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.
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.
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.
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.