Mary Clay Berry
Mary Clay Berry

Fellowship Title:

The Real Estate Settlement Procedures Act: A Small Law for a Small Industry

Mary Clay Berry
May 18, 1976

Fellowship Year

(This is the first of two newsletters on lobbying and the Real Estate Settlement Procedures Act of 1974.)

"Who ever heard of the title insurance industry?"


WASHINGTON–One morning this winter, at hearings on banking reform legislation, a California congressman looked down at a panel of witnesses who were urging the committee to pass the bill in question because of what it would do for the consumer and cautioned them not to be too hasty.

“That’s the way we got in trouble with RESPA,” he said. “RESPA was supposed to help the consumer.”

The witnesses, representatives of savings and loan banks across the country, snickered nervously.

They all remembered RESPA.

Consumers probably don’t remember RESPA. The Real Estate Settlement Procedures Act of 1974 got little attention outside a few banking, housing and real estate trade journals. But bankers remember RESPA because, during the six months it was in effect, it caused them countless bookkeeping headaches. Realtors remember RESPA because one of its provisions made them nervously wonder whether their commonly-accepted practices were not going to lay them open to criminal prosecution. And congressmen remember RESPA because they were deluged with letters from irate constituents, some bankers, some realtors, even a few consumers.

Then RESPA was amended and no one had headaches any more.

RESPA, sold to Congress as a consumer measure, was really one small industry’s response to the threat of federal regulation. Fearing that the Department of Housing and Urban Development, or Congress, or both, would attempt to regulate real estate settlement costs, twenty-odd underwriters of land title insurance got together in 1972 and retained a skillful Washington lawyer, William T, Finley Jr., of the Washington law firm of Sharon, Pierson, Semmes, Crolius & Finley, to lobby for them. What they got for their legislative activity, which is a lawyer’s euphemism for lobbying, was RESPA, an imperfect law for an imperfect world. With RESPA, the title insurance companies succeeded, at least for the time being, in heading off any serious attempt to lower settlement costs and introduce competition into what is essentially a non-competitive business.

The title insurance business is a curious one, in part the byproduct of an archaic land record system. Basically, title insurance guarantees that the purchaser of a piece of property did indeed buy what he thought he bought. The American Land Title Association (ALTA), the industry’s chief trade association, proudly points out that the title insurance business is an old and honorable one. The first title insurance company was formed in March 1876 by a group of Philadelphia conveyancers, men who made title searches of public records and clearly knew a good way to make money when they saw it. When the Pennsylvania Supreme Court ruled that a certain real estate purchaser’s title was invalid, but that the conveyancer and the attorney who had advised him it was a perfectly good title were not at fault, the first land title insurance company promptly opened its doors.

Title insurance is advertised as consumer protection. ALTA literature points out that, had the title insurance business been a few years older, President Abraham Lincoln’s family, which reportedly had trouble with faulty titles to their Kentucky farms, would not have had to move to Indiana. “Title insurance would have protected Lincoln’s family against tragic loss…”

The reality is somewhat different.

Real estate practices vary throughout the country but title insurance is the most visible of several charges that a home buyer may pay when he “settles”. Other charges may include a settlement attorney’s fee, a surveyor’s fee, or the cost of a title search. In some parts of the country, these services are performed by title insurance companies; in others, by lawyers. In some places, a home buyer must purchase title insurance in order to obtain a mortgage, However, this policy protects only the lender; for an additional fee, the buyer can also purchase protection for himself.

Since title companies get their business by referrals from lawyers, brokers, lenders, and developers, the companies themselves do not usually compete by offering lower prices to home buyers. Under the McCarran-Ferguson Act, the insurance business is exempted from federal antitrust laws except “to the extent that such business is not regulated by state law”. Since most states do have some laws regulating title insurance companies, the industry takes the position that it is not subject to federal antitrust laws. However, most state laws are ineffective in dealing with price-fixing and collusion.

Title insurance companies also maintain “title plants”, private banks of information that, in large part, duplicate public records. These exist because of the chaotic condition of many public land records in the country, Private title plants help title companies and attorneys avoid time-consuming repetitive title searches. However, maintenance of them is both wasteful and costly.

