CFPB Loses Case Over RESPA

A lawsuit brought by the Consumer Financial Protection Bureau against a Louisville law firm was dismissed on Friday.

In a summary judgment ruling, the U.S. District Court for the Western District of Kentucky found that law firm Borders & Borders PLC followed the Real Estate Settlement Procedures Act (RESPA) while operating title insurance agencies from 2006 to 2011, according to a NEWS release.

Morgan Ward, a partner with Stites & Harbison PLLC and one of the attorneys who defended Borders & Borders, said: “The CFPB was overreaching, and it’s unfair to target a small firm as part of a regulatory agenda.”

The case “appears to be the CFPB’s first loss on the merits at the federal trial court level,” according to the release.

The CFPB sued Borders & Borders in 2013 after the firm refused to agree with a punitive consent decree levied by the agency. The CFPB alleged that the firm and principals Harry Borders, John Borders Jr. and J. David Borders accepted kickbacks in exchange for referrals of real-estate closing services.

Borders & Borders operated nine title insurance agencies as joint ventures with local real estate and mortgage brokerage companies, according to the lawsuit, as was allowed under RESPA’s safe harbor for affiliated business arrangements. Those companies referred home buyers to Borders & Borders for settlement services, and the firm then would have the title insurance issued by one of the joint ventures.

The profits from the arrangement were split among the title insurance agencies’ owners — Borders & Borders, its principals and the referring company, according to the lawsuit.

Morgan Ward, a partner with Stites & Harbison PLLC and one of the attorneys who defended Borders & Borders, said that under RESPA, it is illegal to pay for referrals unless the law firm and mortgage broker share owners, as was the case with Borders & Borders. Consumers also must be aware of and agree with the arrangement.

Ward said the CFPB viewed RESPA’s safe harbor for affiliated business arrangements as a loophole and decided to try to close it through the courts instead of going to Congress to change the law.

“This really was a David versus Goliath kind of case,” Ward said. The CFPB “tried to send a chilling effect to the marketplace by punishing a family-owned local law firm.”

At First Look Emails Seem Legitimate

At first glance the emails look legitimate.

But businesses get defrauded of millions of dollars daily by people using spoof emails and other false documents to steal funds, said Randy Roewe, chief risk officer for First Financial Bank.

“We get things from time to time that look exactly like a company logo,” said Darren Faulk, who is in business development for Stewart Title Co.’s Cleburne office.

With these spoofed emails, however, there is always something off with them, he said. “Title companies get targeted more than anybody because we’re moving large amounts of funds.”

Because transactions could be moving millions of dollars electronically, title companies have to be extra vigilant about security, from verifying information to keeping information private, Faulk said.

‘We do everything possible to keep things secure,” he said.

Electronic crime has become such a big business, Roewe said, the FBI has developed the Internet Crime Complaint Center — or IC3 — to track electronic crime. Over the last three years, businesses in the U.S. have lost $1.5 billion to internet fraud.

Much of the money being lost is going to Asia, especially China, although the United Kingdom is also becoming prominent, he said.

Email fraud is one of the most prevalent ways businesses get defrauded of money, Roewe said. Nationally, title companies are some of the hardest hit, losing more than $17 million last year.

But every business, from legal services to food service and manufacturing, is vulnerable to losses, he said.

By stealing basic information through company websites and tracking social media, crooks determine who to target and impersonate in an email to perpetrate their scams, Roewe said.

Usually, compromised email attacks will come in the form of electronic funds transfer requests, he said. Such transactions go so fast, they are hard to catch.

“We encourage you to use electronic funds transfer,” he said, but when using any banking service businesses have to be aware of risks and how to manage them.

These emails might appear legitimate, he said, and the criminals usually pose as a CEO or other executive but the emails will usually come from a look-a-like domain camouflaged by as few as one or two letters off the real site. The crooks might alter a domain like “payme.com” to “payrne.com” that at a quick glance might look like the real thing.

They also might leave clues in subject lines or in the body of the email itself, he said. Usually messages and subject lines contain a sense of urgency in the request or a request for secrecy.

When checking email from a phone, if a request comes in from a CEO or executive, it’s usually good to double-check on a computer to see the actual address the email is coming from, he said.

