CONSUMER FINANCIAL PROTECTION BUREAU

March 22, 2019

RESPA Seminar: Marx Sterbcow to discuss “Whither the Bureau: State UDAAP, Regulatory and Private Sector Compliance Issues, Activities and Requirements” at the 26th Annual RESPRO Conference in New Orleans on March 27, 2019

Marx Sterbcow with the Sterbcow Law Group’s RESPA Law Resource Center has been invited to speak at the Real Estate Settlement Providers Organization’s “RESPRO” 26th Annual Conference in New Orleans, Louisiana on March 27, 2019 at 8:45 AM at the Ritz Carlton Hotel’s Carrollton Ballroom. The presentation “Whither the CFPB: State Unfair Deceptive Abusive Acts Practices, Regulatory and Private Sector Compliance Issues, Activities and Requirements” will review the most recent federal and state mortgage, title insurance, and real estate brokerage regulatory actions.” The session will discuss how the Consumer Financial Protection Bureau and various state mortgage and title insurance regulatory agencies are interpreting UDAAP/RESPA. The session will also discuss what compliance expectations the CFPB’s Enforcement division will have when a company is under investigation and the general outlook of what is going on or not going on at the CFPB. The presentation will hit on issues involving private sector mortgage lending compliance involving Affiliated Business Arrangements and those how those expectations extend to class action mitigation risks.

Charles “Chuck” Cain from Cincinnati, Ohio (Executive Vice President Agency at WFG and Of Counsel to the Sterbcow Law Group) and Francis “Trip” Riley from Princeton, New Jersey (Partner with Saul Ewing Arnstein & Lehr, LLP) will co-present with Mr. Sterbcow in this session.

January 12, 2019

Marx Sterbcow to speak at the American Land Title Association’s Large Agent Conference

by Marx Sterbcow

Marx Sterbcow of the Sterbcow Law Group has been invited to speak at the American Land Title Association’s “ALTA Large Agent Conference at the Boca Raton Resort & Club in Boca Raton, Florida on Tuesday, January 15, 2019. ALTA’s Large Agent Conference is January 13-15, 2019.

The presentation “RESPA UPDATES” will discuss a variety of topics from the latest on RESPA Enforcement by the Consumer Financial Protection Bureau “CFPB” to how the new political landscape in Washington, D.C. may put the CFPB’s current enforcement ideology in the spotlight. The presentation will also provide the latest RESPA Best Practices tips involving: advertising services agreements & marketing agreements, co-branded website advertising, advertising & marketing practices, title agency affiliated business arrangements, title joint ventures, office leases, and the challenges involved with many lead generation programs. Craig Haskins, the Chief Operating Officer, of Knight Barry Title, Inc. headquartered in Wisconsin will moderate the RESPA UPDATES session.

March 22, 2018

Marx Sterbcow to speak at the 2018 RESPRO Annual Conference on “CFPB Enforcement and Title Technology Monitoring Expectations for Affiliated Business Arrangements”

by Marx Sterbcow

Marx Sterbcow, the Managing Attorney for the Sterbcow Law Group LLC, has been invited to speak at the 2018 RESPRO 25th Annual Conference in Phoenix, Arizona. The session titled “CFPB Enforcement and Technology Monitoring Expectations for Affiliated Business Arrangements” is scheduled for 9:00-10:00 AM on April 11, 2018. This presentation will discusses how a new technology oversight compliance software reporting tool helps RESPA governed Affiliated Businesses Arrangements “AfBA” stay compliant based on the Consumer Financial Protection Bureau’s Meridian Title Consent Order. The session co-presented with Francis “Trip” Riley, Partner at Saul Ewing, and will be moderated by Charles “Chuck” Cain, EVP WFG National Title Insurance Company and Of Counsel to the Sterbcow Law Group. Marx Sterbcow and Trip Riley are two members of the Meridian Title legal team who were involved in representing Meridian Title in connection with the CFPB Consent Order.

