Articles Posted in Affiliated Business Arrangements (AfBA)

The United States Court of Appeals for the Ninth Circuit issued their 24 page Opinion today, August 24, 2015, in the Denise P. Edwards versus The First American Corporation; First American Title Insurance Company class action lawsuit. No. 13-55542 D.C. No. 2:07-cv-03796-SJO-FFM.

The Edwards v. First American class action lawsuit was originally filed on June 12, 2007 and has spent over 8 years bouncing from federal court to federal court.

The 9th Circuit Court of Appeals affirmed in part and vacated in part the United States District Court for the Central District of California’s order denying class certification in a case where the Plaintiffs alleged that First American Title engaged in a national scheme of paying title agencies things of value in exchange for the title agencies’ agreement to refer future title insurance business to First American in violation of the Real Estate Settlement Procedures Act “RESPA”.

Marx Sterbcow, Managing Attorneyat Sterbcow Law Group, and Charles Cain, Of Counsel to Sterbcow Law Group and Senior Vice President to WFG National Title Insurance Company, will speak at the 2015 National Settlement Services Summit“NS3” Conference in Atlanta, Georgia on June 9, 2015. The presentation “Who’s Your Vendor? Vendor Management for Title Agents” will provide in-depth analysis and guidance on how title agents can understand and monitor the risks associated with their vendor relationships. We will discuss third party vendor management expectations originating not just from the OCC/FFIEC/FDIC/CFPB but from the secondary market on closing and settlement providers.

The Consumer Financial Protection Bureau “CFPB” announced another Consent Order with NewDay Financial, LLC on February 10, 2015 where they agreed to settle allegations that NewDay engaged in deceptive acts or practices by failing to disclose payments to a veteran’s organization that endorsed NewDay for reasons other than for NewDay’s consumer service. The CFPB also said NewDay made payments to third parties in connection with the marketing of home loans that constituted illegal payments for referrals of mortgage origination business under section 1053 and 1055 of the Consumer Financial Protection Act of 2010 (CFPA).

This CFPB Consent Order opens up new compliance territory with respect to consumer disclosure involving agreements between settlement service providers because it expands UDAAP into RESPA for the first time. However, this consent order is not the model of clarity that we were hoping for because it raises a number of new compliance issues outside of this particular arrangement.

The CFPB alleged that NewDay contracted with a third party marketing and lead generation company (i.e. “broker company”) whose business services included licensing the use of a Veterans’ Organization mailing list, logo, and other proprietary marks and managed the relationship between NewDay and the Veteran’s Organization. The members of the Veterans’ Organization learned about NewDay because of its contractual relationship with the marketing and lead generation company and Veterans’ Organization. NewDay purchased the Veterans’ Organization mailing list via the broker company and sent advertisements to the members of the Veterans’ Organization who in turn contacted NewDay for mortgage products.

NewDay according to the Consent Order is a mortgage lender who is in the business of originating refinance home loans through a program where the VA guarantees a portion of home loans taken out by service members, veterans, and eligible surviving spouses. NewDay also originated government insured reverse mortgage products to seniors.

The CFPB said NewDay advertised its mortgage products to consumers primarily through direct mail campaigns. NewDay sent over 50 million solicitations by postal and electronic mail to consumers offering reverse and forward mortgages. These advertising communications were typically sent to a pre-screened list of consumers, generally veterans and older Americans, selected due to various characteristics that NewDay believed made them more likely to be potential customers for NewDay’s offerings. Consumer members who were interested in learning more were invited by these mailings to call NewDay’s call center, during which calls NewDay’s Account Executives would answer questions, provide information, and take applications.

NewDay’s relationship with the Veterans’ Organization was arranged and coordinated by marketing and lead generation company, which contracted directly with NewDay on behalf of Veterans’ Organization and which paid Veterans’ Organization a portion of the fees it received from NewDay. Pursuant to agreements and understandings between and among NewDay, Veterans’ Organization, and the marketing and lead generation company, NewDay was designated as the exclusive lender of Veterans’ Organization, and NewDay drafted and sent advertising communications by postal and electronic mail to Veterans’ Organization members, with Veterans’ Organization’s approval, that were identified as being from Veterans’ Organization. These advertising communications promoted the relationship between NewDay and Veterans’ Organization, and encouraged and recommended the use of NewDay’s mortgage products to Veterans’ Organization members.

