Tackling the Perplexing Sound of StatutorySilence: Why Courts Should Imply aPrivate Right of Action UnderSection 10(a) of RESPA

And in the naked light I saw, ten thousand people, maybe more, people talking without speaking, people hearing without listening, people writing songs that voices never share, and no one dared disturb the sound of silence.1I. Introduction"Homeownership is the American dream. It is the opportunity for all Americans to put down roots and start creating equity for themselves and their families."2 To realize this dream, most Americans go through the sometimes gut-wrenching experience of signing their lives away in exchange for a mortgage loan. They contract with mortgage lenders to pay back a huge amount of principal plus hundreds of thousands of dollars in interest typically over ten, fifteen, twenty, or thirty years.3 Unfortunately, predatory mortgage lenders often make financing a home even more expensive by employing unscrupulous tactics4 in order to profit at their borrowers' expense.5In one such case of predatory lending, a mortgage borrower's lender6 notified him, without explanation, that the amount of money he had to send on top of his monthly mortgage payment to cover property taxes and home owner's insurance was increasing by over $60 per month.7 It turns out that his lender had been "overcharging his escrow account8 building up a fat cushion of [his and other] borrowers' money, and investing the 'float' to [make] some profit"9 In another case nearby, a similarly situated borrower had to fight with his bank for the same reason.10 His escrow account was supposed to dip to a little over $1,300 each year, but his lender never let it drop below $2,600.11 Although tins borrower did care about the money, he fought mostly as "a matter of principle."12 Elsewhere, another borrower assumed that his lender would reimburse him at the end of the year for paying an overage of $800 into his escrow account.13 To his surprise, his lender instead required him "to pump" another $900 into his escrow account.14 Baffled, he phoned his lender for an explanation.15 When this borrower continued to "balk[] at paying the surcharge," his lender threatened him with foreclosure.16The lenders in each of these factual scenarios allegedly violated section 10(a)17 of the Real Estate Settlement Procedures Act (RESPA)18 by overcharging their borrowers' escrow accounts to cover taxes and insurance. Lenders that violate section 10(a) often take advantage of this illegal escrow "cushion" by using it for their own investment purposes.19 One might assume, and justifiably so, that victims such as those in me three examples above could sue for damages. RESPA, however, says nothing about enforcement of Section 10(a),20 and most federal courts refuse to imply a private right of action under this provision.21Courts that refuse to find an implied private right of action under section 10(a) typically do so because Congress has not expressly created one.22 This common conclusion is suspect because Congress designed RESPA to protect mortgage consumers and stifle predatory mortgage lending.23 Without a private right of action under section 10(a), this provision fails to protect borrowers and, in fact, invites lenders to employ predatory lending practices by allowing them to continue to overcharge their borrowers' escrow accounts.This Note attempts to refute the prevailing argument that no private right of action exists under section 10(a) of RESPA by "disturbing] me sound of silence"24 and asserting that Congress intended to create an implied private right of action for violations of section 10(a). Part h introduces RESPA generally, introduces section 10(a) of RESPA in particular, and establishes that violations of section 10(a) thwart RESPA's purposes and contribute greatly to the problem of predatory lending.25 Part III lays the groundwork for determining whether courts should imply a private right of action under Section 10(a).26 It details general approaches to statutory construction, delves into Supreme Court jurisprudence regarding implied private rights of action, and emphasizes that courts have an obligation to save and not to destroy statutory text27 Part IV analyzes and critiques cases that have decided the issue of whether a private right of action exists under section 10 generally. …