100 money orders totaling $50,000? How we handle cash payments in excess of $10,000…

On June 26, 2013   /   Blog, Escrow  
Cash earnest money deposits in excess of $10,000

The Financial Crimes Enforcement Network (FinCEN) recently published their findings of a study they conducted assessing Suspicious Activity Reports (SARS) and Suspicious Form 8300 Filings Related to Real Estate Title and Escrow Businesses 2003–2011. The study confirmed the importance of Title and Escrow Companies filing of IRS Form 8300 – Report of Cash Payments Over $10,000 Received in a Trade or Business. Read on for the details of a transaction in which cash was received and reported.

A $50,000 earnest money deposit

Cash earnest money deposits in excess of $10,000An escrow officer for one of our sister branches contacted our National Escrow Administrators for assistance. She had just opened a new sale transaction. It was the purchase of a REO property with a sales price of $1.3 million. According to the Purchase and Sale Agreement the buyer agreed to deposit $50,000 in earnest money with the escrow company and the sale was scheduled to close in less than a week. So far so good, right?

Along with a copy of the Purchase and Sale Agreement, the real estate agent delivered an envelope to the escrow officer. Inside the envelope was the earnest money deposit of 100 money orders, in increments of $500. After she picked her jaw up from her desk, she informed the agent she would have to file some additional forms and needed some information from the buyer. She explained she would look into exactly what information she needed and get back with him. This is when she contacted her Escrow Administrators.

She was correct to do so. The receipt of the money orders triggered an obligation to file IRS Form 8300. Pursuant to the IRS Regulations, businesses who receive “cash” payments in excess of $10,000 need to report the funds received.

“Cash” as defined by the IRS is:

  • Coin and currency
  • Cashier’s checks, official checks, bank drafts, traveler checks and money orders if they have a face value of $10,000 or LESS.

Settlement agents must file Form 8300 upon receipt of multiple “cash” items received in one transaction. The multiple payments may have been made at one time or over the course of the transaction. A settlement agent must report upon receipt of the final “cash” item which puts the total of all “cash” received more than $10,000. Obviously this was the case in this deal.

Potential delays to be aware of

The National Escrow Administration sent the escrow officer a copy of Tech Memo 153–2012 Reporting Cash Payments over $10,000 using IRS Form 8300 and called her, as there was more than one issue to discuss. First, the escrow officer needed to obtain a signed W–9 – Request for Taxpayer Identification Number and Certification, as well as a copy of the buyer’s driver’s license. Next, she was reminded the form had to be filed within 15 days. Lastly, they discussed the timeframes for clearance of the funds.

The money orders were issued by Western Union® and MoneyGram®. Money orders may clear as soon as seven to ten business days but they could take longer depending on which Federal Reserves they were drawn on. Additionally, money orders are often counterfeited. If a money order is counterfeit, it could take weeks before it is discovered and the Company is notified. When this occurs, the funds previously credited to the trust account are immediately debited from the account. This poses a risk to the Company if the file closes and is disbursed without allowing sufficient time to pass to ensure they are not fraudulent.

Communication and cooperation are key

The escrow officer contacted the selling agent to let him know what she needed from the buyer and informed him the closing date would have to be delayed. The agent made arrangements for the buyer to come see the escrow officer by the end of the week. Fortunately, both the buyer and seller understood the need for an extension to the closing and the buyer assured the escrow officer he would wire the balance of the closing funds.

The buyer was cooperative, so she asked why the earnest money came to her in this manner. Turned out he is a real estate investor. He regularly attends auctions. At an auction the successful bidder has to pay right then and there with either cash or certified funds which is why he had money orders in that denomination. Since, at an auction he does not know what the sales price will be he regularly purchases money orders in small amounts so he can pay for his purchases. This explained why he seemed unfazed by the request for his Social Security Number and driver’s license – he was familiar with this process.

MORAL OF THE STORY

Real estate transactions are often a target for illegal activity including a means to launder funds. Money laundering involves disguising financial assets so they can be used without detection of the illegal activity that produced them. This is true, unless the funds are reported. Settlement agents have a duty to monitor and report “cash” payments to the IRS. Failure to do so can result in hefty fines.

Although the escrow officer did not believe this buyer was up to anything illegal, she still identified she had a responsibility to report the “cash” received, eliminating the Company’s risk of being fined. In order to ensure she did this properly she did not hesitate to contact National Escrow Administration for assistance.

Questions or comments? Please share below!

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Why Altered Checks for Earnest Money are Unacceptable

On May 15, 2012   /   Blog, Escrow  

Altered Earnest Money Check

Settlement agents are regularly pressured into accepting altered checks (which they should not) for earnest money. This usually occurs when the buyer’s original offer to the seller indicates one escrow company and then, somewhere in the negotiations, the principals agree on another escrow company. Real estate agents do not want to go back and ask their buyer for a new check, so instead the check is altered and the buyer initials the changes. Accepting the check is done at the sole risk of the operation. In this story, our office accepted an altered check which proved to be risky.

