Tammy Freeman, et al v. Quicken Loans, Inc., et al

Filing

PUBLISHED OPINION FILED. [09-30902 Affirmed ] Judge: EHJ , Judge: PEH , Judge: JWE Mandate pull date is 12/08/2010 [09-30902]

Tammy Freeman, etCav.e: 09-30902 Document: 00511296323 al s Quicken Loans, Inc., et al

Page: 1 Date Filed: 11/17/2010

Doc. 0

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
November 17, 2010 N o . 09-30902 Lyle W. Cayce Clerk

T A M M Y FORET FREEMAN; LARRY SCOTT FREEMAN, P la in t iffs - Appellants v. Q U I C K E N LOANS, INC.; TITLE SOURCE, INC., D e fe n d a n t s - Appellees

P A U L SMITH; IRMA SMITH, P la in t iffs - Appellants v. Q U I C K E N LOANS, INC; TITLE SOURCE, INC., D e fe n d a n t s - Appellees

J O H N J. BENNETT, III; STACEY B. BENNETT, individually and on behalf of a ll others similarly situated, Plaintiffs - Appellants v. Q U I C K E N LOANS, INC; TITLE SOURCE, INC., Defendants - Appellees

Dockets.Justia.com

Case: 09-30902 Document: 00511296323 Page: 2 Date Filed: 11/17/2010

No. 09-30902

A p p e a l from the United States District Court for the Eastern District of Louisiana

B e fo r e JONES, Chief Judge, and HIGGINBOTHAM, and ELROD, Circuit Ju dges. E D I T H H. JONES, Chief Judge: T h is appeal concerns whether section 8(b) of the Real Estate Settlement P r o c e d u r e s Act ("RESPA"), 12 U.S.C. § 2607(b), prohibits lenders and others fr o m charging "unearned, undivided" fees to borrowers at the closing of a m o r t g a g e transaction. The district court granted summary judgment to Quicken L o a n s , finding such charges permissible. We affirm, holding that RESPA § 8(b) r e q u ir e s that the challenged fee be split with another party in order to be a c tio n a b le . I . BACKGROUND T h e Freemans, Bennetts, and Smiths each obtained a mortgage from Q u ic k e n Loans in 2007. At the closing of their mortgage transactions, Quicken c h a r g e d the Freemans and Bennetts each a "loan discount fee" and charged the S m it h s a "loan origination fee" as well as a "loan processing fee"--although Q u ic k e n contends the loan origination fee was misstated and was actually a loan d is c o u n t fee similar to those charged to the Freemans and Bennetts. The

F r e e m a n s and Bennetts contend that a loan discount fee may only be charged w h e n there is a corresponding interest rate reduction and that otherwise it is an u n e a r n e d fee for settlement services in violation of RESPA. As Quicken

a lle g e d ly did not decrease the interest rate for either the Freemans' or Bennetts' lo a n , the couples argue the fee was unlawful. The Smiths allege that the loan 2

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No. 09-30902 o r ig in a t io n fee was duplicative of the loan processing fee, and thus an unearned fe e for settlement services, or alternatively, that it was an unlawful loan d is c o u n t fee akin to the fees charged to the Freemans and Bennetts. E a c h couple filed suit separately in state court, seeking class treatment a n d alleging violations of RESPA and state law. Quicken removed the cases to fe d e r a l court where they were consolidated. Quicken then moved for summary ju d g m e n t , claiming that the couples' claims were not actionable under R E S P A § 8(b) as the fees were not split with another party, and contending that a s a result the state law claims failed. The district court agreed and granted s u m m a r y judgment. T h e couples appeal the district court's interpretation of RESPA. They c o n c e d e their state law claims are contingent on the RESPA claim, but argue t h a t because they should succeed on their RESPA claim, their state claims also s u r v iv e . I I . STANDARD OF REVIEW T h is court reviews a district court's grant of summary judgment de novo a p p ly in g the same standard as the district court. DePree v. Saunders, 588 F.3d 2 8 2 , 286 (5th Cir. 2009). The court examines the evidence in the light most fa v o r a b le to the nonmoving party, and summary judgment is appropriate if there is no genuine issue as to any material fact. Id. The essential facts are not d is p u t e d ; on appeal the sole question is the interpretation of RESPA, which we r e v ie w de novo.

