The Real Deal New York

Costly backroom deals

A court ruling could weaken the regulation of realty payoff schemes

November 01, 2016
By Kenneth R. Harney

decision by a federal appellate court last month is casting new light on practices in the real estate field that buyers and sellers often know little about: creative, under-the-table payoff schemes among realty brokers, mortgage lenders and title companies that can stifle market competition and raise settlement costs to consumers by hundreds or even thousands of dollars.

The court case involved a $109 million fine levied against mortgage lender PHH Corp. by the Consumer Financial Protection Bureau for allegedly violating the federal real estate anti-kickback statute through its mortgage-insurance operations. PHH disputed the charges and filed suit, challenging not only the CFPB’s interpretation of the anti-kickback law but the bureau’s constitutionality.

The constitutional challenge focused on the unusual structure of the bureau, which is headed by a single director who can only be terminated “for cause.” The court agreed with PHH on the statutory-interpretation issue and ruled that henceforth the CFPB director would be like other executive-branch agency heads — removable by the president at will.

Created by Congress in the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, the bureau has substantial oversight powers. During its short life, the CFPB has levied fines or provided financial relief to consumers totaling what it estimates to be in excess of $11 billion from banks and other entities accused of illegal activities.

Though the PHH case did not directly involve the types of fees-for-referrals practices that are widespread in the real estate industry, the ruling has called into question the legitimacy of the bureau’s regulatory interpretations on “marketing services agreements” and certain “affiliated business” relationships. In a typical marketing services agreement, a title company or lender agrees to pay a real estate broker or an individual agent fees for promotional assistance, say by prominently displaying a title company’s brochures or actively making recommendations about the benefits of using its services to home buyers.

The money involved can be significant — thousands of dollars a month in some cases. One title-agency head who refuses to participate in such arrangements, Todd Ewing of Federal Title & Escrow, said that the “going rate” quoted to him by a Washington, D.C.-area real estate brokerage firm for marketing services was $15,000 per month. In exchange, the brokerage firm would steer new buyers to Ewing’s title firm.

Mark Greene, a loan originator for HomeBridge Financial Services in New Jersey, says that some large realty brokerage firms essentially “put it out for bid” — they ask lenders who’d like to receive referrals from their agents, “What do you offer us?” “It goes to the highest bidder,” he said in an interview.

Late last year, the CFPB issued a stern warning about marketing services agreements: Large numbers of them may violate the anti-kickback law, the Real Estate Settlement Procedures Act, known as RESPA. Based on the bureau’s investigative efforts, it said, “it appears that many [marketing services agreements] are designed to evade RESPA’s prohibitions against kickbacks and unearned fees.” As a result of the bureau’s statement, some major lenders said that they were terminating whatever marketing services arrangements they had in order to avoid the risk of being hit with penalties by the CFPB.

But now, in the wake of the PHH decision that calls into question the bureau’s interpretations of RESPA, there are concerns in the industry that some companies no longer will feel constrained and could return to old referral-scheme practices or invent new ones. One legal expert on RESPA, Marx Sterbcow of New Orleans, said, “My fear is that we’re going to see [companies] think ‘OK, now there are no more rules,” leading to a resurgence of illegal payoff schemes. That, in turn, could “destabilize markets” — harming lenders and title companies that refuse to make referral payments — and expose consumers to needlessly higher settlement charges.

What can you do to avoid settlement cost rip-offs? Sterbcow recommends prospective buyers ask this question of any realty agent who seems to be nudging them toward a specific title agency or lender: “Does your broker or do you have any type of business relationship with this company?” Ask for any written disclosure about the relationship, which may be tucked away with other boilerplate documents you received, and easy to miss.

Most important of all: Individuals should always shop the market aggressively for mortgage, title and settlement services. They should compare quotes. When service providers aren’t paying for what may amount to referrals, they often can offer better prices.

Kenneth R. Harney is a syndicated columnist.

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