Mortgage Brokers: is There a Fiduciary Duty to Borrowers?

A debate is simmering in the mortgage industry about whether mortgage brokers who arrange loan transactions act as agents of potential borrowers, or whether they are merely middlemen without agency responsibilities. The compensation structure by which mortgage brokers are paid fees by both borrowers (origination fees) and lenders (yield-spread premiums) has fueled the fire of this debate. [??] When brokers are paid commissions by both parties to a loan transaction, confusion results about whom the brokers actually “work for.” Unfortunately, there is little legal guidance to answer the question “Whom do mortgage brokers work for?” There is some case law, and a few states have enacted laws on the issue, but for the most part, the law is unclear about whether mortgage brokers represent borrowers, lenders, or neither. [??] As a result of the ambiguity in this area, mortgage bankers, brokers and mortgage industry regulators (including lawmakers) should familiarize themselves with the existing laws and cases that have considered brokers’ duties and responsibilities. Understanding the law is crucial in light of recent economic events in the mortgage market (e.g., the spike in foreclosures and subprime market meltdown). It is also important because of increasing media criticism of mortgage brokers, (see, for example, James Hagerty, “Mortgage Brokers: Friends or Foes?,” The Wall Street Journal, May 30, 2007; and Ruth Simon and James R. Hagerty, “Debt Bomb: Inside the ‘Subprime’ Mortgage Debacle–The Middlemen: Mortgage Mess Shines Light on Brokers’ Role,” The Wall Street Journal, July 5, 2007).

Finally, greater understanding is needed in light of the high number of consumer complaints about the activities of mortgage brokers (see, for example, the State of Maryland’s Regulatory Guidelines for Mortgage Lender Licensees, dated June 2005, which cites noncompliance with the state-mandated broker agreement as being the No. 1 regulatory violation). More…