New Rulings from the Fourth and Eleventh Circuit Shed New Light on RESPA Liability and the Filed Rate Doctrine

Congress enacted the Real Estate Settlement Procedures Act (“RESPA”) to “insure that consumers throughout the Nation…are protected from unnecessarily high settlement charges caused by certain abusive practices that have developed in some areas of the country.” 12 U.S.C. § 2601(a). Some, including the Department of Housing and Urban Development (“HUD”), point to this language to argue that RESPA provides broad relief for “overcharges” and that the statute is aimed at reducing the cost of real estate settlement services. 66 Fed. Reg. 53052 (Oct. 18, 2001). RESPA’s precise prohibitions, however, are primarily limited to “certain abusive practices,” not excessive fees in general. RESPA prohibits real estate settlement service providers from giving “kickbacks” for referrals and, similarly, from charging or splitting fees for unperformed services. See 12 U.S.C. § 2607(a)–(b). But RESPA is silent on whether a provider violates RESPA merely by charging rates that are above the market rate, above the rate that was filed and approved by a state regulatory authority (“the filed rate”), or otherwise excessive.

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