A lert
Mortgage Banking Commentary
JUNE 27, 2001
Eleventh Circuit Throws Pepper at
Wholesale Lenders
by R. Bruce Allensworth (ballensworth@kl.com)
Irene C. Freidel (ifreidel@kl.com)
The payment by lenders of yield spread premiums in
connection with broker-originated residential
mortgage loans has been the subject of considerable
class action litigation over the last five years. Since
June 1997, lenders have achieved a long series of
victories on the issue of class certification. By an
order of magnitude, the courts have determined that
class certification is inconsistent with the “rigorous”
requirements of the federal rules of civil procedure,
finding that common issues would not predominate.
A recent decision of the United States Court of
Appeals for the Eleventh Circuit, however, reopens
the debate.
On June 15, 2001, the United States Court of Appeals
for the Eleventh Circuit (covering Alabama, Georgia
and Florida) issued an opinion affirming the trial
court’s decision in Culpepper v. Inland Mortgage
Corp. to certify a nationwide class of FHA borrowers
to determine whether the payment of a yield spread
premium by the defendant lender violates the antikickback provisions of Section 8 of the Real Estate
Settlement and Procedures Act (“RESPA”).
The opinion could be read to imply that yield spread
premiums are per se illegal because they are
calculated as a function of interest rate and loan
amount. At least on the factual record before it, the
court appears to give no credence to the argument
that a yield spread premium has legitimate uses in a
given transaction, such as providing the opportunity
to finance some or all of the loan origination costs
and fees that the borrower might otherwise pay from
his or her own pocket or as allowing a borrower to
temporarily buy down the loan interest rate. Instead,
Culpepper avoids any examination of the economic
realities of a particular loan and the broker’s and
borrower’s intent in employing a yield spread
premium, at least absent a threshold showing that the
agreement between the lender and the broker
contemplates a services-for-money exchange. The
stance taken by the Eleventh Circuit in Culpepper
appears to disregard the policy behind the statute,
the economic reality of wholesale mortgage loan
transactions, and the HUD Policy Statement that was
thought to have laid this issue to rest two years ago.
To understand the genesis of the June 15, 2001
opinion, we set forth a brief history of the Culpepper
litigation.
I. HISTORY OF THE CULPEPPER LITIGATION
A. The Summary Judgment Proceedings
In 1997, the trial court in Culpepper granted
summary judgment to the defendant lender on
the individual RESPA claims of the plaintiffs.
The trial court held that the payment of a yield
spread premium in connection with plaintiffs’
mortgage loan transaction was not prohibited
by RESPA because it was a market-driven
payment for goods which, under Section 8(c)
of RESPA, is not a violation of the statute.
Kirkpatrick & Lockhart LLP
In the first appeal in the Culpepper action
(“Culpepper I”), the Eleventh Circuit reversed
the district court, addressing not only the
grounds for decision by the trial court but also
the alternative grounds asserted on appeal
that the yield spread premium was a marketdriven payment for services. The Eleventh
Circuit first held that the trial court’s decision
that the payment was for goods was flawed by
concluding that, in a table-funded transaction,
the lender and not the broker owns the loan
from the outset. That is, the broker could not
sell the loan to the lender because the lender
already owned it.
The Eleventh Circuit also rejected the lender’s
alternative “payment for services” argument
on two grounds: first, that there was no
evidence that the broker was not fully
compensated by the one-percent origination
fee it charged in connection with the
transaction and, second, because the lender
contradicted the theory that the payment was
for services by stating in answer to
interrogatories that the yield spread premium
“was paid to [the broker] [in part] for the
slightly above-par yield on the mortgage note
and [in part] for the right to service the loan.”
The Eleventh Circuit concluded by declaring
that the Section 8(c) exception covering
payments for goods, facilities or services was
inapplicable because the payment of the yield
spread premium was not a payment for goods
or services. The court stated that the fact that
the price of a referral is market-driven is not
relevant if there is a referral in violation of the
statute. Thus, the court presumed that the
payment of a yield spread premium was a
referral fee within the meaning of Section 8(a),
and further that the yield spread premium was
not subject to review under Section 8(c).
In a footnote that was highly touted by the
lending community, the Eleventh Circuit
emphasized that its holding was “highly
dependent upon the facts of [the Culpeppers’]
financial transaction.” “We simply note that
the particular facts here do not support the
2
conclusion that the yield spread premium in
this case was paid as compensation for the
services [the broker] provided to the
Culpeppers.” This observation was
considered important because of its potential
effect on class certification. The court
vacated the trial court’s denial of class
certification and remanded for consideration
of the certification decision in light of its
opinion.