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No. 09-30902 I I I . DISCUSSION T h e Appellants characterize Quicken's charges in the form of loan discount a n d loan origination fees as "undivided unearned" fees. RESPA § 8(b) states th a t: N o person shall give and no person shall accept any portion, split, o r percentage of any charge made or received for the rendering of a r e a l estate settlement service in connection with a transaction in v o lv in g a federally related mortgage loan other than for services a c t u a lly performed. 1 2 U.S.C. § 2607(b). Appellants contend that the loan discount fees are charges fo r a real estate settlement service and that, as there was no interest rate r e d u c t io n , the charges did not represent "services actually performed." Quicken c o u n t e r s that RESPA does not prohibit undivided unearned fees by a sole p r o v id e r ; to fall under the statute, fees must be divided between two parties such t h a t they resemble a kickback or bribe.1 A. R E S P A § 8(b) has been the subject of several lawsuits to determine its s c o p e . Additionally, in 2001, HUD, the agency responsible for enforcing RESPA, is s u ed a statement of policy that identified four types of overcharge schemes that t h is provision could potentially cover: 1. F e e splitting, where two or more persons split a fee, any p o r t io n of which is unearned;

Alternatively, Quicken cursorily contends that the loan discount fees are not for settlement services, and therefore are not covered by the statute. See Wooten v. Quicken Loans, Inc., No. 07-00478-CG-C, 2008 WL 687379, at *5 (S.D.Ala. Mar. 10, 2008) (exempting "the substantive terms of a loan" from the scope of "settlement services"). Our disposition of the case on the remaining language of RESPA § 8(b) makes it unnecessary to reach this argument.

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No. 09-30902 2. M a r k -u p s , where a service provider charges the borrower for s e r v ic e s performed by a third party in excess of the cost of the s e r v ic e s to the service provider but keeps the excess itself; U n d iv id e d unearned fees, where a service provider charges t h e borrower a fee for which no correlative service is p e r fo r m e d ; and O v e r c h a r g e s , where a service provider charges a borrower for s e r v ic e s actually performed but in excess of the service's r e a s o n a b le value.

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4.

S t a te m e n t of Policy 2001-1, 66 Fed. Reg. 53,052 (Oct. 18, 2001). HUD proceeded t o assert that RESPA § 8(b) prohibits all four types of transactions. Id. All c ir c u i t s agree that the statute plainly prohibits fee splitting. See, e.g., Krzalic v . Republic Title Co., 314 F.3d 875 (7th Cir. 2002). Similarly, every circuit a d d r e s s in g the issue has rejected the contention that simple overcharges are a c t io n a b le under the statute. See Martinez v. Wells Fargo Home Mortgage Inc., 5 9 8 F.3d 549, 553-54 (9th Cir. 2010) (noting the Second, Third and Eleventh C ir c u it s have all specifically held overcharges are not actionable and joining t h e ir conclusion); Patino v. Lawyers Title Ins. Corp., No. 3:6-CV-1479-B, 2 0 0 7 WL 4687748, at *3 (N.D. Tex. Jan. 11, 2007) (unpublished) (collecting c a s e s ). T h e circuits disagree on the remaining two types of fees: mark-ups and u n d iv id ed unearned fees. The Fourth,2 Seventh,3 and Eighth 4 Circuits have each h e ld that RESPA § 8 is exclusively an anti-kickback provision. Accordingly, R E S P A § 8(b) requires two culpable parties, a giver and a receiver of the
2

Boulware v. Crossland Mortgage Corp., 291 F.3d 261 (4th Cir. 2002). Krzalic, 314 F.3d at 879. Haug v. Bank of America, 317 F.3d 832 (8th Cir. 2003).

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No. 09-30902 u n la w fu l fee, rendering mark-ups by a sole services provider not actionable. The S e c o n d ,5 Third,6 and Eleventh7 Circuits have rejected the two-party requirement a n d held that RESPA § 8(b) prohibits mark-ups. Only the Second Circuit has e x p lic it ly addressed whether RESPA § 8(b) prohibits a sole provider's undivided u n e a r n e d charges and found that it did. Cohen v. JP Morgan Chase & Co., 4 9 8 F.3d 111 (2d Cir. 2007).8 Presumably, the three circuits that require two c u lp a b le actors would not find undivided unearned charges actionable. B. W it h these divergent positions in mind, we enter the interpretive fray. "If t h e intent of Congress is clear, . . . the court, as well as the agency, must give e ffe c t to the unambiguously expressed intent of Congress." Chevron U.S.A. v. N a tu r a l Res. Def. Council, Inc. 467 U.S. 837, 842-43, 104 S. Ct. 2778 (1984). W e hold that the language of RESPA § 8(b) is unambiguous and does not c o v e r undivided unearned fees. First, the language "No person shall give and no p e r s o n shall accept" is not ambiguous as to whether a sole actor's undivided fees a r e covered. The term "and" normally means that both of the listed conditions m u s t be satisfied. "The use of the conjunctive `and' indicates that Congress was c le a r ly aiming at an exchange or transaction, not a unilateral act." Boulware,

