Don't Tempt RESPA Fate (Part 2)

When I started this weblog, I hoped to post a couple of times a week, and I kept to that schedule for a while. The past few weeks, however, I have not posted as often as I planned. My absence was the result of a much busier than expected January at the TitleSouth Closing Center, and the demands of preparing to fully open the second TitleSouth Closing Center location on Acton Road. Please forgive my absence. I will try to be a more faithful to my original posting schedule.

My last post discussed RESPA and a series of actions by settlement service providers that are permissible under RESPA. It was “the Good” in terms of RESPA Compliance.

This post contains the second and final installment of my “The Good, the Bad and the Ugly” RESPA compliance post. The following actions are NOT permissible under RESPA. Do any of these actions sound familiar? Remember, under RESPA, it is just as much a violation to receive a thing of value in exchange for a referral as it is to give a thing of value in exchange for a referral.

The Bad
(Not Legal)

1. Can a lender, title company or other settlement service provider sponsor a RE salesperson in its advertising where the RE salesperson does not have to pay for the ad or gets a discount?

No. The sponsorship defers an expense that the RE salesperson would otherwise have to pay and is a thing of value under RESPA.

2. Can a lender, title company or other settlement service provider sponsor a contest in a real estate office that awards points for each mortgage application, title order, etc. that the other settlement service provider receives?

No. The contest prize and even the opportunity to win a prize in exchange for referrals is a thing of value under RESPA. HUD has recently taken action against a drawing held at an awards program administered by the Coldwell Banker Real Estate Corporation.

3. Can a lender, title company or other settlement service provider buy lunch for the office subject to receiving a specified amount of business?

No. Buying lunch in exchange for receiving referrals violates RESPA.

4. Can a loan officer give my buyer a closing gift that is from both of us at no cost to me?

No. By giving your buyer a gift in your name without any cost to you, the loan officer is deferring a business expense that you would otherwise incur.

5. Can a lender, title company or other settlement service provider send me on a trip or pay for a weekend at a hotel?
No. Trips, weekend stays, fine dining and other expensive gifts are not considered to be in the range of normal marketing expenses under RESPA.

6. Can my broker provide incentives to me for recommending my company’s mortgage or title company?

No. Your broker would be providing you a thing of value in exchange for a referral. RESPA does not require that the thing of value be given by the same person or company that receives the referral of business. HUD recently took action where title companies provided the RE agents with virtual tours at no cost.

7. Can a lender, title company or other settlement service provider sponsor lunch at my open houses without advertising it?
No. By making it appear that you provided the lunch, the lender, title company or other settlement service provider is deferring a business expense you would otherwise incur.

8. Can I be paid for helping my buyer complete a mortgage application?

No. Filling out a mortgage application or providing other nominal services is not compensable under RESPA. HUD recently took action against Re/Max agents in Georgia who received $400 in compensation for merely filling out a mortgage application.

The Ugly
Business Opportunities

There are many lenders and title companies offering business opportunities to RE agents in the form of an ownership interest in a mortgage or title company. These are permissible so long as the business is operated within strict parameters. They are The Ugly because promoters of these businesses often produce letters from reputable law firms which have reviewed the business plan of the company and confirmed its legality in order to induce RE agents to participate. However, a significant number of these businesses are subsequently operated in a manner that is not consistent with the business plan presented to the law firm and become RESPA violations or “sham” companies. This is a trap for the unwary RE agent who can find himself or herself on the wrong end of a HUD investigation not knowing how they got there.

HUD does not limit its investigation to the business plan or other paperwork of a suspected sham company, but pulls back the curtain on the business operation by exercising its subpoena power to find out what is really going on in the business. For example, companies that require a minimal investment from you, but offer generous returns with little or no risk of loss violate RESPA. HUD has recently taken action against several sham companies in North Carolina, South Carolina, Georgia, Tennessee, Ohio and other states.

AUTHOR'S NOTE: The above recitation of “the Bad and the Ugly” come from a memorandum distributed by HomeServices of America’s General Counsel, Dana Strandmo, in 2005. In light of HUD’s increase in enforcement actions and the expansion of its somewhat limited investigative staff by the use of private auditors, I thought that the topics discussed in Dana’s original memorandum were particularly relevant today.

Dana’s discussion of “the Ugly” – business opportunities that may result in RESPA violations even though they were designed to be compliant, is an area where I have some personal experience. Before I came to TitleSouth as General Counsel, I structured two joint venture title companies for clients. I was very careful to make sure that the formation and operation documents were drafted in a way that was RESPA compliant. I went a bit further, however, and required that the companies conduct “self-audits” every quarter to determine that they where being operated in accordance with their governing documents, and that an outside law firm conduct a “compliance audit” once a year to make sure that, in operation, the companies did not inadvertently violate RESPA even though their organizational documents were designed to ensure compliance.

This is an area where, until Congress address the reform of RESPA, we will continue to have to tread lightly and weigh each business opportunity and interaction with fellow settlement service providers on the scales of RESPA compliance. Until RESPA is reformed- if Congress ever gets around to RESPA reform – the best bet is to utilize the “smell” and “newspaper” tests: “Does this Smell Right” (if it doesn’t it probably isn’t), and “How Would this Look on the Front Page of the Paper” (unless you want to read about it there, it probably doesn’t past muster).