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When the transaction closed on December 15, 1995, the Culpeppers paid Premiere an origination fee of $760.50 for Premiere's assistance in obtaining and closing their loan. Then, Inland paid Premiere the yield spread premium of $1263.21. The Culpeppers do not challenge the origination fee they paid to Premiere. Rather, their claim focuses solely on the legitimacy of Inland's yield spread premium payment under RESPA.
B. Calculating The Yield Spread Premium
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Inland's formula for determining the size of the yield spread premium was not tied to services, but to the size and interest rate of the Culpeppers' loan. Inland's rate sheet shows that the amount of the yield spread premium was solely a function of the extent to which the interest rate on the loan exceeded Inland's par rate. Indeed, the services provided by Premiere were the same irrespective of the interest rate.
C. Table Funded Transactions
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One final facet of this loan is important to the court's decision in this case. Although Premiere was the nominal creditor on the loan documents, Premiere did not fund the Culpeppers' loan. Instead, Inland advanced the funds and Premiere contemporaneously assigned the loan to Inland. This type of brokerage arrangement is known as "table funding;" thus, Inland, not Premiere, owned the Culpeppers' mortgage from the outset.
II. DISCUSSION
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The narrow issue is whether Inland's payment of a yield spread premium to Premiere for the referral of an above par loan is an illegal fee under RESPA or a valid payment for goods or services.
A. RESPA's Statutory Framework
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In 1974, Congress enacted RESPA to protect home buyers "from unnecessarily high settlement charges caused by certain abusive practices." 12 U.S.C. § 2601(a). Specifically, Congress intended to eliminate "kickbacks or referral fees that tend to increase unnecessarily the costs of certain settlement services." Id. § 2601(b)(2). Toward that end, RESPA prohibits providers of settlement services from paying referral fees and kickbacks, as follows:
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No person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or part of a real estate settlement service involving a federally related mortgage loan shall be referred to any person.
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Id. § 2607(a). The funding and origination of mortgage loans were not originally settlement services under RESPA, but a 1992 amendment clarified that such activities were settlement services covered by the statute. Id. § 2602(3).
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Although § 2607(a) prohibits referral fees, § 2607(c) exempts payments for goods or services from that prohibition, as follows:
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Nothing in this section shall be construed as prohibiting ... the payment to any person of a bona fide salary or compensation or other payment for goods or facilities actually furnished or for services actually performed....
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B. Interpretation Of RESPA By Courts And Commentators
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No circuit court has addressed whether a yield spread premium violates RESPA. Several district courts construed RESPA in similar cases and reached conflicting results. For example, in Dubose v. First Security Savings Bank, 974 F.Supp. 1426 (N.D.Ala.1997), and Martinez v. Weyerhaeuser Mort. Co., 959 F.Supp. 1511 (S.D.Fla.1996), the courts denied the lenders' motions for summary judgment and found that a yield spread premium payment could constitute a prohibited referral fee. Likewise, in Mentecki v. Saxon Mortg., Inc., No.96-1629-A, slip op. (E.D.Va. Jan. 10, 1997), the court denied the lender's motion to dismiss and held that the borrowers stated a claim under RESPA by alleging that the payment of a yield spread premium was an unlawful kickback. On the other hand, in Barbosa v. Target Mortgage Corp., 968 F.Supp. 1548 (S.D.Fla.1997), the district court held that a yield spread premium was a lawful payment for services.
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In addition, some legal commentators within the lending industry have cautioned that the practice of paying yield spread premiums may be illegal. See, e.g., Robert M. Jaworski, Overages: To Pay or Not To Pay, That is the Question, 113 Banking L.J. 909 (1996) (discussing uncertainty of the propriety of yield spread premium payments under RESPA); Leonard A. Bernstein, RESPA Invades Home Equity, Home Improvement and Mobile Home Financing, 48 Consumer Fin. L.Q. Rep. 194, 197 (1994) (questioning whether "overages" or yield spread premiums can be characterized as permissible payments for services under RESPA).
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C. The Yield Spread Premium Was A Referral Fee Under § 2607(a)
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Against this background, our first step is to determine whether the yield spread premium here was a referral fee. Tracking § 2607(a), RESPA is violated if (1) a payment of a thing of value is (2) made pursuant to an agreement to refer settlement business and (3) a referral actually occurs.
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Inland gave value to Premiere in the form of the yield spread premium, and that payment was made pursuant to their ongoing contractual relationship, whereby Premiere "registered" loans with Inland and Inland funded those loans. A referral actually occurred when Premiere chose to register the Culpeppers' loan with Inland and not with the other lenders with whom Premiere did business. These undisputed facts compel the conclusion that Inland's payment of the yield spread premium to Premiere was a referral fee, and thus a violation of RESPA, unless the payment falls within one of the exceptions listed in § 2607(c).
