The Marketing Services Agreement was a popular structure in mortgage industry for years until CFPB enforcement actions in 2015 (PHH v. CFPB and related consent orders) clarified the legal standard. Most MSAs in active use today are structured carefully to meet the post-2015 compliance bar.
What an MSA is
A written contract where one settlement service provider (often a lender) pays another (often a real estate brokerage) a fee for specific marketing services. The lender is buying marketing reach (signs in offices, mentions in real estate broker communications, joint marketing materials). The broker is selling that marketing access.
The RESPA Section 8 compliance bar
An MSA is compliant only if all three are true:
- The services described are actually performed
- The fee reflects fair market value for those services
- The arrangement is documented and the value is verifiable
If any of those are missing, the MSA is functionally a kickback for referrals, regardless of paperwork.
Why most pre-2015 MSAs failed the test
The CFPB’s PHH case revealed that many MSAs were structured as flat monthly payments to brokerages with vague service descriptions. The brokerages weren’t actually performing distinct marketing services; they were being paid to refer business. Post-2015 enforcement has made this structure exposure for the lender.
Compliant MSA structure today
Modern MSAs are typically narrower and more documented: specific deliverables, fair market value justification (often with supporting comparables), regular invoicing and payment based on actual services rendered, and explicit language disclaiming any expectation of referrals.
