Haug v. Bank of America, N.A.

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
___________

No. 02-2458
___________

Amy E. Haug; Peter V. Haug, *
individually and as Class *
Representatives, *
*
Plaintiff-Appellees, *
*
v. *
*
Bank of America, N.A, *
*
Defendant-Appellant. *
*
------------------------------------------------- Appeal from the United States
* District Court for the
American Bankers Association; * Eastern District of Missouri
America's Community Bankers; *
American Escrow Association; *
American Land Title Association; *
Real Estate Service Providers Council; *
The Realty Alliance, Title/Appraisal *
Vendor Management Association, *
*
Amicus on Behalf of Appellant. *
*
United States; National Association of *
Consumer Advocates, *
*
Amicus on Behalf of Appellees. *
 ___________

Submitted: November 6, 2002

Filed: January 23, 2003
___________

Before McMILLIAN, MURPHY and MELLOY, Circuit Judges.
___________

McMILLIAN, Circuit Judge.

Bank of America, N.A. (“Defendant”), appeals from the order entered in the
United States District Court for the Eastern District of Missouri denying Defendant’s
motion to dismiss. See Haug v. Bank of America, N.A., No. 4:01-CV-1146 CAS
(E.D. Mo. Mar. 29, 2002) (“slip op.”). For reversal, Defendant argues that the district
court erred in holding that a single service provider violates § 8(b) of the Real Estate
Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607(b) (“Section 8(b)”),
whenever it receives an unearned fee. Id. at 11. In addition, Defendant argues that
the district court erred in relying on a policy statement issued by the Department of
Housing and Urban Development (“HUD”) interpreting Section 8(b) as prohibiting
payment or receipt of any portion or percentage of a settlement service fee that is
“unearned,” regardless of whether the entire charge is retained by a single individual
or entity or is split or shared with a third party. Id. For the reasons discussed below,
we reverse the order of the district court as it pertains to Section 8(b) of RESPA and
remand the case for further proceedings consistent with this opinion.

Jurisdiction in the district court was proper based on 28 U.S.C. § 1331.
Defendant timely sought interlocutory review of the district court’s order, which was
permitted by the district court and granted by this court. Accordingly, this court has
jurisdiction over this interlocutory appeal pursuant to 28 U.S.C. § 1292(b).

-2-
 BACKGROUND

The facts of this case are not in dispute. On May 11, 2001, Amy E. Haug and
Peter V. Haug (“Plaintiffs”), citizens of Missouri, individually and as class
representatives, filed an eight-count putative class action complaint against Defendant
in the Circuit Court for the City of St. Louis. Plaintiffs alleged that from May 8,
1996, through the date of certification, based on Defendant’s nondisclosures, or false
and misleading disclosures, they unknowingly paid charges for credit reports or other
loan related services for federally related mortgage loans that exceeded Defendant’s
actual costs for those services. According to Plaintiffs, those charges violated
RESPA and the Missouri Merchandising Practices Act (MMPA), Mo. Rev. Stat.
§ 407.020 et seq.1

More specifically, Plaintiffs allege that they obtained a mortgage loan and,
pursuant to a contract with Defendant, paid $50.00 for a credit report, $300.00 for an
appraisal, and $25.00 for document delivery services in connection with the loan.
Plaintiffs alleged that Defendant purchased the credit report from a third party vendor
for less than $15.00, and that Defendant purchased the appraisal and document
delivery services from a third party vendor at a cost significantly less than the amount

1
Plaintiffs contend that Defendant’s alleged violation of the Real Estate
Settlement Procedures Act (“RESPA”) constitutes an “unfair practice” under the
Missouri Merchandising Practices Act (“MMPA”). Mo. Rev. Stat. § 407-020.1
provides:

The act, use or employment by any person of any deception, fraud, false
pretense, false promise, misrepresentation, unfair practice or the
concealment, suppression, or omission of any material fact in connection
with the sale or advertisement of any merchandise in trade or commerce,
. . . in or from the state of Missouri, is declared to be an unlawful
practice.

-3-
they were charged. Plaintiffs contend that Defendant’s overcharges constituted a
“split of fees” or “unearned fees” in violation of Section 8(b).

Defendant, a Delaware corporation with its principal place of business in North
Carolina, removed the case to federal court pursuant to 28 U.S.C. § 1441(b), on the
grounds that the claims against it invoked RESPA. The district court denied
Plaintiffs’ motion to remand on January 22, 2002.