The Eleventh Circuit issued a further opinion
in its decision denying the lender’s petition for
rehearing. See Culpepper v. Inland Mortgage
Corp., 144 F.3d 717 (11th Cir. 1998) (“Culpepper
II”). The court expressly confirmed in
Culpepper II that the lender’s “inability to
obtain judgment as a matter of law on the
current record does not prevent [the lender],
on remand, from attempting to prove its case
at trial” as to the plaintiffs’ individual
transaction. Id. (emphasis added). The court
noted that, with respect to plaintiffs’
individual transaction, the lender’s case was
that “the yield spread premium also
represented additional payment for [the
broker’s] services to [the lender] and the
[plaintiff borrowers].” Id. The Eleventh
Circuit acknowledged the “reasonableness
test” under RESPA and stated that it was not
holding in Culpepper I “that RESPA prohibits
the payment of all reasonable yield spread
premiums by mortgage lenders to mortgage
brokers who actually furnish services or
goods and thereby precludes buyers from
financing closing costs through yield spread
premiums.” Id.
The Culpepper opinions determined the law
of the case, which imposed a significant
negative constraint on the class certification
decision issued by the district court, and on
the Eleventh Circuit’s most recent decision
affirming class certification.
B. The Class Certification Proceedings
On June 22, 1999, the federal district court in
the Northern District of Alabama certified the
proposed class in Culpepper v. Inland
Kirkpatrick & Lockhart LLP
Mortgage Corp., C.A. No. 96-BU-0917-S (N.D.
Ala. June 22, 1999) (“Culpepper III”). The
Culpepper III decision was plainly at odds
with the March 1, 1999 HUD Policy Statement,
64 Fed. Reg. 10800 (1999), which was issued
after the Eleventh Circuit’s first Culpepper
opinion. It did not adhere to the guidance
provided by the Eleventh Circuit in Culpepper
II that appeared to counsel against class
certification, and it ignored the reasoning of
more than thirty cases where district courts by
that time had refused to grant plaintiffs’
motions for class certification.
In Culpepper III, the district court held that it
was not required “to investigate the
reasonableness of the compensation provided
by the broker because the yield spread
premium paid was neither a payment for goods
or services.” Slip op. at 8. Citing to
Culpepper I, 132 F.3d 692, 697 (11th Cir. 1998),
the district court stated that yield spread
premium payments are not for goods or
services when their amount is not “tied” to the
services provided. Id. The court further
found that the defendant had failed to
establish that the yield spread premium was
for services where it had not produced any
evidence “that the yield spread premium is
[connected] to anything but the difference
between the par rate and the interest rate at
which the mortgage was made.” Slip op. at 9.
According to the court, “[t]he claims of the
plaintiffs and any putative class hang largely,
almost exclusively, on this issue.” Id. The
Culpepper III decision, however, did not
address the March 1, 1999 HUD Policy
Statement.
On July 20, 1999, the trial court issued an
additional order in Culpepper v. Inland
Mortgage Corp., CV 96-BU-0917-S (N.D.Ala.
July 20, 1999) (“Culpepper IV”), in which it
stated that its class certification decision was
consistent with the HUD Policy Statement
because, according to the court, HUD requires
a showing by the lender—in the so-called
second “sub-prong” to the first prong of the
3
liability test—that the yield spread premium
payment was “actually … compensation for
the goods or services provided.” In other
words, according to the district court, the
lender is required to demonstrate that the
amount of the yield spread premium fee was
“inherent[ly] relat[ed] at the time of the
transaction” to the goods and services
provided. Thus, the district court in
Culpepper IV erroneously determined that a
plaintiff could establish classwide liability
against a mortgage lender under Section 8 of
RESPA based on the method by which the
mortgage lender calculated the amount of the
yield spread premium paid in connection with
a putative class member’s loan.
II. THE ELEVENTH CIRCUIT JUNE 15, 2001
DECISION
On June 15, 2001, the Eleventh Circuit affirmed the
district court’s class certification order holding that
the lower court did not abuse its discretion
(“Culpepper V”). In explaining its decision, the court
states that the HUD Policy Statement is “ambiguous
as to the core of the class certification dispute.”
The court then embarked on an effort to determine
the “rule of liability” applicable to yield spread
premium claims.
Clearly constrained—at a minimum—by the law of
the case set forth in its first Culpepper opinion on
summary judgment, the Eleventh Circuit rejected the
lender’s argument that the HUD Policy Statement
overruled Culpepper I’s interpretation of Section 8(c)
of RESPA. The lender argued that once it is
established that goods, facilities or services were
provided by the broker, a yield spread premium
payment is permissible if it satisfies the
“reasonableness” analysis of Section 8(c). The
lender further argued, putting aside the
“reasonableness” test, that even the Culpepper I
opinion required the factfinder to consider whether
the broker and borrower subjectively intended, in
each loan transaction, for the yield spread premium
to be a payment for the broker’s services.