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Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49 (2d Cir. 2004). Santiago v. GMAC Mortgage Group, Inc., 417 F.3d 384 (3d Cir. 2005). Sosa v. Chase Manhattan Mortgage Corp., 348 F.3d 979 (11th Cir. 2003).

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The Third Circuit recently passed up an opportunity to evaluate whether a provider could charge fees for work it did not perform. Tubbs v. N. Am. Title Agency, Inc., No. 09-2757, 2010 WL 3044067 (3d Cir. August 5, 2010) (unpublished). The dissent in Tubbs argued that remand was unnecessary, despite error by the district court, because the allegations failed to state a claim. Id. at *2 (Hardiman, J., dissenting).

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No. 09-30902 2 9 1 F.3d at 266. Thus, the provision requires two parties each committing an a c t : one party gives a "portion, split, or percentage," and another party receives a "portion, split, or percentage." See id. at 265 ("Therefore, § 8(b) only prohibits o v e r c h a r g e s when a `portion' or `percentage' of the overcharge is kicked back to o r `split' with a third party."); Mercado v. Calumet Federal Sav. & Loan Ass'n, 7 6 3 F.2d 269, 270 (7th Cir. 1985) ("The statute requires at least two parties to s h a r e fees."). This is not a prohibition on the undivided fees of a sole provider lik e those charged to the Appellants. S e c o n d , RESPA § 8(b) must be read in conjunction with its companion p r o v is io n , RESPA § 8(a). RESPA § 8(a) uses language identical to RESPA § 8(b): N o person shall give and no person shall accept any fee, kickback, or t h in g of value pursuant to any agreement or understanding, oral or o t h e r w is e , that business incident to or a part of a real estate s e t t le m e n t service involving a federally related mortgage loan shall b e referred to any person. 1 2 U.S.C. § 2607(a) (emphasis added). That "no person shall give and no person s h a ll accept" a kickback clearly requires two culpable actors. "A term appearing in several places in a statutory text is generally read the same way each time it a p p e a r s ." Ratzlaf v. United States, 510 U.S. 135, 143, 114 S. Ct. 655 (1994); see a ls o National Credit Union Admin. v. First Nat. Bank & Trust Co., 522 U.S. 479, 5 0 1 , 118 S. Ct. 927 (1998) (identifying "the established canon of construction that s im ila r language contained within the same section of a statute must be a c c o r d e d a consistent meaning"). To be consistent with RESPA § 8(a), RESPA § 8(b) should require two culpable actors as well. T h ir d , RESPA § 8(b)'s language "any portion, split or percentage" requires t h a t two parties share something. See Boulware, 291 F.3d at 265 ("By using the la n g u a g e `portion, split, or percentage,' Congress was clearly aiming at a sharing 7

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No. 09-30902 a r r a n g e m e n t rather than a unilateral overcharge."). The definitions of all three w o r d s require less than 100% or the whole of something. Webster's defines " p o r t io n " as "an individual's part or share of something" or "a part of a whole." WEBSTER'S THIRD NEW INTERNATIONAL DICTIONARY 1768 (2002). "Split" means " a product of division by or as if by splitting," or "a share (as of booty, winnings, p r o f i t s )." Id. at 2202. "Percentage" means a "part of a whole expressed in h u n d r e d t h s ." Id. at 1675. T h e Appellants note, citing the Second Circuit, that certain statutes use " a n y portion" and "any percentage" to include situations that involve the entirety o f something. Cohen, 498 F.3d at 118-19 (citing anti-embezzlement statutes). But this is the exception, not the rule, and there are several reasons not to apply t h a t interpretation here. None of the statutes cited by Cohen uses all three t e r m s : portions, split and percentage. Using all three terms collectively