Defendant then filed a motion to dismiss counts I though III of the complaint
for failure to state a claim.2 Relying on Echevarria v. Chicago Title & Trust Co., 256
F.3d 623 (7th Cir. 2001) (Echevarria), Defendant argued that the plain language of
Section 8(b), entitled “Prohibition against kickbacks and unearned fees,” requires that
one party must give and another party must receive an unearned portion, split, or
percentage of a settlement service fee. Defendant argues that Plaintiffs failed to state
a RESPA claim because they did not allege a third party kickback or fee split with
respect to the overcharges. On March 29, 2002, the district court denied Defendant’s
motion to dismiss, citing a 2001 HUD Policy Statement which states that Section 8(b)
proscribes all unearned portions or percentages of settlement fees as well as splits,
meaning a single settlement service provider violates Section 8(b) whenever it
receives an unearned fee. Slip op. at 11 (quoting HUD’s 2001 Official Policy
Statement, 66 Fed. Reg. 53,052, 53,058) (“HUD Policy Statement”). This
interlocutory appeal followed.

The National Association of Consumer Advocates (“Consumer Advocates”)
and the Department of Justice (“DOJ”) on behalf of HUD each filed an amicus brief
in support of affirming the district court’s decision. The American Bankers

2
Defendants presented numerous grounds for dismissal, but the only issue
certified for interlocutory appeal is whether Defendant violated Section 8(b) of
RESPA.

-4-
Association, joined by several other real estate settlement service businesses,3 filed
an amicus brief arguing that the decision of the district court should be reversed.

DISCUSSION

We review the district court’s statutory interpretation de novo. See, e.g.,
United States v. Milk, 281 F.3d 762, 766 (8th Cir. 2002) (citing United States v.
McIntosh, 236 F.3d 968, 972 (8th Cir. 2001)).

We begin our inquiry into the intended meaning of the statute with the
language of the statute itself. Milk, 281 F.3d at 766 (citing McIntosh, 236 F.3d at
972). “Where the language of a statute is ‘unambiguous, the statute should be
enforced as written unless there is clear legislative intent to the contrary.’” Id. at 766
(quoting McIntosh, 236 F.3d at 972). If the intent of the statute is clear, the judicial
inquiry ends. United States v. S.A., 129 F.3d 995, 998 (8th Cir. 1997) (citing
Citicasters v. McCaskill, 89 F.3d 1350, 1354-55 (8th Cir. 1996)).

Section 8(b) of RESPA provides:

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.

12 U.S.C. § 2607(b).

3
Other associations joining the American Bankers Association include:
America’s Community Bankers, American Escrow Association, American Land Title
Association, Real Estate Service Providers Council, The Realty Alliance, and
Title/Appraisal Vendor Management Association.
-5-
 Plaintiffs read the word “and” in the phrase “no person shall give and no person
shall accept” to prohibit any person from giving or accepting an unearned fee. Under
this interpretation, giving or accepting an unearned fee can constitute a violation of
Section 8(b) because the statute does not require a showing that the person illegally
shared a fee with a third party. Plaintiffs maintain that their reading is consistent with
RESPA’s remedial purpose as a consumer protection statute, enacted to provide
consumers with “greater and more timely information on the nature of the costs of the
[real estate] settlement process,” and to limit the “unnecessarily high settlement
charges caused by certain abusive practices.” 12 U.S.C. § 2601.

We disagree with Plaintiffs’ interpretation and hold that Section 8(b) is an anti-
kickback provision that unambiguously requires at least two parties to share a
settlement fee in order to violate the statute. Congress intended Section 8(b) “to
prohibit all kickback and referral fee arrangements whereby any payment is made or
‘thing of value’ is furnished for the referral of real estate settlement business . . . [and
to prohibit] a person that renders a settlement service from giving or rebating any
portion of the charge to any other person except in return for services actually
performed.” Mercado v. Calumet Fed. Savings & Loan Ass’n, 763 F.2d 269, 270-71
(7th Cir. 1985) (Mercado) (quoting S. Rep. No. 93-866, 93rd Cong., 2d Sess. (1974),
reprinted in 1974 U.S.C.C.A.N. 6551). This reading of the statute is consistent with
the decisions of both the Fourth and Seventh Circuits, which have held that the plain
language of Section 8(b) requires plaintiffs to plead facts showing that the defendant
illegally shared fees with a third party.4 See Boulware v. Crossland Mortgage Corp.,
291 F.3d 261, 265 (4th Cir. 2002) (Boulware) (holding “8(b) only prohibits
overcharges when a ‘portion’ or ‘percentage’ of the overcharge is kicked back to or