In short, the title insurance industry exists chiefly to conduct the consumer through a murky maze of legal confusion and chaotic records, in part perpetuated by the industry itself.

When Members of Congress and officials in the Department of Housing and Urban Development started looking around for a way to cut real estate settlement costs, they found themselves asking questions about the activities of title companies and settlement attorneys.

“Well, if you look at closing costs,” remarked James B. Cash, a lobbyist for the American Bankers Association which later worked hard to scuttle RESPA, “there are only a few ways to cut back on them. The lawyers’ fees and the title companies.'”

RESPA’s roots go back to the Emergency Home Finance Act of 1970 which includes a section, Section 701, that gives the Secretary of Housing and Urban Development the authority to regulate settlement costs where Federal Housing Administration or Veterans Administration insured loans are involved, It is an unused authority in which no HUD Secretary since George Romney has expressed any interest.

Congress added Section 701 primarily in response to two Members of Congress who were concerned about reports of excessive settlement charges in parts of the country. In the House of Representatives, Congresswoman Leonora K, Sullivan’s Ad Hoc Subcommittee on Home Financing Practices and Procedures held hearings which, among other things, revealed unsavory practices by some District of Columbia title insurance companies. In the Senate, Sen. William Proxmire, spurred on by an aide named Martin Lobel, now a consumer advocate lawyer in Washington, surveyed the major title insurance companies and found that, for every $100 they took in, they paid out about $2.51 in losses; that sixty percent of their expenses were personnel expenses or commissions, some of which might be called kickbacks–and that there was no justification for maintaining expensive title plants that duplicated public records.

Their respective studies led Sen. Proxmire and Rep. Sullivan to different conclusions. Following the thinking of Lobel, the senator began to explore the possibilities of a process which came to be known as “lender pay”. The idea is that the lender pays the settlement costs on a real estate transaction since the lender is in a better position than the individual home buyer to shop around for the best deal. The lender would pass the cost on to the consumer but, in theory, the lenders would have the necessary political clout to eventually force down settlement costs, something consumers would be unable to do. Rep. Sullivan opted for out-and-out regulation, ceilings on allowable prices for settlement services, anti-kickback legislation, and a combination of disclosures aimed at giving the consumer the information he needed to avoid being cheated, While both Sen. Proxmire and Rep. Sullivan felt strongly about settlement costs and the need to lower them, it is safe to say that most other Members of Congress gave them very little thought. Most had never heard of Section 701 and neither had their constituents.

Section 701 also directed HUD and the VA to make a joint study of settlement costs and report back to Congress. HUD was quite unprepared for the role thrust upon it by the 1970 Housing Act. According to a member of the FHA staff at the time, there was no one in HUD in 1970 who had any expertise in the area of settlement costs “other than a few lawyers who had done real estate settlement work and they would be the last people anxious to get into it”. However, HUD and VA put together a staff and, in February 1972, presented Congress with the report it had requested.

The HUD/VA report, a massive document that fills a good part of a shelf in the office of almost every person who lived through the long days and nights of RESPA, recommended a series of federal administrative and legislative actions designed to reduce and standardize settlement costs which the authors of the report believed were uniformly too high. The report said: “HUD and VA will establish maximum allowable charges for all individual settlement cost items paid by both the buyer and seller, except loan discount payments and costs fixed by state and local statutes, for identifiable housing market areas.” It also proposed uniform settlement statements for all federally-insured transactions, detailed estimates of probable settlement costs in advance of closing, minimum escrow deposits, legislation prohibiting fees for all disclosure statements including Truth-in-Lending statements, and a federally-sponsored, computerized land record system. In February 1972, Secretary Romney told the members of the House Subcommittee on Housing that HUD would put the first of these recommendations into effect soon as far as federally-insured loans were concerned. And, on July 4, HUD published in the Federal Register proposed “maximum allowable charges” for settlement costs in federally-assisted transactions in six metropolitan areas.