e m p h a s iz e s that Congress intended "part of a whole." "The traditional canon of c o n s t r u c t io n , noscitur a sociis, dictates that words grouped in a list should be g i v e n related meaning." Dole v. Steelworkers, 494 U.S. 26, 36, 110 S. Ct. 929 (1 9 9 0 ) (internal quotations and citations omitted). Under the doctrine of

n o s c itu r a sociis, the court "avoid[s] ascribing to one word a meaning so broad t h a t it is inconsistent with its accompanying words, thus giving unintended b r e a d t h to the Acts of Congress." Gustafson v. Alloyd Co., 513 U.S. 561, 575, 1 1 5 S. Ct. 1061 (1995) (internal citations and quotations omitted). A court s t r e t c h e s the definition of "portion, split or percentage" to its breaking point to m e a n 100% of a charge. Further, none of the other statutes uses "split." While p o r t io n or percentage may be ambiguous in some limited cases, "split" requires d iv id in g a single thing among several parties.

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No. 09-30902 F in a lly , when read in its entirety, RESPA is an anti-kickback statute, not a n anti-price gouging statute. Congress stated RESPA's purpose in 12 U.S.C. § 2601(b). It explicitly and exclusively prohibits kickback and referral fees: (b ) It is the purpose of this chapter to effect certain changes in t h e settlement process for residential real estate that will r e s u lt-- (1 ) in more effective advance disclosure to home buyers a n d sellers of settlement costs; in the elimination of kickbacks or referral fees that tend t o increase unnecessarily the costs of certain settlement s e r v ic e s ; in a reduction in the amounts home buyers are required t o place in escrow accounts established to insure the p a y m e n t of real estate taxes and insurance; and in significant reform and modernization of local record k e e p in g of land title information.

(2 )

(3 )

(4 )

1 2 U.S.C. § 2601(b) (emphasis added). Section 2601's purpose statement does n o t discuss, mention, or even hint about a general prohibition on overcharges or u n e a r n e d fees or other forms of price abuse. If Congress meant to ban other fo r m s of price abuse, such as undivided unearned fees or unearned fees g e n e r a lly , then surely it would not have used such limited language. Unearned fe e s are not kickbacks, and RESPA does not cover them.9
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There is no reason to recite legislative history given the clarity of the statutory text. Nonetheless, if we must look to the legislative history, the Senate Report that details Congress's intent, S. REP. NO. 93-866 (1974), reprinted in 1974 U.S.C.C.A.N. 6545, supports this interpretation. When discussing RESPA § 8, the Senate Report begins by saying that: Section [8] is intended to prohibit all kickback or referral fee arrangements whereby any payment is made or `thing of value' furnished for the referral of

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No. 09-30902 C. T h e Appellants attempt to rehabilitate their argument by urging us to fo llo w HUD's 2001 policy statement. They assert that this policy statement is e n tit le d to Chevron deference and, accordingly, the court must adopt HUD's in t e r p r e t a t io n that RESPA § 8(b) covers undivided unearned fees. The Second C ir c u it adopted this rationale in Cohen. 498 F.3d at 115 (citing Kruse, 383 F.3d a t 57).1 0 W e are unpersuaded. When the statutory provision is clear on its face, t h e r e is no need to look to any regulatory interpretation, such as the HUD 2001 s t a t e m e n t . Chevron, 467 U.S. at 842-43. If the statute is ambiguous, the court is only required to defer to an agency's interpretation that "reasonably e ffe c t u a t e [s ] Congress's intent." Texas v. United States, 497 F.3d 491, 506 (5th C ir . 2007). Otherwise, an agency interpretation lacks the "force of law" and will

