[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JULY 2, 2007
No. 06-11105 THOMAS K. KAHN
________________________ CLERK
D. C. Docket Nos. 96-00917-CV-VEH-S & 96-02187-CV-VEH
96-cv-917
JOHN ROBERT CULPEPPER,
PATRICIA STARNES CULPEPPER, on behalf
of themselves and all others similarly situated,
Plaintiffs-Appellants,
versus
IRWIN MORTGAGE CORPORATION,
f.k.a. Inland Mortgage Corporation,
Defendant-Appellee.
--------------------------
98-cv-2187
BEATRICE HIERS, individually and as
a representative of a class of similarly
situated persons,
Plaintiff-Appellant,
versus
IRWIN MORTGAGE CORPORATION,
f.k.a. Inland Mortgage Corporation,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
_________________________
(July 2, 2007)
Before BIRCH and BLACK, Circuit Judges, and PRESNELL,* District Judge.
BIRCH, Circuit Judge:
The appellants, John and Patricia Culpepper and Beatrice Hiers, brought the
present class action against appellee Irwin Mortgage Corporation (“Irwin”), a
mortgage lender, pursuant to the Real Estate Settlement Procedures Act
(“RESPA”), 12 U.S.C. § 2601 et. seq. The appellants alleged that Irwin’s payment
of yield spread premiums to mortgage brokers --- in exchange for delivering
interest rates above the “par rate” --- violated section 8 of RESPA, 12 U.S.C. §
2607(a). After a lengthy procedural history, which is detailed herein, the appellees
*
Honorable Gregory A. Presnell, U.S. District Judge for the Middle District of Florida,
sitting by designation.
2
ultimately filed motions for summary judgment and to decertify the class, both of
which the district court granted.
On appeal, the appellants argue that the district court erred in granting
summary judgment in favor of Irwin for two reasons: first, because the “law-of-
the-case” doctrine obligates us to adhere to our prior rulings in this case, despite an
intervening --- and conflicting --- statement of policy by the Department of
Housing and Urban Development (“HUD”), the administrative agency charged
with enforcing RESPA; and, second, because, even applying HUD’s test for
liability, Irwin’s yield spread premium payments were illegal under RESPA. The
appellants further argue that the district court erred in decertifying the class.
Upon review, we conclude that two exceptions to the law-of-the-case
doctrine apply and that the district court acted properly in applying HUD’s test for
liability to the facts of appellants’ case and in concluding that Irwin was entitled to
summary judgment. We also conclude that the district court did not abuse its
discretion in decertifying the class, due to its determination that individual issues
of fact predominate in this type of action. Accordingly, we AFFIRM.
I. BACKGROUND
This is the fourth time we have had cause to review the appellants’ RESPA
action against Irwin. In Culpepper v. Inland Mortgage Corporation, 132 F.3d 692
3
(11th Cir. 1998) (“Culpepper I”), we reversed a grant of summary judgment in
favor of Irwin, vacated the district court’s denial of class certification, and
remanded for further proceedings. In Culpepper v. Inland Mortgage Corporation,
144 F.3d 717 (11th Cir. 1998) (“Culpepper II”), we denied Irwin’s petition for a
rehearing of Culpepper I, and clarified our decision in that case. In Culpepper v.
Irwin Mortgage Corporation, 253 F.3d 1324 (11th Cir. 2001) (“Culpepper III”) we
clarified the standard for liability under RESPA; we also affirmed the district
court’s class certification. The procedural backdrop leading to the present appeal
is, as our sister circuit has put it, “cumbersome but important.” Schuetz v. Banc
One Mortgage Corp., 292 F.3d 1004, 1008 (9th Cir. 2002).
Our review of this backdrop is as follows. First, we briefly discuss the facts
and allegations of the appellants’ action against Irwin. Second, we review our
holdings in Culpepper I and Culpepper II, as well as the 1999 Statement of Policy
issued by HUD in the wake of those decisions. Third, we discuss our opinion in
Culpepper III and the 2001 Statement of Policy that HUD issued in direct response
to–and in explicit criticism of–Culpepper III. We then discuss the effect of the
HUD 2001 Statement of Policy on our RESPA case law. Finally, we discuss the
district court proceedings that led to the present appeal.
A. The Borrowers’ Action Against Irwin
4
In 1996, the appellants John and Patricia Culpepper and Beatrice Hiers
(hereinafter, collectively, “the Borrowers”) brought the instant action,1 on behalf of
themselves and all others similarly situated, against Irwin,2 a mortgage lender,
alleging that Irwin had acted illegally in paying yield spread premiums to their
mortgage brokers. A yield spread premium (“YSP”) is “a payment made by a
[mortgage] lender to a [mortgage] broker in exchange for that broker’s delivering a
mortgage that is above the ‘par rate’ being offered by the lender.” Heimmermann
v. First Union Mortgage Corp., 305 F.3d 1257, 1259 (11th Cir. 2002). The “‘par
rate’ refers to the rate at which the lender will fund 100% of a loan with no
premiums or discounts to the broker.” Schuetz, 292 F.3d at 1007. When a
mortgage broker brought Irwin a loan at below the par rate, the broker was
required to pay discount points for the loan. See Culpepper I, 132 F.3d at 694.
Conversely, when a mortgage broker brought Irwin a loan at a rate above the par
rate, Irwin agreed to pay a YSP to the mortgage broker. Id. Generally speaking,
the YSP was calculated as a percentage of the total amount of the loan; the exact
1
This action was originally brought by John and Patricia Culpepper. In 1998, Beatrice
Hiers’ RESPA action was consolidated with the Culpeppers’ case, thereby giving rise to the
action that is pending before us.
2
The Culpeppers’ original lawsuit was actually brought against Inland Mortgage
Corporation (“Inland”), the predecessor lender from whom the Culpeppers obtained their home
mortgage. Inland subsequently changed its name to Irwin. For ease of reference, we refer to the
appellee throughout this opinion as “Irwin.”
5
amount was determined by “the extent to which the actual interest rate exceed[ed]
the par rate.” Heimmermann, 305 F.3d at 1259.