The so-called “housing lobby,” that is, those industries which are concerned with the construction, sale and financing of consumer housing and the trade associations which represent them, was not unduly alarmed by the HUD report and proposals. The housing lobby is actually a diverse group with different interests within the general area of housing. It includes savings and loan institutions, mortgage banks, mutual banks, home builders, and real estate agents, Because of the diversity of interests, the housing lobby does not necessarily operate as a single force, although there is regular communication between the trade associations involved. This occurs by means of what are known in the trade as the “mini group” and the “maxi group”. The mini group, which consists of such organizations as the US League of Savings Associations, the Mortgage Bankers Association, and the National Association of Home Builders, meets for lunch every other week. These lunches, which are sponsored by the National Association of Realtors, are attended by the lobbyists who actually work with Congressional staffs. The maxi group, which also involves less directly related trade associations such as the National Forest Products Association, meets several times a year. Its meetings are attended by the heads of the Washington offices.

One trade association and its constituency are conspicuously absent from the housing lobby–the American Bankers Association and the 14,000 commercial banks it represents. This is primarily because these banks do not generally view the financing of housing as one of their important functions. This attitude has its ironies, as the saga of RESPA will show.

More powerful than any of the individual trade associations which comprise the housing lobby, with the possible exception of the realtors’ association, the American Bankers Association tends to do its lobbying alone, “The American Bankers Association doesn’t mix,” remarked a housing lobbyist who was involved, off and on, in the evolution of RESPA. “They’re not really housing people. And they’re aloof. I guess they have their own way of doing things.”

In the spring of 1972, the American Bankers Association did submit a statement to the House subcommittee that generally supported the recommendations of the HUD/VA report, with the proviso that the burden for disclosing settlement costs should fall upon settlement attorneys and title companies, not lenders. They also supported anti-kickback legislation and a limit upon the accumulation of funds in escrow accounts. But they did not think the matter important enough to have a witness present their views in person.

A broad spectrum of bankers responded to HUD’s July 4 proposals. Some warned that limiting the fees attorneys, title companies, and others could charge consumers could mean that lenders would end up paying for settlement services instead. Some suggested that the maximum charges should be applied to conventional loans as well. A few were worried that HUD’s entry into the field of settlement costs might lead to a reduction in the one percent origination fee many lenders charge home buyers for making a loan, even though the proposal did not mention such fees, And a handful pointed out that FHA/VA loans already required more paperwork than conventional loans and that ceilings would increase the load.

Homebuilders and real estate agents paid little attention to the HUD proposal. The National Association of Home Builders expressed the fear that the ceilings might dry up the FHA market. And the realtors’ trade association opposed the HUD ceilings but evidently cared so little about them that its comments were late arriving at HUD. (Realtors’ fees were not included in the costs to be regulated.)

Representatives of most of these groups had already testified at House hearings on real estate settlement costs earlier in the year but, confronted with the massive HUD/VA report which few had had time to assimilate, their testimony tended to be tentative, if generally suspicious. It is probably fair to say that the housing industry was not seriously alarmed by either the report or the subsequent proposed maximums. Only the settlement lawyers and the title insurance companies, both of which were directly affected by the HUD proposals, were certain where they stood on settlement cost reforms.

The settlement attorneys were not organized in any cohesive way and most of their approaches to HUD were made as individuals. Four hundred and thirty-one lawyers sent comments on HUD’s proposals and two local bar associations commissioned studies of aspects of the settlement process and the HUD/VA report. Professor Dale Whitman, then a member of the FHA staff, remembers seeing a lot of these lawyers personally. “Those with clout would start working their way up the bureaucracy,” he recalled. Several Virginia lawyers even managed to get an appointment with Secretary Romney through a mutual acquaintance at Romney’s country club but Romney was furious at being approached this way and was very short with his petitioners.

The attorneys were unable to galvanize their national professional association, the American Bar Association, into taking any serious action. As William J, McAuliffe Jr., executive vice president of the American Land Title Association and a member of the American Bar Association’s Committee on Liaison with Real Estate Trade Associations, commented acidly, “It is so hard to get the bar association to react. They almost have a policy of doing nothing in areas which affect their members. They’re great at promoting peace in the world.”

