Tammy Freeman v. Quicken Loans - US Supreme Court Oral Argument Transcript of 2-21-2012 Case 10-1042 Re RESPA

Official - Subject to Final Review
1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Alderson Reporting Company
IN THE SUPREME COURT OF THE UNITED STATES - - - - - - - - - - - - - - - - - x TAMMY FORET FREEMAN, ET VIR., Petitioners v. QUICKEN LOANS, INC. : : : : No. 10-1042
- - - - - - - - - - - - - - - - - x Washington, D.C. Tuesday, February 21, 2012
The above-entitled matter came on for oral argument before the Supreme Court of the United States at 10:11 a.m. APPEARANCES: KEVIN K. RUSSELL, ESQ., Washington, D.C.; on behalf of Petitioners. ANN O'CONNELL, ESQ., Assistant to the Solicitor General, Department of Justice, Washington, D.C.; for United States, as Amicus Curiae, Supporting Petitioners. THOMAS M. HEFFERON, ESQ., Washington, D.C.; on behalf of Respondent.
2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
C O N T E N T S ORAL ARGUMENT OF KEVIN K. RUSSELL, ESQ. On behalf of the Petitioners ORAL ARGUMENT OF ANN O'CONNELL, ESQ. On behalf of the United States, as Amicus Curiae, Supporting the Petitioners ORAL ARGUMENT OF THOMAS M. HEFFERON, ESQ. On behalf of the Respondent REBUTTAL ARGUMENT OF KEVIN K. RUSSELL, ESQ. On behalf of the Petitioners 54 28 18 3 PAGE
3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHIEF JUSTICE ROBERTS: P R O C E E D I N G S (10:11 a.m.) We will hear
argument first this morning in Case 10-1042, Freeman v. Quicken Loans. Mr. Russell. ORAL ARGUMENT OF KEVIN K. RUSSELL ON BEHALF OF THE PETITIONERS MR. RUSSELL: please the Court: For decades, the agency Congress charged with administering the Real Estate Settlement Procedures Act has construed that statute as prohibiting a lender from accepting a charge for a real estate settlement service it didn't provide, whether it accepts that charge directly from a consumer or indirectly through another service provider, and whether it shares that fee with another provider or keeps it all for itself. That interpretation is eminently reasonable and is entitled to deference. JUSTICE GINSBURG: And in fact - Mr. Russell, when you say Mr. Chief Justice, and may it
the agency in charge, am I right in thinking that HUD and its successor, they don't have any suit-commencement authority? MR. RUSSELL: HUD does have authority to
4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 whether - MR. RUSSELL: Whether they're split or not. And how did this -- this correct. bring suits for injunctive relief for violations of 2607(b), and -- if that answers your question. JUSTICE GINSBURG: MR. RUSSELL: For injunctive relief?
For injunctive relief, that's
And that agency has long construed the
language of this provision as -- as reaching all unearned fees whether divided or not, and that interpretation of the language we think is eminently reasonable. JUSTICE SCALIA: understand you. Reaching all? I didn't
You said it too fast.
As reaching
all -- something fees. MR. RUSSELL: All unearned fees. All unearned fees,
JUSTICE SCALIA:
JUSTICE BREYER:
may be a side issue, but I don't see how this is a fee for service. I mean, I thought points is simply a way
of paying more money up front and getting a lower interest rate later. It isn't supposed to be for any
service; it's simply a question of the loan term, how much you borrow and what the interest rate is. MR. RUSSELL: Well, you're right. I do
think it's a side issue because the courts below didn't

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decide that, and Quicken - JUSTICE BREYER: So what are we supposed to
do, decide theoretically in the context of a case that does not involve paying a fee for a service that doesn't exist, whether you can pay for a service that doesn't exist? MR. RUSSELL: I think you can take it on the
same assumption that the court of appeals did, that the fee was unearned, and decide the question presented. But to answer your question, Congress amended the statute specifically to overrule the Sixth Circuit's decision in Graham, which held that loan discount fees were not covered by the statute -- in that case involving a kickback. I know Quicken argues that We don't think
that case involved origination fees. that's correct.
