Predatory Lending
By Robert Rafii, Esq. | Legally reviewed by Robert Rafii, Esq. | Last reviewed April 05, 2024
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Predatory lending practices have exploded in America. They impact many areas of daily life, from home mortgages to unauthorized lines of credit for small businesses. Predatory lending can leave families saddled with unmanageable debt. This debt can be:
- Unaffordable monthly payments on home loans with high-interest rates
- Damage to personal credit scores and business credit lines
- Higher overall living costs
How can consumers guard themselves against predatory loans? This article will alert borrowers to common predatory lender practices in real estate. Our goal is to help home buyers and homeowners recognize and steer clear of trouble, especially on their mortgage loans.
What Is Predatory Lending?
Predatory lending involves:
- Forcing high-cost loan terms and excessive fees upon unsuspecting borrowers
- Usually through aggressive and deceitful lending tactics and sales tactics
- Manipulating a borrower’s ability to understand complicated transactions
- Deception regarding high fees, such as higher interest rates and large loan amounts
Predatory lending imposes unfair and abusive loan terms on vulnerable people. For example, it can take the form of a door-to-door solicitation scam. It usually targets those who:
- Are financially struggling
- Have few loan options due to their credit reports
- Don't speak English as their first language
- Are not financially savvy
Predatory lending disproportionately impacts people of color, immigrants, women, and older people. While predatory lending can be criminal, that's not always the case. There are ways that mortgage brokers and unethical appraisers can legally take advantage of consumers.
If You Hear These Phrases, Proceed with Caution!
Certain lies and half-truths are common with predatory lenders. If you encounter any of these, tread carefully:
- “This is your only chance to get a loan to own a home."
- “We'll fill in the blank lines (on the sales contract or loan documents) later"
- “We will talk to the mortgage lender ourselves. Don’t worry about who they are.”
- “The Federal Housing Administration or Federal Trade Commission has credit insurance that protects you against loan fraud." (It does not.)
- “This mortgage lending or refinance solution will solve your credit report problems."
- "You can get a good deal if you finance it with this particular mortgage lender."
If it sounds too good to be true, there's a very good chance that it is. When in this situation, consider reaching out to a real estate attorney for advice and protection.
Examples of Predatory Lending in Real Estate
The U.S. Department of Housing and Urban Development (HUD) offers guidance to prospective buyers who could be the victims of predatory lending or loan fraud. Don't Be a Victim of Loan Fraud alerts buyers and sellers to red flags. Such red flags may signal they are working with a predatory lender, mortgage broker, or appraiser.
Borrower Beware
Some of the common red flags to watch out for include:
Encouraging Misrepresentation: Did a lender or broker encourage you to lie or misrepresent your income, expenses, or cash available for a down payment? An unscrupulous lender may encourage a potential borrower to provide a business income/expense sheet that projects a rosier financial picture than is reasonable for the borrower's business.
This optimistic projection may not be an overt lie, but by pushing the bounds of what is realistic it also pushes the bounds of what is ethical. If a lender is encouraging you to sign a self-attestation form that grossly exaggerates your anticipated cash flow, that's a red flag.
Knowingly Lending More than a Borrower Can Afford: A loan originator uses income information to determine loan eligibility and the applicant's ability to make mortgage payments. They usually review two years' worth of pay stubs and tax returns to determine if there is a reasonable expectation that the borrower will continue to make enough income to pay on the loan. They want to make sure their income is stable and dependable.
A lender may violate federal laws by failing to consider all eligibility factors and requiring full disclosure of a borrower's financial picture. This is a red flag that the lender doesn't care if you can afford the loan you will receive.
Balloon Loans: Several loan options look good at the beginning but are very bad by the end. These loans save money for a select few, but for most buyers they're burdensome. If your lender or broker is pushing you into a balloon mortgage without explaining all of the pros and cons, it's a red flag. Make sure you understand the full terms of the loan.
A balloon loan doesn't follow a consistent amortization schedule over the life of the loan. With a balloon loan, you make a balloon payment at the end. You may pay less at the beginning and more as you get closer to the maturity date. If your income is rising, that might be okay. If your income stagnates or you lose your job, you'll find yourself in hot water.
Interest-only Payments: Interest-only loans can be difficult to pay off. During their interest-only phase, the principal remains the same. Until the loan is re-negotiated, none of the money the borrower has paid is applied to the principal. You owe as much as you did in the beginning despite making full payments.
Pre-payment Penalty: A pre-payment penalty punishes the borrower for paying off their loan early. It effectively locks the borrower into paying long-term interest. This is not just a red flag. It's outright predatory lending and illegal under predatory lending laws.
The only exception is if the lender discloses this loan condition before the borrower signs the paperwork. The Truth in Lending Act requires the lender to provide full information to you about the terms of the loan.
Discrimination: Discrimination is illegal under both The Fair Housing Act (FHA) and The Equal Credit Opportunity Act (ECOA). Some borrowers are offered higher-interest loans based on their race or national origin instead of their credit history.
Your realtor or real estate attorney may be able to advise you of typical interest rates in your area. If the loan you are being offered is higher than that, you may want to speak to other lenders.
Charges for Nonexistent Products and Add-On Loan Services: When you're looking at the lengthy mortgage document that outlines all of the costs you'll be paying to originate your loan, there could be many terms you don't understand, all of them with a dollar sign attached. If fees add up to more than 5% of your loan, you may want to question the loan officer.
Other junk fees that can sometimes be negotiated or removed if you question them include:
- Application fees
- Underwriting fees
- Mortgage rate lock fees
- Loan processing fees
- Broker rebate fees
Consolidating Debt: The U.S. Department of Justice warns borrowers about the risk of home foreclosure. This can happen if they agree to consolidate their home mortgage and credit card debt into a new loan with their home as collateral. It puts the family home on the line for repossession. This can also result in equity stripping, where you lose home equity due to the consolidation.
False Appraisals: A false appraisal can be an intentional act of fraud. It happens when an appraiser deliberately overstates the value of a property to get more business from a realtor, seller, or buyer in the future.
An appraiser might have lax ethics, which means they could be choosing sales comparisons that come closer to the sales price the buyer wants to achieve. While this might help a borrower with their loan approval, the home buyer winds up with more debt than they needed to take on.
The appraiser becomes an accessory to a predatory lender. Due to their potential for intimate involvement in predatory lending, the appraiser might even be named as an additional defendant in a mortgage fraud lawsuit.
Cash-out Refinancing: This egregious loan tactic targets vulnerable borrowers in need of cash due to medical issues, unemployment, or debt problems. When the borrower refinances, they receive cash in exchange for the equity in their home that they have built over time.
The borrower can use that cash to pay down higher-interest debt, but their mortgage interest rate may be higher than what's available elsewhere. Worse yet, lenders may convince borrowers to do this again and again when they are once again in debt. If a predator keeps encouraging you to refinance to pull out more money, they may be engaging in illegal loan flipping.
When the homeowner sells, they may see little gain for all of those years of payment. They can easily find themselves underwater on their mortgage, owing more than their home is worth.
Not all cash-out refinancing opportunities are predatory by default. In certain circumstances, cash-out refinancing can make financial sense. Make sure you understand all aspects of any refinancing plans you're considering.
Related Articles
Talk to a Real Estate Attorney
Predatory lending can turn the American dream of homeownership into a nightmare. To protect your interests, do your research before signing on the dotted line. See the related articles above for more information about your rights as a borrower.
If you believe you have been the victim of predatory lending, talk with a real estate attorney in your area.
Next Steps
Contact a real estate attorney to help you navigate mortgages or home equity loans.