The Eleventh Circuit, however, agreed with the
plaintiffs’ analysis, which asserted that the HUD test
Kirkpatrick & Lockhart LLP
and the Culpepper I opinion were consistent,
because according to the court and the plaintiffs,
both require a showing that the yield spread premium
was paid expressly in exchange “for” services. In
adopting the plaintiffs’ rule of liability, the Eleventh
Circuit first considered the meaning of the phrase in
the Policy Statement’s liability analysis: “whether
goods or facilities were actually furnished or services
were actually performed for the compensation paid”
(emphasis supplied).
The court pointed to three reasons supporting the
plaintiffs’ interpretation that the phrase requires that
each yield spread premium be paid as part of a
“services-for-money” exchange. First, the court
stated that the phrase “for compensation paid” must
be given meaning and the lender’s interpretation of
the liability test (which is consistent with HUD’s)
rendered the phrase meaningless. According to the
court, “the plaintiffs’ suggestion that ‘for
compensation paid’ means ‘in exchange for
compensation paid’ is semantically very plausible.”
Second, the court found that its interpretation of the
HUD Policy Statement was consistent with Section
8(c), and the lender’s interpretation was not. The
court cited Section 8(c), which authorizes “the
payment of a fee … by a lender … for services
actually performed.” 12 U.S.C. § 8607(c). According
to the court, the preposition “for” connotes an
exchange and the term “fee” implies a “money-forservices” exchange. Thus, according to the court,
only payments that a lender can prove are paid “for”
services fall within Section 8(c)’s “safe harbor.”
Third, the court determined that Section 8(c) is an
“interpretive gloss” on Section 8(a) rather than a “list
of exemptions bestowed on otherwise illegal
conduct.” According to the court, payments that are
prohibited under Section 8(a) cannot be rehabilitated
(or exempted) under Section 8(c).
The court did not agree with what it perceived to be
the lender’s central argument: that payments
coincident with referrals under Section 8(a) are legal
under Section 8(c) if services were provided and the
amount of the fee was reasonable. “The crux of §
8(a)’s liability test, even when the suspected referral
fee is dressed up as something else, is whether the
payment is to compensate a referrer for referrals; the
4
answer to that question lies in the terms of the
agreement between the referrer and the recipient of
the referral.”
The Eleventh Circuit further stated that its rule of
decision did not run afoul of HUD’s statement that
yield spread premium fees are not “illegal per se.”
The court posits that an indicia that the yield spread
premium constitutes a payment for goods, services,
and facilities provided would be, for example, “if
[the lender] required brokers to present a bill
showing the services rendered, and how much the
broker had collected in fees from the borrower, or [the
lender] followed the advice of the Senate report to
‘persons and companies that provide settlement
services’ that they ‘ensure that any payments they
make … are not out of line with the reasonable value
of services received.’” Slip op. at 15.
The very Senate report that the Eleventh Circuit
relies on, however, suggests that the determination
of whether a yield spread premium constitutes a
payment for services turns on whether the broker’s
compensation is in line with the value of the services
it provided, as opposed to being “for” specific
individual services. This is consistent with the
analysis that would be performed under Section 8(c)
and Regulation X. The Eleventh Circuit,
nonetheless, despite reference to the Senate report,
finds that the reasonableness analysis of Section 8(c)
is not applicable.
Culpepper V rejects the lender’s argument that
plaintiffs’ position, if adopted, would put the lender
in the position of not knowing whether its conduct
was illegal at the time it pays a broker fee, because it
would not know the intent of the broker and the
borrower with respect to arrangements made for the
broker’s compensation. According to the court,
“[a]fter all, [the lender] may not know what services it
has received when it pays the premium, but it does
know that it has gotten a referral.” In other words,
the fact that a broker may rely on the premium for
compensation does not mean that “[the lender] is
buying services.” Slip op. at 17.
In sum, the court states that it is adopting the
“sounder rule” supported by Culpepper I “that the
terms and conditions under which a lender pays a
Kirkpatrick & Lockhart LLP
broker a yield spread premium can determine whether
the yield spread premium is compensation for
referring loans rather than a bona fide fee for
services. There is no suggestion here that [the
lender] negotiates yield spread premiums loan-byloan, rather than paying for them according to terms
and conditions common to all the loans. Nor does
[the lender] contend that it intends some yield spread
premiums to pay for services and others to pay for
referrals.” Slip op. at 17–18. The court concluded
that the district court “acted within its discretion” in
certifying a class “[g]iven the test for liability that we
interpret the HUD Statement and Culpepper I to
impose.”
