REAL ESTATE SETTLEMENT PROCEDURES ACT: RESPA SECTION 10 GUIDELINES
The Real Estate Settlement Procedures Act (RESPA) has strict guidelines on Escrow Accounts under Section 10. Sec. 10 places limits on the amount of money a lender requires a borrower to hold in an escrow account for payment of taxes, homeowners insurance, flood insurance, private mortgage insurance, or any other charge related to the property. RESPA's Section 10 does not require that all loans have an escrow account, instead it regulates the maximum amount of money that can be deposited into an escrow account.
Lenders under Section 10 must conduct a escrow account analysis at least once a year and if there is a shortage they must notify the borrower of the problem and if a borrower's escrow account has more than $50.00 the lender is required to refund the borrower the difference.
Source: www.respalawyer.com
OREGON SENATOR JEFF MERKLEY INTRODUCES TRANSPARENCY FOR HOMEOWNERS ACT AND PROMOTING MORTGAGE RESPONSIBILITY ACT OF 2009
Oregon Senator Jeff Merkley has introduced two new legislative bills that the real estate industry and public need to be keenly aware of: Senate Bill 911 known as The Transparency for Homeowners Act and Senate Bill 912 known as The Promoting Mortgage Responsibility Act. Sen. Merkley believes that abolishing the Yield Spread Premium (YSP) will stop the real estate mortgage problems in the United States because by eliminating the YSP will kill off the mortgage brokerage industry who rely on the YSP as part of their compensation. There have been abuses with the YSP and never was that more apparent during the sub-prime mortgage craze but if Senator Merkley was really interested in reigning in abusive practices they why didn't he address the Service Release Premium (SRP) abuses which far exceeded the abuses of the Yield Spread Premium? Robert Blake of the Mortgage Insider criticizes both bills as an attempt by the banking lobby to kill off their competition.
Source: www.respalawyer.com
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REAL ESTATE SETTLEMENT PROCEDURES ACT "RESPA": ADMINISTRATIVE BROKERAGE COMMISSION FEE ("ABC FEE") VIOLATE RESPA
U.S. District Court for the Northern District of Alabama's Southern Division handed down a decision on April 20, 2009 in the Vicki V. Busby v. JRHBW Realty, Inc. d/b/a RealtySouth case. The case centered on Section 8(b) of the Real Estate Settlement Procedures Act (RESPA) and whether Administrative Brokerage Commissions (ABC Fees) are illegal.
United States District Judge Virginia Emerson Hopkins ruled the ABC Fees that RealtySouth charged consumers in a residential real estate transaction involving a federally related mortgage was nothing more than an unearned fee because the ABC fee would not be linked to a bona-fide settlement service that RealtySouth performed in the transaction.
The Birmingham News "Homebuyers were unfairly charged fee, federal court in Birmingham rules" by Russell Hubbard broke the story.
Section 8(b) of RESPA clearly states that no fee may be charged for the rendering of a real estate settlement service other than for settlement services actually performed.
RealtySouth charged a $149.00 Administrative Brokerage Fee since 2003 on over 30, 000 real estate transactions in the state of Alabama. The defense was dealt a significant blow when two RealtySouth executives testified in their depositions that the ABC fees they charged did not go any particular settlement service but rather was implemented to increase revenues for the brokerage only. They further testified that the consumers did not get any benefit from the ABC fee. The testimony from the RealtySouth executives damaged RealtySouth to point where the defense didn't have any real hope of winning in this case.
If RealtySouth had charged the consumers a fee that was based on some benefit (i.e. technology closing platform to store all their documents) and labeled attached an appropriate label to that bona-fide fee then I believe the verdict would have been different. The wholesale blanket of charging ABC fees "where no service has been provided to the consumer" should be curtailed by any real estate brokerage or in some cases real estate agents themselves from charging such a fee.
The bottom line is that real estate brokerages need to make sure if they charge consumers an additional fee separate and apart from the real estate commission that the fee is reasonable, verified, service is provided, and most importantly the fee provides some benefit to the consumer.
The damages against RealtySouth could exceed $13.5 million dollars (treble damages on $149.00 with potentially 30, 000 borrowers) plus the plaintiffs attorneys fees and costs in the civil action. If HUD's RESPA division sanctions RealtySouth as well the price tag could go up even further because Section 8 under RESPA also has criminal penalties.
Source: www.respalawyer.com
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REAL ESTATE SETTLEMENT PROCEDURES ACT (RESPA) LITIGATION UPDATE
A recent RESPA litigation ruling by the United States Sixth Circuit Court of Appeals in Cincinnati, Ohio sparked headlines this week when they overturned a district court ruling denying class certification in the Erik C. Carter, et. al., United States of America v. Welles Bowen Realty, Inc. et al lawsuit. No. 07-3965.
The issue at dispute is whether a Section 8 claim of the Real Estate Settlement Procedures Act violation gives consumers "standing even if the consumer does not allege an above-market race charge for services, i.e. an 'overcharge.'" The district court previously held that because the defendants did not over charge the consumers they didn't suffer an injury but the appellate court has overturned the district courts decision.
Welles-Bowen Title Agency is a joint venture affiliated business arrangement, owned by Welles-Bowen Realty, Inc. and Chicago Title Insurance Company--a Fidelity subsidiary. The alleged problem with the relationship however appears to be that Welles-Bowen Title Agency did not really perform any settlement work, review title, or even conduct the closings. However, Chicago Title gave Welles-Bowen Realty, Inc. seventy percent (70%) of the fees and title policy money generated. If the allegations are true then this relationship would appear to be an illegal sham affiliated business arrangement under federal RESPA guidelines. There are other issues at play as well, such as the State of Ohio's affiliated business arrangement ownership and profit requirements but those were not addressed in this appellate decision.
Source: www.respalawyer.com
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