RESPA/TILA/FCRA and Mortgage-Related Litigation

Foley has been counseling and litigating in the Real Estate Settlement Procedures Act (RESPA) Truth In Lending (TILA) and Fair Credit Reporting Act (FCRA) arenas for over thirty five years.

Our attorneys counsel some of the nation’s leading real estate brokerage companies, mortgage lenders, title insurance providers, casualty insurers, and home warranty companies, as well as providers of data/analytics, multiple listing services, and technology platforms, regarding the creation and operation of joint ventures, marketing and advertising agreements, lead sharing, co-marketing, and consumer disclosures relating to the foregoing practices, as well as loan servicing, secondary market sales, and virtually every business practice that may have RESPA/TILA implications.

RESPA Experience

Foley attorneys have defended and successfully resolved numerous RESPA class action suits, often through defeating class certification, decertifying classes initially certified, or prevailing on the merits. Our experience includes trying a four-week RESPA class action in which plaintiffs’ potential damages approached a billion dollars and obtaining a successful defense jury verdict in federal court, where the plaintiffs attempted to challenge a mortgage joint venture between a large lender and a large real estate brokerage.

TILA Experience

Likewise, Foley lawyers regularly counsel clients on Truth-in-Lending Act (TILA) matters and defend TILA-based class actions. We advise and represent clients in connection with TILA matters involving the “Know Before You Owe” mortgage disclosure rules and other TILA consumer disclosures and documents, loan advertising, rescission rights, the ability to repay/qualified mortgage rules, loan originator qualification and compensation requirements, and other issues arising under TILA. We have helped many clients to draft policies, procedures, and agreements to address TILA compliance (for example, TILA-RESPA Integrated Disclosures, disclosures of interest rates and other fees, internal policies, and agreements for the sale of consumer mortgage obligations) and to work with lenders to develop best practices.

FCRA Experience

With respect to FCRA, we represent a variety of financial institutions and creditors (furnishers and users of consumer information) as well as credit reporting agencies, including resellers, background screeners and data wholesalers . Our experience includes handling nationwide portfolios of litigation for national banks, state banks, mortgage lenders, timeshare finance lenders, and credit reporting agencies. Additionally, Foley has substantial knowledge of the practical aspects of the day-to-day operations of its clients, which aids in our ability to provide compliance and regulatory counseling, in addition to traditional litigation defense. Foley attorneys understand the industry and the regulators. We have represented dozens of clients in various CFPB and other agency investigations, sometimes resolving the matter with no enforcement action; and in other instances, we have worked to resolve enforcement allegations efficiently and on satisfactory terms.

For example, we defended a major mortgage insurer in a series of nationwide RESPA class actions involving captive reinsurance and successfully resolved Consumer Financial Protection Bureau (CFPB) allegations and state insurance department complaints regarding the same practices. We previously defended a major title insurer in a series of state insurance department investigations regarding captive title insurance practices in the title arena. Our attorneys also have helped many clients successfully respond to regulatory inquiries by the CFPB, HUD, and FHA and by other state entities such as real estate commissions, and mortgage licensing bodies. We likewise have assisted a consumer reporting agency and larger participant in self-disclosing potential violations to the CFPB, and represented the company in the resulting investigation, which concluded with the CFPB’s no charge determination.

Our litigators also possess strong experience in compliance, having designed compliance programs for numerous clients and regularly auditing agreements and practices to identify potential compliance gaps, in addition to recommending solutions. We regularly draft policies, procedures, and agreements to address consumer compliance with all kinds of consumer law issues including those regularly posed by RESPA/TILA and FCRA.

Foley’s practice includes extensive amicus work on cutting-edge RESPA issues for such trade associations as RESPRO, NAR, the U.S. Mortgage Insurers, ALTA, and the American Escrow Association. One of our attorneys also acts as counsel to the National Consumer Reporting Association (NCRA).

Below is a representative list of Foley’s recent RESPA/TILA/FCRA and other mortgage-related litigation.

