Www Mortagagemortgagelender B Mortgage Mortgage Lender Mortgage Mortgage Lender Mortgage Mortgage Lender Szh Mitsu Kyw Plasma Php Mortgage Mortgage Lender 132 F3d 692 Culpepper v. Inland Mortgage Corporation | OpenJurist

David R. Donaldson, Pamela D. Beard, Birmingham, AL, for Plaintiffs-Appellants.

David S. Hay, Margaret K. Savage, Robert J. Pratte, Minneapolis, MN, Mark G. Schroeder, Alan H. Maclin, Briggs & Morgan, P.A., St. Paul, MN, Sarah Y. Larson, Maynard, Cooper and Gale, Birmingham AL, for Defendant-Appellee.

Appeal from the United States District Court for the Northern District of Alabama.

Before EDMONDSON and HULL, Circuit Judges, and CLARK, Senior Circuit Judge.

HULL, Circuit Judge:

1

This appeal concerns whether a mortgage lender's payment of a "yield spread premium" to a mortgage broker violates the anti-kickback provision of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601, et seq. ("RESPA"). The district court granted summary judgment to defendant Inland Mortgage Corp. and held that the payment it made was not prohibited by RESPA. After review, we disagree and reverse.1

2

The pertinent facts are undisputed. John and Patricia Culpepper ("the Culpeppers") obtained a federally insured home mortgage loan from Inland Mortgage Corp. ("Inland"). The Culpeppers did not deal directly with Inland, but dealt with Premiere Mortgage Company ("Premiere"), a mortgage broker.

3

Inland, like other lenders, sends Premiere daily rate sheets that show the types of loans Inland will make to qualified borrowers. Each type of loan has a benchmark interest rate called the "par rate." This is the lowest interest rate at which Inland will make loans without charging the borrower "discount points." If Premiere as the mortgage broker brings Inland a loan at a "below par rate," then Inland requires Premiere, who then requires the borrower, to pay discount points for the loan. However, if Premiere brings Inland a loan with interest at an "above par rate," then Inland pays a "yield spread premium" to Premiere.

4

On December 7, 1995, Premiere received a rate sheet from Inland and informed the Culpeppers that a 30-year loan was available at a 7.5% interest rate. The Culpeppers accepted the rate, and Premiere registered the loan with Inland. Unbeknownst to the Culpeppers, the rate sheet showed that 7.5% was higher 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.

5

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.

6

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.

7

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.

8

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.

9

In 1974, Congress enacted RESPA to protect home buyers "from unnecessarily high settlement charges caused by certain abusive practices."2 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:

10

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.

11

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).

12

Although § 2607(a) prohibits referral fees, § 2607(c) exempts payments for goods or services from that prohibition, as follows:

13

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....

14

Id. § 2607(c).

15

B. Interpretation Of RESPA By Courts And Commentators

16

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.

17

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).

18

C. The Yield Spread Premium Was A Referral Fee Under § 2607(a)

19

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.

20

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).

21

D. The Yield Spread Premium Was Not A Payment For Goods

22

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.

23

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:

24

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