The presentation will provide critical information which all affiliated businesses should be aware of as it pertains to the monitoring of AfBA disclosure forms in real time. In addition we will discuss how the use of this new technology also adds operational value to any companies operational compliance and business development needs. We will explain how the CFPB Enforcement division views this type of technology monitoring as a critical piece for all settlement service companies, especially those in the title industry, as a new expectation for medium to large-sized companies to adopt. We will provide an in-depth look into how a growing number of title agencies across the United States are already utilizing this title production overlay software compliance and business intelligence technology, and how this technology will help companies stay RESPA compliant, and what the future holds for these types of applications as they enter the marketplace.

To Register for the 25th Annual RESPRO Conference click here

November 15, 2017

CFPB Director Richard Cordray Announces His Resignation

by Marx Sterbcow

The Consumer Financial Protection Bureau (CFPB) Director Richard Cordray, announced today in an email to CFPB employees that he will be stepping down as the Director at the end of November. It is widely expected that Richard Cordray will run for Governor of Ohio but he did not address his future in the email he sent to his employees.

Who will replace Richard Cordray is a huge question because of President Donald Trump will likely face a hostile audience by Democrats and some Republicans in getting a new Director appointed and confirmed. If the Trump Administration pushes someone who wants to gut the CFPB it could haunt the Republicans politically because the agency is highly popular with consumers. The process with likely take several months to appoint and confirm a new CFPB Director although the Trump Administration could pick an Interim Director in accordance with the Federal Vacancies Reform Act (FVRA). The Interim Director would be in charge of the CFPB until a potential nominee was confirmed by the Senate. The FVRA process is not new to the CFPB because prior to Richard Cordray’s confirmation the CFPB was overseen by Treasury Secretary Timothy Geithner until Cordray’s confirmation.

The CFPB under Director Richard Cordray’s leadership over $12 billion in relief was recovered for nearly 30 million consumers. His departure could likely spell the end of his “Regulation by Enforcement” and usher in a period of more written guidance to the industry. However, the “Regulation by Enforcement” agenda has recently been minimized due to a smaller number of enforcement personnel and fewer resources given to that division while he led the CFPB.

April 17, 2017

Marx Sterbcow speaking at the Escrow Institute of California’s 70th Annual Conference

by Marx Sterbcow

Marx Sterbcow of the Sterbcow Law Group will present at the Escrow Institute of California’s 70th Anniversary Conference at the Hyatt Regency Indian Wells Resort & Spa in Palm Springs, California on May 5, 2017. The Escrow Institute of California “EIC” Annual Conference is May 4-6, 2017.

The session “Understanding CFPB Enforcement under Unfair Deceptive or Abusive Acts or Practices (UDAAP)” is from 10:15 – 11:45 AM. Mr. Sterbcow is co-presenting with Matthew Davis with the Davis & Davis Law Group.

April 15, 2017

MARX STERBCOW TO PRESENT AT 2017 RESPRO ANNUAL CONFERENCE

by Marx Sterbcow

Marx Sterbcow, Managing Attorney, of the Sterbcow Law Group will present in two sessions at the 2017 Real Estate Service Providers Council “RESPRO” Annual Conference at the Bellagio Hotel in Las Vegas, Nevada on April 19, 2017. The RESPRO Conference is from April 18-20, 2017.

The first session “Unfair Deceptive Abusive Acts Practices UDAAP: The Cloud Still Hangs Low” is from 1:30 PM– 2:30 PM in the DaVinci 3 Ballroom. Mr. Sterbcow is co-presenting with Francis (Trip) Riley with Saul Ewing. The presentation will focus on how UDAPP will continue to effect CFPB’s actions on settlement service providers and how RESPA regulated Affiliated Business Arrangements (AfBAs) need to be cognizant of their marketing and advertising efforts. We will address cases of interest and suggest tips that every company should incorporate.

The second session “RESPA: Stretching the Envelope on Prohibited Referrals” is from 2:45 PM – 3:45 PM in the DaVinci 3 Ballroom. Mr. Sterbcow is co-presenting with Stan Gordon with Gordon & Associates and Francis (Trip) Riley with Saul Ewing. The presentation will focus on the basic parameters of what is prohibited referral activity have expanded under CFPB which has resulted in a chilling effect on the financial settlement service industry. The ambiguity in RESPA on defining a referral and the perceived risks in marketing activities in various circumstances will be discussed. The presentation will provide some clarifications on when an endorsement of a service provider becomes a prohibited referral. The session will also address whether it is a violation of Section 8 for a nationwide real estate brokerage group to promote a service provider throughout its owned or affiliated companies to their management and sales agents. How considerations under PHH and RESPA exception Section 8(c)(2) need to be considered and is the exception absolute as implied by the current ruling.