Besides using fake emails, criminals also create fake invoices or concoct elaborate stories to steal money, he said. Like fake emails, fake invoices might look legitimate, using company logos or real names, but will be off in some way, usually through account numbers.

Thieves will concoct elaborate stories to attract third party “mules” to have money sent through them for part of the cut, he said. Work from home offers are also usually to good to be true scams to get people to release their information.

The thieves are sophisticated, he said. With one recent scam the bank discovered, for instance, a Houston title company was sent a money transfer request, one that looked completely legitimate, using the same language used in transfer and even a real routing number to an account at a bank in Ohio.

What clued the title company into the scam was the routing number — it was for a personal rather than business account, he said. The company had checked and confirmed with the bank in Ohio that the account stood out.

It’s through diligent action like checking and confirming and coaching employees to recognize fraud that will save businesses from its headaches.

Implementing dual controls — where two people are responsible for one operation — is one of the best ways to deter fraud, he said.

While email and other electronic fraud are prominent, checks are still used to commit fraud, said Daniel Neely, First Financial Senior Vice President of Treasury Management Solutions.

Checks can be altered or forged or counterfeited, he said, and as with other forms of fraud, diligent checking and confirming will help prevent loss. He recommended reconciling accounts daily as a way not only of keeping books current but of checking for fraud.

But most important, knowing who you’re doing business with will lower risks, he said.

First Time Homebuying Reaches 15 year High

Since the housing crash, first-time homebuyers who finance their homes through the Federal Housing Administration (FHA) and the government-sponsored enterprises (GSEs) Fannie Mae and Freddie Mac have outnumbered repeat buyers every year, according to data in the Urban Institute’s July Monthly Chartbook. Before the crash, these roles were reversed.Existhome

Much of the increase in first-time homebuyer activity has been through the GSEs. As of this past April, 47.8 percent of mortgages backed by government-sponsored enterprises (GSEs) Fannie and Freddie went to first-time homebuyers, the highest level in 15 years, according to the Chartbook. The GSEs’ share of first-time homebuyers stood at about 40 percent from 2007 to 2013, but has been rising over the past few years.

When combined with FHA-backed mortgages, of which the vast majority (82.7 percent as of this past March) go to first-time homebuyers, the total share of first-time homebuyers using GSE or FHA financing this past April stood at 60 percent.

Part of the reason for the rising share of first-time homebuyers in the market is a decline in repeat buyers, mostly since the housing crisis. The FHA and the GSEs financed 1.8 million repeat homebuyers in 2001. This number fell to around 1.5 million in 2007 and then dropped drastically over the next four years, hitting a low of just above 600,000 in 2011, according to the Chartbook. In 2016, repeat-homebuyer numbers had recovered to just over 1 million, but this number was still just 57 percent of the 2001 total.

In contrast, 1.4 million first-time homebuyers used FHA or GSE financing in 2016, slightly higher than the 1.3 million in 2001, and the highest number in the last 15 years.

CFPB Finalizes Updates to “Know Before You Owe” Mortgage Disclosure

Press Release
July 7, 2017

The Consumer Financial Protection Bureau (CFPB) today finalized updates to its “Know Before You Owe” mortgage disclosure rule with amendments that are intended to formalize guidance in the rule, and provide greater clarity and certainty. The changes will facilitate implementation of the Know Before You Owe rule by the mortgage industry. The CFPB is also releasing a limited follow-up proposal to address an additional implementation issue.

“A mortgage is one of the largest financial decisions a consumer will ever make, and CFPB’s rules help ensure consumers have the easy-to-understand information they need before making a decision that will significantly impact their financial lives,” said CFPB Director Richard Cordray. “Our updates will clarify parts of our mortgage disclosure rule to make for a smoother implementation process for lenders and consumers.”

The Know Before You Owe mortgage disclosure rule took effect Oct. 3, 2015. The CFPB’s rule created new, streamlined forms that consumers receive when applying for and closing on a mortgage. In addition to clarifications and technical corrections, the amendments that the Bureau is finalizing today address a handful of other issues within the rule, including:

Tolerances for the total of payments: Before the Know Before You Owe mortgage disclosure rule, the total of payments disclosure was determined using the finance charge as part of the calculation. The Know Before You Owe mortgage disclosure rule changed the total of payments calculation so that it did not make specific use of the finance charge. The Bureau is now finalizing updates to include tolerance provisions for the total of payments that parallel the tolerances for the finance charge and disclosures affected by the finance charge.

