The tide of class actions may have turned in mortgage lenders' favor.
On Wednesday, a Florida federal judge denied class certification to a suit about the payment to brokers of fees known as yield-spread premiums.
The suit, which charges that the fees are illegal under section 8 of the Real Estate Settlement Procedures Act, is one of more than a dozen filed against lenders in the past year. The suits could involve hundreds of thousands of borrowers and cost lenders millions of dollars.
Judge Kenneth L. Ryskamp of the U.S. District Court for the Southern District of Florida is a familiar name to most lenders; his ruling on the legality of Rodash legislation stopped a tide of litigation two years ago.
Last week, the controversial wording in a recent court ruling was clarified by a federal judge in lenders' favor. Judge Albert Bryan of U.S. District Court for the Eastern District of Virginia, in Alexandria, said in a written statement that "the court had not reached a final decision about the legality of yield spread premiums, nor was the order of Jan. 10 (the previous ruling) intended to suggest this."
The earlier order appeared to call the payment of yield-spread premiums a violation of Respa. It sparked panic in the lending community, and prompted several nationwide consumer papers to run editorials condemning the payment of these fees.
In his clarification, Judge Bryan also indicated that the legality of yield-spread premiums was perhaps better decided by a higher court-in this instance, the U.S. Court of Appeals for the Fourth Circuit.
The brief was dubbed "gratifying" by Leonard A. Bernstein, the attorney representing defendant Crestar Mortgage. But he said in a written statement that the litigation still has a long way to go and will continue to be vigorously defended.
But a decision by a federal judge in Birmingham, Ala., may have offered lenders the most reassurance. Ruling on Jan. 31 in a class action against Inland Mortgage Corp., Judge James H. Hancock of the U.S. District Court for the Northern District of Alabama declared the payment of yield-spread premiums legal.
The recent news was applauded by the lending industry, which has been lobbying unsuccessfully for intervention from Capitol Hill.
"All three things are obviously taken as good news by the industry. They represent the reality that federal judges who are not politicians, who are not susceptible to political pressure, when given the opportunity, are realizing the right answer," said Paul Mondor, director of regulatory compliance with the Mortgage Bankers Association of America.
The lending community is still looking toward the Department of Housing and Urban Development to provide some relief from the wave of suits, Mr. Mondor said. The department, which is responsible for writing Respa rules, has been drafting a policy statement on the legality of yield-spread premiums for several months.
Both the Mortgage Bankers Association and the National Association of Mortgage Brokers are actively lobbying for a sponsor to support a moratorium on these suits. The Home Equity Lenders Leaders Organization is also expected to step in.
Meanwhile, lenders have been making changes to their loan documentation in an attempt to prevent additional suits, said Laurence Platt, a lawyer with Kirkpatrick & Lockhart, Washington. Lenders are rewording the contracts that borrowers sign, adding language that spells out the relationship lenders have with brokers.
On the flip side, lawsuits on the subject continue to be filed. The firm of Kaplan, Kilsheimer in Manhattan filed two suits in recent weeks. The suits charge Chase Manhattan Bank, New York, and Loan America, a subsidiary of Barnett Bank, Jacksonville, Fla., with Respa violations. Both are awaiting class action status requests.