However, local bar associations were active and particularly the Georgia Bar Association. It is unclear why the Georgia lawyers should have been especially upset by HUD’s proposals. Practices in Georgia did not differ from those in other parts of the country except in degree. (There all settlement services were provided by attorneys except in Atlanta where a single title company was active.) And no part of Georgia was included in the six test areas identified by HUD.

At any rate, 83 Georgia lawyers wrote HUD about the proposed maximums, (This was the second largest number from a single state; 167 Virginia lawyers wrote.) However, the best evidence of the Georgia lawyers’ concern is that, during the three and a half months in which HUD received formal comments on its proposals, five of the nine Members of Congress who contacted the agency about them were from Georgia. All the Georgians opposed the maximums, One of them was Rep, Robert G. Stephens Jr., a courtly white-haired lawyer from Athens, GA and a member of the House Banking and Currency Committee.

The HUD proposals came as a shock to the title companies although they should have seen what was coming. Several of the largest, later joined by ALTA, had already commissioned the Cambridge, MA, consulting firm of Arthur D. Little Inc. to study the methodology and econometric model used in the HUD/VA study. But, when HUD announced in the Federal Register that it planned to put ceilings on the costs of such settlement items as title searches, title insurance, closing fees, surveys, credit reports, and pest and fungus inspections, in the words of McAuliffe, ALTA’s chief lobbyist, “This industry got active.

“We sat down to outline what we should do,” continued McAuliffe. “First, you respond to the proposed regs. Second, in the best of all possible worlds, you repeal 701. We recognized that it is difficult to repeal a law once it is passed. Nevertheless, that was our goal.”

The Arthur D. Little critique was underway. Eventually, McAuliffe was able to involve the ALTA membership of some 2,000 underwriters, agents and abstracters in that venture. But repealing 701 was another matter. It required expertise that ALTA, an organization which had not had to do much lobbying during most of its existence, did not have. And the ALTA membership was not in agreement about the threat of federal regulation. Some large title companies such as the Commonwealth Land Title Insurance Company of Philadelphia were adamantly opposed to the proposed maximum rates, Others thought that, with a few changes, they could live with them. Thus it was an ad hoc committee of twenty or so underwriters which, at the advice of their own attorneys, set out in the summer of 1972 to retain Washington counsel. The underwriters included some of the largest companies in the business–Commonwealth, the Chicago Title Insurance Company, the Lawyers Title Insurance Corporation of Richmond, VA, the Pioneer National Title Insurance Corporation and the Title Insurance & Trust Company, both of Los Angeles–as well as some of the smallest such as the Albright Title & Trust Company of Newkirk, Ohio. As a group, they dominated the standing committees and Board of Governors of ALTA so that, although they did not officially represent the trade association, they worked closely with it and used its resources.

Rather than choosing a well-known lawyer-lobbyist such as Lloyd Cutler or a powerhouse law firm such as Covington & Burling, the ad hoc committee settled upon a relatively unknown 36-yearold attorney named William T. Finley Jr., a member of the firm of Sharon, Pierson & Semmes. Although not well known, Tom Finley had an impeccable background at Harvard, Harvard Law School, and Trinity College, Cambridge. He had clerked for Supreme Court Justice William Brennan, served as chief counsel for the Senate Subcommittee on Improvements in Judicial Machinery, and served as Associate Deputy Attorney General in the Justice Department, all good training for a federal practice of law. The firm, now Sharon, Pierson, Semmes, Crolius & Finley, has handsomely luxurious offices atop Canal Square in Georgetown and is headed by John H. Sharon, a former law partner of Clark Clifford, the confidant of former Presidents generally considered to represent the pinnacle of Washington super-lawyerdom. Sharon himself is a former aide of Adlai Stevenson. Tom Finley is a tall man with dark hair, a somewhat quizzical expression and a pleasant manner.

In August 1972, there were several options open to Finley and his clients, ALTA was already in the process of responding to HUD’s proposals with the Arthur D. Little study. In fact, HUD had received a flood of letters on its July 4 regulations. The department’s response was to turn to Congress for guidance.

