Under Colorado law, mortgage fraud is a type of theft involving
- mortgage loans,
- titles, and
- property transactions.
In this article, our Colorado criminal defense lawyers will address:
- 1. What is mortgage fraud in Colorado?
- 2. What are the penalties for a conviction for mortgage fraud in Colorado?
- 3. What are common mortgage fraud schemes in Colorado?
- 4. How can I defend against a criminal charge for mortgage fraud in Colorado?
- 5. What other criminal charges are related to mortgage fraud in Colorado?
Mortgage fraud in Colorado involves theft by deception, where the “underlying factual basis of the case involves the mortgage lending process. Any type of fraud or deception in the mortgage lending process can result in criminal mortgage fraud charges.”1
The “mortgage lending process” is “the process through which a person seeks or obtains a residential mortgage loan.” This may include:
- Solicitation, application, or origination of the mortgage loan;
- Negotiation of loan terms;
- Third-party provider services;
- Underwriting the loan;
- Signing and closing;
- Funding of the loan; and
- Perfecting and releasing the mortgage.2
The “mortgage loan” is “a loan or agreement to extend credit” that is “secured by a mortgage or lien.” Under Colorado’s mortgage fraud statute, it includes “the refinancing or renewal of a loan secured” by the real estate.3
Mortgages are complex transactions that involve multiple individuals, businesses, and institutions. This includes the owner of the real estate property, the potential buyer, land the lender or lenders. Participants in possible mortgage fraud may include anyone involved in the lending or purchasing process, including:
- The buyer. This is the party who is interested in purchasing the piece of property.
- The borrower. This is the party who initially receives the money from the mortgage loan. The borrower is generally the same as the buyer, but in some cases of mortgage fraud, it is not.
- The seller. This is the party who is looking to sell a piece of property. The seller is generally the owner of the property. However, in many cases of mortgage fraud, though, the alleged seller does not own the property.
- The owner. This is the party who owns the property. In mortgage fraud cases, the owner could be the party who commits fraud or the party who is defrauded.
- The appraiser. This is the party who looks at the property for sale and estimates how much the property is worth.
- The lender. This is usually a bank or financial institution that provides the money for the mortgage loan and gives it to the borrower. Sometimes, the lender is a so-called “warehouse lender.” Warehouse lenders provide the money for the mortgage loan and give it to the borrower, but then sell the rights to the loan to other investors.
- The loan officer. This individual works with the lender. He or she is the point of contact for anyone trying to get a loan from the lender that is related to the sale of real estate or mortgage.
- The underwriter. This individual works with the lender. He or she decides whether to approve the borrower’s application for the mortgage loan. In making this decision, the underwriter considers factors like the borrower’s income, age, employment, credit score, and the appraised value of the property.
- The mortgage broker. Not to be confused with the loan officer, this is the person who connects people who need a mortgage with banks or other institutions who provide them. The mortgage broker makes a commission by connecting the two.
- The real estate agent. This person tries to find a buyer for the property that is for sale. The agent earns a commission for completing the transaction. In some cases of mortgage fraud, the agent is not doing what the real estate company tells them to do.
- The title company. This company verifies that the seller of the property actually owns the property. They examine the title to the property and its record of ownership. They also note any liens on the property that might hurt its value.
There are a number of important documents involved in mortgage fraud schemes. These include:
- The title. This document is proof of ownership of a piece of property.
- The title opinion. This document typically comes from a title company. The title opinion details the title company’s investigation into who actually owns the property.
- The mortgage deed. This document gives the lender of a mortgage a lien, or security interest, in the property bought with the mortgage loan. If the mortgage deed is a warranty deed, it comes with a guarantee that the grantor of the deed – often the seller – has title to the property. If the deed is a quitclaim deed, then no such guarantee is given.
- The loan application. This collection of documents is sent by the borrower to the mortgage broker, or directly to the lender or the lender’s agents. The loan application contains important information on the borrower’s ability to repay the mortgage loan.
- A verification of deposit. This document is proof that the borrower has enough to make a down payment on the property. It is often used as part of the borrower’s mortgage application to the lender.
- A verification of employment. The document used by the lender to ask the borrower’s employer to confirm the borrower’s employment and income.
- Form 4506. This is a document that lets the Internal Revenue Service (IRS) give lenders access to the borrower’s past tax returns. This helps lenders verify a borrower’s income.