The particular facts these consolidated cases are not in dispute. Both of the
Borrowers obtained their federally insured home mortgage loans through third
party mortgage brokers, and Irwin, as the lender, was the source of the funds in
each transaction. The Culpeppers obtained their loan with Irwin through Premiere
Mortgage Company (“Premiere”), a mortgage broker. The interest rate that they
agreed to in connection with their mortgage was 7.5%, despite the fact that the par
rate–that is, the rate at which Irwin was willing to make the same loan–was
actually 7.25%. Because the loan Premier assigned to Irwin was above par, Irwin
paid Premier a YSP. At the closing of the transaction, the Culpeppers directly paid
Premiere a loan origination fee of $760.50; in addition to this amount, Irwin paid
to Premiere a YSP of $1,263.21, approximately 1.675% of the loan amount.
Appellant Hiers obtained her loan with Irwin through Homebuyers Mortgage
Incorporated (“HMI”), another third party mortgage broker. Hiers agreed to an
interest rate of 7% in connection with her loan, despite the fact that the par rate for
an adjustable rate loan was 5.5%. At the closing, Hiers paid HMI an origination
fee of $1,544 and a loan discount of $14.64. In addition to these fees, Irwin paid
HMI a YSP of $4,538.87, approximately 2.875% of the total loan amount.
6
Although the YSPs were disclosed to the Borrowers at their closings and
were included in their respective HUD closing forms, they argued that Irwin’s
payment of YSPs from Irwin to their brokers, for obtaining above par mortgages,
violated RESPA.3 Specifically, the Borrowers argued that Irwin’s payment of
YSPs violated section 8 of RESPA, which prohibits the payment of “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.” 12
U.S.C. § 2607(a). The Borrowers argued that the YSPs constituted illegal referral
fees under RESPA, in that they were paid for nothing more than a broker’s
delivery of a loan with a higher interest rate. In response, Irwin contended that its
payment of YSPs to mortgage brokers were not kickbacks or referral fees, but,
rather, that the payments fell within the safe harbor of RESPA, 12 U.S.C. §
2607(c), which provides that “[n]othing in this section shall be construed as
prohibiting . . . the payment to any person of a bona fide . . . compensation or other
3
Congress enacted RESPA with the goal of “protect[ing] the American home-buying
public from unreasonably and unnecessarily inflated prices in the home purchasing process.”
See 64 Fed. Reg. 10081-82 (March 1, 1999); see also 12 U.S.C. § 2601(a). In addressing real
estate settlement procedures, Congress sought to, among other things, “effect certain changes in
the settlement process for residential real estate that will result (1) in more effective advance
disclosure to home buyers and sellers of settlement costs; (2) in the elimination of kickbacks or
referral fees that tend to increase unnecessarily the costs of certain settlement services . . . .” 12
U.S.C. § 2601(b); see also 64 Fed. Reg. 10082.
7
payment for goods or facilities actually furnished or for services actually
performed.”
Irwin moved for summary judgment, which the district court granted. The
subsequent appeal resulted in our first decision in this case, Culpepper I.
B. Culpepper I and II, and HUD’s 1999 Statement of Policy
In Culpepper I, we first noted that “[n]o circuit court [had yet] addressed
whether a [YSP] violates RESPA.” 132 F.3d at 695. In addressing that issue, we
held that a lender’s payment of a YSP to a broker would be an illegal referral fee
under RESPA “if: (1) a payment of a thing of value; (2) [was] made pursuant to an
agreement to refer settlement business; and (3) a referral actually occurr[ed].” Id.
at 696. We concluded that the YSP in the Culpeppers’ case violated RESPA, since
it satisfied all three requirements. Specifically, the YSP had been paid to Premiere
pursuant to a pre-existing arrangement between Premiere and Irwin, and the later
assignment of the Culpeppers’ loan, from Premiere to Irwin, had, in fact, occurred.
Id.
We also rejected the argument that the YSP was bona fide compensation for
a “good” or “service” performed by Premiere, such that it should be exempt from
liability under 12 U.S.C. § 2607(c). Id. at 696-97. We found that Irwin had not
shown that the YSP was payment for a “good” under RESPA, because no
8
identifiable “good” was ever transferred from Premiere to Irwin; in fact, Irwin was,
from the outset, the original source of the funds and thus the sole owner of the
loan. Id. at 696. Nor had Irwin established that the YSP was payment for a
“service” that Premiere had provided, because: (1) the Culpeppers had already paid
a separate loan origination fee directly to Premiere to cover its “services”; (2) Irwin
had stated in discovery that it paid Premiere a YSP “for the right to service the
[Culpeppers’] loan,” R6-149, Exh. 16 at 6, thereby belying the notion that the YSP
was intended to compensate Premiere for the loan services it provided to the
Culpeppers; and (3) the brokerage “services” that Premiere provided were the
same, whether the loan was above par, below par, or at par. Id. at 696-97.
In finding that the Culpeppers’ YSP was a referral fee that did not fall under
the compensable goods/services safe harbor of § 2607(c), we concluded that the
YSP was illegal under § 2607(a). Id. at 697. Our Culpepper I decision refrained
from inquiring whether the YSP that Irwin had paid to Premiere was reasonable or
a “fair market price,” stating that the “reasonableness” inquiry only applied if the
first step of the § 2607(c) safe harbor was satisfied–that is, if it was first shown that
the YSP covered a compensable “good” or “service.” Id. at 697. Accordingly, we
reversed the district court’s grant of summary judgment and remanded for further
proceedings.
9
In Culpepper II, we denied a petition for a rehearing of Culpepper I. See 144
F.3d at 718. In doing so, however, we saw fit to clarify our holding in Culpepper I.
We indicated that Culpepper I had not been intended to conclusively establish
liability on the part of Irwin, nor had Culpepper I stated that YSPs from a mortgage
lender to a mortgage broker were per se illegal under RESPA. Id. Rather, the
Culpepper I decision had been limited to the question of whether the district court
had erred in granting summary judgment for Irwin on the Culpeppers’ RESPA
action. Id. Because Irwin had failed to establish that the YSP it had paid to
Premiere had been compensation for either goods or services that Premiere had
provided, we concluded that the district court had acted prematurely in granting
Irwin summary judgment as a matter of law. Id. at 718-19. We stated that nothing
in Culpepper I would prevent Irwin, on remand, from arguing its position at trial.
