This crime is covered under the general criminal term of fraud where there is any deliberate deception practiced in order to obtain unlawful or unfair financial gain. Specifically though, real estate fraud or mortgage fraud is the use of any deliberate false representation that is done on any portion of a real estate transaction.
This crime is a crime in and of itself and is constituted with other crimes such as grand theft, identity theft and forgery. While there are both federal and state laws that are violated, especially when mail fraud us committed, most often state law enforcement agencies would be the primary prosecutors of this crime.
Most often, real estate or mortgage fraud charges are often filed under the following laws:
• Sec 2945.4 of the California Civil Code or foreclosure fraud;
• Sec 890 of the California Civil Code or rent skimming;
• Sec 487 of the California Penal Code or grand theft law;
The penalties imposable depend upon the circumstances of the case and the criminal history of the accused. The following are the particulars of each of the aforementioned crimes:
• Sec 2945.4 of the California Civil Code or real estate or mortgage fraud can be prosecuted either as a misdemeanor or a felony offense. As a felony, the prison time is between sixteen (16) to thirty six (36) months in state prison and payment of a fine of up to $10,000. As a misdemeanor, the same fine would be paid while the prison time would be a maximum of one (1) year in county jail.
• Sec 890 of the California Civil Code or rent skimming is a civil offense but if committed in multiple acts, then can be civilly and criminally prosecuted. Civil remedies imposable are recovery of actual damages, attorney’s fees and other costs. If the case is criminally prosecuted, then the imposable penalties are the same as foreclosure fraud. Furthermore, each additional act of skimming would also impose the same criminal penalties aforementioned and the additional penalty for previous convictions similarly applies;
• Sec 487 of the California Penal Code can be prosecuted either as a felony or misdemeanor. For the felony offense, the prison time is between sixteen (16) months to thirty six (36) months in state prison and payment of a $10,000 fine. For the misdemeanor offense, the prison time is one (1) year in county jail and payment of a fine of up to $1,000;
The following are the additional penalties imposable for conviction under this offense. These are as follows:
• Additional and consecutive one (1) to four (4) years in state penitentiary if the homeowner or renter was deprived of more than $65,000;
• Additional and consecutive one (1) to five (5) years in state penitentiary and either a fine of $500,000 or double the amount of the fraud, whichever is greater, if the homeowner or renter was deprived of more than $100,000 and the defendant was convicted of two or more felonies involving fraud in the same criminal proceeding;
• Probation sentence allowing a judge to impose any terms and conditions that the bench feels are appropriate for punishment and rehabilitation, so long as they are logically related to the offense;
• Professional discipline, either suspension or revocation of a professional license as this is a crime involving moral turpitude;
• Sentencing enhancements under California’s Three Strikes Law;
The crime of real estate and mortgage fraud is a serious matter in California. Should you be or know anyone facing any of these charges, do reach out to the lawyers at the Law Offices of Ramiro J. Lluis for a free consultation today.