January 16, 2017

Marx Sterbcow presenting at The Legal Description and Dodd Frank Update’s 5th Annual Regulatory Outlook Webinar

by Marx Sterbcow

The Legal Description and Dodd Frank Update have teamed up again to provide their 5th annual Regulatory Outlook Webinar on Wednesday, January 18, 2017 (2:00 – 3:30 P.M. EST) educating mortgage, title and settlement services professionals on the compliance trends and issues to expect in the New Year. The yearly webinar series has quickly become one of the most important educational sessions each year to find out what in store for the State of the Settlement Service Industry in the coming year.

This webinar features instructors Francis “Trip” Riley of Saul Ewing, Loretta Salzano of Franzén and Salzano, and Marx Sterbcow of the Sterbcow Law Group. These nationally-recognized attorneys will join moderator Danielle Kaiser of NATIC in a discussion of the pressing political, regulatory and compliance issues to watch in 2017 and how to prepare your business.

Instruction will include:

August 31, 2016

Marx Sterbcow speaking at the 2016 MBA Regulatory Compliance Conference

by Marx Sterbcow

Marx Sterbcow of the Sterbcow Law Group will speak on “The Essentials IV — CFPB Consent Orders for Compliance Officers” at the Mortgage Bankers Association Regulatory Compliance Conference at the Grand Hyatt Hotel in Washington, D.C. on Sunday, September 18, 2016 from 3:30 PM to 4:45 PM. The session will be a comprehensive overview of key Consumer Financial Protection Bureau consent orders and it will provide tips on how to apply the findings to your mortgage business.

For more information about the MBA Regulatory Compliance Conference please click here.

April 26, 2016

RESPA Conference: Marx Sterbcow and Charles Cain to present at the 2016 National Settlement Services Summit in Charlotte, North Carolina

by Marx Sterbcow

Marx Sterbcow, the Managing Attorney, of the Sterbcow Law Group, and Charles Cain, Vice President, Agency, WFG National Title Insurance Co. will present at the 2016 National Settlement Services Summit [NS3] at the Le Meridien & Sheraton Hotel in Charlotte, North Carolina on Wednesday, June 8, 2016.

The session titled “Ethics: UDAAP, Reverse Vendor Oversight and Legal Malpractice” will discuss how Title agents and attorneys are expected to adhere to the highest ethical standards, and how Dodd Frank’s ban on Unfair, Deceptive or Abusive Acts or Practices (UDAAP) have given the CFPB broad authority to root out questionable activities. Learn how UDAAP is requiring agents to gear up when it comes to ethical conduct, particularly in the area of RESPA compliance. The presentation will explain how UDAAP could make vendor management liability and oversight a two-way street through a new enforcement tactic known as “Reverse Vendor Management Oversight”. Reverse Vendor Management Oversight could challenge the bounds of legal malpractice by requiring title agents, lawyers, and attorney notaries to be on the lookout for vendor compliance issues with their clients. Speakers will share real-world examples, and attendees will walk away with actionable tips for remaining UDAAP compliant in an increasingly active RESPA and UDAAP enforcement environment.

October Research Corporation has generously offered a Discount Code to attend NS3 for all friends and clients of the Sterbcow Law Group. To receive your Discount Code please contact the Sterbcow Law Group and we will send you the special discounted rate code to attend NS3.

December 8, 2015

RESPA CONSUMER CLASS ACTION LAWSUIT FILED AGAINST REALOGY, PHH CORP, TRG, NRT, AND OTHERS SURROUNDING THEIR AFFILIATED BUSINESS ARRANGEMENTS

by Marx Sterbcow

A consumer class action RESPA lawsuit was filed on November 25, 2015 by Timothy L. Strader Sr., against PHH Corporation, REALOGY Holdings Corp., PHH Mortgage Corporation, PHH Home Loans LLC, RMR Financial LLC, NE Moves Mortgage LLC, PHH Broker Partner Corporation, REALOGY GROUP LLC, REALOGY Intermediate Holdings, Title Resources Group LLC, West Coast Escrow Company, TRG Services Escrow Inc., NRT LLC, REALOGY Services Group LLC, and REALOGY Services Venture Partner LLC in United States District Court for the Central District of California. (Case No. 8:15-CV-1973).