Id.
Subsequent to our decisions in Culpepper I and Culpepper II, HUD issued a
1999 Statement of Policy (“SOP”) intended “to clarify its position on lender
payments to mortgage brokers.” See 64 Fed. Reg. 10080. HUD first stated that it
was issuing the 1999 SOP because Congress had instructed it to do so, based on
the fact that “Congress [had] never intended payments by lenders to mortgage
brokers for goods or facilities actually furnished or for services actually performed
10
to be violations of [RESPA] . . . .” Id. (citation omitted). HUD’s SOP indicated
that mortgage brokers provided many valuable services to home buyers in
processing home mortgage loans, and that it was acceptable for mortgage brokers
to receive fees as compensations for those services --- either directly from the
borrower or indirectly from the lender --- so long as the compensation bore a
“reasonable relationship to the market value of the goods, facilities, or services
provided.” Id. at 10086. HUD also expressly stated its view that payments by
lenders to mortgage brokers, including YSPs, were not illegal per se. Id. at 10084.
Rather, HUD recommended a two-part “reasonableness test” to determine
whether a payment to a mortgage broker such as a YSP was permissible under
RESPA. The first step of the inquiry under the HUD test was “whether goods or
facilities were actually furnished or services were actually performed for the
compensation paid.” Id. The SOP listed a number compensable “services” that a
mortgage broker might provide in a mortgage transaction, such as, among others,
taking information from the borrower and filling out the mortgage application;
analyzing the prospective borrower’s income and debt and pre-qualifying the
borrower for a mortgage; educating the borrower about the various loan products
available to him or her; and assisting the borrower in the mortgage financing, from
commencement of the process to the closing. Id. at 10085.
11
The second step of the HUD test then asked whether the total compensation
paid to the mortgage broker was “reasonably related” to the value of those goods or
services that he furnished. Id. at 10086. As to this second step, HUD stated that
courts were to examine the “total compensation” paid to the broker --- that is, fees
paid by both the lender and the buyer --- as a lump sum in order to assess whether
it was “reasonably related” to the services provided. Id.
C. Culpepper III and HUD’s 2001 Statement of Policy
In 2001, we again addressed the Borrowers’ RESPA action against Irwin.
The issue before us in Culpepper III was whether the district court had erred in
certifying a class action pursuant to Federal Rule of Civil Procedure 23(c). 253
F.3d at 1325-26. Although Culpepper III involved the narrow question of class
certification, we accepted the parties’ contention that we could only determine if
class certification was appropriate if we first “settle[d] on a rule of liability” under
12 U.S.C § 2607(a) and (c). Id. at 1327. Thus, in Culpepper III we sought to
construe the proper test for liability under RESPA, in light of HUD’s recent
pronouncement on the question via the 1999 SOP.
First, we indicated our view that the 1999 HUD SOP on RESPA was
“ambiguous.” Id at 1327. We then construed the two-part test that had been set
forth in the 1999 SOP. We observed that the first step under that test was an
12
assessment of whether the payments at issue were for services “actually performed
for the compensation paid.” Id. at 1329-30 (citing 64 Fed. Reg. at 10084). We
construed that first step as requiring some level of “exchange” between the broker
and the lender. Id. at 1329 (stating that “the inquiry in this step includes not only
whether the broker performed services, but also whether the broker performed the
services as part of a services-for-money exchange”). That is, we held that it was
not enough for a lender to show that services had been performed by the mortgage
broker; rather, we stated that the lender would have to show that the services that
were performed were directly tied to the YSP payment. Id. at 1329-30; see also
Schuetz, 292 F.3d at 1010 (stating that in Culpepper III we held that “the test for §
8 liability is not whether the broker performed some services, but whether the YSP
is payment for those services”).
We then stated that, if the compensation to the broker was not shown to be
directly tied to the services performed --- that is, if the YSP was not shown to be
“payment for those services,” Culpepper III, 253 F.3d at 1331 — then the second
step of the HUD analysis (whether the total compensation was reasonable) was
wholly unnecessary. Rather, if the defendant failed at the outset to establish that
the YSP payment was directly tied to the services performed, then the YSP was
likely a referral fee, which, we held, was “illegal, period” under RESPA. Id. at
13
1330. After articulating this approach to liability under RESPA, we indicated that
class certification in the Borrowers’ case was proper, because the YSPs were paid
pursuant to standardized, across-the-board agreements between the lender and the
mortgage broker, and, therefore, the requirements of Rule 23 had been satisfied.
Id. at 1332.
In the wake of our decision in Culpepper III, HUD issued a second SOP in
October 2001, entitled, in pertinent part, “Clarification of Statement of Policy
1999-1 Regarding Lender Payments to Mortgage Brokers.” See 66 Fed. Reg.
53052 (Oct. 18, 2001). HUD stated that the new SOP was intended to “eliminate
any ambiguity concerning the Department’s position with respect to [YSPs].” Id.
HUD also indicated that the SOP was being issued in direct response to Culpepper
III, indicating that “[t]he need for further clarification of HUD’s position, as set
forth in the 1999 [SOP], on the treatment of lender payments to mortgage brokers
under [12 U.S.C. § 2607(a)] is evident from the recent decision [in Culpepper III].”
Id. at 53054. HUD went on to state that it “disagree[d] with the judicial
interpretation” of § 2607 that we had set forth in Culpepper III. Id.
HUD’s 2001 SOP reiterated the two-step test it had established in the 1999
SOP, indicating that the proper analysis involved an assessment, first, into whether
compensable services were actually performed by the broker, and, second, whether
14
the total compensation paid to the broker was reasonable. Id. at 53053. The SOP
“restate[d]” HUD’s position that YSPs were neither per se legal, nor per se illegal.
