On October 8, 2015, following up on a series of enforcement
actions against industry participants engaged in "marketing
services agreements" ("MSAs"), the CFPB issued a
Compliance Bulletin (No. 2015-15) entitled "RESPA Compliance and Marketing Services Agreements
["MSAs"]." The thrust of the Bulletin is
again warning companies that "many MSAs necessarily involve
substantial legal and regulatory risk for the parties to the
agreement, risks that are greater and less capable of being
controlled by careful monitoring than mortgage industry
participants may have recognized in the past."
The Bulletin begins by
describing MSAs as agreements that are "usually framed as
payments for advertising or promotional services, but in some cases
the payments are actually disguised compensation for
referrals." It also advises that, in determining whether an
MSA violates RESPA, it will review all of "the facts and
circumstances surrounding the creation of each agreement and