III. ANALYSIS
A rule that would limit the RESPA inquiry merely to
generalized evidence of the purpose underlying the
payment of yield spread premium fees without
consideration of the particulars of any transaction is
inconsistent with the test for liability set forth in the
HUD Policy Statement. HUD makes clear in its
guidance that yield spread premium fees are subject
to the reasonableness test as long as the broker
provides a threshold quantity of compensable
goods, services and/or facilities. Indeed, HUD
expressly acknowledges that yield spread premium
fees are calculated based on the interest rate and
amount of a mortgage loan—and the method by
which they are calculated is not “tied” directly to the
value of the goods, services, and facilities provided.
HUD further characterizes lender-paid broker
compensation that is not per se illegal as “indirect
fees, including those that are derived from the
interest rate paid by the borrower …,” and
“payments based upon a percentage of the loan
amount.” 64 Fed. Reg. at 10086 (emphasis added).1
HUD states that to determine the legality of any
individual yield spread premium payment, the
factfinder need not consider whether the yield spread
premium was “tied” to services provided by the
broker. In the first prong of the test, HUD requires
the factfinder to consider only what goods, services
and/or facilities the broker provided (see services
listed at 64 Fed. Reg. at 10085). The analysis is to be
conducted with reference to HUD’s letter to the
Independent Bankers Association of America dated
February 14, 1995, which lists specific services
usually performed in the origination of a loan. Once
the factfinder determines that the mortgage broker
provided compensable goods, services, and/or
facilities, he or she must then consider the
reasonableness of the broker’s total compensation
for originating the mortgage loan. Thus:
the first question is whether goods or
facilities were actually furnished or
services were actually performed for the
compensation paid. The fact that goods
or facilities have been actually furnished
or that services have been actually
performed by the mortgage broker does
not by itself make the payment legal.
The second question is whether the
payments are reasonably related to the
value of the goods or facilities that were
actually furnished or services that were
actually performed.
64 Fed. Reg. at 10084 (emphasis added).
As one district court has interpreted the Policy
Statement (64 Fed. Reg. 10080):
the threshold question is simply whether
the mortgage broker has provided
legitimate goods or services in
connection with the loan transaction.
Once this showing is made, the question
becomes whether the quantum of goods,
facilities, and services provided is
reasonably related to the “total
compensation” received by the broker.
As the Policy Statement unequivocally
states: “All payments, including
payments based upon a percentage of the
loan amount [i.e., yield spread premiums],
are subject to the reasonableness test
defined above.” 64 Fed. Reg. at 10086….
As stated in the Policy Statement, “HUD does not view the name of the payment as the appropriate issue
under RESPA.” 64 Fed. Reg. at 10084.
1
5
Kirkpatrick & Lockhart LLP
Schmitz v. Aegis Mortgage Corp., C.A. No. 97–2142
(JMM/DSD) (D. Minn. April 23, 1999), slip op. at
11–12.
Nothing in a fair reading of the Policy Statement itself
suggests that HUD’s interpretation of RESPA
requires, as an element of liability, a showing of the
reasons for which a yield spread premium is paid. As
the Senate report to which the Eleventh Circuit cites
suggests, the best proof that the yield spread
premium fee is a payment for services is the
reasonableness of total broker compensation in any
given transaction. Culpepper, however, ignores this
point in its analysis.
HUD expressly recognizes that yield spread premium
fees are not “inherently related” to the value of the
services provided—and that they are calculated
based on the loan’s interest rate and amount.
Nonetheless, HUD states that there is nothing per se
illegal about making payments calculated in such a
fashion. If a yield spread premium fee were illegal
because it was calculated based on the interest rate
and loan amount and not tied to specific services
provided, there would be no need to consider either
the services provided by the broker as required by
the first part of the test or the reasonableness of the
broker’s compensation under the second part of the
test because yield spread premium fees would be per
se illegal.
If the Eleventh Circuit is saying that a broker
payment runs afoul of Section 8 if the amount of that
payment is derived or computed on the basis of
something other than the specific value of the goods,
services and facilities provided by the broker, that
would seem inconsistent with, and not deferential to,
HUD’s determination that yield spread premium fees
are not per se illegal. By definition, the amount of
yield spread premium fees is calculated based on
yield and not by specific reference to the goods,
services and facilities provided in the specific
transaction. The HUD Policy Statement expressly
acknowledges that (1) yield spread premium fees are
calculated as a function of the interest rate and loan
amount; (2) there is nothing per se illegal about yield
spread premium fees; and (3) yield spread premium
fees can perform a valuable function in the lending
process. The determinative test articulated by HUD
6
turns not on the manner of calculation of a yield
spread premium, but instead on the relationship
between total broker compensation, including yield
spread premium, and the reasonable value of the
goods, services and facilities provided by the broker.