Id. at 53054. Rather, HUD advised that each case involving a YSP payment from a
lender to a broker should be assessed based on “the specific factual circumstances
applicable to each transaction in which a [YSP] is used.” Id.
HUD then clarified its two-step test for YSP payments under RESPA. As to
step one, HUD stated that it was improper to require (as we had in Culpepper III)
that there be a clear and direct link between the “services” the mortgage broker
provided and the compensation that was paid. Id. Rather, HUD observed that a
lender might often be aware that a mortgage broker was performing compensable
services for both the lender and the broker, even if the relationship between the
services provided and the compensation paid was not explicitly set forth in a
contractual agreement. Id. HUD recommended that the inquiry instead focus on
whether compensable services–such as those it had listed in its 1999 SOP–had
been provided by the mortgage broker, irrespective of whether the parties had
agreed that the YSP was intended to cover those services. Id. In clarifying step
one in this way, the SOP rejected the “exchange” analysis that had been applied by
our court in Culpepper III. HUD’s SOP also made clear that if any compensable
“services” were, in fact, provided by a broker, the proper analysis would then to be
15
move to step two, that is, whether the total compensation was reasonably related to
those services.
As to that second step, HUD reiterated that the inquiry should focus on
whether the “total compensation” that the mortgage broker received was
“reasonably related to the total set of goods or facilities actually furnished or
services performed.” Id. HUD stated that the total compensation was to be viewed
as a whole (not just the YSP in isolation), and that an assessment of whether the
compensation was “reasonable” involved both an objective component (that is,
typical mortgage broker compensation in comparable markets) and a subjective
component (that is, in light of the particular services that the broker provided). Id.
D. The Impact of the 2001 Statement of Policy on Our Case Law
Subsequently, in Heimmermann v. First Union Mortgage Corporation, we
addressed the impact of the HUD 2001 SOP. Although the Borrowers in the
instant case were not parties to Heimmermann, the facts of that case were similar to
the Borrowers’ action; we characterized Heimmermann as “one of several [cases]
dealing with RESPA’s effect on the legality of the payment of [YSPs] by mortgage
lenders to mortgage brokers.” 305 F.3d at 1259. The issue before us in
Heimmermann was whether the district court had applied the correct legal standard
for RESPA liability in the course of certifying a class in that case.
16
At the outset, Heimmermann addressed the applicability of the 2001 HUD
SOP on our RESPA case law. First, we held that the 2001 SOP was not a “new
rule” or regulation, but merely a clarification of existing law, and therefore, “no
problem with the retroactive application of the [SOP] exist[ed].” Id. at 1260.
Second, we noted that RESPA expressly delegated to HUD the power to issue
interpretations and rules --- including statements of policy similar to the 2001 SOP
--- that carry the full force of law, and therefore, the 2001 SOP was entitled to
Chevron 4 deference by our court. Id. at 1262.5 We rejected the plaintiff’s
arguments that the 2001 SOP should not be afforded Chevron deference because
(1) it had not been issued pursuant to a formal notice-and-comment process; and
(2) it was inconsistent with earlier expressions of HUD’s position and the statutory
language. Id.
After determining that the 2001 SOP was entitled to Chevron deference, we
held that the rule announced in the 2001 SOP had the effect of “overrul[ing] the
4
See Chevron U.S.A., Inc. v. Natural Res. Def. Council, 467 U.S. 837, 844, 104 S. Ct.
2778, 2782 (1984) (stating that where Congress has delegated authority to an agency to elucidate
a provision of a statute, the agency’s rules carry the full force of law and are given controlling
weight unless they are arbitrary, capricious, or manifestly contrary to the statute).
5
Other circuits, including the Ninth Circuit and the Second Circuit, have similarly
concluded that HUD’s 2001 SOP construing RESPA is entitled to Chevron deference. See, e.g.,
Schuetz, 292 F.3d at 1012, 1014 (stating that the 2001 SOP is entitled to Chevron deference and
that it “provides the appropriate standard of liability for YSPs under RESPA”); see also Kruse v.
Wells Fargo Home Mortgage Inc., 383 F.3d 49, 61 (2d Cir. 2004) (affording Chevron deference
to the 2001 SOP in the context of section 8(b) of RESPA).
17
holding of Culpepper III.” Id. at 1263. We stated that the 2001 SOP had
“explicitly reject[ed] the foundation of Culpepper III” and that we were bound to
apply the revised two-step test as it had been articulated by HUD in the 2001 SOP.
Id. We cited our decision in Satellite Broadcasting and Communications
Association of America v. Oman, 17 F.3d 344 (11th Cir. 1994), for the proposition
that we were bound to defer to an intervening statutory interpretation that was
contrary to our earlier precedent, so long as the agency’s interpretation was based
on a permissible construction of the statute. Id.
Having adopted the 2001 SOP as the law in our circuit on the question of
YSP liability under RESPA, we concluded in Heimmermann that the district court
had applied the “wrong legal standard” in deciding to certify the class. Id. at 1264.
Specifically, we observed that the district court had certified the class based on the
fact that “for each class member’s loan, the YSP was not tied directly to specific
additional services provided by the broker.” Id. (emphasis added). Because that
legal standard was suggestive of Culpepper III’s “exchange” analysis --- an
approach that had since been rejected by the 2001 SOP --- we held in
Heimmermann that the district court had committed legal error. Id. Moreover, we
indicated that the 2001 SOP had made clear that “it [was] necessary to determine
whether compensable services were provided by the broker and whether the total
18
amount of broker compensation was reasonable in the light of the circumstances of
each loan,” a fact that militated against certifying a class of plaintiffs based only on
the fact that their mortgage brokers had received YSPs. Id.
Although the Heimmermann court did not proceed to apply the HUD test as
articulated in the 2001 SOP, we later had occasion to apply that test in Hirsch v.
Bank America Corporation, 328 F.3d 1306 (11th Cir. 2003) (per curiam). Like the
Borrowers’ case, Hirsch was an action against a mortgage lender for paying a YSP
to a mortgage broker. Id. at 1307. In Hirsch the mortgage broker had received
$1,750 in fees from the plaintiff/borrower, and had received an additional $375
YSP from the lender for delivering a loan with a favorable interest rate. Id. at
1307-08.