“This is typical,” commented former FHA staff member Whitman. “HUD is not too concerned about its own public. It is more concerned about the Hill.”

Since Finley and the title companies argued that Section 701 did not, in fact, authorize HUD to regulate settlement costs, one option was to bring suit against the department to enjoin it from enforcing the proposed regulations. HUD’s wait-and-see attitude made this unnecessary. The regulations were eventually withdrawn by Romney’s successor, Secretary James T. Lynn.

However, Congress presented a real problem. Earlier in the year, the Senate had approved broad housing legislation which included an expansion of HUD’s Section 701 powers to include other types of transactions. In the House, the Housing Subcommittee had approved similar legislation. The full Banking and Currency Committee was scheduled to meet on the bill in early September.

Finley got to work quickly, personally visiting all the members of the committee who would see him. Finley did not know Rep. Stephens, the Georgia Democrat, before he went to his office to talk to him about his clients’ problem nor was he aware of the Georgia bar’s interest in the HUD regulations. But he found in Rep. Stephens both a sympathetic ear and an understanding of the real estate business and its problems. On September 12, Rep. Stephens introduced substitute language for Title 9 of the vast housing bill, the section which extended HUD’s 701 powers. The Stephens Substitute called for disclosure of some costs and contained anti-kickback provisions. It also repealed Section 701.

“It was an amalgam put together by Tom Finley,” said a bank lobbyist who later became involved in the settlement costs legislation. It was a clever amalgam for it combined positive, if weak, consumer measures with the repealer. And it was offered to a committee which, despite the populist sentiments of its then-chairman the late Rep, Wright Patman, was not noted for its consumer proclivities. But, most importantly, nobody except Rep. Sullivan, Housing Subcommittee chairman William A. Barrett, and a handful of others understood or cared about Section 701. The repeal could go to the floor as a small, insignificant part of a housing bill that was several hundred pages long and covered a number of highly controversial subjects. There was little chance that there would be any opportunity on the House floor to examine the ramifications of repealing Section 701. The banking committee accepted the Stephens Substitute without a fuss.

However, Finley’s skill as a lobbyist was counterbalanced by a situation over which he had no control. For reasons which had nothing whatsoever to do with the repeal of Section 701 or settlement costs, the House Rules Committee failed to grant the omnibus housing bill a rule and so it did not reach the floor before the House of Representatives adjourned, The attempt to repeal 701 by attaching a rider to the 1972 omnibus housing bill died in the 92nd Congress.

Repealing Section 701 in the 93rd Congress would prove far more difficult. There was no longer any way to do it quickly and quietly. And the Senate would have to be directly approached. To do this, Finley sought to involve other segments of the housing industry in the lobbying activity.

“Finley tried to yoke together the industry but the industry was not very yokeable,” recalled one housing lobbyist. “We were not personally threatened by 701. And we didn’t want to participate in what looked like an anti-consumer drive.

“Finley used to call little meetings. I went to one. At one point, Finley had a joint letter. We said we would sign it if everyone else would. But he couldn’t get anyone else to sign it. Finley and Hochberg (Sheldon B. Hochberg, a member of Finley’s firm who worked with him on RESPA) would also identify key congressmen and ask for support in contacting them. We never did very much of that. Finley and Hochberg would push pretty hard, not in a rough way, but they were persistent.”

A bank lobbyist remembers occasional meetings on issues that were of industry-wide interest as the legislation which became RESPA emerged. “We’d call around, get together, meeting in an office, sometimes this office, or sometimes for lunch.”

And Lee B. Holmes, staff vice president of the US League of Savings Associations, pointed out that, no matter what it may have looked like from the outside, there was “no single monolithic structure that pushed RESPA through.”

“It was organized to the extent that everyone knew and understood everyone else’s problems,” said Holmes.

