RESPA Highlights: 3Q 2016

In the RESPA cases discussed below, the borrowers failed to show that the lenders and other entities paid or received kickbacks or other improper fees.

A.         Cases

1.         Schiano v. MBNA, No. 5-1771 (JLL), 2016 WL 21257761 (D. N.J. Aug. 10, 2016); Schiano v. MBNA, No. 5-1771 (JLL), 2016 WL 4009821 (D. N.J. July 25, 2016)

Borrowers failed to show lenders paid or received improper fees or kickbacks.

Borrowers alleged that various lenders and entities violated RESPA by paying fees and kickbacks to each other. They also claimed that disbursements made to MBNA were unaccounted for and, therefore, constitute unearned fees or kickbacks. In one of the decisions, the court considered the claims against a lender and affiliated mortgage company. The court ruled there were no allegations that the lender withheld any fees, nor was there any evidence that the defendants received unearned fees or kickbacks. Summary judgment was granted in favor of the lender and mortgage company.

In the other decision, the court examined the allegations against a lender who was allegedly a successor to MBNA. The court concluded that the Borrower’s allegations were not specific enough; they did not state which party accepted false charges, the party with whom fees were split, when the fees were charged, or the services involved. The court granted the lender’s motion to dismiss.

2.         Silvestar v. Nationstar Mortgage, LLC, No. 1:15-CV-4246-RWS-JKL, 2016 WL 5339736 (N.D. Ga. July 12, 2016)

Homeowner failed to show payments between bank and mortgage company were misleading.

Homeowner alleged that a bank and mortgage company violated RESPA by making misleading payments between themselves and that the payments were designed to create a windfall. The magistrate judge recommended dismissal of the lawsuit because the homeowner did not show how any of the payments between the parties were misleading.

B.         Statutes/Regulations


A regulation in Florida provides a long list of activities which constitute an unlawful inducement for the sale or referral of title insurance business, if the activities are performed for a referrer or settlement service business. The list includes providing simulated panoramic home and property tours to real estate brokers and sales associates to promote their listings, sponsoring and hosting open houses for real estate brokers and sales associates, paying for advertising to promote real estate listings, and providing an endorsement or designation of preferred status on media promoting real estate brokers or sales associates.[6]

C.         Volume of Materials Retrieved

RESPA issues were identified 5 times in 5 cases (see Table 1). The cases addressed kickbacks and disclosure of settlement costs.


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State Law Based Changes

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