real estate settlement business. The section also prohibits 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. Reasonable payments in return for services actually performed or goods actually furnished are not intended to be prohibited. Id. at 6551. (emphasis added). Just as in § 2601(b), nothing can be fairly read to cover undivided fees. The description clearly and only covers the classic kickback situation where one party refers a client to another party in exchange for a fee. Further, all of the examples listed in the Senate Report reference charges divided among multiple parties. Id. If Congress meant to prohibit other forms of price gouging, such as unearned fees generally, then the Senate Report would have listed at least one example that does not involve a referral. That Congress did not list such examples strongly implies that RESPA § 8(b) did not cover such other actions. Other circuits have avoided the issue of whether the HUD statement is entitled to Chevron deference. See Santiago, 417 F.3d at 389 n.4 ("because we would find HUD's interpretation to be persuasive under Skidmore, we would not need to reach whether Chevron deference is warranted."); Krzalic, 314 F.3d at 879; Sosa, 348 F.3d at 984.
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No. 09-30902 n o t receive Chevron deference, but instead will be granted Skidmore deference a n d given "respect proportional to its `power to persuade.'" United States v. M e a d Corp., 533 U.S. 218, 235, 121 S. Ct. 2164 (2001). Even assuming arguendo t h a t this RESPA provision is ambiguous, the HUD statement is not due Chevron d e fe r e n c e because there is no indication that the HUD statement carries the fo r c e of law. See Krzalic, 314 F.3d at 882 (Easterbrook, J., concurring) (stating t h a t regulatory interpretations that do not follow rule-making guidelines under t h e APA are entitled to Skidmore deference only). "Interpretations such as those in opinion letters­like interpretations contained in policy statements, agency m a n u a ls , and enforcement guidelines, all of which lack the force of law­do not w a r r a n t Chevron-style deference." Christensen v. Harris County, 529 U.S. 576, 5 8 7 , 120 S. Ct. 1655 (2000). Where the agency has not used a deliberative p r o c e s s such as notice-and-comment rulemaking, or where the process by which t h e agency reached its interpretation is unclear, the court cannot presume C o n g r e s s intended to grant the interpretation the force of law. For example, the F ifth Circuit has denied Chevron deference to IRS revenue rulings,1 1 the CMS M ed ica id Manual,12 FTC interpretive rules,1 3 and litigation briefs.1 4 Unlike other H U D regulations interpreting RESPA, the HUD Statement of Policy was not p r o m u lg a t e d through traditional notice-and-comment rulemaking or any similar d e lib e r a t iv e process and does not identify any clear methodology by which it

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Kornman & Assocs, 527 F.3d 443 (5th Cir. 2008). S.D. ex rel. Dickson v. Hood, 391 F.3d 581 (5th Cir. 2004). Walton v. Rose Mobile Homes, 298 F.3d 470 (5th Cir. 2002) Pool Co. v. Cooper, 274 F.3d 173, 177 n.3 (5th Cir. 2001).

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No. 09-30902 r e a c h e d its conclusion. Accordingly, the HUD statement is not due Chevron d e fe r e n c e . E v e n under Skidmore deference, the HUD statement is unpersuasive. The d is c u s s io n of RESPA § 8(b) is perfunctory and conclusory. It expresses

d is a g r e e m e n t with the Seventh Circuit's interpretation of RESPA § 8(b) in E c h e v a r r ia v. Chicago Title & Trust Co., 256 F.3d 623 (7th Cir. 2001) but p r o v id e s no concrete reasoning for its conclusion. 66 Fed. Reg. at 53,053. HUD c la im s to have a "long-standing interpretation" that RESPA covers undivided u n e a r n e d fees but offers no clear evidence for this point. Id. at 53,058. It asserts t h a t a fee need not be split because of the disjunctive word "or," but offers no d is c u s s io n , just a conclusory statement. Id. It does not address any legislative h is t o r y or alternate interpretation. Because we are interpreting a statute, HUD m u s t provide some manner of statutory interpretation that would bolster its p o s it io n . HUD failed to do so. D. F in a lly , the Appellants argue that RESPA should ban undivided unearned fe e s because this type of pricing scheme puts consumers in the same economic p o s it io n as a kickback. The Third Circuit found this "same economic position" a r g u m e n t persuasive when analyzing whether RESPA § 8(b) prohibited m a r k u p s . Santiago, 417 F.3d at 388-89. T h is is not so much an argument as a quarrel with Congress. By its terms, R E S P A does not regulate economic outcomes; it only bans certain predatory m eth od s. Congress did not mean to criminalize the charging of fees for

s e t t le m e n t services, however they are characterized, as long as they are d is c lo s e d and not within RESPA § 8(a) or (b). 12 U.S.C. § 2607(d) (imposing

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No. 09-30902 c r im in a l penalties R E S P A § 8(b)).1 5 I V . CONCLUSION B e c a u s e the statutory text is clear, RESPA prohibits only kickbacks and r e fe r r a l fees, not unearned fees by a sole provider of settlement services. The c h a r g e s imposed by Quicken on Appellants for loan discount fees and a loan p r o c e s s in g fee are not prohibited by RESPA § 8(b). T h e judgment of the district court is AFFIRMED. and potential imprisonment for any violations of

Our disposition of the RESPA claim necessarily requires rejection of Appellants' dependent state law claims.