But this is -- this is an issue you
could have an entire case about, but - JUSTICE BREYER: argument on the other side? How? What's -- what's the
A point is a way of paying Since you pay more,
more money, i.e., borrowing less. that means you borrow less.
So your interest rate is Now, what's the
lower, because you borrowed less. argument on the other side? MR. RUSSELL:
The argument is Congress
specifically defined the term "real estate settlement

6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 service" to include the origination of the loan, which includes but is not limited to the funding of the loan. And it did that in order to encompass kickbacks, at the very least, involving loan discount points, which is what was at issue in Graham. Now, you can have debates -- and we will have in this case eventually -- debates about what does it mean for a loan discount fee to be unearned. But for
present purposes, the circuit split arose here in the much more common circumstance, when there are unearned fees for appraisals and courier fees, and -- and that's what the lower court decided on the basis of. did so - JUSTICE SCALIA: Well, I suppose if -- if And it
the lower court could have been wrong for either one of two reasons, we don't have to decide which of the two we -- we're precluded from considering, right. MR. RUSSELL: No, I don't think you're
precluded from considering -- I - JUSTICE SCALIA: I mean it's -- it would be
just as well to say that the question presented here decides the case as it would be to say that the question raised by Justice Breyer decides the case, right? MR. RUSSELL: Right. I -
JUSTICE SCALIA:
Is there any reason to put
7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the one before the other? MR. RUSSELL: There are several reasons.
One is the lower courts did not address this question. Quicken hasn't briefed it to any extent. Quicken
doesn't ask you to decide it on the basis of that question. We haven't briefed it. It's a complicated
question that involves interpretation of another provision of the statute that Congress amended to deal specifically with this problem. And it wouldn't
solve -- it wouldn't resolve the circuit conflict that the Court granted cert to decide. And so if I could turn to that, if you look at the language of the statute, which is reproduced on page 6a of the -- the blue brief, in the words of the statute, a lender who charges an unearned fee accepts within the meaning of the statute a portion, split or percentage, i.e., 100 percent, of a charge that was made for the rendering of a covered real estate settlement service other than for services actually performed. CHIEF JUSTICE ROBERTS: Your -- your
argument that "percentage" can include 100 percent is certainly true as a matter of logic. But in the phrase
"portion, split or percentage," I think the more natural reading of "percentage" is something less than 100 percent. In other words, you are apportioning or
8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 you are splitting the fee with somebody else. MR. RUSSELL: Well, I - You could have -
CHIEF JUSTICE ROBERTS:
"portion" I suppose could still mean a full portion, "split" probably not. But I mean, the more natural
reading is surely a division. MR. RUSSELL: Well, I think "portion" is the And Congress has
word that best fits this situation.