The penalties for a conviction for mortgage fraud depend on the value of fraud, the accused’s criminal record, and the extent of the fraud. Mortgage fraud can be a misdemeanor or a felony offense in Colorado.
In addition to criminal penalties, anyone convicted of mortgage fraud will face a minimum fine of the amount of financial harm suffered in the fraud. For example, if someone is accused of defrauding a homeowner of $50,000, the minimum penalty would be $50,000.4
The court will not accept a guilty plea to another offense from someone charged with mortgage fraud unless the plea includes an agreement to pay restitution to the victims for any cost caused by the offense.5
Aside from minimum fines and restitution, the penalties for mortgage fraud are generally the same as the penalties for theft in Colorado. The penalties depend on the value of fraud, as follows: 6
|Amount of Fraud||Misdemeanor or Felony||Jail Time||Fines|
|$50 to less than $300||Class 3 Misdemeanor||Up to 6 months||Up to $750|
|$300 to less than $750||Class 2 Misdemeanor||3 to 12 months||Up to $1,000|
|$750 to less than $2,000||Class 1 Misdemeanor||6 to 18 months||Up to $5,000|
|$2,000 or more but less than $5,000||Class 6 Felony||12 to 18 months||Up to $10,000|
|$5,000 or more but less than $20,000||Class 5 Felony||1 to 3 years||Up to $100,000|
|$20,000 or more but less than $100,000||Class 4 Felony||2 to 6 years||Up to $500,000|
|$100,000 or more but less than $1 million||Class 3 Felony||4 to 12 years||Up to $750,000|
|$1 million or more||Class 2 Felony||8 to 24 years||Up to $1,000,000|
Additionally, if the victim is considered an “at-risk” individual under Colorado law, the defendant may face enhanced sentencing. At-risk individuals include people with a disability and elders who are age 70 or older. Mortgage fraud involving an at-risk victim is a felony.7
Mortgage fraud can happen anywhere during the mortgage lending process. A mortgage can involve small pieces of property or multi-million dollar deals. Common mortgage schemes include:
- Property Flipping
- Double Selling
- Equity Skimming
- Fake Loan Schemes
- False Down Payment
- Silent Seconds
- Schemes Targeting Distressed Homeowners
Flipping property can be a legitimate thing to do. Many people buy houses that have been damaged or that are undervalued. They then “flip” the property by fixing them up to increase their value, and sell the property at a higher price. This is perfectly legal.
Illegal property flipping can be fraudulent if no real value is added to the property. Instead, a buyer can purchase a property and have an appraiser inflate its value by making a false appraisal. The original buyer then turns around and quickly sells the property to another, unsuspecting, buyer. The original buyer and the appraiser then pocket the profit.
This mortgage fraud scheme is committed by the mortgage broker. The mortgage broker finds a legitimate real estate sale but connects the buyer with more than one lender. The broker gets an innocent buyer to fill out mortgage applications for each lender, often by having them sign several “copies” of the application.
The broker then sends the applications to each lender as originals. When the multiple lenders provide the loan, the broker pockets all but one of them, which goes to the buyer.
An equity skimming scheme involves purchasing real estate with a fake buyer.
This usually involves stealing someone’s identity and forging documents to create a mortgage application sufficient to get a loan. Once the mortgage loan is obtained, the real buyer – using the fake buyer’s identity – closes on the property. The real buyer then sells the property to himself – with the fake buyer’s identity acting as the seller – using a quitclaim deed.
Once this sham sale is completed, the real buyer rents the property and pockets the rent payments. The fake buyer disappears as the real buyer discards the identity. The lender then has no one to pursue and has no choice but to foreclose on the property.
This scheme is done by the seller who, after buying numerous low-value properties, offers to sell them to an investor. The seller says investor can expect to get rich quick as people rent the properties. The seller often convinces the investor that the properties are worth far more than their true value, and that the seller will find tenants for them that gives the investor a steady cash flow. This usually involves a fraudulent appraisal.
The seller then “chunks” the properties together and sells them to the investor well over their appraisal price. The seller then disappears without finding tenants for the properties, leaving the investor with a worthless and vacant property.
The Fake Loan Scheme
This mortgage fraud scheme is done by a mortgage broker. The broker invents a property buyer who needs a mortgage loan. This involves forging a loan application. If a lender approves the loan, the mortgage broker pockets the loan proceeds.
In other cases, the broker invents a piece of property, instead of a fake buyer. The broker convinces an unsuspecting buyer that the fake property is a good investment. The unsuspecting buyer applies to the lender for a mortgage loan. If the loan gets approved, the broker pockets it.
