It's one of American real estate's seamier practices, and it's almost impossible for consumers to detect: kickbacks and sweetheart payoffs among real estate agents, title and escrow companies, lawyers, and lenders, all for referrals of home buyers' mortgage or closing services.
Now the federal government is mounting its most aggressive campaign in decades to stamp out illegal referral fees. Though it hasn't attracted widespread attention, the government's anti-kickback effort this year has racked up six times the number of out-of-court settlements with alleged violators than it did in 2004.
The latest case, announced in mid-November, involved a high-profile New England home mortgage lender, 1-800-East-West Mortgage Co. According to the settlement, East-West employees allegedly asked for and received tens of thousands of dollars' worth of Boston Red Sox and New England Patriots tickets, plus restaurant gift certificates and concert tickets, from lawyers, title companies and appraisers to whom loan officers referred client business.
A joint investigation by the Housing and Urban Development Department and the Federal Deposit Insurance Corp. found that East-West maintained a "give-to-get" policy that pressured settlement services professionals for "gifts . . . that East-West used as employee incentives," HUD said. East-West "expected certain attorneys and appraisers to pay for luxury seating at Red Sox games and concert events at Fenway Park. In addition, East-West induced attorneys and appraisers to pay for semi-private barbecues and charitable galas with Patriot players."
East-West's president, David R. Bernotas, said in a written statement that while "some providers of services, who had long-term relationships and frequent contact with some East-West employees, purchased seats at athletic events, restaurant gift certificates and the like," referrals of borrower settlement services went "to those who provided high-quality services at the lowest possible cost." East-West denied any wrongdoing but agreed to pay $150,000 to the Treasury as part of the settlement and pledged not to accept referral-fee compensation.
Other names on the government's real estate payoff list for 2005 include units of major real estate brokerage companies and title insurance and lending firms, including Coldwell Banker Residential Real Estate Inc., First American Title Insurance Co., Chicago Title Insurance Co., Re/Max Masters Inc. and Prudential Locations LLC. In the Prudential case, real estate agents who referred at least $1 million in new mortgage business to Wells Fargo Home Mortgage Hawaii LLC allegedly were given free trips to Thailand and Las Vegas, and even a free three-year lease of a Mercedes-Benz.
HUD has completed 12 major kickback settlements thus far this year. In 2004, it had two.
Under the Real Estate Settlement Procedures Act, the giving or receiving of anything of value in exchange for a referral of a home buyer's or borrower's settlement services is prohibited. The law dates back to 1974, when Congress conducted hearings that found that consumers across the country were being misled and harmed -- steered to what were often higher-cost settlement and mortgage companies -- solely because of back-door payoffs among real estate, lending, title insurance and other firms.
The payoffs frequently took the form of gifts, cruises to exotic locations, theater tickets, and a variety of other trinkets and concessions.
For decades, kickback prohibitions were largely ignored by the industry, in large part because the federal agency enforcing the law mounted only minimal efforts. It lacked the investigative staff, the funding and the political will necessary to go after big names in real estate, banking and mortgage finance. Some real estate professionals even likened the government's role to that of the Wizard of Oz -- a big, booming voice backed by no real teeth.
During the past three years, however, the Bush administration has added significant new enforcement staff and budgetary resources. It has also contracted with gumshoe professionals -- retired FBI, customs, Treasury Department and white-collar-crime investigators -- to track down real estate industry players who are lining each other's pockets.
Brian Montgomery, federal housing commissioner and top gun for the anti-kickback campaign, says the law "couldn't be any more clear" as far as "giving or receiving" referral payments. "The message to the industry should be equally clear -- we will not only investigate those who give, but those who receive kickbacks."
Montgomery's office reportedly has large numbers of active investigations to pump up the pressure in 2006, and it is considering creating a Web site where industry and consumer tips about referral-fee schemes can be communicated to federal investigators.
As a result, maybe the word finally will get out: Real estate referral kickbacks are bad for consumers. They violate federal law, invite heavy financial penalties and could even lead to jail time.
The Wizard of Oz still has a booming voice. But lately he has also grown big teeth.
Kenneth R. Harney's e-mail address is KenHarney@earthlink.net.