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Updated: U.S. Supreme Court mulls Quicken Loans unearned fees case

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The United States Supreme Court turned to the Solicitor General on Monday to obtain advice on whether it should review a mortgage-related case over 'unearned fees' charged by Quicken Loans during transactions in Louisiana. Previous rulings in lower courts failed to find a common ground in judgements. The lawsuit revolves around Sections A and B of the Real Estate Settlement Procedures Act, or RESPA, and interpretations of statutory laws the Department of Housing and Urban Development already issued an opinion about. Section A of RESPA reads "no person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise" when dealing with a federally related mortgage loan, court documents say. The original plaintiffs, the Freeman, Bennett and Smith families, secured loans in Louisiana from Quicken Loans and soon found themselves facing "loan discount fees" at the closing of their mortgages, according to legal briefs filed in Freeman v. Quicken Loans. Not long after the dispute began, the families filed suit on behalf of all similarly situated plaintiffs, alleging Quicken Loans charged the loan discount fee, but did not reduce their interest rates. Quicken Loans was not immediately available for comment. When evaluating the RESPA statute, the lower district courts and the 5th Circuit Court of Appeals ruled that even if Quicken had not provided the plaintiffs with something in exchange for the fees, the courts ruled that Section 8 of RESPA is limited to situations where the party issuing the fee divides the proceeds with a third-party, creating a kickback and fee-splitting scheme. Under this interpretation, the lower courts and the 5th Circuit Court of Appeals upheld Quicken's motion for summary judgment on the grounds that RESPA Section 8 has no general "prohibition against charging unearned fees" to a single party, according to legal briefs filed in the case. In other words, since Quicken was the only party involved — and there was no third party — the fee rule did not apply. The plaintiffs then appealed to the Supreme Court. The nation's top court is still trying to figure out if it would be appropriate to take the case, according to attorneys involved in the matter. Kevin Russell, an attorney for the plaintiffs, said the Supreme Court asked the Solicitor General whether it should take the case on Monday after reaching crossroads. "I think it is likely they did this because HUD has already issued regulations and policy guidance that is relevant," Russell said. HUD in its own guidance seems to support the plaintiffs' contention that "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." The issue the plaintiffs want the Supreme Court to answer is whether RESPA applies this rule to all transactions involving one or more parties,  or whether it is limited to cases with third-parties and fee-splitting situations. The company's interpretation of the RESPA rule received favorable treatment from the multiple Circuit Courts. A few other Appellate Courts reached a different outcome. It may take until the end of the summer before the Solicitor General's opinion is released, attorneys familiar with the matter said. Quicken Loans responded to the case Monday, saying,  "Quicken Loans has never charged unearned fees and never will. We won this case on summary judgment at the trial court level on undisputed evidence that the fees that Quicken Loans collected were, in fact, earned. The ruling in favor of Quicken Loans was also upheld on appeal by the U.S. Court of Appeals for the Fifth Circuit." The firm went on to say "it is unfortunate that once again our legal system is being used to extort money from job producing companies by plaintiff attorneys who attempt to manipulate and distort reason, logic and the law with the hope that companies will capitulate and settle rather than embark on a lengthy and expensive defense of right versus wrong. Quicken Loans will never give in to these unscrupulous operators who only exist because companies and courts allow them to continue their immoral gamesmanship. Quicken Loans has and always will conduct itself in accordance with state and federal law.” Write to: Kerri Panchuk.

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