4
The Seventh Circuit recently upheld Echevarria v. Chicago Title & Trust
Co.,256 F.3d 623, 626-28 (7th Cir. 2001) (Echevarria), in Krzalic v. Republic Title
Co., 2002 WL 31873609 (7th Cir. Dec. 26, 2002) (Krazlic). The Krzalic court held
that Section 8(b) of RESPA is an anti-kickback statute that does not apply to the
“repricing of incidental charges.” Id. at *5.
-6-
‘split’ with a third party”); Echevarria, 256 F.3d at 626 (affirming dismissal under
Fed. R. Civ. P. 12(b)(6) where plaintiffs failed to plead facts tending to show the third
party involvement required for a Section 8(b) claim). We therefore hold that Section
8(b) prohibits only transactions in which the defendant shares a “portion, split, or
percentage of any charge” with a third party. See Durr v. Intercounty Title Co., 14
F.3d 1183, 1187 (7th Cir. 1994) (Durr) (affirming district court’s dismissal of RESPA
claim where plaintiff failed to allege defendant’s overcharge was a “portion, split or
percentage of any charge” given to a third party) (citing Mercado, 763 F.2d at 270).
In this case, all that Plaintiffs allege is that Defendant charged Plaintiffs more for
certain services than Defendant paid for them. Such an overcharge, standing alone,
does not violate Section 8(b) of RESPA. See Boulware, 291 F.3d at 265 (Section
8(b) does not apply where defendant simply collected an overcharge and retained it
as a “windfall”) (citing Durr,14 F.3d at 1187).

Plaintiffs and Amici DOJ and Consumer Advocates cite United States v.
Gannon, 684 F.2d 433 (7th Cir. 1981) (en banc) (Gannon), to support their contention
that Section 8(b) does not necessarily require the division or split of fees with a third
party. In Gannon, the Seventh Circuit held that an employee of the county recorder’s
office violated Section 8(b) by receiving and retaining for himself charges in addition
to the regular filing fees. Noting that “Congress’ aim was to stop all abusive practices
that unreasonably inflate federally related settlement costs,” id. at 438, the Gannon
court held that “a single individual can violate § 2607(b) by receiving in his official
capacity a ‘charge’ for the rendering of settlement services, but personally keeping
a portion of the charge in fact for something other than the performance of those
services.” Id. Starting with Mercado, however, subsequent Seventh Circuit cases
have distinguished Gannon and required payment to a third party in order to violate
Section 8(b). Mercado, 763 F.2d at 271. The Mercado court noted that “[p]arts of
the opinion in Gannon may be read to state that any payment in excess of the value
of services rendered is an abusive practice, the equivalent of splitting fees and equally
to be condemned.” Id. The Mercado court went on state, however, that the individual

-7-
defendant in Gannon was, in effect, wearing two hats: receiving payments in both his
official capacity and his personal capacity, effectively making a kickback to himself.
Id. Therefore, the Mercado court declined to extend Gannon to hold that Section
8(b) covered all payments in excess of the value of services rendered.5 Id.; see also
Echevarria, 256 F.3d at 626 (holding Section 8(b) did not apply where defendant both
collected and retained fees from plaintiffs in the same capacity); Durr,14 F.3d at 1187
(“RESPA ‘requires at least two parties to share fees.’”) (quoting Mercado,763 F.2d
at 270). In the present case, Defendant collected fees from Plaintiffs in its capacity
as a mortgage lender and retained the overcharges in that same capacity, meaning
there was no splitting of sharing or fees required for a Section 8(b) violation. See
Echevarria, 145 F.3d at 626 (“We cannot employ a legal fiction to treat [defendant]
as both the giver and third party receiver of unearned fees because it acted in the same
legal capacity when it overcharged plaintiffs and when it retained the monies in
excess of the recording fees.”).

Although not dispositive, the legislative history of what ultimately became
Section 8(b) further supports the proposition that Section 8(b) was intended to cover
the split or kickback of real estate settlement services fees, not simply overcharges.
Congress considered and rejected proposed legislation that would have set a system
of price controls for settlement services fees. See Mercado, 763 F.2d at 271 (citing
1974 U.S.C.C.A.N. 6549-50). In 1973, two settlement cost bills were introduced to
Congress and referred to the Committee on Banking, Housing, and Urban Affairs.
Senator Brock introduced S. 2228, and Senator Proxmire introduced S. 2288.
Although the bills were similar in many respects, they differed with regard to the
authority bestowed on HUD and the Veterans Administration (“VA”) to regulate

