Corporate Court Gives Thumbs Up to Mortgage Scam

Today the Supreme Court issued its decision in Freeman v. Quicken Loans (.pdf download), holding unanimously that the statute in question does not prohibit mortgage lenders from charging “unearned fees” – that is, charging fees for services never rendered. As a result of the Court’s decision in Freeman, mortgage lenders can essentially “cheat” homebuyers out of hundreds or thousands of dollars without giving them anything in return. It remains to be seen how Freeman could also impact a host of other consumer protection laws.

The case arises from a group of lawsuits out of Louisiana in which borrowers, including Tammy and Larry Freeman, claim that Quicken Loans violated the Real Estate Settlement Procedures Act (RESPA) by charging them loan-discount fees (one family paid $1,100 in fees) on their mortgages without providing reduced interest rates in return. Quicken argued that the fees charged to borrowers were both legal and earned.

The question before the Court was how to interpret RESPA, which prohibits kickbacks and other abuses in the mortgage industry. The key language in the statute reads:

No person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.

The Freemans argued that RESPA was intended to forbid unearned fees, regardless of whether a third party was involved in the improper fee arrangement. Quicken argued that the law only prohibits lenders from receiving an unearned fee when that fee is divided with a third party in the form of a kickback. The Fifth Circuit agreed with Quicken, ruling that there was no violation of RESPA if an unearned fee is charged by a single party and there is no third party taking a share.

The circuit courts were divided on this issue, with the Fourth, Fifth, Seventh and Eighth Circuits limiting the Act to third-party kickbacks and the Second, Third and Eleventh Circuits holding that the Act applies to all unearned fees. The Department of Housing and Urban Development supported the interpretation that the statute should apply to all unearned fees, while the Solicitor General filed a brief supporting the Freeman’s petition for certiorari.

Today’s decision, written by Justice Scalia, held that in order to establish a violation of §2607(b) of RESPA, a charge for settlement services has to have been divided between two or more persons. Hence, a single provider’s retention of an unearned fee does not violate §2607(b). By looking at the terms of §2607(b), the Court determined that there have to be two distinct, sequential exchanges – a single mortgage lender cannot both make and accept the charge. Because the petitioners did not demonstrate that Quicken split the challenged charges with anyone else, the Court found that the lower court properly granted summary judgment in favor of Quicken.

Freeman is one of two RESPA cases on the Corporate Court’s 2011-2012 docket. The other case is First American Financial Corp. v. Edwards, in which the Court was asked to decide whether RESPA allows individual plaintiffs to recover charges for title insurance when the selling corporation has violated a provision of the Act, regardless of whether the plaintiff was overcharged.

For additional perspective on the cases, take a look at previous guest blog posts by Prof. Amanda Leiter on First American and by Kevin Russell on Freeman.