RESPA Review: 'Kicking Back' and 'Doing the Splits'

摘要

Over the last two years, the Real Estate Settlement Procedures Act ("RESPA") has continued to be the subject of significant government enforcement action, class action litigation, and regulatory speculation. The U.S. Department of Housing and Urban Development ("HUD") has continued its drumbeat of published settlements, which are fast becoming another source of "common law" for RESPA interpretation. As described below, HUD particularly focused its regulatory efforts on the use of captive reinsurance and joint venture structures to facilitate illegal kickbacks for the referral of mortgage lending business. The key development in RESPA litigation is the split among the U.S. circuit courts of appeals on whether "mark-ups" violate section 8(b) of RESPA's prohibition against fee-splitting. The Secretary of HUD, meanwhile, continued publicly to exchange views and hold discussions on new variations of RESPA reform, with an eye toward making the mortgage loan shopping and origination process more transparent and less costly for consumers.