5
The Mercado court also noted that Gannon did not review the question of
“unduly high”fees because the case focused on an arrangement where the defendant
collected more that the requisite fee, remitted the appropriate amount to the county,
and kept the rest for himself. Mercado v. Calumet Fed. Savings & Loan Ass’n, 763
F.3d 269, 271 (7th Cir. 1985).
-8-
settlement services charges. The Proxmire bill would have required HUD to establish
maximum amounts for settlement charges on virtually all mortgage transactions
within 180 days of enactment. The Brock bill, which the Committee ultimately
adopted, repealed section 701 of the Emergency Home Finance Act of 1970, which
bestowed authority on HUD and the VA to regulate standards for settlement costs.
Rather than directly regulating closing costs by limiting real estate settlement charges,
Congress instead chose to “regulate the underlying business relationships and
procedures of which the costs are a function.”6 1974 U.S.C.C.A.N. 6548. In so
doing, Congress specifically designed Section 8(b) to eliminate kickbacks and fee
splits by “prohibit[ing] a person or company that renders a settlement service from
giving or rebating any portion of the charge to any other person except in return for
services actually performed.” Id. at 6551.

Defendant also argues that the district court erred in relying upon the HUD
Policy Statement interpreting Section 8(b) to prohibit the paying or accepting of any
unearned fee. In response, Plaintiffs argue that under the plain language of Section
8(b), a single person may violate the provision by marking-up third party settlement
services and retaining the difference as an unearned fee. In the alternative, Plaintiffs
argue the “[n]o person shall give and no person shall accept” language of Section 8(b)
is ambiguous7; therefore, deference to the HUD Policy Statement is warranted.

6
Commenting on the ills that the legislation was designed to remedy, the Senate
Report to the Committee on Banking, Housing, and Urban Affairs noted “[i]n a
number of areas of the country, competitive forces in the conveyancing industry have
lead to the payment of referral fees, kickbacks, rebates and unearned commissions as
inducements to those persons who are in a position to refer settlement business.”
1974 U.S.C.C.A.N. 6551.

7
Amicus DOJ contends that the disparate readings of the same statute by
different legal authorities support the conclusion that Section 8(b) is ambiguous. For
example, HUD reads the “no person shall give and no person shall accept” language
of Section 8(b) to prohibit two separate actions, each of which can constitute a
-9-
 When reviewing an agency’s interpretation of a statute, this court must ask
“whether the Congress has directly spoken to the precise question at issue.” Sierra
Club v. EPA, 252 F.3d 943, 947 (8th Cir. 2001) (citing Chevron U.S.A., Inc. v.
Natural Res. Def. Council, Inc., 467 U.S. 837, 842 (1984) (Chevron)). “If the intent
of Congress is clear, that is the end of the matter; for the court, as well as the agency,
must give effect to the unambiguously expressed intent of Congress.” Id. (quoting
Chevron, 467 U.S. at 842); see also Hennepin County Med. Ctr. v. Shalala, 81 F.3d
743, 748 (8th Cir. 1996) (Hennepin County Med. Ctr.) (“The plain meaning of a
statute controls, if there is one, regardless of an agency’s interpretation.”). Because
the language of Section 8(b) unambiguously requires the giving or receiving of an
unearned portion of a settlement fee, the district court’s inquiry should have ended
with the plain language of the statute.

The district court did not make an explicit finding that Section 8(b) is
ambiguous before examining the HUD Policy Statement.8 See slip op. at 9-10 (citing

violation. The Fourth Circuit, however, has held that the language applied only to a
kickback or fee-splitting situation involving a third party. Boulware v. Crossland
Mortgage Corp., 291 F.3d 261, 265 (4th Cir. 2002). See Brief for United States as
Amicus Curiae at 22. HUD’s interpretation is therefore entitled to deference if it does
not “exceed [] the bounds of the permissible.” Id. (quoting Barnhart v. Walton, 122
S.Ct. 1265, 1269 (2002)).
8
Noting that the 2001 HUD Policy Statement was issued in response to
Echevarria, 256 F.3d 623, the district court cited the portion of the HUD Policy
Statement that provides:

