California and federal officials expressed sharply contrasting views last week on how to deal with reports of kickback demands by real estate agents.
Mortgage lenders have said that such demands, often for cash under the table, are at an all-time high in the state.
Sarah Rosen, the Department of Housing and Urban Development's point person on issues arising under the Real Estate Settlement Procedures Act, said enforcement should be shared with those who license agents - namely, the state real estate departments.
But Steven Ellis, regional manager of enforcement for the California Department of Real Estate, disagreed. He pointed out that referral fees, while illegal under Respa, are permitted in California. Thus, his department can investigate but has no enforcement power.
He added that complaints to his department have slowed lately after rising sharply during the thrift crisis.
Mr. Ellis and Ms. Rosen were interviewed together at Mr. Ellis' office here.
"We can only do what we're empowered to do by law," Mr. Ellis said. "We can look at (a Respa violation) and say that something needs to be done, but all we can do is refer the case out to the agency with the authority to enforce it."
In fact, mortgage lenders should take the problem into their own hands, he said. "If lenders are upset that they are paying these fees, they should get together and decide not to pay them," Mr. Ellis suggested.
Ms. Rosen, an aide to the assistant secretary of housing, recommended that the task force join with realty agents, appraisers, title companies, and local HUD officials. "Cross-industry communication is one of the most effective ways of dealing with this problem," she said. "We haven't gotten any concrete allegations," of violations by real estate agents, she added.
Separately, a representative from the Mortgage Bankers Association of America said that even though real estate boards do not have a responsibility to enforce Respa laws, they do have a moral duty to ensure that real estate agents follow all federal laws.
The illegal fees fall under the jurisdiction of HUD because they are a violation of the Real Estate Settlement Procedures Act. But HUD concedes that it lacks funds for broader enforcement. The California Mortgage Bankers Association says the present level of enforcement is inadequate and has established a task force to deal with the problem.
California law permits referral fees as long as they are disclosed to the borrower. Respa states that real estate agents may receive payments only for actual goods, facilities, or services provided, not for referrals.
The purpose of a California real estate license, Mr. Ellis added, is to "allow you to earn referral fees."
Only when a mortgage is a HUD loan, he added, are realty agents required to comply with Respa. Much of the home loan business in California is funded by private investors, rather than banks and thrifts, Mr. Ellis said. "Individuals who have a few extra bucks that they would like to lend often approach realty agents, looking for a place to invest it."
Therefore, Mr. Ellis was quick to add, the charges that lenders are leveling would not even be investigated by the state.
The enforcement of Respa, he said, is "strictly up to HUD."