The allegations in this consumer class action lawsuit largely surround issues involving violations of Section 8(a) and Section 8(c)(4) of the Real Estate Settlement Procedures Act of 1974, as amended, 12 U.S.C. §§ 2601 et seq (“RESPA”), and its implementing regulations, 12 C.F.R. §§ 1024.1 et seq. (“Regulation X”). RESPA – and, in particular, the prohibition on referral fees and kickbacks in 12 U.S.C. § 2607 – was explicitly designed to protect consumers “from unnecessarily high settlement charges caused by certain abusive practices,” such as those described in this Complaint. 12 U.S.C. § 2601(a). As such, 12 U.S.C. § 2607(a) prohibits the giving or accepting of any “fee,” “kickback,” or “thing of value” in exchange for business incident to or part of a “settlement service” (as those terms are defined in RESPA and Regulation X) involving a federally related mortgage loan.

The complaints states the Defendants violated RESPA and distorted the market for title insurance and other settlement services in at least two different manners:

First, PHH and Realogy created an affiliated business arrangement called PHH Home Loans, which the Plaintiffs contend was a sham joint venture carefully engineered to facilitate and disguise the payment of unlawful referral fees and kickbacks in exchange for the referral of title insurance and other settlement services to Realogy’s subsidiary, Title Resource Group (“TRG”). The allegations further state that prior to October 21, 2015, PHH was bound under a Strategic Relationship Agreement to refer all title insurance and settlement services to TRG. The consumers referred by PHH Home Loans paid approximately $1650 to TRG for title insurance and other settlement services. If this allegation is accurate it would violate Section 8(c)(4) under RESPA* which prohibits the “Required Use” of an affiliate if the consumer paid for those services.

Pursuant to the Strategic Relationship Agreement, PHH Home Loans is the exclusively recommended mortgage lender for Realogy’s real estate brokerage network, which is operated by NRT, LLC (which operates such brands as Coldwell Banker, Sotheby’s International Realty, ZipRealty, The Corcoran Group, and Citi Habitats.

The Plaintiffs also state that PHH receives a right of first refusal for the purchase of the mortgage servicing rights for PHH Home Loans originated mortgages, which permit PHH Home Loans to sell the servicing rights to PHH “on terms no less favorable” than those that could be obtained from an independent third party and that PHH owns a disproportionate share of the servicing rights for those mortgages relative to PHH’s overall market share of residential mortgage servicing. The complaints states that the details of this relationship have not been publicly disclosed to consumers.

Second, the Plaintiffs allege that under a related Private Label Solutions (“PLS”) model–in which PHH manages all aspects of the mortgage process for various large banking institutions that PHH directs the PLS Partners to refer title insurance and other settlement services to TRG without disclosing to consumers the existence of PHH’s affiliation with TRG, nor the fact that PHH was required to cause the PLS Partners to refer title insurance and other settlement services to TRG under the terms of the Strategic Relationship Agreement.

The complaint further states that the undisclosed mandatory referral arrangement existed for over 10 years until October 21, 2015, when PHH and Realogy amended the Strategic Relationship Agreement to delete the mandatory referral provision. PHH filed their latest Form 10-Q with the SEC on November 5, 2015 and based on the exhibits it did not include the mandatory referral provision language. The Plaintiffs contend the reason that PHH deleted this provision is due to the Consumer Financial Protection Bureau v. PHH Corporation enforcement action where the CFPB fined PHH $109 million dollars for its relationship with Atrium Reinsurance Corporation, an affiliate of PHH.

This is a RESPA class action case worth monitoring given the allegations, parties involved, and the CFPB’s related case against Atrium now pending in Federal District Court. Judge Fernando M. Olguin is presiding over the case.

If you have any questions about how your company’s affiliated businesses are structured please contact us to set up a consultation.
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