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D.C. appeals court greenlights Justice Department investigation into NAR

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A federal court cleared the way Friday for the Justice Department to reopen an antitrust probe into the National Association of Realtors and its rules regarding home sale commissions.

In a 21-page opinion, a panel of the U.S. Court of Appeals for the District of Columbia Circuit reversed a lower-court decision that the Justice Department was barred from reopening its investigation because of complications arising out of a 2020 settlement the government eventually withdrew from. The appeals court sent the matter back to the lower court, where Realtors could appeal to the full D.C. Circuit or attempt to find a new angle to challenge the investigation.

The decision represents the latest blow for the powerful real estate group, which agreed in March to pay $418 million to resolve several class-action lawsuits alleging it conspired to inflate commissions. The NAR, which denies any wrongdoing, also said it would revise a compensation structure that typically carves out 5 to 6 percent of a home’s sale price for agents.

While lawyers for the plaintiffs expect the lawsuit settlement — if approved in federal court — to lower commissions, it would not preclude the Justice Department from further investigating the Realtors association, which counts 1.5 million members.

The Justice Department, which often does not publicly confirm ongoing investigations, did not specifically say it would restart the probe of the Realtors group. But Justice officials went out of their way to note the implications of Friday’s ruling.

“Real-estate commissions in the United States greatly exceed those in any other developed economy, and this decision restores the Antitrust Division’s ability to investigate potentially unlawful conduct by NAR that may be contributing to this problem,” said Assistant Attorney General Jonathan Kanter of the Justice Department’s Antitrust Division.

The Realtors association said Friday that it was “reviewing today’s decision and evaluating next steps.” Pointing to a dissenting opinion by U.S. District Judge Justin R. Walker, the association added that it “believes that the government should be held to the terms of its contracts.”

Walker wrote that the Justice Department should be precluded from reopening its investigation because the federal government previously said in a letter that it had closed the matter.

Scrutiny on the commissions system comes as housing affordability weighs on consumers. In the last quarter of 2023, the median U.S. sales price was $417,700, according to the Federal Reserve of St. Louis. Under a standard 6 percent commission, more than $25,000 would be earmarked for agents. In 2023, Americans paid close to $80 billion in commissions at a time when financing and other costs were elevated. As of the third week in March, a 30-year fixed mortgage rate hovered near 7 percent, close to the 20-year high reached in October.

At issue in the D.C. Circuit was whether the Justice Department’s antitrust division could reopen an inquiry it settled with the NAR in November 2020 concerning rules that, the government alleged, “illegally restrained competition in residential real estate services.” Months after the probe officially closed, the Justice Department withdrew from the settlement, which it said prevented the government from further investigating the trade group’s commissions rules. When the Justice Department sought to continue its investigation, the association petitioned to block it.

In January 2023, U.S. District Judge Timothy J. Kelly ruled in favor of the NAR. The Justice Department appealed, leading to Friday’s ruling.

NAR rules have called for sellers’ agents to include compensation offers in listings on real estate databases known as multiple listing services (MLS). Buyers’ and sellers’ agents have traditionally split the compensation, typically 5 to 6 percent of the home-sale price and funded entirely by the seller.

Critics contend the arrangement pays buyers’ agents far more than the value of their services. Such agents have played a smaller role in transactions in recent years with the rise of platforms such as Zillow that let users search for homes on their own.

The issue burst into the spotlight in October, when a Kansas City, Mo., jury found that the NAR and several major brokerages conspired to keep commissions artificially high, awarding a class of home sellers $1.8 billion in damages. A similar case in Illinois had been moving toward trial when the NAR announced in March that it agreed to settle both cases. The trade group said it would modify its rules to limit cooperation between buyers’ and sellers’ agents regarding compensation.

Although the Justice Department declined to comment on that settlement, it still may have a reason to launch an investigation if the proposed settlement does not foster price competition, according to Ryan Tomasello, an analyst at Keefe, Bruyette & Woods who covers real estate technology.

The settlement proposes changes to prevent agents on either side of the transaction from coordinating on commissions, which experts say leads to price fixing. One proposal would prohibit listing agents from making compensation offers through the MLS, which allows buyers’ agents to easily see what commission rate is being offered and steer their clients toward properties with high compensation.

But Tomasello said it includes exceptions that would keep compensation offers visible to buyers’ agents in some cases.

“In our view, so long as listing agents can continue to make and advertise compensation offers to buyer agents, steering incentives will still exist,” Tomasello said in a research note.

The Justice Department took a similar position in February when it intervened in a Massachusetts commissions case that involves an independent MLS with similar compensation rules as the NAR.

In a filing disagreeing with the terms of the proposed settlement in Massachusetts, the federal government noted that as “long as sellers can make buyer-broker commission offers, they will continue to offer ‘customary’ commissions out of fear that buyer brokers will direct buyers away from listings with lower commissions — a well-documented phenomenon known as steering.”

Rachel Weiner contributed to this report.

