CFPB Pursuing Violators of Smell Test

Now that responsibility for enforcing the Real Estate Settlement Procedures Act (RESPA) has been transferred to to the Consumer Financial Protection Bureau (CFPB), the question of whether the agency would sue alleged violators or accept a monetary settlement with the promise that it cease its errant ways has been decided—at least in one case: The government is going after Louisville law firm Borders & Borders, alleging it received kickbacks from a network of nine affiliates jointly owned by the firm–title insurance companies, and realty and mortgage partners (shell companies)—that referred consumers to the law firm for settlements.

RESPA prohibits real estate service participants from giving or receiving kickbacks in cases that involve federally related mortgages, and the CFPB alleges that the affiliates of Borders did not pass the ten point smell test that requires them to be legitimate businesses with their own staffs, office space and capitalization. Writing in, Ken Harney tells the law firm states it did not charge consumers anything extra, and that the CFPB is trying to enforce rules that are not in the statute. The government’s lawsuit seeks fees the law firm collected through its operation of the nine affiliated companies from 2006 to 2011. Harney concludes: “Anyone in real estate with affiliated settlement service businesses should keep track of this case and be on alert: There’s a new RESPA sheriff in town. He’s looking hard for alleged lawbreakers and he seems to be in no mood for compromise.” ##

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