Finally, the broker can hire an appraiser to make a false appraisal of a piece of property. This significantly overvalues the property. A conspirator then acts as a buyer, with the broker sending his or her loan application to the lender. If the lender approves the loan, everyone involved in the fraud takes a cut.
False Down Payment
This mortgage fraud scheme is done by a buyer and one other party involved. The other party is usually the mortgage broker, though it can also be the seller or even the real estate agent.
The buyer and their conspirator create documents that make it look like a down payment has been made on the property. This makes it look like a mortgage loan is a safer investment than it really is. When the buyer then applies for a mortgage, they are more likely to get one on better terms.
Most mortgage loans require a down payment for the loan money to be disbursed. In this fraud scheme, the buyer takes out a second mortgage without notifying the lender – a “silent” second mortgage on the property. This second mortgage is then used to satisfy the down payment on the first one. This leaves the original lender in a riskier position than they expect to be in.
Schemes Targeting Distressed Homeowners
There are numerous mortgage fraud schemes that target struggling homeowners in Colorado.
A distressed homeowner is someone who has a mortgage but is struggling to make the necessary payments on the loan. They are often unaware of their rights and do not know how to reduce their payments to an amount they can manage.
One scheme is referred to as a “bailout.” Someone targets a distressed homeowner and offers to give them better interest rates on a re-financed property. Part of this deal involves the homeowner surrendering title to the property. Typically, the homeowner is led to believe that they will be renting the property, and will be able to buy it back at the end of the deal.
However, the conditions are deliberately impossible to meet. In the end, the distressed homeowner will be left without the title to the property and will have lost any equity they have put into it.
Another mortgage fraud scheme is to target a struggling homeowner and offer them “phantom help,” for a steep fee. Once this fee has been paid, the helping party makes the phone calls and files the paperwork that the homeowner could have done, on their own. The distressed homeowner often spends thousands of dollars for mere minutes of work, regardless of whether their assistance worked.
If you are charged with criminal mortgage fraud charges, you may have a number of legal defenses available. The prosecutor is generally required to show that the accused had both the criminal intent AND the knowledge of criminal activity. Your Colorado criminal defense lawyer cans use a number of defenses to these charges, including:
- No criminal intent to deceive
- No knowledge of any criminal activity
- Unlawful search or seizure
- No conspiracy
No Intent to Deceive
Mortgage fraud is a type of theft by deception. To deceive someone, you have to intend to lie or to falsely represent something. Deception cannot be done accidentally. It may be a defense to mortgage fraud charges if you did not mean to deceive anyone.
This can be an effective defense for people who have unknowingly passed on fraudulent documents during the real estate transaction. By claiming that you did not intend to deceive anyone, the prosecutors will have to prove that you were acting for the purpose of furthering the fraud.
Criminal investigators will sometimes create a situation to see if you will commit a crime. If they go too far, however, this can run afoul of Colorado entrapment laws. Actions which would otherwise be illegal may not be a crime if:
- The accused engaged in the activity because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and
- The methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced.8
Mortgage fraud investigations implicate your Fourth Amendment rights against unlawful search and seizure. Therefore, if police conduct a search or a seizure that is deemed unreasonable, whatever evidence they find will be excluded from court.
Charges of Conspiracy
Mortgage fraud schemes often involve more than one person in the transaction. In these cases, anyone who knows that the crime is going on and helps to further the crime may be guilty of conspiracy. A person conspires to commit a crime if:
- With the intent to promote or facilitate its commission, he or she agrees with another person or persons to engage in conduct which constitutes a crime or an attempt to commit a crime, or
- He or she agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.9
Charges of conspiracy in mortgage fraud are common. Mortgage fraud schemes can be complex and multi-layered. There are often co-conspirators who may not even know all the individuals involved. However, Colorado law still considers them co-conspirators, even though they do not know who the other persons involved.10
Committing mortgage fraud often involves committing other crimes, as well. Fraudulently obtaining a mortgage loan is rarely possible without also forging documents or making other misrepresentations. Prosecutors will often charge you for those infractions, in addition to charging you for mortgage fraud.
Here are some of the most common criminal charges you can face, in addition to a charge for mortgage fraud.
Identity theft in Colorado happens when you knowingly make a payment using another person’s personal or financial information, including their check or credit card. Identity theft is a felony, and penalties include 2 to 6 years in prison and a fine of up to $500,000.