The fees paid pursuant to agreements and understandings between and among NewDay, Veterans’ Organization, and the marketing and lead generation company included:
(1) NewDay paid marketing and lead generation company a monthly “licensing fee” of $15,000;
(2) For each referred consumer member who contacted NewDay to inquire about a reverse mortgage and who completed mandatory counseling, NewDay paid Veterans’ Organization $75 as a “lead generation fee” and NewDay paid the marketing and lead generation company $100 as a “lead generation fee.”
(3) For each referred consumer member who contacted NewDay to inquire about a 100% loan-to-value (LTV) mortgage refinancing and had his/her credit report pulled, NewDay paid Veterans’ Organization $15 as a “lead generation fee” and NewDay paid the marketing and lead generation company $20 as a “lead generation fee.”

The CFPB stated that at no point were the Veterans’ Organization members made aware of the payments by NewDay to Veterans’ Organization and the marketing and lead generation company nor has this information been available publically.

Section 1036(a)(1)(B) of the CFPA prohibits “unfair, deceptive, or abusive” acts or practices. 12 U.S.C. § 5536(a)(1)(B). A practice is “deceptive” when there is a representation or omission of information that is likely to mislead consumers acting reasonably under the circumstances, and that information is material to consumers.

“NewDay mailed advertising communications to Veterans’ Organization members, with Veterans’ Organization’s approval and that were identified as being from Veterans’ Organization, endorsing NewDay’s products. These advertising communications articulated reasons why Veterans’ Organization selected NewDay as its lender-of-choice. NewDay also made similar statements to Veterans’ Organization members during phone conversations. The affirmative reasons offered to members created the impression that there were no other connections between NewDay and Veteran’s Organization, when, in fact, NewDay was making regular undisclosed payments, both directly and indirectly, for these endorsements.”

The paid endorsements included language such as:

1. “Veterans’ Organization chose NewDay to be our exclusive Reverse Mortgage provider after spending significant time with the company’s management team and watching its loan professionals in action.”

2. “NewDay USA is [Veterans’ Organization’s] exclusive provider of home loan programs based on their high standards for service and the excellent value of their programs. If you need money, we recommend you give them a call at 1-800-995-4193. Even easier, click here and find out more!”

3. “NewDay is the EXCLUSIVE lender for [Veterans’ Organization]. We earned this because of our focus on helping veteran’s [sic] payoff their debt, lower their interest rates and payments, or get additional cash out as well.”

The CFPB consent order state the failure to disclose material connections between NewDay and Veterans’ Organization while making affirmative statements concerning a substantive basis for the endorsements likely would have been material to consumers evaluating the weight or credibility of Veterans’ Organization’s endorsement and whether to obtain a mortgage loan from NewDay, and likely would have been misleading to reasonable consumers. Thus, these communications constitute deceptive acts or practices in violation of sections 1031(a) and 1036(a)(1)(B) of the CFPA, 12 U.S.C. §§ 5531(a), 5536(a)(1)(B).

The Bureau alleged that the paid endorsements or recommendations violated the Real Estate Settlement Procedures Act “RESPA”, 12 USC. 2607(a) which provides that no person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreements and understandings, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.
The CFPB said there was an agreement and understanding between and among NewDay, Veterans’ Organization, and the marketing and lead generation company, NewDay mailed advertising communications to individual members of Veterans’ Organization, with Veterans’ Organization’s approval, that were identified as being from Veterans’ Organization which was in violation of RESPA. These communications typically were sent to pre-screened members of Veterans’ Organization and referred recipients to NewDay by encouraging and recommending that members use NewDay for mortgage lending services.

