LEAD GENERATION ENFORCEMENT

April 15, 2023

FDIC Consumer Compliance Supervisory Highlights Identified RESPA Section 8(a) Violations in its March 2023 Newsletter

The FDIC examiners identified significant consumer compliance issues during its supervisory activities in 2022 according to its March 2023 issue. The Spring 2021 issue of the Consumer Compliance Supervisory Highlights discussed Real Estate Settlement Procedures Act “RESPA” Section 8(a) violations and the difference between paying for a lead (which is generally acceptable) and paying for a referral (which is prohibited). True leads permissible under RESPA are often lists of customer contacts that are not conditioned on the number of closed transactions resulting from the leads, or any other consideration, such as endorsement of the settlement service. While a service may be characterized as a lead generation service, the activity could actually be a referral arrangement depending on the facts and circumstances. If the payment for the lead is in exchange for activity directed to a person that has the effect of affirmatively influencing the consumer to select a particular lender, then it becomes a referral fee. Banks often contract with third parties to provide what are characterized as lead generation services, but in some cases, the FDIC has found that the banks are actually paying for referrals. While the FDIC Supervisory Highlights demonstrate what banking regulators are looking at, it provides a good roadmap for other settlement service providers who are engaging in these types of marketing efforts.

Findings

In 2022, the FDIC identified RESPA Section 8(a) violations where a bank contracted with third parties that took steps to identify and contact consumers in order to directly steer and affirmatively influence the consumer’s selection of the bank as the settlement service provider. In some cases, this process involved the third party calling identified consumers and directly connecting and introducing them to a specific mortgage representative on the phone. This process is often referred to as a “warm transfer.” In other cases, the process involved operation of a digital platform that purported to rank lender options based on neutral criteria but where the participating lenders merely rotated in the top spot. Although each case is fact specific, indicators of risk in these arrangements include a third party that does one or more of the following activities:

October 7, 2020

Consumer Financial Protection Bureau issues Compliance Aid on RESPA Section 8: Marketing Service Agreements (MSAs)

by Marx Sterbcow

Today, the Consumer Financial Protection Bureau (CFPB) announced it has rescinded the highly controversial Compliance Bulletin 2015-05, “RESPA Compliance And Marketing Services Agreements” and issued new the Real Estate Settlement Procedures Act (RESPA) guidance on Section 8 on the topics of “Gifts and Promotional Activities” and “Marketing Services Agreements“. The rescission of Compliance Bulletin 2015-05 clears up the widespread confusion that former CFPB Director Richard Cordray created when he issued the MSA bulletin. The CFPB’s Brian Schneider wrote the “CFPB provides clearer rules of the road for RESPA marketing service agreements” on the Bureau’s blog “[I]n order to provide clearer rules of the road and promote a culture of compliance, the Bureau is publishing guidance in the form of Frequently Asked Questions (FAQs) on the RESPA Section 8 topics. The FAQs provide an overview of certain provisions of RESPA Section 8 and respective Regulation X sections, and addresses the application of certain provisions to common scenarios described in Bureau inquiries involving gifts and promotional activities, and marketing services agreements (MSAs).”

Schneider wrote “the Bureau determined that Compliance Bulletin 2015-05, Compliance and Marketing Services Agreements, does not provide the regulatory clarity needed on how to comply with RESPA and Regulation X and therefore is rescinding it. The Bureau’s rescission of the Bulletin does not mean that MSAs are per se or presumptively legal. Whether a particular MSA violates RESPA Section 8 will depend on specific facts and circumstances, including the details of how the MSA is structured and implemented. MSAs remain subject to scrutiny, and we remain committed to vigorous enforcement of RESPA Section 8.”

One of the biggest takeaways in the MSA guidance is in the Bureau’s use of a real estate agent entering into a MSA agreement with a lender. In the past MSAs where lenders entered into MSAs with individual real estate agents or real estate teams was considered off limits due to the direct consumer interaction that real estate agents and real estate agent teams had so MSAs were largely limited to real estate brokerages since this was seen as a business to business arrangement due to the brokerages limited interaction with consumers.