Housing assistance lending: The Know Before You Owe mortgage disclosure rule gave a partial exemption from disclosure requirements to certain housing assistance loans, which are originated primarily by housing finance agencies. The Bureau’s update, as finalized, promotes housing assistance lending by clarifying that recording fees and transfer taxes may be charged in connection with those transactions without losing eligibility for the partial exemption. The update also excludes recording fees and transfer taxes from the exemption’s limits on costs. Through the update, more housing assistance loans will qualify for the partial exemption, which should encourage these loans.

Cooperatives: The Bureau is finalizing updates to extend the rule’s coverage to include all cooperative units. Currently, the rule only covers transactions secured by real property, as defined under state law. Cooperatives are sometimes treated as personal property under state law and sometimes as real property. By including all cooperatives in the rule, the Bureau is simplifying compliance and ensuring that more consumers benefit from the rule.

Privacy and sharing of information: The Know Before You Owe mortgage disclosure rule requires creditors to provide certain mortgage disclosures to the consumer. The Bureau has received many questions about sharing the disclosures provided to consumers with third parties to the transaction, including the seller and real estate brokers. The Bureau understands that it is usual, accepted, and appropriate for creditors and settlement agents to provide a Closing Disclosure to consumers, sellers, and their real estate brokers or other agents. The Bureau is finalizing additional commentary to clarify how a creditor may provide separate disclosure forms to the consumer and the seller.

The finalized amendments are available at:
http://files.consumerfinance.gov/f/documents/201707_cfpb_Final-Rule_Amendments-to-Federal-Mortgage-Disclosure-Requirements_TILA.pdf

In addition to the final rule, the CFPB is issuing a proposal addressing when a creditor may use a Closing Disclosure, instead of a Loan Estimate, to determine if an estimated closing cost was disclosed in good faith and within tolerance. Comments are due 60 days after the proposal’s publication in the Federal Register and will be weighed carefully before a final regulation is issued.

The proposal is available at:
http://files.consumerfinance.gov/f/documents/201707_cfpb_Proposed-Rule_Amendments-to-Federal-Mortgage-Disclosure-Requirements_TILA.pdf

License Renewals for MN are Due by June 30th

Real estate agents, abstracters, closing agents and brokers are reminded that they must renew their licenses on or before June 30th. So please check your license for renewals.

Information from the Commerce Department on MN state licensing can be found here.

Pulseportal information can be found here.

OCC Adds Information for Third Party Vendors

On June 7th, the OCC added bulletin 29 to third-party relationships to clarify the way lenders should interact with third party vendors, to us, that means how lenders deal title and closing providers.

    Get the entire OCC bulletin here

.

As a part of the lengthy bulletin, it stated the lender is responsible for ongoing monitoring.

