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Phil Schulman has a national practice specializing in a range of matters related to real estate finance, mortgage banking and consumer finance in both the primary and secondary markets, including: Representing companies in the mortgage lending, title insurance and real estate industries in connection with administrative and regulatory compliance matters, including those involving HUD, VA, Ginnie Mae, Fannie Mae, and Freddie Mac; Defending companies in connection with governmental audits, investigations and enforcement proceedings, before, among others, HUD, VA, DOJ and FTC with specialties involving defense of False Claims Act, Mortgage Review Board and RESPA enforcement matters; Developing and analyzing proposed business plans, and drafting the related agreements and disclosures, based upon applicable federal and state laws, regulations and rules, such as the Real Estate Settlement Procedures Act, the Truth-in-Lending Act, the Equal Credit Opportunity Act, the Fair Credit Reporting Act, the Fair Housing Act, state licensing laws, consumer credit laws, usury laws, unfair and deceptive trade laws and real property laws; Assisting in litigation involving consumer class action lawsuits and commercial claims; Drafting and negotiating agreements concerning (i) loan broker, loan correspondent and whole loan purchase agreements, (ii) servicing rights purchase and sale agreements, and (iii) servicing and sub-servicing.
Mr. Schulman is the former General Counsel to the Home Improvement Lenders Association and was the former Assistant General Counsel of the Inspector General and Administrative Proceedings Division, U.S. Department of Housing and Urban Development.
Jay N. Varon is a litigation partner in the firm's Washington D.C. office. Mr. Varon has litigated a broad cross-section of commercial cases around the country, including antitrust and unfair competition, consumer finance and deceptive trade practice involving matters relating to the Real Estate Settlement Procedures Act of 1974 ("RESPA"), the Fair Credit Reporting Act, ("FCRA"), Truth In Lending Act ("TILA"), "fair lending" and related federal and state unfair trade practice and consumer protection laws, as well as cases dealing with trade secrets, employment, environmental, business tort, securities fraud, product liability, and breach of contract issues. Many of the cases that Mr. Varon handles involve the defense of class actions or other complex cases. He is a former chair of Foley's Antitrust Practice and of its Washington D.C. Litigation Department.
A niche area of Mr. Varon's practice involves the counseling of real estate clients (i.e., real estate brokers, mortgage brokers and lenders, mortgage and hazard insurers and title agents and title insurers), and representing them before HUD and/or state agencies with respect to various RESPA, fair lending, antitrust, consumer protection, and related state law issues, including those involving the establishment of affiliated business arrangements and joint ventures. Mr. Varon has been antitrust and RESPA counsel to the Real Estate Services Providers Council, Inc. ("RESPRO") since its inception and has litigated for RESPRO and many of its members, as well as non-members for many years.
One of Mr. Varon's early successes involved having RESPRO intervene in, and then successfully defend, a case that the Mortgage Bankers Association and another trade association had brought challenging the 1992 RESPA regulation which was pro-controlled business. One of Mr. Varon's most recent publicly reported successes occurred in Chenault v. Mississippi Valley Title ("MVT") 2003 WL 21221735 ( 5th Cir. June 11, 2003) in which he successfully defended MVT against a RESPA class action challenge to volume and differentiated commission structures with its agents before the District Court and on appeal before the Fifth Circuit. See also slip op. Jacobs v. MVT (N.D. Miss. March 21, 2003) (awarding summary judgment on the merits of Plaintiffs' RESPA challenge to the use of different agent commission rates). Mr. Varon also has represented a major mortgage insurer in a nationwide RESPA class action and has represented various national real estate brokerage companies and various title agents in several different RESPA and unfair trade practice class actions involving markups, pricing issues regarding closing and title insurance fees, and home warranties and marketing agreements. Mr. Varon authored an industry amicus brief in the landmark case Haug v. Bank of America, 317 F.3d 832 ( 8th Cir. 2003), which refused to follow HUD's Statement of Policy on unearned fees that RESPRO and other groups had vocally criticized. Mr. Varon has also been involved in defending different class actions under TILA and FCRA. The FCRA case raised questions of first impression regarding FCRA's application to mortgage insurance which is issued to lenders, not consumers. Mr. Varon successfully defeated class certification in the FCRA case and recently defeated class certification motions in two as yet unreported cases (one in New Jersey and one in Alabama) that challenged different real estate brokers use of a so-called administrative fee under section 8(b) of RESPA and/or a state consumer fraud statute.
Mr. Varon also continues to litigate complex cases in the antitrust arena (including one major case involving price-fixing in the securities industry), in the environmental arena (under "CERCLA" involving claims going back to the conduct occurring in the 1800s), and in the product liability/consumer protection arena (including a state-wide class action in West Virginia). He recently won two major CERCLA cases in which large dollar contribution claims against his client for cleanup costs of were dismissed on summary judgment. See Consolidated Edison Company of New York v. UGI Utilities, Inc., 2004 WL 627090 (S.D.N.Y.) aff'd 153 F. App'x 749 (2d Cir.2005); Atlanta Gas Light Company v. UGI Utilities, Inc., 2006 WL 2547076 ( 11th Cir. 2006)(affirming district court grant of summary judgment to UGI.)
Mr. Varon was named to BTI Consulting Group's coveted Client Services All Star Team for 2009. This honor is bestowed upon individual attorneys who deliver outstanding client service according to corporate counsel interviewed at Fortune 1000 companies. He also was recently named a 2007 Washington, D.C. "Super Lawyer" in antitrust litigation by Law & Politics Media, Inc.
Mr. Varon is a 1972 magna cum laude graduate of the Wharton School of the University of Pennsylvania, where he was elected to the Beta Gamma Sigma honor society. He attended Stanford Law School, where he was an articles editor of the Stanford Law Review. Mr. Varon graduated from Stanford in 1975, Order of the Coif. Following law school, he was a law clerk to the Honorable Robert F. Peckham, Chief Judge of the United States District Court for the Northern District of California in San Francisco, and joined Foley in Washington, D.C. in 1976.
Mr. Varon is the author of various RESPA publications for RESPRO, including "RESPA Primer On Joint Ventures And Affiliated Business Arrangements," "RESPA Guide To Affiliated Business Disclosures," "2001 Survey of State Laws Affecting Affiliated Settlement Service Providers," and "Guide To Section 8 Of RESPA For Settlement Service Salespersons," and various other articles on antitrust and RESPA topics. He is also the author of "Promoting Settlements and Limiting Litigation Costs By Means of the Offer of Judgment; Some Suggestions for Using and Revising Rule 68," 33 Am. U. L. Rev. 813 (1984).