This may have been true and almost every lobbyist who worked on RESPA can cite portions of that law which were written in one or another “downtown” office but the truth is that Finley and ALTA failed to organize any kind of coalition, to their chagrin. This was partly because RESPA’s anti-consumer aura, despite its disclosure provisions, made industry representatives unwilling to put their associations on the line for legislation they considered to be of marginal interest to them. But it was more because the trade associations generally failed to see that they would be directly affected by the outcome.

“Trade association people have a tendency to just scratch the surface of a problem,” remarked a housing lobbyist ruefully. In the case of RESPA, many of the associations were caught napping.

1973 opened with a lot of preliminary skirmishing. Sen. Proxmire introduced settlement legislation, Finley went around talking to members of the Senate Banking, Housing and Urban Affairs Committee just as he had done the previous year in the House and found that, outside of Sen. Proxmire, there was little understanding of Section 701, despite the fact that the committee had approved expanding it in 1972. In such a situation, an advocate is at a tremendous advantage. Finley got a sympathetic hearing from several senators and that summer Sen. William Brock of Tennessee introduced settlement cost legislation that was basically the Stephens Substitute of the year before. In August, Rep. Stephens and sixteen members of the House banking committee proposed similar legislation on their side of Capitol Hill.

By the time hearings were held, HUD, under a new secretary, had come out against setting maximum rates. Although a number of public interest and consumer groups testified against the Brock and Stephens bills–groups such as Ralph Nader’s Public Citizen Litigation group and the Communications Workers of America and individual consumer advocates such as Benny Kass, a local lawyer, and Sen. Proxmire’s former aide, Martin Lobel–there was no real opposition to what the title companies wanted. Other segments of the housing industry such as the thrift institutions kept an eye on their own special concerns but generally held back from doing any “hard lobbying” on the bill. (“Hard lobbying” goes beyond testimony in public hearings and consultations with members of committee staffs to placing pressure upon individual Members of Congress. It can be done in a number of ways but with any group of bankers, the most effective is a telephone call or visit to a member from a constituent banker.) The principle resistance to the repeal of 701 came from Sen. Proxmire who was less interested in out-and-out regulation than he was in the proposal that lenders pay settlement costs, In an attempt to work out a compromise in the Senate committee in late 1973, Sen. Alan Cranston came up with a substitute that was even less acceptable to the title companies than the Proxmire proposal it was designed to circumvent. Finley hustled around and finally, by a narrow vote, the Senate Banking, Housing and Urban Affairs Committee approved what was basically the Brock bill.

In addition to repealing Section 701, the Brock bill required the lender to provide the buyer with a detailed statement of settlement costs ten days in advance of closing, required the distribution of a special HUD information booklet by lenders to prospective buyers, and required the use of a uniform settlement statement of costs, also to be drawn up by HUD. It contained prohibitions on kickbacks, limits on the size of escrow accounts, and directions to HUD to develop a model land record system.

“A major defeat for consumers and a stunning victory for the real estate settlement lobby,” remarked Sen. Proxmire when the bill came to the floor on July 16, 1974.

RESPA, as the bill had come to be called, contained some useful provisions but few teeth. As far as settlement costs, RESPA skirted the real issue. Nevertheless, it could be argued that advance disclosure of settlement costs at least gave the prospective home buyer a chance to shop around for the best deal. If it worked properly, the anti-kickback provision should lower settlement costs by eliminating unnecessary payments for referrals.

The title companies said they wanted the anti-kickback provision since it would help to dispel the poor image they had acquired as the result of exposure of questionable practices by some District of Columbia title companies.

After considerable discussion on the floor, the Senate voted 55 to 37 to remove the language repealing Section 701 from RESPA. Those who favored its repeal blamed a coalition of labor unions and the AFL-CIO for its defeat. Heretofore, organized labor had not been much involved in the issue although some unions had taken a position on RESPA. But a lobbyist sharing the gallery with Finley overheard the lawyer remark that it was a letter to all senators from AFL-CIO lobbyist Andrew Biemiller shortly before the vote that changed its outcome. The general impression among the title insurance people was that labor had lobbied against the repeal of 701 because Sen. Proxmire had asked them to do so.