In HUD’s view, Section 8(b) forbids the paying or accepting of any
portion or percentage of a settlement service – including up to 100%
– that is unearned, whether the entire charge is divided or split among
more than one person or entity or is retained by a single person.
Simply put, given that Section 8(b) proscribes unearned portions or
percentages as well as splits, HUD does not regard the provision as
restricting only fee splitting among settlement service providers.
-10-
66 Fed. Reg. 53,052). Deciding that the HUD Policy Statement was due “substantial
deference,” the district court relied on our recent decision, Glover v. Standard Fed.
Bank, 283 F.3d 953 (8th Cir. 2002) (Glover). Glover addressed whether the payment
of a “yield spread premium” (“YSP”) to a home refinancing broker violated Section
8(a) of RESPA, 12 U.S.C. § 2607(a), prohibiting fees or kickbacks for referrals in
connection with a real estate settlement service involving federal mortgage loans, or
whether the YSP qualified for the exception under 12 U.S.C. § 2607(c), which
permits payments for goods actually furnished or services actually performed. We
determined that RESPA did not specifically address the legality of YSP payments to
mortgage brokers and that Congress had not expressly set forth its intent in the statute
regarding that particular issue. Id. at 961. Therefore, pursuant to Chevron, we
reviewed two HUD policy statements interpreting RESPA on the issue of lender
payments to mortgage brokers, including the HUD Policy Statement at issue in this
case, which contains a separate discussion of Section 8(b).9 We determined that “the
Policy Statements issued by HUD [on the YSP issue] reflect a reasoned view of a
responsible agency which is consistent with the statute and the regulation and which
constitutes a body of experience and informed judgment that this court may look to
as determinative authority.” Id. at 962-63. Based on the Policy Statements, we
concluded that HUD required a case-specific determination of whether goods or
facilities were actually furnished or services were actually performed and whether the
payment amounts were reasonably related to the value of the goods, facilities, or
services. Id. at 965. Because such determinations must be made on a loan-by-loan
basis, we held that certification of the plaintiffs’ class was impractical. Id.

Slip op. at 10 (quoting 66 Fed. Reg. 53,058).
9
The second policy statement was Real Estate Settlement Procedures Act
Statement of Policy 1999-1 Regarding Lender Payment to Mortgage Brokers, 64 Fed.
Reg. 10,080 (Mar. 1, 1999).
-11-
 We decline to extend our ruling in Glover to this case. Glover involved two
different RESPA provisions, Sections 8(a) and 8(c). Moreover, before reviewing the
HUD Policy Statements in Glover, this court made a threshold determination that the
precise issue before the court was not directly addressed by RESPA. See id. at 961.
Chevron deference was appropriate in Glover; such deference is not due here because
we have held that Section 8(b) is unambiguous. See In Home Health, Inc. v. Shalala,
188 F.3d 1043, 1047 (8th Cir. 1999) (no deference due to agency interpretation that
contradicts the plain language of a statute); Hennepin County Med. Ctr., 81 F.3d at
749 (statutes and their legislative history were “sufficiently clear to support the
conclusion that there is no ‘gap’ to be filled by the Secretary’s interpretation.”) (citing
Chevron, 467 U.S. at 844). This result is consistent with the Fourth Circuit’s ruling
in Boulware, 291 F.3d at 267, which held that the regulation implementing the HUD
Policy Statement, 24 C.F.R. § 3500.14(c) (“Regulation X”), was not entitled to
deference under Chevron and that the text of Section 8(b) controlled. Our holding is
also in keeping with the Seventh Circuit’s recent decision in Krzalic v. Republic Title
Co., 2002 WL 31873609 (7th Cir. Dec. 26, 2002), which held that the language of
Section 8(b) is clear on its face and that Chevron deference to the HUD Policy
Statement was not warranted. Id. at *5 (“There is not enough play in the statutory
joints to allow HUD to impose its own ‘interpretation’ under the aegis of
Chevron.”).10

10
The Krzalic court also distinguished Glover on the grounds that the portion
of the HUD Policy Statement deferred to in that case concerned the payment of yield-
spread-premiums (“YSP”). Krzalic, 2002 WL 31873609, at *6. Krzalic noted that
HUD first addressed the YSP issue in a 1999 policy statement, see supra note 10,
which HUD issued “after meeting with government representatives plus a broad range
of consumer and industry groups.” Id. (citing 64 Fed. Reg. 10080, 10084 (Mar. 1,
1999)). Therefore, both the 1999 policy statement and the HUD Policy Statement
issued in 2001contain a comprehensive discussion and specific findings regarding the
payment of YSPs. Id. In contrast, Krzalic notes that the portion of the HUD Policy
Statement concerning Section 8(b) and was “perfunctory;” HUD failed to present any
evidence or interpretive methodology, or identify an abusive practice which
supported its interpretation of Section 8(b). Id.
-12-
 CONCLUSION

We hold that the plain language of Section 8(b) requires plaintiffs to plead facts
showing that the defendant illegally shared fees with a third party and that the district
court erred in relying on the HUD Policy Statement. Accordingly, we reverse the
order of the district court as it pertains to Section 8(b) of RESPA. The case is
remanded to the district court for further proceedings consistent with this opinion.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

-13-