In Hirsch, we reiterated that Heimmermann had adopted the 2001 SOP as
the law of this circuit; we then applied the two-step test as articulated in the 2001
SOP. Id. at 1309. First, we found that the mortgage broker had provided “actual
services” to the Hirsches, such as recording their information, preparing the
mortgage application, analyzing their income and debt, and attending the closing.
Id. Having satisfied the first step of the HUD test, we then moved to step two, and
concluded that the total compensation paid to the broker–about 1.4% of the loan
amount–was reasonable under the circumstances. Id. Accordingly, we held that
19
the defendant/lender was entitled to summary judgment on the Hirsches’ RESPA
claim, since the Hirsches’ had failed to establish that the YSP was illegal under the
HUD test construing section 8 of RESPA. Id.
E. The District Court Proceedings After the 2001 Statement of Policy
In the wake of these appeals, and subsequent to the parties’ discovery in this
case, Irwin filed motions for summary judgment and to decertify the class. As to
Irwin’s motion for summary judgment, the district court found that
Heimmermann had made clear that our circuit had adopted HUD’s two-prong test,
as articulated in the 2001 SOP. The court then turned to the facts of the
Borrowers’ transactions in order to assess whether the services provided by their
mortgage brokers (Premiere for the Culpeppers, and HMI for Hiers) had complied
with HUD’s two-step test. As to step one, the district court found that the
Borrowers’ mortgage brokers had provided compensable services to them,
including those services listed in the 1999 SOP, such as collecting financial
information; assisting with the mortgage application process; and maintaining
contact with the borrower.
Moving to step two --- whether the total compensation the mortgage brokers
received was “reasonably related” to the value of the services the mortgage brokers
performed, 64 Fed. Reg 10084 --- the district court found that the Borrowers had
20
not presented any evidence to show that the compensation received by their
brokers was unreasonable. The court found that the Borrowers’ argument that the
YSP was paid to their brokers without any concomitant reduction in their out-of-
pocket, up-front costs was not sufficient, in and of itself, to establish that the
brokers’ total compensation was not “reasonably related” to the services the
brokers provided. The court further found that the Borrowers had failed to present
any evidence that the compensation these brokers received was unreasonable in
comparison to similar mortgage loans in similar transactions. Because the
Borrowers had not provided “any evidence that establishe[d] the unreasonableness
of Premier’s or HMI’s total compensation in light of market norms,” the district
court concluded that there was no genuine issue of fact on the issue of the
reasonableness of the compensation, and, therefore, Irwin was entitled to summary
judgment on the Borrowers’ RESPA action. R9-204 at 22.
As to the separate motion to decertify the class, the district court indicated
that the Heimmermann decision made clear that YSP payments to brokers should
be assessed on a case-by-case basis, and that therefore class certification was not
appropriate for these kinds of actions, in which individual fact issues predominate.
The court also rejected the Borrowers’ argument that the YSP payments were
above the 1% FHA-imposed limit on loan origination fees, and therefore that they
21
were per se illegal, without the need for an individualized assessment. The court
found that this approach would contradict the HUD SOPs of 1999 and 2001, which
mandated a case-by-case analysis to determine if a particular YSP was illegal
under RESPA. Accordingly, the court granted Irwin’s motion, and decertified the
class. This appeal followed.
II. DISCUSSION
A. District Court’s Grant of Summary Judgment in Favor of Irwin
We review a district court’s grant of summary judgment de novo, applying
the same legal standard used by the district court. See Johnson v. Bd. of Regents,
263 F.3d 1234, 1242 (11th Cir. 2001) (citation omitted). Under that standard,
summary judgment is appropriate where “there is no genuine issue as to any
material fact and . . . the moving party is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(c). We have held that “the plain language of Rule 56(c)
mandates the entry of summary judgment . . . against a party who fails to make a
showing sufficient to establish the existence of an element essential to that party’s
case, and on which that party will bear the burden of proof at trial.’” Johnson, 263
F.3d at 1243 (quotations and citation omitted).
The Borrowers make two arguments concerning the district court’s decision
to grant summary judgment in favor of Irwin. First, they argue that the law-of-the-
22
case doctrine obligates us to adhere to our prior rulings in this case, despite the
intervening --- and conflicting --- approach taken by HUD in its 1999 and 2001
SOPs. Second, the Borrowers argue that even assuming the HUD test for liability
applies to their case, summary judgment still should not have been granted to
Irwin, since their evidence establishes that the YSPs Irwin paid were illegal under
that test. We address each contention in turn.
1. Law-of-the-Case
The Borrowers argue that the law-of-the-case doctrine precludes us from
reconsidering our holdings in the earlier Culpepper cases–specifically our holding
in Culpepper III that we need not assess the “reasonableness” of the compensation
Irwin paid to the mortgage brokers, and may find a RESPA violation, absent any
evidence that the YSP was directly tied to the services that the mortgage brokers
provided. The Borrowers argue that, under the law-of-the-case doctrine, we are
bound by the approach that we took in Culpepper III, notwithstanding the fact that
approach was expressly refuted in the HUD 2001 SOP, and notwithstanding the
fact that we later held that the HUD 2001 SOP overruled Culpepper III. See
Heimmermann, 305 F.3d at 1263-64.
The law-of-the-case doctrine holds that subsequent courts will be “bound by
the findings of fact and conclusions of law made by the court of appeals in a prior
23
appeal of the same case.” Wheeler v. City of Pleasant Grove, 746 F.2d 1437, 1440
(11th Cir. 1984) (per curiam) (citation omitted). The purpose of the doctrine is to
bring an end to litigation, and to protect against the agitation, or re-litigation, of
settled issues. Id. (citations omitted). Although the doctrine bars reconsideration
of settled issues, however, we have stated that the law-of-the-case rule is not an
inexorable command, nor does it “require rigid adherence to rulings made at an
earlier step of a case in all circumstances.” Murphy v. FDIC, 208 F.3d 959, 966
(11th Cir. 2000) (citation omitted). Rather, we have described the doctrine as
“direct[ing] a court’s discretion” rather than “limit[ing] the tribunal’s power.” Id.