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Why tax-loss harvesting can be easier with ETFs

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Despite a strong year for the stock market, you could still be sitting on portfolio losses. But you can leverage down assets to score a tax break, experts say.

The tactic, known as “tax-loss harvesting,” involves selling losing brokerage account assets to claim a loss. When you file your taxes, you can use those losses to offset portfolio gains. Once your investment losses exceed profits, you can use the excess to reduce regular income by up to $3,000 per year.

“Tax-loss harvesting is a tried and true strategy to lower investors’ tax bills,” said certified financial planner David Flores Wilson, managing partner at Sincerus Advisory in New York. 

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After offsetting $3,000 in regular income, investors can carry any additional losses forward into future years to offset capital gains or income.

“Investors can benefit substantially over time” by tax-loss harvesting consistently throughout the year, Wilson said.

What to know about the wash sale rule

Tax-loss harvesting can be simple when you’re eager to offload a losing asset. But it’s tricky when you still want exposure to that asset.

That’s because of guidelines from the IRS known as the “wash sale rule,” which blocks you from claiming the tax break on losses if you rebuy a “substantially identical” asset within the 30-day window before or after the sale.

In other words, you can’t sell a losing asset to claim a loss and then immediately repurchase the same investment. 

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Ultimately, the IRS definition of “substantially identical” isn’t black and white and “depends on the facts and circumstances” of your case, according to the agency.

When in doubt, consider reviewing your plan with an advisor or tax professional to make sure you’re safe from violating the wash sale rule.

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Older voters prioritized personal economic issues on Election Day: AARP

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Voters line up to cast their ballots at a voting location in Bethlehem, Pennsylvania, on Nov. 5, 2024.

Samuel Corum | Afp | Getty Images

When asked, “Are you better off today than you were four years ago?” the answer for many older voters ages 50 and over was “no,” according to a new post-election poll released by the AARP.

Almost half — 47% — of voters ages 50 and over said they are “worse off now,” the research found, while more than half — 55% — of swing voters in that age cohort said the same.

In competitive Congressional districts, President-elect Donald Trump won the 50 and over vote by two percentage points — the same margin by which he carried the country, AARP found.

Among voters 50 to 64, Trump won by seven points. With voters ages 65 and over, Vice President Kamala Harris won by two points.

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The AARP commissioned Fabrizio Ward and Impact Research, a bipartisan team of Republican and Democrat firms providing public opinion research and consulting, to conduct the survey. Interviews were conducted with 2,348 “likely voters” in targeted congressional districts following Election Day between Nov. 6 and 10.

Older voters, who make up an outsized share of the vote and tend to lean Republican, made a difference in a lot of key congressional races, according to Bob Ward, a Republican pollster and partner at Fabrizio Ward.

“Overall, 50-plus voters really are what delivered Republicans their majority,” Ward said.

Older swing voters focused on pocketbook issues

When asked “How worried are you about your personal financial situation?” in a June AARP survey, 62% of voters ages 50 and over checked the worry box, while 63% of voters overall did the same.

Voters continued to place an emphasis on their money concerns on Election Day, the latest AARP poll found.

“All these surveys that we conducted for AARP spoke to a lack of economic security for people,” said Jeff Liszt, partner at Impact Research.

“The shock of inflation had left them without a feeling of security,” he said.

For voters ages 50 and over, food ranked as the top cost concern, with 39%, the poll found. That was followed by health care and prescription drugs, with 20%; housing, 14%; gasoline, 10%; and electricity, 6%.

More than half — 55% — of voters ages 50 and up said they prioritized personal economic issues, including inflation, the economy and jobs, and Social Security when determining their vote.

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Older swing voters were more likely to turn out at the polls due to those pocketbook issues than any other priorities, the poll found.  

Republicans won older voters on most personal economic issues, though voters ages 50 and up still favored Democrats on Social Security by two points.  

Democrats have traditionally had a stronger lead on Social Security, Ward said, while the poll results show it is now “completely up for grabs.”

“Looking at the midterms, whether I’m Republican or Democrat … this is going to be an issue I want to win on,” Ward said.

Voters 50 and over broadly support Medicare negotiating prescription drug prices, as well as policies to help the older population age at home. Non-financial issues such as immigration and border security and threats to democracy were also among top concerns for some older voters.

Social Security reform may be bigger focus

While both presidential candidates promised to protect Social Security on the campaign trail, they did not provide plans to restore the program’s solvency.

The trust fund Social Security relies on to pay benefits is projected to run dry in 2033, at which point 79% of those benefits will be payable.

“What’s absolutely clear is that there’s an action-forcing event that we’re getting closer to, and that at some point Congress is going to have to act,” said Nancy Altman, president of Social Security Works, an advocacy group focused on expanding the program.

While Trump has touted plans to eliminate taxes on Social Security benefits, research has found that would worsen the program’s insolvency. The House voted this week to eliminate rules that reduce Social Security benefits for certain people who have pension income, which would also add to the program’s costs.

