Thursday, June 3, 2010

HUD Announces RESPA "Required Use" Prohibition - Rulemaking


HUD published notification today of an Advance Notice of Proposed Rulemaking (ANPR), which commences the process of initiating rulemaking.

The purpose of the ANPR is to "strengthen and clarify" the prohibition against the ''required use'' of affiliated settlement service providers in residential mortgage transactions under Section 8 of RESPA.

According to HUD, the ANPR is necessary because HUD has received complaints that some home buyers are committing to use a builder's affiliated mortgage lender in exchange for construction discounts or discounted upgrades, without sufficient time to research their contracts or to comparison shop.

Therefore, this ANPR will solicit information that can be used to inform any future revision or clarification of the regulatory definition of the ''required use'' of affiliated settlement service providers in residential mortgage transactions.

By means of issuing the ANPR,  HUD seeks comments from sources that are experienced in affiliated business arrangements in residential mortgage transactions.

Interested persons are invited to submit comments regarding this ANPR to the Regulations Division, Office of General Counsel, Department of Housing and Urban Development, 451 7th Street, SW., Room 10276, Washington, DC 20410-0500.

Comment Due Date: September 1, 2010



In order to address concerns about the operation and effect of incentivized affiliate referrals, HUD issued a revised definition of ''required use'' in its Final Rule on November 17, 2008, which was to take effect on January 16, 2009. The revised definition of ''required use'' in the November 17, 2008 Final Rule would have provided as follows:

"Required use means a situation in which a person's access to some distinct service, property, discount, rebate, or other economic incentive, or the person's ability to avoid an economic disincentive or penalty, is contingent upon the person using or failing to use a referred provider of settlement services. In order to qualify for the affiliated business exemption under § 3500.15, a settlement service provider may offer a combination of bona fide settlement services at a total price (net of the value of the associated discount, rebate, or other economic incentive) lower than the sum of the market prices of the individual settlement services and will not be found to have required the use of the settlement service providers as long as: (1) The use of any such combination is optional to the purchaser; and (2) the lower price for the combination is not made up by higher costs elsewhere in the settlement process." (See 73 FR 68239-68240)

As a result of litigation challenging the revised definition, HUD deferred the effective date for the revised definition, and subsequently withdrew the revision by a Final Rule published on May 15, 2009 (74 FR 22822). When HUD withdrew the revised definition, it left in place the existing definition of ''required use,'' pending new rulemaking on the subject.

HUD's Final Rule withdrawing the revised definition of ''required use'' noted that public comments received in response to the proposed withdrawal had highlighted the potential complexity of existing affiliated business arrangement practices and the need for further clarity on the application of ''required use'' to such practices. The comments also underscored the need for HUD to continue to pursue reform in this area in order to protect consumers from harmful steering and referral practices.

In withdrawing the definition, HUD stated its intention to pursue new rulemaking on the subject of ''required use.'' In the May 15, 2009, Final Rule, HUD also reiterated its commitment to the goals of RESPA reform and to addressing referral practices that result in required use. This ANPR is in furtherance of that goal.

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‘‘Required Use’’ Prohibition: Advance Notice of Proposed Rulemaking

FR: Vol. 75, No. 106, 31334-31338 (06/03/10)