The consent order say the agreements and understandings between and among NewDay, Veterans’ Organization, and the marketing and lead generation company, consumer members who called Veterans’ Organization’s call center for information on mortgage products were referred to NewDay. The CFPB also pointed out that the marketing and lead generation company (i.e. the “Broker Company”) maintained a website for Veterans’ Organization members (the marketing and lead generation website) which were linked to from the Veterans’ Organization website and that was identified as being part of the Veterans’ Organization website. Consumer Members who visited the marketing and lead generation website were referred to NewDay by text “recommend[ing]” NewDay as a source for home loans, along with hyperlinks to NewDay’s website and the phone number for the Veterans’ Organization’s call center.

The Consumer Financial Protection Bureau stated they found more than 3,900 payments to the Veterans’ Organization and the marketing and lead generation company (in the form of both monthly payments and “lead generation fees”) for these referral activities. The referral mechanism set up resulted in close to 400 loans being originated.

The CFPB’s consent order prohibits NewDay from engaging any payment schemes where part of the compensation is for an endorsement. The CFPB also ordered NewDay to cease entering into any business relationship that would involve third party endorsements which might be inconsistent with the Federal Trade Commission’s guidance on endorsements which can be found in 16 C.F.R. part 255. NewDay is also prohibited from violating any aspect of Section 8 of RESPA and must submit a Compliance Plan to the CFPB.

NewDay was fined $2,000,000.00 for participating in this arrangement.
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The Consumer Financial Protection Bureau announced they entered into a Consent Order (File No. 2014-CFPB-0010) with Atlanta-based Amerisave Mortgage Corporation; Novo Appraisal Management Corp.; and Patrick Markert on August 12, 2014 for violating a series of laws including Section 1031 and 1036 of the Consumer Financial Protection Act of 2010 (CFPA), Section 8 of the Real Estate Settlement Procedures Act (RESPA), the Truth in Lending Act (TILA), and the Mortgage Acts and Practices Rule (MAP Rule).

The CFPB found that Amerisave Mortgage Corp., which operates primarily as an online lender, designed its website to advertise and quote mortgage rate information in a deceptive bait and switch lending manner towards consumers. The Bureau stated that Amerisave advertised specific mortgage products online by listing specific mortgage rates in rate tables publicized through the website of an unrelated third-party company (“Rate Publisher”) which compiles rate quotes and other information of mortgage lenders who use its service.

Amerisave advertised lower rates than they were actually providing to consumers but once the consumers contacted them for those rate the consumers wound up paying higher rates than what Amerisave advertised. Amerisave also ran banner or display ads on various websites advertising lower rates as well to consumers.

Sterbcow Law Group’s Marx Sterbcow was quoted in a New York Times article titled “Cracking Down on Illegal Mortgage Referrals” written by NY Times Mortgage Columnist Lisa Prevost. The article published June 5, 2014, discusses the recent RESPA regulatory enforcement actions by the Consumer Financial Protection Bureau (CFPB) against mortgage, title, real estate brokerages. The CFPB has now been involved in 12 RESPA enforcement actions since taking over from HUD in July of 2011.

Mr. Sterbcow was quoted in his description of the RealtySouth consent order: “That’s Respa 101 of what not to do,” said Marx David Sterbcow, a New Orleans lawyer specializing in Respa issues. “You don’t write it into the contracts and basically steer customers to your affiliated company.”

“Respa is intended to protect consumers from having to pay inflated costs for mortgage and closing services. In looking for violators, the bureau has shown that “they don’t care how big your company is,” Mr. Sterbcow said. “Nor do they care how small your company is.” ”

The RealtySouth consent order was an enforcement action which was triggered against RealtySouth because it inserted into it’s pre-printed contract sale form that consumers were required to use TitleSouth (RealtySouth’s affiliated title company). The language in the pre-printed contract which was only in operation for a year stated in Paragraph 5, “Title Insurance. Seller agrees to furnish Buyer a standard form owner’s title insurance policy issued by TitleSouth, LLC in the amount of the purchase price.”

