U.S. FinCEN Issues Geographical Targeting Orders Requiring Reporting of High-End Cash Purchases and Buyers of Residential Real Estate in Manhattan and Miami

On January 13, FinCEN issued two Geographical Targeting Orders (GTO) requiring certain U.S. title insurance companies to provide identification for certain “all-cash” buyers of high end real estate, and to report such transactions. One GTO focuses on the Borough of Manhattan in New York City, New York and the other focuses on Miami-Dade County, Florida.

According to FinCEN, natural persons may be purchasing real estate without bank financing and through LLCs or “other opaque structures” in an attempt to hide their assets and identity. FinCEN commented: “Having prioritized anti-money laundering protections on real estate transactions involving lending, FinCEN’s remaining concern is with money laundering vulnerabilities associated with all-cash real estate transactions.” The two GTOS will be effective from March 1, 2016 through August 27, 2016, and will require certain title insurance companies to “record and report to FinCEN the beneficial ownership information of legal entities purchasing certain high-value residential real estate without external financing.” Read more…


NYDFS Releases New Title Insurance Rates for Refinancings; Consumers Save Up to 65 Percent

On May 12, the NYDFS announced newly approved title insurance industry rates for mortgage refinancing transactions, which is just one of the steps the NYDFS is planning to take to reform and lower title insurance rates. The new rates vary depending on the term, size, and duration of the loan, and they are anticipated to provide significant savings to New York homeowners.


NY Proposes New Title Insurance Regulations To Help Reduce Closing Costs

On April 29, New York Governor Andrew Cuomo unveiled new title insurance regulations aimed at reducing title insurance closing costs of up to 20 percent for new homebuyers by eliminating kickbacks and other improper expenditures within the title insurance industry. The new regulations follow an NYDFS investigation which revealed that title insurance companies and their agents routinely spent excessive amounts on meals and entertainment for attorneys, real estate professionals and others in exchange for referrals on new business, passing along the costs to consumers’ insurance premium. In addition, the regulations also impose a cap on fees charged for searches and other services associated with the issuance of a title insurance policy, and requires title companies to submit filings, once every three years, affirming that the title insurance rates are not excessive or discriminatory.


Latest CFPB RESPA Enforcement Action Targets Employee Referrals

Last week, the CFPB announced its latest RESPA enforcement action, adding to one of the CFPB’s most active areas of enforcement. In this case, the CFPB required a New Jersey title company to pay $30,000 for allegedly paying commissions to more than twenty independent salespeople who referred title insurance business to the company. The matter was referred to the CFPB by HUD.

The CFPB asserts that from at least 2008 to 2013, the title company offered commissions of up to 40% of the title insurance premiums the company received. The CFPB explained that paying commissions for referrals is allowed under RESPA if the recipient of the payment is an employee of the company that is paying the referral, but claimed in this case that the individuals involved were actually independent contractors and not bona fide employees. The CFPB determined that although the individuals received W-2 forms from the title company, the company “did not have the right or power to control the manner and means by which the individuals performed their duties.”

In determining the penalty amount, the CFPB took into consideration the company’s ability to pay and remain a viable business. Notably, the consent order removes the “employer-employee” exception for this company on a going forward basis, including under existing employment contracts.  The order prohibits the company from paying any employee “any fee, kickback, or thing of value that is contingent on the referral of title insurance business or other settlement services, notwithstanding the ‘employee exception’ contained in 12 C.F.R. §1024.14(g)(vii).” The order also establishes certain compliance, record keeping, and reporting requirements.


CFPB Files Brief In Long-Running RESPA Case

On October 30, the CFPB filed an amicus brief in Edwards v. First American, a long-running case concerning the anti-kickback provisions of the Real Estate Settlement Procedures Act (RESPA) that is currently pending in the U.S. Court of Appeals for the Ninth Circuit. The case revolves around allegations that the defendant-title insurer purchased interests in title insurance agencies in order to secure referrals of insurance business from those agencies. The consumer-plaintiffs alleged that these arrangements constituted illegal kickback agreements under Section 8 of RESPA, even though they did not suffer any actual damages. Read more…


CFPB Sues Law Firm Over Alleged RESPA Violations

On October 24, the CFPB announced the filing of a lawsuit against a Kentucky law firm and its principals for allegedly violating Section 8 of RESPA by operating a network of affiliated companies in order to pay “kickbacks” for referrals of mortgage settlement business. The CFPB claims, among other things, that from 2006 until 2011 the law firm established nine joint ventures (JVs) with owners and managers of real estate and mortgage brokerage companies. According to the CFPB, when a JV partner or an agent or employee of the JV made an initial referral of closing or other settlement services to the law firm, the law firm arranged for the title insurance for the underlying transaction to be issued through the co-owned JV in exchange for the settlement business. The parties subsequently split profits generated by the JVs as a result of the title insurance referrals, the CFPB alleges. The CFPB is seeking to enjoin the defendants from the alleged activity, and disgorgement of all income, revenue, proceeds, or profits received in connection with settlement services provided as a result of or in connection with a referral made in violation of RESPA. Read more…


Seventh Circuit Rejects Class Certification for RESPA Section 8 Action

On March 6, the United States Court of Appeals for the Seventh Circuit concluded that borrower claims against a title insurance company for alleged kickbacks and fee splitting, in violation of Section 8 of the Real Estate Settlement Procedures Act (RESPA), were not appropriate for class treatment because an individual determination of liability would be required for each class member.  Howland v. First American Title Ins. Co., Nos. 11-1816, 11-1817, 2012 WL 695636 (7th Cir. Mar. 6, 2012). The case involves the sale of title insurance in Illinois by First American Title Insurance Company. First American typically sells title insurance to borrowers by contracting with the borrower’s real estate attorney to conduct a title examination. As part of that contract, First American provides the real estate attorney with a substantial amount of information about the property, including a summary sheet that includes legal description of the property, the last known grantee, and any open liens. The borrowers alleged that this summary sheet was itself a preliminary title examination. Because much of the title examination work was provided by First American to the attorney as title agent, the borrower sought to certify a class based on two related alleged violations of RESPA: (i) that the fees charged were excessive and unreasonable given the small amount of work performed and (ii) that the attorney title agents were paid to compensate for referrals and not actual services. The court concluded class certification was not appropriate in this instance. It held that while kickbacks and referral fees to the real estate attorney title agents based on compensation for nominal or duplicative services were banned by Section 8 of RESPA, “the existence or the amount of the kickback in these cases generally requires an individual analysis of each alleged kickback to compare the services performed with the payment made.” Furthermore, the court found that claims attorney title agents were being overcompensated for a pro forma clearance of the title based on the title company’s property summary sheet required a specific case-by-case inquiry. The court concluded that “RESPA Section 8 kickback claims premised on an unreasonably high compensation for services actually performed are inherently unsuitable for class action treatment.”

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