used the phrase portion in other state -- in other statutes to prohibit, for example, a public official from converting to personal use any portion of the funds entrusted to him. JUSTICE SCALIA: need not mean that. It could mean that, but it
It could mean either that or just
-- just part and not whole; and which of the two it means is often decided by the other words with which it's associated. I mean, if -- if you have a phrase
that says, you know, "tacks, nails and" -- what? "Tacks, nails and wooden pegs," it's clear that "nails" doesn't mean toenails; it -- it means a fastener. And so also here, when -- when it says "portion, split or percentage," it seems to me that the natural reading is that portion or percentage means not, as it could mean, the whole, but rather just a portion. MR. RUSSELL: Well, I would -- I would say
9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two things about that. One is that when you have a
statute that forbids somebody from taking any portion of something, I think the ordinary understanding is that prohibits them from taking the whole of the thing. embezzlement statutes are an example of that. JUSTICE SCALIA: That's not what we have. The
We have -- we have a statute that says you shall not take any portion or split. MR. RUSSELL: Right. Okay? And so -
JUSTICE SCALIA: MR. RUSSELL:
The canon, though, I don't
think, is a canon that says when you have related words, you give all them the same meaning. something in common. They certainly have
They are all the measure of
something, but the canon doesn't mean you read them all to mean the same measure of something, which would run headlong I think into the canon against construing statutes to have surplusage. CHIEF JUSTICE ROBERTS: But the -- the -
one reason -- one objection to your idea that, well, this covers partial so it must cover 100 percent, is that it's a very different issue if you are talking about partial and 100 percent. If you are talking about
partial, you have a classic case of a -- a kickback. But if you suddenly say 100 percent of an unearned fee,
10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 that's a much more difficult question to decide. In this case, for example, you get a whole bunch of things from Quicken Loans, including the loan and all this other stuff, and it's kind of hard to single out, well, this part is unearned but this part is earned; it's kind of a whole package. When you have a
portion or split it's an entirely different issue. MR. RUSSELL: Well, you still have to decide
when you are talking about a kickback whether the person who received the kickback has done anything to earn their portion of it. And so I don't think you avoid the
question of what does it mean for a fee to be unearned entirely. CHIEF JUSTICE ROBERTS: Yes, but there -
there's a more -- it's a narrower issue when you are talking about a portion. appraiser. Say the kickback goes to the
Maybe you can decide in that case whether
the loan company really had anything to do with the appraisal at all. When the alleged unearned fee goes to the whole loan company, it's a little harder to say which part was unearned and which parts might have been earned. MR. RUSSELL: But - It's just the way
CHIEF JUSTICE ROBERTS:

11 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case. JUSTICE BREYER: MR. RUSSELL: Why not? these loans work, right? I mean, it's the same thing
whether you pay 10 percent and no points or 9 percent and 3 points. You know, which one of those is earned or
unearned, it's kind of hard to sort it out. MR. RUSSELL: It's certainly harder to sort But the run of
out with respect to loan discount fees.
the mine cases here involve things like appraisals, courier services, flood certifications - JUSTICE BREYER: The bank says to Mr. Smith: Okay. How does that work?
We are going to charge you So
$100 for a courier service, and then they don't. there it is on the bill.
And Mr. Smith, really knowing All
he didn't get the courier service, pays the $100. right. Why isn't Mr. Smith guilty, on your
interpretation? I mean, on your interpretation every innocent consumer is guilty of a crime. MR. RUSSELL: No. That -- that is not the
What protect consumers is the
last words of -- of this provision, which creates a safe harbor for people who give or accept charges for services actually performed. is "for." And the critical word here
What a consumer is paying "for" is what she

12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 has been charged "for." If she has been charged for an appraisal, what she is given the charge for is for the appraisal. If the appraisal wasn't performed, that shows she didn't get what she paid for, but it doesn't change what she was paying "for." JUSTICE BREYER: It's my fault. I don't understand that.
But -- but wouldn't -- it says that if
she doesn't get the appraisal, but she has to pay for it, then why isn't she -- why hasn't -- why doesn't she fall within the statute? MR. RUSSELL: There are two ways you can One is what
construe what it means to pay a charge for. it is you actually got - JUSTICE BREYER: MR. RUSSELL:
What you got was nothing. The
-- which was nothing.
other is what you are actually charged for, which was the appraisal. JUSTICE BREYER: MR. RUSSELL: interpretation - JUSTICE BREYER: MR. RUSSELL: Yes. It's -Yes.
And I think that latter
-- is the proper one.