Regulation X itself provides guidance as to the
construction of the preposition “for” in the first
prong of the test announced in the Policy Statement.
Regulation X states that “[i]f the payment of a thing
of value bears no reasonable relationship to the
market value of goods or services provided, then the
excess is not for services or goods actually
performed or provided.” 24 C.F.R. § 3500.14(g)(2)
(emphasis added). The word “for” examined in this
context suggests that proof that the amount of the
total broker compensation, including yield spread
premium, in a particular transaction was reasonably
related to the market value of the goods, services or
facilities provided would demonstrate that the
payment actually was “for” goods, services or
facilities actually performed or provided.
This interpretation is bolstered by the Senate report
discussion cited in Culpepper to the effect that
settlement service providers should ensure that “any
payments they make . . . are not out of line with the
reasonable value of the services received.” See
Culpepper, slip op. at 15, citing S. Rep. No. 93–866
(1974), reprinted in 1974 U.S.C.C.A.N. 6546, 6551. It
follows that if the total compensation received by the
broker, including yield spread premium, from the
lender is in line with the reasonable value of the
services received, there is no violation of the statute
regardless of any qualitative evaluation of the
adequacy of the safeguards employed by the lender
to ensure that its payments are indeed applied by the
broker toward payment for specific goods, services
and facilities actually provided. Stated otherwise, the
fact that there is a reasonable equivalency between
the amount of broker compensation, including yield
spread premium, and the market value of the goods,
services and facilities provided by the broker is the
clearest evidence of the payment-for-services
exchange, and that determination can only be made
on a transaction-by-transaction basis.
Putting aside the HUD Policy Statement and
Regulation X, the district court and the Eleventh
Kirkpatrick & Lockhart LLP
Circuit in their class certification analysis in
Culpepper rested their decisions to certify a class on
their interpretation of the Eleventh Circuit’s opinions
reversing the grant of summary judgment in
Culpepper I and II. In Culpepper I, the Eleventh
Circuit made clear that one of the reasons it did not
consider—on the record before it—that the yield
spread premium was a payment for services was that
there was “no evidence” that the loan origination fee
paid by the Culpeppers to the mortgage broker “was
not intended by both [the broker] and the
Culpeppers to compensate [the broker] fully for the
work it did for the Culpeppers.” 132 F.3d at 696. This
fact-intensive point led the Eleventh Circuit to state
that its holding, i.e., reversing the grant of summary
judgment in favor of the defendant, was explicitly
restricted to the facts as they appeared in the record,
i.e., “[the] holding here is highly dependent upon
the facts of [the Culpeppers’] financial
transaction.” 132 F.3d at 697 n.5 (emphasis added).
Even if the intent of the individual parties to a
mortgage loan transaction is an element of liability
under Section 8 of RESPA, such intent can only be
determined on an individualized basis
notwithstanding broker agreements that do not
express a purpose for which yield spread premiums
are paid. The Eleventh Circuit brushed aside this
component of its earlier holding in Culpepper I.
Culpepper V likely is not the Eleventh Circuit’s final
word on yield spread premium class actions. The
current Culpepper decision addresses only one of
the four cases argued contemporaneously to the
Eleventh Circuit. The Culpepper V ruling plainly was
informed and shaped by considerations of law of the
case and the unique factual record, and its
application to other cases with different procedural
7
histories and different factual records is uncertain.
The broader thinking of the Eleventh Circuit panel
will not be revealed until the court releases its
opinions in three other related cases that are still
pending before it.
Further, the standard of review in Culpepper V was
for abuse of discretion. The court was affirming the
decision of the trial court to grant class certification.
Outside of a handful of cases, the overwhelming
majority of trial courts that have considered the issue
of class certification have denied certification and,
thus, the application by a circuit court for abuse of
discretion standard in those cases may well lead to a
different result than that reached in Culpepper V.
Indeed, the Second Circuit currently has under
advisement the trial court decision denying class
certification in Potchin v. Prudential Home
Mortgage Company, Inc. The court’s ultimate
decision there will provide further guidance to
lenders on the treatment of yield spread premium fees
in the courts. But absent an en banc rehearing by
the Eleventh Circuit or intervening legislative or
executive action, the recent Culpepper V decision
reignites the dormant debate on yield spread
premiums.
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