This was the crux of the RESPA enforcement action although the CFPB also added a seemingly trivial charge against RealtySouth’s for not strictly adhering to the exact font and language specifications required in an affiliated business disclosure form. The CFPB argued the disclosure was modified because fonts, word capitalization requirements, and marketing slogans were either not allowed or out of compliance and deviated from the required format.

While CFPB did not identify how many consumers actually opted out of that provision in the pre-printed contract and used a third party title company it didn’t matter as the language spoke for itself which is why the RealtySouth action was commenced by federal regulators.
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The Consumer Financial Protection Bureau “CFPB” announced another enforcement action today against JRHBW Realty, Inc. d/b/a RealtySouth and TitleSouth, LLC (both HomeServices of America companies) for violating Section 8 Real Estate Settlement Procedures Act , 12 U.S.C. §2607, and its implementing regulation, 12 C.F.R. Part 1024 (formerly codified at 24 C.F.R. Part 3500)(collectively, RESPA).

Administrative Proceeding File No. 2014-CFPB-0005 “In the Matter of JRHBW Realty, Inc., doing business as RealtySouth; TitleSouth LLC found that RealtySouth used illegal Affiliated Business Disclosure Statements and inserted language in the RealtySouth purchase agreements which mandated the use of TitleSouth both of which violate RESPA.

RealtySouth is a real estate brokerage company operating in the state of Alabama who also owns another company, TitleSouth LLC, which provides title closing services in Alabama. The CFPB made note in the consent order that the President of TitleSouth also is the General Counsel of RealtySouth.

RealtySouth and TitleSouth were order to pay a fine of $500,000 to the CFPB and faced additional requirements as identified below. It should be noted that this isn’t RealtySouth’s first experience with RESPA as it was involved in the infamous RESPA class action case: Vicki V. Busby versus JRHBW Realty, Inc. d/b/a Realty South involving administrative brokerage fees.
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The United States District Court for the District of Maryland, Northern Division certified a Real Estate Settlement Procedures Act “RESPA” class action lawsuit on Tuesday, Jan. 28, 2014 involving marketing agreements between a “Team” of real estate agents “and Lakeview Title Company, Inc. The Creig Northrop Team, PC (a/k/a The Northrop Team) is a team of independent contractor real estate agents who work for Long & Foster Real Estate, Inc.. The class action lawsuit arises out of an alleged scheme for a team of real estate agents to receive over half million dollars in illegal kickbacks from a title insurance company for referrals over a period of 13 years.

Patrick Baehr, et al., v. The Creig Northrop Team, P.C., et al. (Civil No: 1:2013cv00933). Judge William D. Quarles is the presiding judge in this case.

The allegations specifically state that the defendants “used a ‘sham employment arrangement and a sham marketing agreement’ ‘to generate unearned fees and kickbacks.'” The employment agreement allegation involves Carla Northrop who was a full-time employee of the Northrop Team but secretly received payments from Lakeview Title under an employment agreement, even though Ms. Northrop allegedly did not perform any services or actual work for Lakeview Title nor was she provided an office, telephone number, or email address showing she was working for Lakeview Title. The employment agreement was not disclosed to the plaintiffs in this case. These allegations if proven would likely violate 12 U.S.C. §2607 of RESPA which is the prohibition against kickbacks and unearned fees section.

The Dodd-Frank Update and The Legal Description legal publications at October Research, LLC have teamed up to host a 90-minute federal regulatory outlook webinar for mortgage, title insurance and settlement services professionals. This in-depth training features two top compliance attorneys who will educate participants on significant regulations impacting the industry in 2014. The webinar will be held on Tuesday, December 10, 2013 from 2:00-3:30 PM EST.

Speakers Mitch Kider, of Weiner Brodsky Kider PC, and Marx Sterbcow, of The Sterbcow Law Group, will define significant regulations, what companies should be doing now to prepare and what the regulatory landscape will look like as we move into yet another year of complying with thousands of pages of new and existing regulations. Topics will include:

•CFPB enforcement actions: Who’s at risk and what to expect;

On October 30, 2013, the Office of the Comptroller of the Currency “OCC” issued a bulletin on “Risk Management Guidance” which will have wide ranging implications for all vendors of national banks and federal savings associations. The bulletin provides new guidance for assessing and managing compliance risks associated with third-party relationships. A 3rd party relationship is any business arrangement between a banks and another entity, by contract or otherwise.