I think it's the most natural - JUSTICE BREYER: Why hasn't the consumer
13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 liable? MR. RUSSELL: Because I think it's violated? MR. RUSSELL: Because she didn't pay for
services other than -- she didn't pay for services other than services actually performed. JUSTICE BREYER: What she paid for -
Then why is the bank
different, depending on whether you're looking from the perspective of accepting or receiving, what the charge is for. So for example, if you were to go to your
mechanic and you were charged for an oil change but you didn't get one, it would be perfectly natural for you to say: I was charged for and I paid for an oil change. JUSTICE BREYER: I can see. So you are
saying when the bank writes down, "pay $100 for the courier service," the bank is charging for the courier service. MR. RUSSELL: Right. When the consumer pays for
JUSTICE BREYER:
the courier service which he sees there, the consumer is not paying for the courier service. the nothing. MR. RUSSELL: No, I think the consumer is He is paying for
paying a charge for the -- for the courier service. JUSTICE BREYER: All right. Then why
14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't he fall within the -- within the statute? MR. RUSSELL: of the statute. JUSTICE BREYER: MR. RUSSELL: actually performed. Why? Because it's not a violation
-- to pay for a service
And that's what she is paying for; She's not paying for
she's paying for an appraisal. nothing. JUSTICE GINSBURG: purchaser is the giver.
But the -- but the
The statute reads "No person The acceptor is
shall give and no person shall accept." the loan company.
The person who is giving would be the
consumer, the customer. MR. RUSSELL: Correct. But -- so the person who
JUSTICE GINSBURG:
gives is -- is not answerable under your reading of this (b)? MR. RUSSELL: Correct, because what she is
giving the charge for is what she has been charged for. She was charged for an appraisal. She is giving the
charge for an appraisal, and that doesn't violate the statute. JUSTICE SCALIA: Give me an example of where
the language "give" would have an effect. MR. RUSSELL: I think --
15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 effect? MR. RUSSELL: No. In a traditional kickback JUSTICE SCALIA: Have you deprived it of all
situation, where Quicken for example kicked back some of the fee to a real estate agent for nothing, for the referral of the business, which isn't for a service actually performed within the meaning of the statute, that would violate the provision. JUSTICE GINSBURG: But then we'd have
Quicken as the giver and the person who receives the referral or the kickback as the receiver. MR. RUSSELL: That's correct. This
provision does double duty.
It is designed and written
broadly to encompass both traditional kickback situations and unearned fee provisions. JUSTICE GINSBURG: Mr. Russell, there is one It would be a
puzzling aspect of your interpretation.
rather large thing for Congress to say we're going to cover overcharges, as I believe HUD says is so, and yet in the purposes of the act on page 1 of the appendix it says nothing about overcharges, nothing about payment for service not received in the four. "It is the
purpose of the act to," and then there are four things listed and none of those say to stop charges for services that weren't performed.
16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. RUSSELL: That's true. First just to
clarify, we are not arguing that it covers over charges in the sense of excessive charges. JUSTICE GINSBURG: HUD's interpretation? MR. RUSSELL: That is one of HUD's But that is, that is
interpretations, although it's an interpretation about what it means for something to be unearned, not having anything to do with whether split fees are covered or not. But to answer your more specific question, we know that that enumeration is not comprehensive. There are other things in the statute that are not included, and the general purpose of the statute - JUSTICE SCALIA: But nothing as big as this,
if you accept HUD's interpretation of this, which is essentially the issuance of a price schedule by HUD and anything above these prices is an overcharge and hence falls under -- under this provision. MR. RUSSELL: That's immense.
It would be immense, but this
Court doesn't have to accept that view in order to accept HUD's - JUSTICE SCALIA: No, but if we don't then we
reject deference to HUD, which you want us to -- to apply. We can't at one time, at one and the same time,
17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 give deference to HUD and yet disagree with what HUD says. MR. RUSSELL: Certainly you can, and in fact
Your Honor did in Smith v. City of Jackson, where you held that a provision of a regulation recognizing disparate impact was entitled to deference, but a provision saying what you had to prove to show a disparate impact violation wasn't. And here
similarly -- I mean, particularly the overcharge part of the interpretation is not even in the regulations. in the policy statement. JUSTICE ALITO: labeling statute? It's a subsequent - Do you think this is just a It's
Quicken could charge whatever it
wanted, bottom line, but if it breaks it down into categories and it doesn't do something that is actually attributable to one of those categories then there is a violation? MR. RUSSELL: I think Congress -- yes. I
mean, it is -- labels are important, because Congress didn't say: line. You simply have to disclose the bottom And
It said you have to give an itemized list.
requiring that those identified line items actually represent services that were actually rendered is a completely reasonable supplement to the disclosure requirement.
