Regulations

Appelate court throws out long-standing sniff test for ‘sham’ joint mortgage and title businesses

10-point standard in use for 17 years found to be unconstitutionally vague

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In a major reversal for government efforts to regulate business ventures among real estate brokerage, title insurance and mortgage companies, a federal appellate court has thrown out HUD’s long-standing 10-point test that defines key standards for affiliates under the Real Estate Settlement Procedures Act (RESPA). The U.S. Appeals Court for the Sixth Circuit handed down its potentially far-reaching decision in Carter v. Welles-Bowen Realty Inc. the day before Thanksgiving. The ruling is certain to grab the attention of real estate industry executives nationwide, especially given the aggressive approach on affiliated businesses adopted by the Consumer Financial Protection Bureau, which inherited RESPA enforcement authority from HUD. First enacted in 1974, RESPA bans kickbacks in exchange for referrals of business among settlement service providers in residential mortgage transactions. A 1983 amendment to the law created a safe harbor for affiliated businesses that disclose their...