The original check is altered

One of our sister offices received a fully executed Purchase and Sale Agreement, along with a personal check representing the earnest money. Per the agreement, the amount of earnest money due was $1,000. The check was originally written to Old Republic Title Co., but during negotiations the principals agreed to change the escrow and title company to ours. Rather than obtain a new check for $1,000, the buyer simply crossed through the original payee, wrote in our company name and initialed the change.

Transaction is cancelled
Earnest Money refund is requested

The settlement agent receipted-in the funds and began to process the transaction. About a month later the buyer decided he wanted to cancel the transaction. His real estate agent instructed the settlement agent to prepare cancellation instructions reflecting the earnest money as being refunded to the buyer. The settlement agent prepared the cancellation instructions and sent them to the listing agent.

At first, the seller was not sure they were willing to give the money back to the buyer. The real estate agents began negotiating for their respective clients. In the meantime, the buyer went to his bank, Wells Fargo, and tried to place a stop payment on his earnest money check. When the request was denied, he filed an Affidavit of Forgery, claiming the check was altered and cashed without his approval.

Earnest Money “refunded” twice

Simultaneously, the sellers signed mutual cancellation instructions agreeing to return the earnest money to the buyer. The settlement agent cut a check from the trust account to the buyer, representing the refund of the earnest money. The buyer deposited the refund into his account at Wells Fargo.

Shortly thereafter, our Operational Accounting Center (OAC) received notice from Bank of America that our trust account was debited $1,000 based on the fact the original earnest money check was altered. When a fraud report is filed, banks act quickly to freeze the amounts in question while they determine the merits of the report. Wells Fargo immediately contacted our bank, Bank of America, who reviewed the affidavit.

The risk of accepting altered checks

Anytime a settlement agent accepts an altered check, he or she subjects the instrument to questioning. As a matter of fact, accepting an altered or endorsed check is done solely at the operation’s own risk, since the banking agreements Our Company enters into offer no protection for these checks. The operation is on their own to prove they were entitled to negotiate the check.

Accepting an altered or endorsed check is done solely at the operation’s own risk…

The OAC quickly found this out. They contacted Bank of America upon receipt of the notice our account was debited. Bank of America referred back to the banking agreement. Neither Bank of America nor Wells Fargo would provide assistance since the office accepted and negotiated an altered check – even though they had already refunded the buyer their earnest money deposit.

The OAC filed an Affidavit of Claimant on the refund check disbursed to the buyer. The basis for the affidavit was the fact that the borrower had already collected the original earnest money deposit. The claim was denied.

The Borrower withdraws Affidavit of Forgery

Next the settlement agent contacted the buyer’s real estate agent. She explained the borrower needed to withdraw their Affidavit of Forgery since he had received his refund. The borrower finally withdrew it and their account received credit for the original deposit. Whew! All of this work for a $1,000 deposit on a cancelled transaction for which we will never be paid!

The Moral of the Story

When Our Company opens a trust account, a banking agreement is signed which outlines the bank’s and Our Company’s responsibilities. One of our responsibilities is to accept checks made payable to Our Company only. If an office deviates from the agreement and accepts a third-party-endorsed or altered check, the bank has no obligation to assist or defend them; which is exactly what occurred in this instance. Settlement agents should be aware of the risks when accepting personal checks which have been altered or endorsed, and request a replacement check.

Have you encountered a situation where an altered check was either used or not accepted? Please share your comments below!

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Earnest Money Instructions Clarified on New NWMLS Form 21

On September 27, 2011   /   Blog, Escrow  

NWMLS form 21 Clarifies Earnest Money InstructionsThe recent changes to paragraph b “Earnest Money” in the NWMLS Purchase and Sale agreement (Form 21) finally gives escrow the authorization they need to assist in the release of the earnest money upon termination of the agreement. We are very pleased with this change; it will not only eliminate delay but will result in happier buyers, sellers, brokers and happier closing agents.

The Old Paragraph B – Why the confusion?
Remember that Escrow is a neutral third party that can only follow written instructions agreed upon between the buyer and seller. In the former version of the NWMLS Form 21 paragraph b. the instructions for what a closing agent could do with Earnest Money was EXTREMELY limited.

Under the old agreement the parties had to agree in writing as to disbursement of the earnest money, in the absence of such an agreement (Rescission) the closing agent was instructed to commence an interpleader action within 30 days of the demand. These limited choices left everyone including the closing agent feeling very frustrated.

A New Paragraph B – Clear Instructions
The revisions made to the form as of 8/11, provides the closing agent with the clear and precise instructions they need in order to release the earnest money in a timely manner. Not only does it give clear instruction to the closing agent but the buyers and sellers have also been given clear notice of the process if there is a dispute with earnest money.

Upon termination of the agreement the parties shall execute a release form (Authorization to Disburse Earnest Money – Form 50), if either party fails to execute the form, the other party may make a written demand to the closing agent for the earnest money. The closing agent shall promptly deliver notice of the demand to the other party. If the other party does not object to the demand with 10 days of said notice the closing agent is authorized to disburse the funds to the party making the demand. In the event of dispute over the earnest money, the closing agent can still commence an interpleader action.

What do you think?  Will these revisions save you time and effort in the future?  Please share your thoughts by commenting below!

For your reference, we have included paragraph b. here:
nwmls form21 paragraph b

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