“It was a nice display of picking your position on the merits of the legislation,” remarked a RESPA advocate of labor’s late entry upon the scene.

The AFL-CIO did the same thing in the House less than a month later but the results were different. RESPA had come to the floor containing a section repealing 701. A California congressman offered an amendment striking out the repealer. But, by a vote of 202 to 199, the House approved repeal. “You should have seen them sweating,” remarked a lobbyist of Finley and his associates. But they won that round.

There was a hiatus before the conference committee met to resolve the differences between the House and Senate bills. First, Congress adjourned for the 1974 elections. When the members returned in November, Sen. Proxmire let it be known that he would not convene a conference if the repeal of 701 was included in the bill. As prospective chairman of the Senate banking committee (Sen. John J. Sparkman was generally expected to take over the defeated Sen. J. William Fulbright’s job as chairman of the Senate Foreign Relations Committee, allowing the banking chairmanship to go to Sen. Proxmire),Sen. Proxmire was in control. Neither members nor lobbyists wanted to tangle with him over Section 701. It simply wasn’t worth it.

Finley and his clients were placed in a difficult position. Either they got RESPA without the repeal of 701 or they didn’t get RESPA at all.

“A half a loaf is better than none,” said McAuliffe. He admitted that the title companies feared that a more liberal 94th Congress (many of the new members had campaigned on consumer issues) might come up with real regulatory legislation.

Also the title companies were convinced that HUD would not attempt to use its Section 701 authority and that, if RESPA passed, even without the repealer, there would be no further settlement cost legislation for a while. (This was a total miscalculation as it turned out since the whole Pandora’s box was reopened the following year.) The title companies liked the anti-kickback provisions of RESPA which as it turned out, were to cause problems for the realtors, although they had not yet realized that. And the title companies had no problems with advance disclosure, a provision which had not originated with them, placed no burden whatsoever upon them, and allowed them to point to RESPA as a piece of “consumer legislation”. So in the end they settled for RESPA without the repeal of Section 701.

“It was a defensive measure,” said McAuliffe.

On December 22, 1974, Congress passed RESPI. It was signed by the President a few days later.

Despite the fact that many of its provisions came from other sources, RESPA was really Tom Finley’s bill.

“RESPA is a good example of a continuous lobbying effort by a single law firm,” said Anne B. Miller, a member of the Senate Banking, Housing and Urban Affairs Committee staff who as a lobbyist for one title insurance company, watched the legislation evolve.

“In my judgment, the title industry took the lead position,” said McAuliffe. “There were other pieces of legislation with higher priority (for other parts of the housing industry), legislation that had a greater chance of bearing good fruit.”

“We took the best thing we could get thinking we’ll smooth it out later,” said Holmes of the U.S. League of Savings Associations.

Jo Ann Barefoot, then a lobbyist for the National Association of Realtors, recalled a conversation between herself and her boss, Albert E. Abrahams, director of the association. Abrahams wondered if it wouldn’t be better for RESPA to die without a conference. Barefoot replied no, that advance disclosure made sense. “He never let me forget that,” she said later.

Was RESPA a good law? Some of its provisions could have helped some consumers. The problem is that most people do not buy very many houses. By the time they get around to buying a second house, most consumers have forgotten the hassles and frustrations of buying the first. There simply wasn’t any overwhelming demand for settlement cost reform and Congress tends to respond in direct proportion to the demand.

Was RESPA a victory for the title companies? They were pragmatic. After all, what was the alternative?

For the bankers and real estate agents, RESPA was full of surprises, surprises they probably should have foreseen but didn’t. But, six months later, when HUD had implemented the new law with a set of extremely detailed regulations, they were all back on the Hill demanding changes. And the American Bankers Association, a group whose involvement in the original legislation was negligible, had embarked upon a campaign to do away with RESPA altogether.

Received in New York on May 18, 1976

©1976 Mary Clay Berry

Mary Clay Berry, a freelance writer, is an Alicia Patterson Foundation Fellow. With this newsletter she begins her study of the lobbying process in Washington, DC. The views expressed by the author in this newsletter are not necessarily the views of the Foundation.