February 15, 2020

Marx Sterbcow speaking at the Minnesota Land Title Association Spring Seminar

by Marx Sterbcow

Marx Sterbcow will provide a “RESPA Compliance and CFPB Update“ at the Minnesota Land Title Association “MLTA” 2020 Spring Conference at the Marriott Minneapolis Northwest hotel on Monday, April 6, 2020 from 10:15 to 11:15 AM. The session will first focus on the “Do’s and Don’ts of the Real Estate Settlement Procedures Act (RESPA)” covering such topics as marketing services agreements, affiliated business arrangements, real estate lead generation program compliance, referrals and gifts. The second part of the presentation will discuss the latest in Consumer Financial Protection Bureau “CFPB” enforcement trends and outlook for the coming year.

December 14, 2019

FDIC RESPA Enforcement Action: HomeStreet Bank accused of violating Section 8

by Marx Sterbcow

The Federal Deposit Insurance Corporation “FDIC” on November 30, 2019 entered into a Consent Order FDIC-18-0142k which ordered HomeStreet Bank, a Seattle, Washington based bank to pay a civil money penalty of $1.35 million dollars. The FDIC alleged that HomeStreet Bank’s now discontinued Home Loan Center-based mortgage banking business line violated Real Estate Settlement Procedures Act, 12 U.S.C. § 2607, and its implementing regulation, Regulation X, 12 C.F.R. Part 1024, by entering into certain co-marketing agreements using online platforms and desk rental agreements which resulted in the payment of fees to real estate brokers and home builders for their referrals of mortgage loan business. The FDIC also stated that all of HomeStreet Bank’s agreements with those real estate brokers and home builders have been terminated.

The FDIC’s Consent Order stated that HomeStreet Bank entered into the settlement without admitting or denying any charges of unsafe or unsound banking practices or violations of law or regulation.

Unfortunately though, the FDIC’s Consent Order did not provide any industry guidance on what it found objectionable in the co-marketing agreements using online platforms or the desk rental agreements. The Sterbcow Law Group hopes the FDIC will in the future provide more detail in its enforcement actions in order to help provide more clarity to the real estate and mortgage industry.

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

by Marx Sterbcow

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.

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.

October 21, 2015

RESPA News Lead Generation Compliance Webinar

by Marx Sterbcow

Marx Sterbcow, managing attorney with the Sterbcow Law Group, and James Milano, member with Weiner Brodsky Kider PC will speak on RESPA News’s webinar series on the topic of Lead Generation Compliance. The webinar is scheduled for Tuesday, November 10, 2015 from 2:20-3:15 PM EST. The Editor of RESPA News, Justine Jones will moderate the webinar.

We will train participants on the regulations governing the real estate lead generation industry and what increased attention the CFPB, Federal Trade Commission, and other agencies mean for your business practices. The webinar will focus on how the CFPB expanded its authority with the use of UDAAP, the potential ramifications of Regulation Z’s Loan Officer Compensation Rule, the dangers of co-marketing with other settlement service providers, and how to carefully vet lead generation companies.

July 28, 2015

CFPB TARGETS MORTGAGE ORIGINATION ADVERTISING PRACTICES

by Marx Sterbcow

The Consumer Financial Protection Bureau has been sending strong messages across the real estate industry lately with its aggressive campaign against companies who they believe have made material misrepresentations which improperly suggested the lender was affiliated with a United States governmental entity or the company advertising its mortgage products was endorsed, sponsored by, or affiliated with a governmental program to consumers. The first consent order is American Preferred Lending.

On Feb. 12, 2015 the CFPB entered into a consent order with American Preferred Lending, Inc. whereby the bureau deemed American Preferred Lending violated Regulation N, 12 C.F.R. 1014.3(n) and UDAAP. The consent order found that American Preferred Lending disseminated direct-mail mortgage loan advertisements that improperly suggested that American Preferred Lending was affiliated with a governmental agency, and misrepresented that the advertised mortgage loan products were endorsed, sponsored by, or affiliated with a governmental program. The CFPB said the direct mail pieces appeared as if they were United States government notices.

The CFPB noted that “the overall format of the advertisements, including the use of plain text in labeled boxes and the title ‘Payment’ Reduction Notice,’ evoked a government form.” The advertisements were also not clearly marked so consumers could see they came from American Preferred and not the Government.