Ongoing Monitoring
Ongoing monitoring for the duration of the third-party relationship is an essential component of the bank’s risk management process. More comprehensive monitoring is necessary when the third-party relationship involves critical activities. Senior management should periodically assess existing third-party relationships to determine whether the nature of the activity performed now constitutes a critical activity.
After entering into a contract with a third party, bank management should dedicate sufficient staff with the necessary expertise, authority, and accountability to oversee and monitor the third party commensurate with the level of risk and complexity of the relationship. Regular on site visits may be useful to understand fully the third party’s operations and ongoing ability to meet contract requirements. Management should ensure that bank employees that directly manage third-party relationships monitor the third party’s activities and performance. A bank should pay particular attention to the quality and sustainability of the third party’s controls, and its ability to meet service-level agreements, performance metrics and other contractual terms, and to comply with legal and regulatory requirements.
The OCC expects the bank’s ongoing monitoring of third-party relationships to cover the due diligence activities discussed earlier. Because both the level and types of risks may change over the lifetime of third-party relationships, a bank should ensure that its ongoing monitoring adapts accordingly. This monitoring may result in changes to the frequency and types of required reports from the third party, including service-level agreement performance reports, audit reports, and control testing results. In addition to ongoing review of third-party reports, some key areas of consideration for ongoing monitoring may include assessing changes to the third party’s
• business strategy (including acquisitions, divestitures, joint ventures) and reputation (including litigation) that may pose conflicting interests and impact its ability to meet contractual obligations and service-level agreements.
• compliance with legal and regulatory requirements.
• financial condition.
• insurance coverage.
• key personnel and ability to retain essential knowledge in support of the activities.
• ability to effectively manage risk by identifying and addressing issues before they are cited in audit reports.
• process for adjusting policies, procedures, and controls in response to changing threats and new vulnerabilities and material breaches or other serious incidents.
• information technology used or the management of information systems.
• ability to respond to and recover from service disruptions or degradations and meet business resilience expectations.
• reliance on, exposure to, or performance of subcontractors; location of subcontractors; and the ongoing monitoring and control testing of subcontractors.
• agreements with other entities that may pose a conflict of interest or introduce reputation, operational, or other risks to the bank.
• ability to maintain the confidentiality and integrity of the bank’s information and systems.
• volume, nature, and trends of consumer complaints, in particular those that indicate compliance or risk management problems.
• ability to appropriately remediate customer complaints.
Bank employees who directly manage third-party relationships should escalate to senior management significant issues or concerns arising from ongoing monitoring, such as an increase in risk, material weaknesses and repeat audit findings, deterioration in financial condition, security breaches, data loss, service or system interruptions, or compliance lapses. Additionally, management should ensure that the bank’s controls to manage risks from third-party relationships are tested regularly, particularly where critical activities are involved. Based on the results of the ongoing monitoring and internal control testing, management should respond to issues when identified including escalating significant issues to the board.

Title Agent Charged with Negligence and Compensatory Damages

A Connecticut title agent was held liable for $77,500 that was paid by a Title Underwriter to clear title to property it insured, as well as more than $20,000 in compensatory damages for fees and expenses incurred in negotiating the settlement. The case showcased liability by the agent for a negligent title search, and breach of duty to the underwriter.

Read the case here.

CFPB Gives Snapshot of Complaints from Older Consumers

The Consumer Financial Protection Bureau (CFPB) released a complaint report highlighting complaints submitted by older consumers.

The snapshot shows that older consumers frequently report servicing problems with reverse mortgages, difficulties recovering money after financial scams, confusion around deferred interest credit cards, and charges for unauthorized add-on products. The snapshot provides an overview and analysis of more than 103,100 complaints submitted to the Bureau by consumers voluntarily reporting their age as 62 or older.

“Older consumers who may be on a fixed income are at a greater risk for financial trouble if they encounter problems with financial products or services,” said CFPB Director Richard Cordray. “The complaints submitted by older consumers are important for the Bureau to ensure we are properly looking out for this segment of the population.”

The Monthly Complaint Report can be found at: CFPB Press release

Closing Agent License Renewal is Due Now

Check your closing agent license for your renewal date! Licenses are good for two years and must be renewed by June 30th of the second year after your license is issued. If you miss the cutoff, you will be required to retake the Closing Agent Prelicense course, pay new license fees, and once again complete the entire process through the State’s Pulseportal System.

Meanwhile, and this is totally random, don’t miss the Elvis Cockatoo on youtube. It will make your day. 🙂

 https://www.youtube.com/watch?v=CEQuDyuQFKE

Strangest Questions Asked by Buyers

Long before home buyers decide a certain place must be theirs, it behooves them to ask a lot of questions. For example: “How’s the neighborhood?” or “How old is that water heater, anyway?” Ask away! Such queries help you pare down your options, so don’t be bashful; real estate agents have heard them all.

However, the adage “There’s no such thing as a stupid question” isn’t always true. As proof, just check out this list of the strangest questions real estate agents have ever heard about a house. Cue the “Twilight Zone” music—things are about to get very, very weird.

  1. ‘How do you keep alligators from coming up into the toilet?’

Michael Lyons, a real estate broker with Lyons Realty Group in Hollywood, FL, has certainly heard his share of concerns about alligators lurking in yards, ponds, and swimming pools. But sneaking into the house? Through a toilet? That left him stumped.

“I couldn’t answer that question seriously,” he said. “So I made up some weird solution. I told them, ‘pour vinegar down the toilet once a month, they hate it.'”

This seemed to appease the buyers, who ended up purchasing the house. No word on whether or not the vinegar trick worked.

  1. ‘Do any swingers live in the neighborhood?’

