The CFPB recently published guidance affirming the continued applicability of certain HUD policy statements that were issued before authority for enforcing the Real Estate Settlement Procedures Act (RESPA) was transferred to the CFPB in 2011 under the Dodd-Frank Act. The recent guidance reminds the mortgage industry that official guidance documents issued by other agencies prior to the CFPB assuming authority under the transferred statutes generally continue to be applied by the CFPB unless the Bureau has taken further action or the statutes were superseded by law.
The CFPB provided the following non-exhaustive list of RESPA-related documents issued by HUD that the CFPB continues to apply today:
- RESPA Statement of Policy 1996–1, Regarding Computer Loan Origination Systems (CLOs) (Publication Date: June 7, 1996; Citation: 61 FR 29255)
- RESPA Statement of Policy 1996–2, Regarding Sham Controlled Business Arrangements (Publication Date: June 7, 1996; Citation: 61 FR 29258)
- RESPA Statement of Policy 1996–3, Rental of Office Space, Lock-outs, and Retaliation (Publication Date: June 7, 1996; Citation: 61 FR 29264)
- RESPA Statement of Policy 1996–4, Statement of Enforcement Standards: Title Insurance Practices in Florida (Publication Date: September 19, 1996; Citation: 61 FR 49398)
- RESPA Statement of Policy 1999–1, Regarding Lender Payments to Mortgage Brokers (Publication Date: March 1, 1999; Citation: 64 FR 10080)
- RESPA Statement of Policy 2001-1, Regarding Clarification of Statement of Policy 1999–1 Regarding Lender Payments to Mortgage Brokers, and Guidance Concerning Unearned Fees Under Section 8(b) (Publication Date: October 18, 2001; Citation: 66 FR 53052)
- Real Estate Settlement Procedures Act (RESPA): Home Warranty Companies’ Payments to Real Estate Brokers and Agents Interpretive Rule (Publication Date: June 25, 2010; Citation: 75 FR 36271)
This guidance is another example of the CFPB’s renewed focus on Section 8 of RESPA. Previous instances showing the CFPB’s increased interest in Section 8 include: (i) an advisory opinion setting forth the Bureau’s views on how RESPA Section 8 applies to Digital Mortgage Comparison-Shopping Platforms, including lead-generation websites; and (ii) recent consent orders over alleged kickbacks for mortgage referrals, providing for civil money penalties of $1.75 million against a large independent mortgage company and $200,000 against a real estate brokerage, along with other compliance obligations.