Many mortgage fraud schemes involve appraising the value of a property above its true amount. Overvaluing a property in this way amounts to appraisal fraud in Colorado, which can be punishable by disciplinary action from the appraisal board and losing an appraiser’s license, in addition to criminal charges.
Forgery in Colorado involves falsely creating, altering, or presenting a written document with an intent to defraud someone Forgery is a class 5 felony in Colorado, with penalties including 1 to 3 years in prison, and a fine of up to $100,000.
Call us for help…
If you have been arrested for mortgage fraud, please contact us at Colorado Legal Defense Group. Our attorneys have many years of experience representing clients who have been charged with fraud in housing and loan transactions.
- C.R.S. 18-4-401 (9)(a)
- C.R.S. 18-4-401 (9)(e)(I)
- C.R.S. 18-4-401 (9)(e)(II) (“‘Residential mortgage loan’ means a loan or agreement to extend credit, made to a person and secured by a mortgage or lien on residential real property, including, but not limited to, the refinancing or renewal of a loan secured by residential real property.”)
- C.R.S. 18-4-401 (9)(a) (“If a person is convicted of or pleads guilty or nolo contendere to theft by deception and the underlying factual basis of the case involves the mortgage lending process, a minimum fine of the amount of pecuniary harm resulting from the theft shall be mandatory, in addition to any other penalty the court may impose.”)
- C.R.S. 18-4-401 (9)(b) (“A court shall not accept a plea of guilty or nolo contendere to another offense from a person charged with a violation of this section that involves the mortgage lending process unless the plea agreement contains an order of restitution in accordance with part 6 of article 1.3 of this title that compensates the victim for any costs to the victim caused by the offense.”)
- C.R.S. 18-4-401 (2) (“Theft is: (b) A class 1 petty offense if the value of the thing involved is less than fifty dollars; (c) A class 3 misdemeanor if the value of the thing involved is fifty dollars or more but less than three hundred dollars; (d) A class 2 misdemeanor if the value of the thing involved is three hundred dollars or more but less than seven hundred fifty dollars; (e) A class 1 misdemeanor if the value of the thing involved is seven hundred fifty dollars or more but less than two thousand dollars;(f) A class 6 felony if the value of the thing involved is two thousand dollars or more but less than five thousand dollars; (g) A class 5 felony if the value of the thing involved is five thousand dollars or more but less than twenty thousand dollars; (h) A class 4 felony if the value of the thing involved is twenty thousand dollars or more but less than one hundred thousand dollars; (i) A class 3 felony if the value of the thing involved is one hundred thousand dollars or more but less than one million dollars; and (j) A class 2 felony if the value of the thing involved is one million dollars or more.”)
- C.R.S. 18-6.5-103(“(5) Any person who commits theft, and commits any element or portion of the offense in the presence of the victim, as such crime is described in section 18-4-401 (1), and the victim is an at-risk person, or who commits theft against an at-risk person while acting in a position of trust, whether or not in the presence of the victim, or who commits theft against an at-risk person knowing the victim is an at-risk person, whether in the presence of the victim or not, commits a class 5 felony if the value of the thing involved is less than five hundred dollars or a class 3 felony if the value of the thing involved is five hundred dollars or more. Theft from the person of an at-risk person by means other than the use of force, threat, or intimidation is a class 4 felony without regard to the value of the thing taken.”)
- C.R.S. 18-1-709 (“The commission of acts which would otherwise constitute an offense is not criminal if the defendant engaged in the proscribed conduct because he was induced to do so by a law enforcement official or other person acting under his direction, seeking to obtain evidence for the purpose of prosecution, and the methods used to obtain that evidence were such as to create a substantial risk that the acts would be committed by a person who, but for such inducement, would not have conceived of or engaged in conduct of the sort induced. Merely affording a person an opportunity to commit an offense is not entrapment even though representations or inducements calculated to overcome the offender’s fear of detection are used.”)
- C.R.S. 18-2-201 (1) (“A person commits conspiracy to commit a crime if, with the intent to promote or facilitate its commission, he agrees with another person or persons that they, or one or more of them, will engage in conduct which constitutes a crime or an attempt to commit a crime, or he agrees to aid the other person or persons in the planning or commission of a crime or of an attempt to commit such crime.”)
- C.R.S. 18-2-201 (3) (“If a person knows that one with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit a crime with the other person or persons, whether or not he knows their identity.”)