Top of Form

Bottom of Form

While home buyers often have questions about the neighbors, this one was a first for Kate Julian, a real estate agent with City Chic Real Estate, in Washington, DC.

“They said they were swingers and that’s something they were looking for,” she said.

Unsure what to say, she countered with, “drive around the neighborhood and see.” After all, aren’t swingers very friendly?

 

 

  1. ‘Does the car in the driveway come with the house?’

Chike Uzoka, a real estate agent with Weichert in Newark, NJ, has heard of buyers asking whether many things “come with the house,” from chandeliers and furniture to appliances and pool equipment. But a car?

The only way he could answer such a question was with sarcasm: “If the attorney doesn’t catch it in attorney review, then yes it does!”

  1. ‘Is anyone buried in the backyard?’

Larry Prigal, a real estate agent with Re/Max in Gaithersburg, MD, had no reason to believe the house he was selling had any corpses stashed 6 feet under. “So I joked, ‘I’m not aware of anyone buried here, but you can dig it up after you’ve settled on the property.’”

Who knows? Maybe the buyers were worried about our next point…

  1. ‘Are there any ghosts in the house?’

When Chris Dossman, a real estate agent with Century 21 in Indianapolis, holds open houses at older homes, it’s not uncommon to hear creaks or creepy noises. That prompts a superstitious few to pop the ghost question.

“I usually respond jokingly at first that there are ghosts but that they’re friendly, but then immediately follow with ‘just kidding,’ because people can be really weird about those things,” Dossman said. “Cellars and basements can be especially freaky, even to me.”

Nonetheless, a haunted house is, in fact, a selling point for some home buyers. Go figure.

  1. ‘I really like this house, but I need to pray about it. Is that OK?’

Kimberly Sands, a real estate broker with Coldwell Banker Sea Coast Advantage, in Wilmington, NC, said she gets this question (or some variation of it) a fair amount, so she wasn’t alarmed, at first.

“I thought the would-be buyer would go home and pray about it and then decide, so I said ‘sure.'” That’s when things got weird.

“All of the sudden she drops to her knees and starts flailing her arms and yelling at the top of her lungs: ‘Dear Jesus, please send me a sign, Jesus, a sign that I should buy this house!’ Meanwhile, I slowly started inching toward the door planning a hasty escape. I ended up waiting outside on the curb for her to come out for about 15 minutes. When she came out, she was cool, composed, and had her answer: no.”

  1. ‘Do you think the homeowner would give me the house without a down payment?’

Taken aback, Julie McDonough, a real estate agent with AmeriSell, in Southern California, told the buyer, “I can’t imagine they would.”

The buyer went on to explain that he’d taken a seminar on how to get the seller to deed the buyer the property without any credit or money.

“So I asked him, ‘How is that going? Has anyone deeded you a property yet?’” McDonough recalled. “He said, ‘No, but it’s a numbers game.’”

  1. ‘Can I come back at midnight to see how the moon here affects my soul?’

The question threw Pate Stevens for a loop, but then he figured there was no harm.

“Although a strange request, I drove over to the home at midnight to let him in,” said Stevens, a real estate agent with Nourmand & Associates, in Beverly Hills, CA.

The outcome? “He didn’t buy the house because the moon ‘didn’t feel right’ to him.”

  1. ‘Why is the garage unfurnished?’

Um. “Because the sellers use it for their cars, not as a living space,” replied Benny Kang, a real estate agent with Uniti Realty, in Irvine, CA, to which the buyer said, “Oh, you’re right.”

“When I heard that question, I thought, ‘This is going to be a long tour,'” Kang said.

  1. ‘Can we close all the blinds and doors and turn off the lights? I just need to see the space at its darkest.’

“I was pretty sure this was the end for me,” said a Brooklyn real estate agent who was holding an open house. “After I said OK, I stood by the front door with my hand on the doorknob.”

Fortunately, the agent, who asked not to be identified, made it out unscathed. “[The buyer] was this eccentric guy who I later found out was the CEO of a big startup.”

Daniel Bortz is a Realtor in Maryland, Virginia, and Washington, DC, who has written for Money magazine, Entrepreneur magazine, CNNMoney, and more.

 

Info On Home Closing

Home Closing 101: An Educational Initiative of the American Land Title Association