We are not bound under the doctrine to “adhere to a ruling with which we have
emphatically and repeatedly disagreed.” Id.
Moreover, there are three notable exceptions to the doctrine. We will not be
barred from reconsidering the law-of-the-case “when (1) a subsequent trial
produces substantially different evidence (2) controlling authority has since made a
contrary decision of law applicable to that issue or (3) the law-of-the-case is clearly
erroneous and will work manifest injustice if not if not reconsidered.” Wheeler,
746 F.2d at 1440 (citation omitted).
The district court concluded that the law-of-the-case doctrine was
inapplicable to the present case, and, consequently, that it was not bound to follow
24
the approach to RESPA liability taken in Culpepper III. This conclusion was
proper, for two reasons. First, the doctrine’s second exception applies, because the
2001 SOP constituted “controlling authority has since made a contrary decision of
law applicable to that issue.” See Wheeler, 746 F.2d at 1441. Moreover, the law-
of-the-case doctrine is inapplicable because we are “convinced that the prior
decision [Culpepper III] is clearly erroneous and would work manifest injustice” if
it were blindly followed. See Murphy, 208 F.3d at 966 (citations omitted).
As to the first point, the 2001 HUD SOP constituted “controlling authority
[that] has since made a contrary decision of law applicable” to the Borrowers’ case.
Wheeler, 746 F.2d at 1441. In Heimmermann, we stated that the 2001 HUD SOP
was an agency ruling that carried the full force of law, that it was based on a
permissible construction of the statute, and that it was entitled to Chevron
deference by our court.6 See 305 F.3d at 1205. Moreover, in Heimmermann, we
6
In reaching that conclusion, we cited to Satellite Broadcasting, a case in which we
concluded that we are not precluded from revisiting our prior precedent in light of a subsequent
and conflicting agency ruling on an issue of law, so long as (1) the prior precedent left room for
the agency to speak to the question; and (2) the intervening agency regulation was not arbitrary
or capricious. 17 F.3d at 347-48. Here, the Culpepper III court had found HUD’s two-part
RESPA test to be ambiguous, thus leaving room for HUD to step in and clarify it, as it did with
the 2001 SOP. Moreover, HUD’s 2001 SOP was not arbitrary or capricious. See
Heimmermann, 305 F.3d at 1263. Accordingly, as in Satellite Broadcasting, we are inclined to
follow the intervening agency ruling and to afford it Chevron deference.
The Borrowers argue that the HUD SOP is not entitled to Chevron deference, because (1)
it is at odds with the plain meaning of the statute; and (2) HUD failed to engage in a formal
notice-and-comment process before issuing its ruling. We rejected both of these arguments in
Heimmermann, see 305 F.3d 1261-62, and we likewise reject them now.
25
adopted the 2001 SOP as the law of our circuit. See id. at 1263; see also Hirsch,
328 F.3d at 1309. Because the 2001 SOP constitutes “controlling authority”
carrying the force of law, we our bound to follow it, rather than our earlier,
contrary holding in Culpepper III. A contrary result would “wed this circuit to [an
earlier] decision, while all other circuits and the Supreme Court would be bound
under Chevron to defer to the [agency] rule.” See Satellite Broadcasting, 17 F.3d
at 348.
Moreover, we are convinced that the third exception to the law-of-the-case
doctrine is applicable–that is, that the approach to RESPA liability taken in
Culpepper III was “clearly erroneous,” such that continuing to apply it “would
work manifest injustice.” See Murphy, 208 F.3d at 966. We intimated as much in
Heimmermann, where we stated that the district court, by following the standard of
liability of Culpepper III, had “applied the wrong legal standard.” 305 F.3d at
1264 (emphasis added). We have repeatedly stated that the 2001 SOP had the
effect of overruling Culpepper III, thereby suggesting that the approach to RESPA
liability taken in Culpepper III was clearly erroneous. See id.; see also Glover v.
Standard Federal Bank, 283 F.3d 953, 964 n.9, 966 (8th Cir. 2002) (rejecting the
analysis of Culpepper III and querying whether the case retains any residual
26
viability in the Eleventh Circuit in the wake of HUD’s 2001 SOP). For that reason,
we find that continuing to follow Culpepper III would work manifest injustice.
Because we conclude that the approach to RESPA liability taken in
Culpepper III was clearly erroneous and that continuing to follow that approach
would work manifest injustice, we agree with the district court that the law-of-the-
case doctrine is inapplicable to the Borrowers’ case. We are not bound under the
law-of-the-case to continue to follow the RESPA liability standard set forth in
Culpepper III; rather, the HUD 2001 SOP test applies. We now turn to that test in
order to determine if Irwin was entitled to summary judgment as a matter of law.
2. Whether the Borrowers’ YSPs Constitute Illegal Payments Under RESPA
The Borrowers contend that even under the HUD two-step test, the district
court nevertheless erred in granting summary judgment in favor of Irwin, because
the YSPs Irwin paid to the Borrowers’ mortgage brokers were unreasonable and
illegal under the HUD test.
HUD’s test for whether a YSP to a mortgage broker constitutes an illegal
payment under RESPA involves two steps. First, we ask whether the broker
performed “actual services” in the course of arranging the mortgage transaction,
that is, whether he performed any of the services mentioned in HUD’s 1999 SOP.
Hirsch, 328 F.3d at 1308-09. If the answer to the first question is no, then a
27
RESPA violation has been established. Glover, 283 F.3d at 965. If the answer to
the first question is yes, we then proceed to ask whether the total compensation
was reasonable in light of the total array of services that the broker performed. See
Hirsch, 328 F.3d at 1309. In undertaking this analysis, we do not ask whether the
services the broker performed were linked to the YSP in particular; rather, we look
at “all of the services performed and [] evaluate them in light of all the
compensation (not just the YSP in isolation) the mortgage broker received from
any source.” Id. at 1309 n.8; 66 Fed. Reg. 53053; see also Glover, 283 F.3d at 965
(stating that step two involves an assessment of “whether any part of the total
payment, including the YSP, proves to be excessive, and, thus, an unlawful referral
fee”).
