More RESPA Violations – What Not to DO !

Mortgage brokers’ compensation is in the spotlight after a recent Federal Deposit Insurance Corporation (FDIC) test concluded that some financial institutions failed to prove that payments were “reasonably related” to the value of services provided.

In its March Supervisory Highlights, the FDIC stated that many institutions have developed policies and procedures to ensure sufficient mortgage broker services are provided in order to receive compensation, which was the first of a two-part test.

However, the second part of the test revealed that these financial institutions did not develop enough compliance initiatives to determine whether the payments were reasonably related to the services’ value.

The FDIC supervises approximately 3,000 state-chartered banks and thrifts not members of the Federal Reserve System. The current supervisory highlights summarize the overall results of supervised institutions in 2023, when the FDIC conducted about 900 consumer compliance examinations.

Violations involve mortgage broker relationships in cases where financial institutions pay mortgage brokers and when institutions act as mortgage brokers.

Examiners found that institutions had violated Section 8 of the Real Estate Settlement Procedures Act (RESPA) and its implementation rule, Regulation X. In practice, these rules prohibit giving or accepting a thing of value for referrals of settlement services in federal mortgage loans.

The current rules have been applied by the Consumer Financial Protection Bureau (CFPB) since 2011. The CFPB inherited the responsibility to impose statements of policies (SOPs) created by the Department of Housing and Urban Development (HUD) in 1999 and 2001.

These rules state that a mortgage broker performs “sufficient origination work” if it takes the application and performs at least five additional services. (There are some caveats related to counseling services, referrals, and duplicative work.)

“Examiners identified violations involving relationships where mortgage brokers provided fewer than five services, and relationships where mortgage brokers provided more than five services,” the FDIC supervisory highlights states.

Violations identified vary across different stages of the loan process.

Some institutions did not provide the services they listed to examiners, such as helping the borrower clear credit problems or participating in loan closings—professionals did not attend the closing meetings or infrequently participated via phone.

Other institutions also listed some counseling services separately when they should be listed as one item. These services include educating the borrower, explaining the different loan types, and demonstrating monthly payments.

Another example is an institution acting as a mortgage broker that said it provided disclosures to the borrower but only forwarded a link provided by the lender with the document. The same institution also stated that it initiated or ordered appraisals when it added borrowers’ information into a lender’s software.

The FDIC recognizes that technology now has a role in the brokerage firm services provided and can impact its value. The FDIC said in its report that while it reduces time it does not necessarily mean that a service has less value.


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