permission to reveal identity I won't.  Given that this person was my next-door neighbor for several years, whom I hung out with, I trust her word more than I would most others.  I urged her to report this incident, however I cannot make her do so.   

4.  There is nothing in the post that speaks negatively of Wes Foster.  If you disagree, then re-read my post.  And keep doing so if you must.  

 

Dec 20, 2007 02:35 AM
Tchaka Owen
Galleria International Realty - Hollywood, FL

But you continue to bicker.....

Since you have an apparent problem with comprehension, I will reiterate that it's up to the individual to move forward with that.  Re-read Point #3.

My affiliation with HomeFirst has nothing to do with whether or not someone else in the industry has a less than ethical way of doing business.  But nice try.

I once ordered a laptop that had problems from the outset.  I did not directly or indirectly blame Michael Dell.  I do not believe he was the cause, though using your logic I could argue that he oversees the people who are in charge of manufacturing.  And going down the line someone hired the person who delivered that faulty laptop to me.  So somehow Michael Dell is to blame.  Therefore at the very least this bad apple in Prosperity is somehow Wes Foster's fault.  Thumbs up to you for showing me the light.

Until you log in to post, don't expect a response from me.

Dec 20, 2007 03:39 AM
This Account No Longer Exists
Inactive Account - Woodstock, VA
Great Post FRANK LL0SA for sure, This has been a hot topic for a while not only with long and fister but just about every large rela estate broker firm out there that has expanded since the boom in 2003. What about the builders offering closing costs assistance if and only if you use their closing attorney and their prefferred lender???? I have easily lost 20 million in business because of this , even though i beat the rate and offer lower closing costs than the " prefferred lender". keep it going....
Mar 27, 2008 05:39 AM
David Saks
Memphis, TN
Broker / Industry Analyst
Whew ,Frank, good post. Lender's are not allowed to pay any form of 'referral fee' in order to acquire business as we all know. A referral fee can be any thing of value, even something as small as a stick of gum. If anyone has received something of value for referring someone to a lender, that lender is violating RESPA, and probably going to get nailed. I believe Mr. Foster's email was inappropriate. Thanks for sharing this article.
Mar 31, 2008 08:30 AM