18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 the briefs? Mr. Russell. Ms. O'Connell. ORAL ARGUMENT OF ANN O'CONNELL, ON BEHALF OF THE UNITED STATES, AS AMICUS CURIAE, SUPPORTING PETITIONERS MS. O'CONNELL: please the Court: The plain terms of section 2607(b) prohibit two give two separate actions, giving an unearned fee and accepting one. Sometimes the statute will be Mr. Chief Justice and may it If I could reserve the remainder of my time. CHIEF JUSTICE ROBERTS: Thank you,
violated when an unearned fee is collected from the consumer and then shared between two service providers. But the statute is also violated when a service provider collects an unearned fee directly from the consumer and retains the entire fee for itself. JUSTICE BREYER: And the consumer doesn't
violate it in those circumstances because? MS. O'CONNELL: We agree with the
Petitioner's interpretation - JUSTICE BREYER: Can you tell me where in
I have to read this about six times to get Where in the briefs does it
this one in my head.
explain to me why in your situation the bank would be

19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 violating it, but the consumer wouldn't, since it says "no person shall give" as well as "no person shall receive"? MS. O'CONNELL: think this is in the brief. JUSTICE BREYER: Well, my goodness. If it Justice Breyer, I don't
isn't in the briefs, maybe I'm off on a track here, but it seems to me a pretty obvious question. I mean, we
have a statute that looks like a kickback statute and the reason it looks like a kickback statute is because it refers both to the person giving and to the persons receiving, and it seems to make them equally liable. You want to apply it to a situation where I don't think you want to hold consumers liable, and so I think you have to explain to me why this statute doesn't on your reading of it? MS. O'CONNELL: The explanation is Footnote 6 of
encompassed in HUD's policy statement.
the policy statement, which is in the appendix to the Petitioner's brief at 33a, says that HUD would be unlikely to bring an enforcement action against consumers for the payment of unearned fees. JUSTICE BREYER: prosecutorial discretion? Oh, you mean it's all In other words, if you happen
to be a consumer you just have to rely on the goodwill

20 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 of the prosecutor; is that the idea. MS. O'CONNELL: Justice Breyer, I think it's What HUD is
more than just prosecutorial discretion. explaining - JUSTICE BREYER: MS. O'CONNELL: What more?
What HUD is explaining is
that the reason why it wouldn't prosecute a consumer is because the consumer does not make the payment for - does not pay a fee for the payment of unearned fees. JUSTICE KENNEDY: Have we said in some of
our cases, oh, don't worry, this is within the discretion of the prosecutor, close enough for government work? MS. O'CONNELL: No, no. Justice Kennedy, I
don't -- I don't think that this is just prosecutorial discretion. This is HUD's interpretation of the statute
laid out in a policy statement saying it doesn't think consumers violate the statute because there - JUSTICE KENNEDY: determining criminal statutes? MS. O'CONNELL: HUD has an expertise in Does HUD have expertise in
determining what is earned and unearned and what the practices are in the real estate industry for charging consumers fees that haven't been earned by the service providers. What HUD is saying -Alderson Reporting Company
21 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUSTICE SCALIA: Well, but I assume that
HUD's interpretation of a criminal statute like ours must give the defendant the benefit of the doubt, so that if there is any ambiguity -- I mean, that's our standard rule. If there's a genuine ambiguity, you find And
for the interpretation that favors the defendant.
this here, I think this is at the very least ambiguous. And you are telling me -- well, I guess you're right. guess HUD is favoring what would be the defendant in this case? MS. O'CONNELL: Yeah, it was saying that it I
doesn't think that a consumer violates the statute because the consumer doesn't pay the fee other than for services earned. JUSTICE BREYER: But can you -- I don't want
to take all your any more time on this because to me the more important problem was the problem of the difference between a kickback statute, which we could understand as well as within HUD's expertise and normal and of course very good reason for doing it. But a price control
statute, where we have the Federal agency deciding whether the prices are accurate for each service that is rendered or whether some percentage or all of it represents service for nothing, that's a rather big novelty in American life.