For most Americans, Social Security is the primary source of retirement income, according to the AARP. About 42% of people ages 65 and over rely on the program for at least 50% of their incomes; about 20% rely on it for at least 90% of their incomes.

Like Social Security, Medicare also faces a looming trust fund depletion for the Part A program that covers hospital insurance.

“We want to ensure that we’re protecting Medicare, Social Security and that it’s done in a fiscally responsible way,” AARP CEO Dr. Myechia Minter-Jordan told CNBC in a recent interview.

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Here’s what to expect on mortgage rates into early 2025

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Mortgage rates seem to have steadied. That may be a good sign for the market, experts say.

The average 30-year fixed rate mortgage in the U.S. slightly dipped to 6.78% for the week ending Nov. 14, barely changed from 6.79% a week prior, according to Freddie Mac data via the Federal Reserve.

“Even though it’s higher than it has been over the course of several weeks, it’s probably good news for homebuyers,” said Jessica Lautz, deputy chief economist and vice president of research at the National Association of Realtors. 

“When rates are moving around a lot, it makes a lot of uncertainty in the market,” Lautz said. 

Mortgage rates declined this fall in anticipation of the first interest rate cut since March 2020. But then borrowing costs jumped again this month as the bond market reacted to Donald Trump’s election win.

While the president-elect has talked about bringing mortgage rates down, presidents do not control borrowing costs for home loans, experts say.

Instead, mortgage rates closely track Treasury yields and are partially affected by what happens with the federal funds rate.

“They foresee inflationary policies, whether it’s tariffs or greater government spending, the tax bill … they’re pricing in more inflation,” said James Tobin, president and CEO of the National Association of Home Builders. “As the bond market reacts, mortgage rates are going to react to that, too.”

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Less volatility can be a good sign, said Chen Zhao, Chief economist at Redfin, an online real estate brokerage.

“High volatility by itself actually pushes mortgage rates even higher above treasury yields,” Zhao said. “More stable rates also means that homebuyers don’t have to worry during their home search about what their budget allows for changing.”

Trump’s team did not respond to a request for comment.

Don’t expect ‘huge swings’ on mortgage rates

Election uncertainty contributed to an upward swing in mortgage rates during October. Then rates went up even more last week as the stock market and yields reacted to the election results.

The 10-year Treasury yield jumped 15 basis points on Nov. 6, closing to trade at 4.43%, hitting its highest level since July, as investors bet a Trump presidency would increase economic growth, along with fiscal spending. The yield on the 2-year Treasury was up by 0.073 basis point to 4.276% that day, reaching its highest level since July 31.

But now that we have a president-elect, mortgage rates are expected to gradually come down over time, Lautz said.

From a monetary policy standpoint, future rate cuts are up in the air. Federal Reserve Chairman Jerome Powell said on Thursday that strong U.S. economic growth will allow policymakers to take their time in deciding how far and how fast to lower interest rates.

If the Fed continues to ease the federal funds rate, it could provide indirect downward pressure on mortgage rates, according to NAHB chief economist Robert Dietz.

“However, improved growth expectations would lead to higher rates, as would larger government deficits,” he said.

Experts say that mortgage rates might head into a “bumpy” or “volatile” path over the next year.

“I don’t think that there’s going to be any huge swings down into the 5% range,” Lautz said. “Our expectation is that rates are going to be in the 6% range as we move into 2025,” she said.

How buyers, sellers and homeowners can benefit

Rates that are trending lower can present an opportunity for buyers who have been house hunting for a while, especially as the winter season kicks in. Competition tends to slow down in the winter months in part because homebuyers with kids are in the middle of the school year and reluctant to move, Lautz explained. 

Our expectation is that rates are going to be in the 6% range as we move into 2025.

Jessica Lautz

Jessica Lautz, deputy chief economist and vice president of research at the National Association of Realtors

Current homeowners can also make the most of lower rates.

For example, if you bought your home around this time last year, when mortgage rates peaked at around 8%, you might benefit from a mortgage refinance, Lautz said. 

It “makes sense” to consider a refinance if rates have fallen one to two points since you took out the loan, Jeff Ostrowski, a housing expert at Bankrate.com, told CNBC after the Fed’s first rate cut this fall.

Remember that a loan refinance isn’t free; you may incur associated costs like closing costs, an appraisal and title insurance. While the total cost will depend on your area, a refi is going to cost between 2% and 6% of the loan amount, Jacob Channel, an economist at LendingTree, said at that time.

If you’re pondering on whether to refi or not, look at what’s going on with rates, reach out to lenders and see if refinancing makes sense for you, experts say.

Homeowners have earned record home equity. U.S. homeowners with mortgages have a net homeowner equity of over $17.6 trillion in the second quarter of 2024, according to CoreLogic. Home equity increased in the second quarter of this year by $1.3 trillion, an 8.0% growth from a year prior.

If you’re looking to sell your current home, you may be able to counteract slightly high borrowing costs on your next property by placing a larger down payment, Lautz said.

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