A wave of steering investigations from the past year could keep growing. 

Lawsuits and state probes for violations of the Real Estate Settlement Procedures Act and its Section 8 provision have risen in the past year, said Jonathan Kolodziej, partner at Bradley Arant Boult Cummings. The mortgage industry attorney noted increased scrutiny from regions like the Mid-Atlantic, where a title company recently settled RESPA claims with the Maryland attorney general for $1 million. 

"I do think we're now at a point where we're going to see just a real big influx of these state agencies and attorneys general, and then also private litigation, all trying to step in and fill some of the perceived void that they see with the CFPB," he said, referring to the embattled Consumer Financial Protection Bureau. 

Since the Bureau's wind down at the beginning of last year, consumers have filed at least five steering complaints against the nation's biggest lenders, including one class action case reviving a discarded bureau complaint. Each company has denied violating RESPA, and the cases appear slated for lengthy proceedings, as none have approached class certification debates.

Kolodziej spoke with National Mortgage News about the potential for more RESPA inquiries, how officials can broaden statutes of limitations, and what other legal questions lenders are asking.

This interview has been edited for length and clarity. 

Are RESPA complaints against lenders actually rising?

There's two kinds of paths right now, and I think they're both rising over the past year. We could even go back two years, whether it's individual claims or class actions, or the other path on the enforcement side. The state agencies and attorneys general, it seems to be a fairly sudden increase in interest and attempts to litigate and enforce compliance with some of the provisions of RESPA.

Everybody was a little bit surprised at just how abrupt the changes were from one administration to the next. From a state level, or from a consumer advocacy level, or a plaintiff's firm level, they take some time to identify the matters, identify the instances, and then go pursue them. 

Do you anticipate more RESPA cases over activity from the past refinance boom?

Potentially. There's some interesting questions on the statute of limitations for RESPA, there's some uncertainty about what starts that three-year clock. At a high level, there's questions like, is it at closing, when the fees are being paid by the consumer? Some courts have taken an even more expansive view and said the three-year period of time doesn't start until discovery of the violation, so that could be much later.

Given we're in 2026, if we're looking back to summer of 2020 or 2021, we're outside of that 3-year window. On the other side, the federal government and the state agencies pursuing matters through enforcement can sometimes open up a different pathway or a different statute of limitations. From a state and federal perspective, there's much more viability to reach further back and grab some of those prior actions. 

High volume is certainly attractive from an enforcement perspective. You have more people who are potentially harmed. On the flip side, you could also make the opposite argument that in an affordability crisis or a time of high rates and higher property values, any kind of increased cost due to potentially illegal conduct is even more important to root out and penalize. 

Are there any interesting patterns in RESPA cases or enforcement?

There have been some class action efforts. Something that is intriguing is whether or not these types of things facilitate class certification. I'm by no means a class action lawyer, but generally speaking, in order to succeed, you have to have the court certify a class of similarly situated plaintiffs, people who have been harmed. That requires various things, but basically you need a lot of similarities.

So in this situation, when we're dealing with mortgage loan origination and steering or kickbacks or referral arrangements, a lot of times we are dealing with individual humans who are interacting with another individual. So the way things happen, whether that be a referral to somebody or steering them to someone, that can happen very differently from one transaction to the next. So that is something that's interesting, whether that makes it harder to certify potential class action lawsuits against lenders, title companies or brokerages.

What are lenders saying about RESPA enforcement?

There certainly is a little bit of buzz and chatter in the industry. Even at a more micro level, institutions are obviously mindful of the risks, and certainly not taking their foot off the gas or vice versa in this current environment. People don't think that they can get away with things. They understand that the risks are still there. They might just come from different parties, but they still need to be watchful and make sure that everything is done properly,

What would you advise lenders regarding RESPA at this time?

Tread carefully anytime they're dealing with situations involving multiple entities. There are a lot of nuances here, whether you are referring to somebody unaffiliated, or other entities that you think do a good job and you want to be beneficial to the consumer, that's noble. But there are a lot of pitfalls to that. We have to make sure that there aren't things of value being exchanged.

There are exceptions for referrals, in some cases, to entities that are affiliated to yours. There are just a lot of nuances, so I just encourage everyone to tread carefully. Rely upon internal subject matter experts, legal compliance departments, or engage expertise to help in those evaluations, because there are significant risks with getting a lot of these things wrong.

What other legal questions are lenders asking?

I just fired off a memo to a client analyzing some impacts of the (recent President Trump executive) order. The way I would view that is kind of short-term impacts versus long-term impacts. Short term, the only real possible impact of it is the on-the-ground examination policies.

There are other agencies (than the CFPB) like HUD that have been continuing to do exams. There have been various clients of ours who have reported that HUD, for example, has not been easygoing and over the past year things have been a little bit rough. So there may be some immediate effects there of how exams and other matters are being handled. 

But from an outward-facing public view, I think the executive order is going to have almost zero short-term impact. It obviously establishes the administration's priorities, but what it can't do is override regulations that are on the books. So the flavor of the executive order is to instruct agencies to consider potential changes to various mortgage-related regulatory regimes. 

That's where we get into more of the long-term impacts. It addresses the (Ability to Repay) and (Qualified Mortgage) rules. It addresses some servicing concepts. It's just hard to tell what the agencies have the authority to do, or where in the priority list some of these things fall. 

We already know the (CFPB) has limited resources at this point. They already have other regulatory priorities, like the rulemakings on data privacy and small business reporting rules. There are other mortgage rules that have already been in their list, like servicing rules. So where do these new items fall within that priority list of already limited resources? 

It just makes me wonder how soon we would get anything, and even if something was enacted, how quickly it would get from a proposed rule stage, to a final rule stage, and become effective.