22 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 That is, we have it, but there are usually Federal agencies that have a system set up for determining proper prices and so forth. So it's hard
for me to believe that sort of inadvertently Congress brought in the second under the guise of the first without a big fuss being raised and big debate and so forth. MS. O'CONNELL: Justice Breyer, I think the
important, important point here is that this is not an overcharge case; this is an unearned fee case. Overcharges are included in the 2001 policy statement, but there is a basis in the statute to differentiate between overcharges and unearned fees, and HUD has long taken the position that undivided unearned fees, a fee for which no service is performed, violates section 2607(b). JUSTICE KENNEDY: I'm not sure. It seems to
me that even under the Respondent's view of the statute you have to inquire into reasonableness to see if the fee was earned. MS. O'CONNELL: At some point, under
anybody's interpretation there does have to be a determination of whether something was earned. But
there is a statutory basis to distinguish between an unearned fee and an overcharge in that the service has
23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 evaluate - MS. O'CONNELL: JUSTICE SCALIA: No. Justice - to be -- the fee has to be other than for services actually performed. JUSTICE SCALIA: Wait a minute. If -- you
know, if I charge you an exorbitant amount for cutting down a tree, you know, 2,000, $20,000, then I present my bill, you would say that I have not earned it, simply because it's exorbitant? MS. O'CONNELL: JUSTICE SCALIA: There - I don't think you have to
Under the Respondent's
interpretation, I don't think have you to evaluate the reasonableness of the fee in order to decide whether it was earned or not. MS. O'CONNELL: Under the statute, if it's
for -- if the fee is for -- other than for services actually performed, which we think the loan discount fee in this case was a charge other than for a service actually performed, there was no corresponding reduction in the interest rate, that is an unearned fee under - under anybody's interpretation. JUSTICE KAGAN: It looks to me as though you You have two sets
have an additional statutory problem. of verbs in this statute.
One is the "give and accept"
24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 set of verbs and then the other is the "charge made or received." So it seems to me that what this statute is
thinking about is at first that there's a charge made or received, and that charge is, of course, the charge that the consumer pays to the provider. another transaction. And then there's
And that transaction is the "give
or accept" transaction, and that transaction occurs between two service providers. So one set of verbs
refers to the consumer-provider relationship, the other set of verbs refers to the provider-provider relationship. MS. O'CONNELL: Justice Kagan, we agree that We don't think Under
that is one scenario covered by 2607(b).
it's the only scenario covered by the statute.
our interpretation and Petitioner's interpretation, there doesn't have to be both a culpable giver and accepter. So once the charge is received from the
consumer and accepted by the service provider, that is also a violation of the statute. it also does cover fees that are split between two service providers, as you say the giving and accepting, but it doesn't have to involve two service providers under the plain language of the statute. JUSTICE GINSBURG: HUD's position. But you are now splitting
HUD's position says overcharges are

25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 reached by the statute. You say not overcharges, but So why
only a fee when no service is performed.