Here, it is undisputed that the Borrowers’ mortgage brokers provided them
with the kinds of services listed in HUD’s 1999 SOP, including, among others,
taking down their information and filling out their mortgage applications;
analyzing their income and debt and pre-qualifying them to determine the
maximum mortgages that they could afford; collecting their financial information;
and participating in their loan closings. See 64 Fed. Reg. 10085. These are
28
compensable services under RESPA, and thus the first step of the HUD two-part
test is satisfied.7
We then must ask whether the total compensation paid to the mortgage
brokers was unreasonable in light of the services that they performed. In the case
of the Culpeppers, Premiere’s compensation consisted of a loan origination fee of
$760.50, as well as a YSP of $1,263.21 --- about 1.675% of the loan amount ---
bringing Premiere’s total compensation to $2,023.71. In the case of Hiers, HMI’s
compensation consisted of an origination fee of $1,544, a loan discount of $14.64,
and a YSP of $4,538.87 --- approximately 2.875% of the total loan amount ---
bringing its total compensation to $6,097.51.
The Borrowers do not present any evidence demonstrating that these
compensation amounts were unreasonable in light of the total array of services
7
The Borrowers argue that no compensable “service” was ever performed by their
mortgage brokers. In support of this contention, they cite to a 1996 interrogatory in which Irwin
stated that it paid a YSP to the Culpeppers’ broker, Premiere, “for the right to service the loan.”
R6-149, Exh. 16 at 6. The Borrowers argue that this admission shows that no “service” was
performed that redounded to the Culpeppers’ benefit. Rather, they contend that this admission
shows that the YSP was nothing more than a payment by Irwin to purchase the Culpeppers’ loan,
and that therefore the payment fails on the first step of the HUD liability test.
We reject this argument. HUD has stated that the YSP is not to be viewed in isolation,
but as part of the total compensation to the broker. 66 Fed. Reg. 53053. HUD has also made
clear that it “does not view the name of the payment”--- that is, how the parties refer to a piece of
the compensation ---“as the appropriate issue under RESPA.” Id. at 53054. Rather, the
transaction’s legality must be assessed according to the totality of the circumstances. In light of
that guidance, the fact that Irwin stated in an interrogatory that it was paying “for the right to
service the [Culpeppers’] loan” does not, standing alone, establish that the Culpeppers’ mortgage
broker did not perform any compensable services that inured to their benefit.
29
performed. Instead, they argue that the fact that the YSP payment did not in any
way reduce their up-front closing costs establishes that they were unreasonable
under RESPA. This contention fails, for two reasons. First, as discussed
previously, in deciding the question of reasonableness we are instructed to assess
the “total compensation” the broker received, which “includes direct origination
fees and other fees paid by the borrower, indirect fees, including those that are
derive from the interest rate paid by the borrower, or a combination [thereof] . . . .”
66 Fed. Reg. 53055. Second, as the district court concluded, the fact that the
Borrowers’ up-front closing costs were not reduced is not sufficient, standing
alone, to establish that the brokers’ compensation was unreasonable in light of the
services that they performed. This is especially so where the services they
performed otherwise appear to have aided and benefitted the Borrowers in closing
their mortgage transactions.
Nor are we convinced by the Borrowers’ contention that the YSP was per se
unreasonable because under federal regulations a broker’s compensation is limited
to an origination fee of 1%. See 24 C.F.R. § 203.27(a)(2)(i). Other circuits that
have considered that argument have rejected it, concluding that the limitation on
mortgage broker fees set forth in 24 C.F.R. § 203.27(a)(2)(i) only applies to fees
“directly collected [from the mortgagor], not indirectly collected [from the
30
lender].” See Bjustrom v. Trust One Mortgage Corp., 322 F.3d 1201, 1205 (9th
Cir. 2003). Because we agree with the Ninth Circuit that 24 C.F.R. §
203.27(a)(2)(i) does not preclude a mortgage broker from collecting a YSP
indirectly from a mortgage lender, we cannot accept the Borrowers’ blanket
contention that any compensation in excess of the 1% origination fee is per se
unreasonable under RESPA. Such an approach would flout HUD’s case-by-case
inquiry to YSP payments.
In summary, the Borrowers bear the burden of demonstrating, with specific
evidence, that the total remuneration that their brokers received was unreasonable,
see Hirsch, 328 F.3d at 1309, in light of both objective market standards and the
subjective facts of their mortgage transactions. 66 Fed. Reg. 53055. This is a
burden they have failed to satisfy. Because neither of the Borrowers has submitted
evidence sufficient to demonstrate that the total compensation paid to their
respective brokers was somehow “unreasonable” under HUD’s RESPA analysis,
summary judgment was appropriate for Irwin. See, e.g., Hirsch, 328 F.3d at 1309
(affirming grant of summary judgment for the lender where the plaintiffs did not
present any evidence that the total amount paid to their broker, including a YSP,
was unreasonable in light of the services the broker performed); Bjustrom, 322
F.3d at 1208 (affirming grant of summary judgment to the lender on a RESPA
31
action where the plaintiff “offered no evidence to prove that her mortgage broker’s
services weren’t worth what was paid”); Schuetz, 292 F.3d at 1014 (same). We
discern no error in the district court’s order.
B. District Court’s Order Decertifying the Class
The Borrowers separately challenge the district court’s decision to decertify
the class, a decision that was reached in conjunction with the court’s decision to
grant summary judgment for Irwin. Under Rule 23(c)(1)(C) of the Federal Rules
of Civil Procedure, a district court may alter or amend its certification order at any
time before rendering a decision on the merits. We review the propriety of a
district court’s decision to decertify a class for abuse of discretion. See Sikes v.
Teleline, Inc., 281 F.3d 1350, 1359 (11th Cir. 2002); see also Forehand v. Fla.
State Hosp. at Chattahoochee, 89 F.3d 1562, 1566 (11th Cir. 1996) (“Questions
concerning class certification are left to the sound discretion of the district court.”)
