Mortgage Assistance Relief Services - Proposed Rulemaking, Rule
Referencing Question 2, there are numerous reasons that the FTC should not promulgate a rule related to this issue. As duly noted by the FTC, states have enacted legislation to cover these issues in many forms and with varying provisions. Any rule by the FTC would, certainly, be in conflict with some of these statutes. In some instances the federal rule may go well beyond the intention or provisions of the state act. And, for those states that have not created such statutes the rule would go contrary to their obvious intent. As the role of the FTC has been to insure that representations contained or made within various media and advertising are accurate and not misleading, a uniform system of enforcement already exists that meets with the role of the FTC. Those states which have not found it desirable or necessary to enact statutes further dealing with these issues, should not be forced to have their citizens and businesses comply with rules they have had no hand in creating. Virtually every state has considered these subjects and those that have not enacted legislation have, by such omissions, affirmatively exhibited their intent that rules not exist regarding their citizens and these matters. In fact, it would seem the rationale for the FTC to consider such rules is its obvious disdain for or differences of opinion with those states which have not enacted such legislaton. The impact of such rule may have draconian results. As an example, attorneys in states without such legislation should not have foisted upon them rules that would, to one extent or another, interfere with their representation of clients. As an example, if an attorney in a state such as Kansas (without such legislation)desires to collect up front fees or simply represent a client in obtaining a modification rather than waiting for a foreclosure to occur wherein he may represent the client, he should not be required to restrain therefrom by what amounts to federal legislation that runs contrary to the State's desires. Such rules may well have a chilling effect on the representation of clients by counsel, Further, these matters have been the subject of Congressional hearings which, to date, have not resulted in legislation. It should not be the province of the FTC to basically create legislation where the Congress has obviously not felt that it is necessary or appropriate. In short, the creation of such a rule would be legislation that runs contrary to the legislative intent of both the Congress and those states that have failed to enact such legislation.