According to the CFPB, the Bulletin “did not provide the necessary regulatory clarity on how to comply with RESPA and Regulation X.” Although there were no specific guidelines, the tone of the 2015 Guidelines and subsequent implementing measures showed that the CFP considered MSM to be a high risk between service providers under RESPA, as they can camouflage payments for recommendations as payments for marketing services. The disclosure of the Bulletin and the use of RESPA as an enforcement tool were considered by the Bureau to be a presumption of non-compliance with the MSAs and thus had a deterrent effect on the use of MSAs between billing service providers, even though these MSAs were legally acceptable and had been used without review prior to the publication of the bulletin. In 2016 and again in 2018, a Federal Court of Appeal categorically rejected the Bureau`s position, although in a RESPA case concerning a non-MSA agreement. The court ruled that the safe harbor authorized by Section 8(c)(2) allowed cross-referencing “as long as” the party advertised did not “render more than a reasonable market value” for the “services” actually provided. CFPB v. PHH Corp., 839 F.3d 1, 40-49 (D.C Cir. 2016), restored in the relevant part, 881 F.3d 75, 83 (2018) (benched). The measures taken by the Bureau last week, including its decision to repeal the AMS Bulletin 2015, constitute a similar rejection of the Bureau`s previous position, but with regard to the MSA. Despite numerous regulatory audits by the Consumer Financial Protection Bureau (CFPB) and others, marketing services agreements can still be structured and managed to comply with the Real Estate Settlement Procedures Act (RESPA), which prohibits giving or receiving anything of value in exchange for the transfer of a billing service. RESPA Section 8(c)(2) authorizes payment for services provided, real, necessary and different, as long as the payment does not exceed the value of the services and is not based on the amount or volume of recommendations.
HuD, however, weighed in as part of its interpretive comments on the 2010 MSAs to ban “direct sales conversations” for some customers. In addition, in its Notices of Approval and related bulletins, the CFPB commented on (1) that there can be no agreement or agreement on the recommendations, (2) that there is potential for the contract itself to be considered a matter of value, (3) that a supplier cannot pay for approvals; 4) that most marketing should not be directed to other billing providers, with the intention of entering into additional marketing service agreements and 5) home purchase discounts should not be granted selectively. . . .