RESPA/TILA/FCRA and Other Mortgage-Related Cases

  • Baehr v. The Creig Northrop Team P.C., No. 13-cv-0933 (D. Md.) and Wade, et al. v. The Creig Northrop Team, No.: 1:14-cv-02456-JFM (D. Md.). Defense of pending RESPA referral fee claims in proposed class action involving challenges to a marketing services agreement and sales employee arrangement.
  • Cantlin v. Smythe Cramer Co., No. 103339, 2016 Ohio App. LEXIS 2105 (Ohio Ct. App. May 26, 2016). Obtained reversal of class certification in pending class action alleging fraud-based claims associated with real estate brokerage company’s charge of percentage commission and flat fee.
  • White v. JRHBW Realty Inc., No. 2:14-cv-01436-RDP, 2015 U.S. Dist. LEXIS 123432 (N.D. Ala. Sept. 16, 2015). Secured judgment on the pleadings in proposed class action against real estate brokerage company and title company alleging RESPA Section 8 claims modeled after CFPB settlement complaint.
  • Minter v. Wells Fargo Bank, N.A., No. 13-2131, 762 F.3d 339 (4th Cir. 2014). Won a jury verdict, affirmed on appeal, on behalf of real estate brokerage clients in class action that tried certified RESPA “sham” joint venture claims.
  • Petry v. Wells Fargo Bank, N.A., No. 13-1869, 2014 U.S. APP LEXIS 13064 (4th Cir. Jul. 10, 2014). Secured judgment, affirmed on appeal, for real estate brokerage clients in class action with certified claims under the Maryland Finder’s Fee Act.
  • Bolinger v. First Multiple Listing Service, Inc., 838 F. Supp. 2d 1340 (N.D. Ga. 2012). Prevailed on summary judgment for multiple listing service in proposed class action asserting that fees to real estate brokers were essentially charged to consumers and that alleged referrals to MLS and discounting of MLS fees violated RESPA Section 8.
  • Busby v. JRHBW Realty, Inc., No. 04-cv-2799, 2012 U.S. Dist. LEXIS 145037 (N.D. Ala. June 14, 2012). Prevailed on summary judgment for real estate brokerage company in class action alleging RESPA mark-up violations.
  • Noall v. Howard Hanna Co., No. 09-cv-25102012, U.S. Dist. LEXIS 111829 (N.D. Ohio Aug. 9, 2012). Prevailed on the pleadings for real estate brokerage company in proposed class action alleging RESPA mark-up violations.
  • McCullough v. Hanna, No. 09-cv-2858, 2010 U.S. Dist. LEXIS 29788 (N.D. Ohio Mar. 26, 2010. Prevailed on motion to dismiss for real estate brokerage company in proposed class action alleging RESPA referral fee violations.
  • Hannan v. Weichert South Jersey Inc., 2007 N.J. Super. Unpub. LEXIS 1238 (App. Div. May 22, 2007). Successfully opposed class certification, affirmed on appeal, for real estate brokerage company in connection with claims under the New Jersey Consumer Fraud Act regarding brokerage’s charge of percentage commission and flat fee.
  • Snow v. First Am. Title Ins. Co., 332 F.3d 356 (5th Cir. 2003). Represented title insurer in consolidated appeal from rulings for the defense on limitations grounds, leading to a landmark RESPA statute of limitations decision. 
  • Guise v. BWM Mortgage, LLC, 377 F.3d 795 (7th Cir. 2004). Prevailed on summary judgment, affirmed on appeal, in defense of mortgage brokerage against allegations of unlawful lending practices.
  • Preston v. MGIC, Case No. 5:03-cv-111-0c-10-GRJ (M.D. Fla. June 21, 2004) (denying in all respects plaintiff’s effort to certify a class of consumers who did not receive adverse action notices when the defendant allegedly made underwriting or pricing decisions for private mortgage insurance based in whole or in part on information provided from a consumer report.)