3rd party relationships include activities that involve outsourced products and services, use of independent consultants, networking arrangements, merchant payment processing services, services provided by affiliates and subsidiaries, joint ventures, and other business arrangements where the bank has an ongoing relationship or may have responsibility for the associated records. Affiliate relationships are also subject to sections 23A and 23B of the Federal Reserve Act (12 USC 371c and 12 USC 371c-1) as implemented in Regulation W (12 CFR 223). Third-party relationships generally do not include customer relationships.

The OCC stated that it “expects a bank to practice effective risk management regardless of whether the bank performs the activity internally or through a third party. A bank’s use of 3rd parties does not diminish the responsibility of its board of directors and senior management to ensure that the activity is performed in a safe and sound manner and in compliance with applicable laws.”

The OCC released the bulletin in response to the on-going concern that banks were continuing to increase the number and complexity of third party relationships with both foreign and domestic 3rd parties. Specifically they highlighted:
(1) outsourcing entire bank functions to third parties, such as tax, legal, audit, or information technology operations;
(2) outsourcing lines of business or products;
(3) relying on a single third party to perform multiple activities, often to such an extent that the third party becomes an integral component of the bank’s operations;
(4) working with third parties that engage directly with customers;
(5) contracting with third parties that subcontract activities to other foreign and domestic providers;
(6) contracting with third parties whose employees, facilities, and subcontractors may be geographically concentrated; and (7) working with a third party to address deficiencies in bank operations or compliance with laws or regulations.

The OCC is concerned that the quality of risk management over third-party relationships may not be keeping pace with the level of risk and complexity of these relationships. The OCC has identified instances in which bank management has:
(1) failed to properly assess and understand the risks and direct and indirect costs involved in third-party relationships.
(2) failed to perform adequate due diligence and ongoing monitoring of third-party relationships.
(3) entered into contracts without assessing the adequacy of a third party’s risk management practices.
(4) entered into contracts that incentivize a third party to take risks that are detrimental to the bank or its customers, in order to maximize the third party’s revenues.
(5) engaged in informal third-party relationships without contracts in place.

These examples represent trends whose associated risks reinforce the need for banks to maintain effective risk management practices over third-party relationships.
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The 8th Circuit Court of Appeals overturned a district court decision in the Charvat v. Mutual First Federal Credit Union case. The case involved a violation of the Electronic Fund Transfer Act (“EFTA”) 15 U.S.C. §1693 where the Charvat’s made several ATM withdrawals from two Nebraska banks. The 8th Circuit stated “The EFTA requires ATM operators to provide two forms of notice, one “on or at” the ATM machine and another on-screen during the ATM transaction, if the bank operators charged a ATM transaction fee. The ATM machines in question failed to provide the required notice disclosure on the “on ATM machine” and this was the basis for the class action.

The 8th Circuit held that “[D]ecisions by this Court and the Supreme Court indicate that an informational injury alone is sufficient to confer standing, even without an additional economic or other injury.” The 8th Circuit further stated that Charvat identified a variety of instances where the denial of a statutory right to receive information was sufficient to establish standing and cited to the Fed. Election Comm’n v. Akins case and more importantly the Dryden v. Lou Budke’s Arrow Fin. Co. which was a Truth-In-Lending Act case.

The citing of the Dryden case is particularly important because the 8th Circuit said ” “f [borrower] proved that the disclosure provisions of [TILA] and Regulation Z were violated in connection with the January 26 transaction, [lender] is liable for statutory damages.”).” The 8th Circuit said the EFTA creates a right to a particular form of notice before an ATM transaction fee could be levied. If that notice was not provided and a fee was nonetheless charged, an injury occurred, and the statutory damages are directly related to the consumer’s injury.”