Law.com – Closing Attorneys See Red Over HomeBanc Mortgage’s Bad Checks

Law.com – Closing Attorneys See Red Over HomeBanc Mortgage’s Bad Checks

Real estate attorneys caught between covering bounced checks or risking bar violations after company files for bankruptcy

Andy PetersFulton County Daily ReportAugust 16, 2007

John K. Haley, a real estate closing attorney in Buford, Ga., left work July 31 thinking the HomeBanc mortgages he’d closed earlier that day had cleared.

That turned out not to be true. Haley was one of dozens of Atlanta-area real estate closing attorneys who received bounced checks last month from HomeBanc Mortgage Corp. Lawyers estimate HomeBanc may have issued $20 million or more in bounced checks July 30 and July 31. HomeBanc filed for Chapter 11 bankruptcy protection Aug. 9.

Because HomeBanc’s primary lender, JPMorgan Chase, stopped financing the company around the end of July, HomeBanc could no longer provide funds on the mortgages it had sold. That caused a big problem for some lawyers: HomeBanc had already issued checks to these lawyers, who then disbursed the money to sellers, real estate agents, surveyors and others.

That left numerous lawyers high and dry.

“These lawyers are really scrambling right now,” said C. Scott Logan, president of the Georgia Real Estate Closing Attorneys Association.

While the state’s “good funds” law requires lawyers to wait until checks have cleared the bank before closing a mortgage, in practice most real estate closing attorneys close mortgages when they have the check in hand, without waiting for the money to clear, Logan said.

In addition to being stuck with thousands, if not millions of dollars in bounced checks, these lawyers also worry they may have violated State Bar of Georgia rules. That’s because they could have disbursed money from an escrow account when the money really wasn’t there, creating a negative balance. It’s a violation of Bar rules for a lawyer to have a negative balance in an escrow account.

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