(citation omitted). “A district court abuses its discretion if . . . it applies the wrong
legal standard . . . or makes findings of fact that are clearly erroneous.” Sikes, 281
F.3d at 1359 (citations and quotation omitted).
In this case, the district court concluded that HUD’s SOPs had repeatedly
urged a case-by-case analysis to the legality of a compensatory payment to a
broker under RESPA. After concluding --- in light of the HUD SOPs as well as
32
Heimmermann --- that such an individualized, case-by-case assessment made class
certification inappropriate for section 8 RESPA claims, the court decertified the
class. The Borrowers contend that this was in error.
The Borrowers’ case was originally certified as a class action in February of
1999, prior to both the 1999 and the 2001 SOPs. At that time, the putative class
had been generally defined as “all persons” who obtained a federally insured
mortgage “that was funded by Irwin Mortgage Corporation wherein the broker was
paid a loan origination fee of 1% or more and wherein Irwin paid a [YSP] to the
broker.” R2-47 at 1. In arguing for class certification, the Borrowers had focused
on the general nature of their claims, stating that “each of the class members had
fallen victim to the same improper conduct as the named Plaintiffs–being sold an
inflated interest rate loan in order to fund Irwin Mortgage Corporation’s [] illegal
referral fee to the class members’ mortgage brokers.” Id. at 2. The district court
accepted this characterization of the Borrowers’ case, stating in its certification
order that class certification was proper because the Borrowers’ “proof will, of
necessity, be of a general nature . . . and will not be fact specific.”8 R2-59 at 9.
8
It should also be pointed out that the district court’s order certifying the class in 1999
relied heavily on the “exchange” approach of the earlier Culpepper cases. See, e.g., R2-59 at 8
(stating, in certifying the class, that the YSP couldn’t be a payment for “services” under section
8(c), because the YSP was “not tied in any fashion to the amount of services paid either to the
Culpeppers or to the defendant”). This approach was subsequently rejected by the HUD 2001.
Moreover, in Heimmermann, we reversed a certification of a class that had been based on similar
legal reasoning, characterizing it as the “wrong legal standard.” See Heimmermann, 305 F.3d at
33
The 2001 SOP, however, made clear that the legality of a YSP payment to a
mortgage broker is to be assessed in light of the particular facts and circumstances
of the borrower’s transaction; the agency ruling repeatedly emphasized the
individualized nature of the inquiry under RESPA. See, e.g., 66 Fed. Reg. 53054
(stating that “the legality of any [YSP] can only be evaluated in the context of the
test HUD established and the specific factual circumstances applicable to each
transaction in which a [YSP] is used”); id. at 53055 (“[I]t is necessary to look at
each transaction individually, including examining all of the goods or facilities
provided or services performed by the broker in the transaction”). HUD’s
recommendation that each mortgage transaction be assessed on a individual, case-
by-case basis certainly calls into question the district court’s original decision to
certify the Borrowers’ class, based on its presupposition that the Borrowers’ action
would “be of a general nature . . . and [would] not be fact specific.” R2-59 at 9.
Moreover, in Heimmermann we reversed a class certification, based, in part,
on the fact the 2001 SOP had made clear that “it [was] necessary to determine
whether compensable services were provided by the broker and whether the total
amount of broker compensation was reasonable in the light of the circumstances of
each loan.” 305 F.3d at 1264. We concluded that this interpretation militated
1264.
34
against certifying a class based only on the fact that all class members’ brokers had
received YSPs. Id. In addition, our sister circuits have concluded that class
certification is inappropriate in section 8 RESPA cases, in light of HUD’s 2001
SOP expressly urging an individualized assessment of compensatory payments to
brokers. See, e.g., Glover, 283 F.3d at 965 (concluding that class certification is
impractical in RESPA actions involving YSP payments to brokers, since HUD’s
SOP made clear that these transactions are “case specific” and that district courts
are to undertake a “loan specific inquiry”); Schuetz, 292 F.3d at 1014 (class
certification inappropriate because whether the YSP is prohibited depends on the
services provided and the compensation paid “in any particular case”); see
also O’Sullivan v. Countrywide Home Loans, Inc., 319 F.3d 732, 741-42 (5th Cir.
2003) (finding class certification inappropriate for a section 8(b) RESPA action
because, “[c]onsistently with the HUD reasonable relationship test, individualized
factfinding will be required for each transaction” and stating that the “inquiry must
be performed on a transaction-by-transaction basis, because a single finding of
liability based on an unreasonable relationship between goods and services does
not necessitate the conclusion that such unreasonableness exists on a classwide
basis”).
35
In light of these decisions, we cannot conclude that the district court abused
its discretion in finding that class certification was improper and in thereby
decertifying the class. Under Rule 23(c)(1) of the Federal Rules of Civil
Procedure, district courts are free to revisit the initial decision to certify a class, in
light of subsequent developments in the case. See Gen. Tel. Co. of Sw. Falcon,
457 U.S. 147, 160, 102 S. Ct. 2364, 2372 (1982). Here, the district court
concluded that the Borrowers’ action should not have been certified as a class
action in the first place, in light of both the subsequent HUD pronouncement on
RESPA liability as well as our decision in Heimmermann adopting the 2001 SOP
as the law of this circuit. That conclusion was not in error, and therefore we affirm
the district court’s order decertifying the class.
III. CONCLUSION
The Borrowers have appealed the district court’s order granting summary
judgment in favor of Irwin on their section 8 RESPA claim, and the district court’s
separate order decertifying the class in their case. Upon review, we conclude that,
based on the HUD test for RESPA liability set forth in the 2001 SOP, the
Borrowers have failed to provide evidence that the total compensation Irwin paid
to their mortgage brokers was unreasonable in light of the services that they
provided. Therefore, Irwin was entitled to summary judgment on the Borrowers’
36
RESPA claim. In addition, we find that individual issues of fact predominate in
these types of RESPA actions, and therefore, we conclude that the district court did
not abuse its discretion in decertifying the class in the Borrowers’ case.
Accordingly, we AFFIRM.
37