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No. 09-30902 H I G G I N B O T H A M , Circuit Judge, dissenting: I respectfully dissent. I would, in the main, take the path set forth in the S e c o n d Circuit's well-reasoned opinion in Cohen v. JP Morgan Chase & C o m p a n y1 and hold that unearned undivided loan discount fees violate § 8(b) of t h e Real Estate Settlement Procedures Act ("RESPA").2 T h e lone aspect of Cohen I would not adopt is its decision to give Chevron d e fe r e n c e3 to the interpretation of RESPA § 8(b) articulated by the Department o f Housing and Urban Development ("HUD") in its Statement of Policy 2001-1.4 T h is Court is only required to grant Chevron deference to an agency's in t e r p r e t a t io n of an ambiguous statute if the interpretation has "the force of la w ,"5 a description generally reserved for interpretations that are the product o f "a relatively formal administrative procedure tending to foster the fairness a n d deliberation that should underlie a pronouncement of such force," 6 such as t r a d it io n a l notice-and-comment rulemaking. The HUD Statement of Policy was n o t promulgated through traditional notice-and-comment rulemaking, and I am n o t persuaded that the process through which it was promulgated was s u ffic ie n t ly considered to merit Chevron deference. I share the Seventh Circuit's c o n c e r n over the Statement of Policy's lack of analysis, which expresses d is a g r e e m e n t with that court's decision in Echevarria v. Chicago Title & Trust

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498 F.3d 111, 114-26 (2d Cir. 2007). 12 U.S.C. § 2607(b). See generally Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837

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(1984).
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Statement of Policy 2001-1, 66 Fed. Reg. 53,052 (Oct. 18, 2001). See United States v. Mead Corp., 533 U.S. 218, 226-27 (2001). Id. at 229.

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No. 09-30902 C o m p a n y7 but gives no reason for that disagreement "except that HUD has a lw a y s regarded such fees as forbidden by the statute, though previously it had fa ile d to make this clear. No evidence or interpretive methodology is mentioned; n o abuse pointed to that might justify the contorted interpretation urged by H U D ."8 As Judge Posner explained, "something more formal, more deliberative, t h a n a simple announcement" was needed to invoke Chevron deference and "[a] s im p le announcement is all we have here."9 While I agree with the Second C ir c u it that the policy statement is more than a simple announcement,1 0 without a more formalized process through which the Agency's views might be c h a lle n g e d and sharpened--such as what occurs in a formal adjudication or n o tic e -a n d -c o m m e n t rulemaking--I would not conclude that the Statement of P o lic y warrants deference under Chevron. Per Skidmore,1 1 I would give HUD's in t e r p r e t a t io n only such respect as is proportional to its power to persuade. T h is concern aside, I would adopt the approach and conclusions of Judge R a g g i's fine opinion in Cohen. The statutory phrase "any portion, split, or p e r c e n t a g e of any charge . . . other than for services actually performed" is a m b ig u o u s with respect to Congress's intent to prohibit unearned undivided fees. P r o h ib itin g such fees strikes at a core objective of RESPA: promoting t r a n s p a r e n c y of costs associated with settlement. RESPA is aimed at reducing a b u s e s by those in the mortgage industry through charging borrowers fees for w o r k not actually performed. While the greatest concern may be when that fee
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256 F.3d 623 (7th Cir. 2001)

Krzalic v. Republic Title Co., 314 F.3d 875, 881 (7th Cir. 2002) (citations omitted), cert. denied, 539 U.S. 958 (2003). See Krzalic, 314 F.3d at 881 (citing Barnhart, 535 U.S. at 212, and Mead Corp., 533 U.S. at 229­31).
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See Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 59-61 (2d Cir. 2004). See Mead, 553 U.S. at 234-35 (citing Skidmore v. Swift & Co., 323 U.S. 134 (1944)).

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No. 09-30902 is part of a hidden referral relationship, the damage done to borrowers is similar: t h e y are led to believe they are paying for something they are not. Following C o h e n would not lead us down the path to a rate-setting regime. The task of the c o u r t is very different when determining whether any service was provided as o p p o s e d to whether the price charged is a reasonable one. When the fee is e n tir e ly unearned, the court is not forced to determine the reasonableness of a fe e -- a task for which courts are not well suited--because the reasonable fee for n o th in g is nothing. Accordingly, I respectfully dissent.

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