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D. The Yield Spread Premium Was Not A Payment For Goods
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As outlined above, § 2607(c) exempts fees for goods or services. The district court deduced that the yield spread premium was payment for a good-i.e., the Culpeppers' loan-that Premiere sold to Inland. However, this deduction ignores the fact that in table-funded transactions the lender, not the broker, owns the loan from the outset. Premiere could not sell the Culpeppers' loan to Inland because Inland already owned it.
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RESPA does not prohibit the sale of a mortgage loan in the secondary market. 24 C.F.R. § 3500.5(b)(7). Therefore, if Premiere funds a loan and then sells the loan to Inland for a profit, no RESPA violation occurs. To determine whether an exempt "bona fide transfer of a loan obligation" occurs:
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HUD will consider the real source of funding and the real interest of the funding lender. Mortgage broker transactions that are table-funded are not secondary market transactions.
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Id. (emphasis added). Even though the loan documents referred to Premiere as the lender, the parties agree that Inland was the source of the loan funds and was the true funding lender. Consequently, there was no legitimate transfer of ownership of the loan to Inland from Premiere, and the yield spread premium cannot be characterized as a payment for the sale of the loan under RESPA.
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Inland concedes that the Culpeppers' loan was table-funded and did not constitute a secondary market transaction. Inland asserts, however, that this fact does not undermine its contention that Premiere owned a valuable asset that it sold to Inland. According to Inland, "Premiere's right to direct the disposition of the mortgage loan [to one of a number of wholesale lenders] is the attribute of 'ownership' that is meaningful in this context." (Appellee's Brief, at 22.) It is true that Premiere, by virtue of its contract with the Culpeppers, had the right to "direct the disposition" of the loan business to a lender of Premiere's choice. Such a contractual right, however, does not change the fact that Inland violated § 2607(a) by paying Premiere a fee for "directing," i.e., referring, the Culpeppers' business to a particular lender.
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E. The Yield Spread Premium Was Not Payment For Services
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Although Premiere provided valuable services to the Culpeppers, the yield spread premium was not payment for those services for two reasons. First, the Culpeppers compensated Premiere by paying a 1% loan origination fee. No evidence suggests that this $760.50 payment was not intended by both Premiere and the Culpeppers to compensate Premiere fully for the work it did for the Culpeppers. Second, Inland stated in response to interrogatories that the yield spread premium "was paid to Premiere Mortgage [in part] for the slightly above-par yield on the mortgage note and [in part] for the right to service the loan." (R.1-16, ex. A at 5.) This response contradicts the theory that the yield spread premium compensated Premiere for its services to the Culpeppers.
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Similarly, the yield spread premium was not compensation for Premiere's providing services to Inland. In addition to the above interrogatory response, it is undisputed that the payment of the yield spread premium was not tied to the quantity or quality of the services that Premiere provided. Rather, the sole determinant of whether a yield spread premium would be paid was the interest rate on the loan. Stated another way, Premiere expends the same amount of effort and provides the same quality and quantity of services whether it originates an above par loan, a par loan, or a below par loan. Because Premiere receives a yield spread premium only when it originates an above par loan, the premium cannot be characterized as payment for originating the loan.
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Based on the undisputed evidence, the only "service" for which the yield spread premium was compensation was Premiere's "service" of referring an above par loan to Inland. However, referring loan business, even valuable business, is not a service for which RESPA permits payment. The yield spread premium payment thus violated RESPA.
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F. RESPA's Market Value Test Is Inapplicable
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RESPA's implementing regulations provide a test to determine whether a payment for a good or service is so excessive that part of the payment actually may constitute a prohibited referral fee. Citing this test, the district court found that the payment Inland made to Premiere was a fair market price for the Culpeppers' loan and thus concluded that there was "no 'excess' payment left to be attributed to a 'referral fee.' " Culpepper v. Inland Mort. Corp., 953 F.Supp. 367, 372 (N.D.Ala.1997). This conclusion ignores the fact that the payment did not compensate Inland for any good or service. The market value test is useful only if the payment is for a good or service in the first instance and a determination must be made whether the payment is so excessive that the excess should be characterized as a referral fee. Here, Inland paid Premiere only for the referral of the loan. Thus, the market value test is inapplicable.
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Inland stresses that market forces drive the size of yield spread premiums. This fact does not affect our analysis because the size of kickbacks and referral fees often is shaped by the value of the referred business. A market driven referral fee is still a referral fee prohibited by RESPA.
G. Denial Of Class Certification
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as 2fno igher than Inland's par rate on 30-year loans and carried a yield spread premium of 1.675% of the loan amount, or $1,263.61. Premiere quoted the 7.5% rate notwithstanding the fact that Inland would make the same loan at 7.25%. At that lower interest rate, the yield spread premium paid to Premiere would be only 0.125% of the loan amount, or $97.20.