The Georgia Court of Appeals made short shrift of this argument and found that Gilford could be guilty of making deliberate misstatements and misrepresentations because “she was a party to the crime”. The Georgia Court of Appeals then cited to O.C.G.A. § 16-2-20 which provides that:
(a) Every person concerned in the commission of a crime is a party thereto and may be charged with and convicted of commission of a crime.
(b) A person is concerned in the commission of a crime only if he … (3) intentionally aids or abets in the commission of the crime; or (4) intentionally advises, encourages, hires, counsels, or procures another to commit the crime.
Therefore, based upon this case, it does not matter if the party helping a fraudster does not directly represent or misrepresent anything to the mortgage lender. Aiding and abetting, advising, encouraging or counseling the fraudster is enough to cause the helper to also be convicted of the crime of mortgage fraud.
Based on the broad interpretation of our mortgage fraud statute by our Georgia Court of Appeals in Gilford, participating in any deception of the mortgage lender can put a REALTOR at risk. So, for example, let’s say that a buyer tells you that he just quit his job and is worried about whether this could affect his ability to get a mortgage to close on the purchase of a home the following week. If the REALTOR advises the buyer not to reveal this information to the mortgage lender, it would certainly appear that the REALTOR was aiding and abetting in the commission of a crime. What if the REALTOR advises the borrower to disclose the job loss to the lender and the borrower chooses not to do so? Does the REALTOR have an obligation to disclose to the lender that it is being defrauded? While there is not yet a case on this point, our mortgage fraud statute also prohibits a REALTOR from receiving “any proceeds or any other funds in connection with a residential mortgage closing that such person knew resulted from “a deliberate misrepresentation or omission”. Therefore, based upon this section of the statute, the REALTOR would be well advised not to take a commission in this situation since the commission could arguably be seen as being paid with the proceeds of a mortgage loan.
Similarly, if the REALTOR recommends to a buyer that the sales price of the property be increased to reflect the value of personal property being left with the property (where the personal property is then given a zero value), this misstatement could also potentially be seen a mortgage fraud.
18 I GEORGIA REALTOR JULY I AUGUST 2012
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