How RESPA exams work
RESPA Section 8 reviews generally assess whether the institution has adequate policies, controls, and documentation to prevent and detect prohibited referral arrangements. Examiners commonly review a sample of co-marketing arrangements — not every agreement.
Sampling tends to be risk-based: arrangements with high payment volumes, limited documentation, or patterns of compensation linked to referral volume are more likely to be selected. The absence of a systematic compliance program is likely to draw attention on its own.
Agreement documentation checklist
For each sampled arrangement, examiners commonly request:
- A copy of the written agreement, signed by both parties
- Evidence that the agreement was executed before payments began
- Documentation of any amendments, renewals, or rate changes
- Records showing the services contracted for were actually performed
FMV evidence review
Examiners assess whether the compensation was at fair market value at the time the arrangement was entered into. They commonly look for:
- A documented FMV analysis in the institution's files, created contemporaneously with the agreement
- The methodology used to determine FMV — which comparables, which market, how differences were adjusted for
- Comparable market data supporting the agreed rate (quotes, rate cards, published pricing from unaffiliated providers)
- Evidence that the FMV determination was made at the start of the arrangement, not assembled during the examination
Services performed verification
Examiners don't take agreements at their word. They look for evidence that contracted services actually occurred:
- Copies of co-branded materials: ads, posts, flyers, event collateral
- Screenshots or archives of digital placements with dates
- Attendance records or event documentation for sponsorships
- Invoices, delivery confirmations, or affidavits from the service provider
The services verification is where many arrangements fail. If a lender paid for a newsletter placement but can't produce a copy of the newsletter, the payment looks like a referral fee regardless of what the agreement says.
Policy and controls review
Beyond individual arrangements, examiners assess whether the institution has a systematic compliance framework:
- A written RESPA Section 8 compliance policy
- A pre-approval process for co-marketing arrangements before they begin
- A documented procedure for FMV determination prior to executing agreements
- Periodic monitoring and review of existing arrangements (annual review is a common practice)
- RESPA training for employees who enter into or manage marketing agreements
Common issues
Issues that commonly come up in Section 8 reviews:
- Marketing services agreements with no FMV analysis on file
- Desk rental rates that exceed market comparables without explanation
- Payments structured to vary with loan volume — explicitly linking compensation to referrals
- Agreements executed after payments had already begun
- No evidence that contracted services were actually rendered
- Insufficient RESPA training for loan officers and sales staff who enter into these arrangements