couldn't the customers have said, there is a fee for the service performed, that's the reasonable fee, and the rest of it is a charge for service not performed? I mean, can you maintain that distinction between an overcharge and a fee for services that are not performed? MS. O'CONNELL: Justice Ginsburg, in this
case we don't think that the Court has to -- has to say anything about overcharges and whether those are covered by the statute. The fee in this case was a loan
discount fee, which is generally paid to procure a reduction in the interest rate of the loan, and it procured nothing for the Petitioners. completely unearned fee. actually performed. CHIEF JUSTICE ROBERTS: What does that mean? It was a
It was other than for services
In other words, the rate that was offered, they said you pay 2 points and you get a rate of 8 percent. And you
are saying that even if they didn't pay the 2 points, they would still get a rate of 8 percent? MS. O'CONNELL: Right. Our understanding is
that when the Petitioners in this case got a quote for their mortgage loan from Quicken over the phone at a
26 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 particular interest rate with no mention of points, when it came time to pay the settlement charges they were charged a loan discount fee, charged points to procure that particular interest rate. That is something that
would have to be figured out on remand, whether there actually should have been a charge or whether those points were included in the - JUSTICE SCALIA: I don't know anybody, any
knowledgeable person who applies for a loan, who doesn't ask whether there are any points? mortgage practice. I mean, it's standard
And if somebody says, I'm going to
give 8 percent, yes, 8 percent with or without points? I mean, that -- I don't think that the mere fact that the interest rate was 8 percent means that you can't charge points and that any charging of points is a charge for a service not performed. The service
performed is giving you an 8 percent rate. Now, if she didn't want the points, she should have when it came to the closing say, what are these points for? The 8 percent is what you agreed to.
And they would have said, well, that 8 percent is the - is the rate we give when we charge 2 points. MS. O'CONNELL: What -- what RESPA is
intended to do is to protect consumers who often are not sophisticated on what they are doing in securing a
27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 problem. residential mortgage loan and to make sure that they understand what the charges are, and also to ensure that they receive the charges -- the services for which they pay at closing. JUSTICE BREYER: Yes, but that's the
The problem is, look, you are saying this is a I think I
payment for a service that wasn't given.
might say that this is just a lower interest -- a higher interest rate than they -- than they expected. Somebody might say, you didn't get the courier service at all. Others might say, you got
service but not the gold-plated service, and the gold plate was nothing. You see, that's what happens when
you get into a price control statute rather than a kickback statute. at least mine. MS. O'CONNELL: Justice Breyer, this case And that is our concern here, I think
comes here under the assumption that this was an unearned fee. If that's something the Court is
concerned about, it's something -- it could still decide the question presented, and then the lower court could figure that out on remand, whether this was earned or not. CHIEF JUSTICE ROBERTS: Ms. O'Connell.
Thank you,
28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Mr. Hefferon. ORAL ARGUMENT OF THOMAS M. HEFFERON ON BEHALF OF THE RESPONDENT MR. HEFFERON: please the Court: In passing RESPA in 1974, Congress was stepping into the middle of a primarily local market controlled by State law. The statute shows that in It did primarily two Mr. Chief Justice, and may it
doing so Congress tread carefully.
things in the area of settlement charges. First, its major reform was to standardize and increase disclosure of charges, including requiring a written estimate of charges to be given to people weeks before the closing. That in fact was done here.
Second, as RESPA's finding and purposes section tells us, Congress found that some consumers needed particular protection from a particular market failure. And I'm quoting from section 2601 in the first "Unnecessarily high
page of the blue brief, quote:
settlement charges caused by certain abusive practices that have developed in some areas of the country." Congress identified those as kickbacks and referral fees. But in 1974, Congress went no farther.
It rejected proposals for direct price regulation which had been proposed in both House and Senate.
Congress
29 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 did recognize more legislation might be necessary and that price controls might be advisable, and so it sent HUD out to do a study and report back. JUSTICE KAGAN: Mr. Hefferon, if you are
right about subsection (b) and its meaning, what does it do that subsection (a) does not do? MR. HEFFERON: It does two things. First of
all, with respect to the transactions that relate to charges actually paid at the closing, it eliminates the need to prove an agreement. All it -- all it says is
that there will be a violation if you follow the money and the money ends up in the hands - JUSTICE KAGAN: Well, if that is the case,
then why would Congress have done something that says, A, pursuant to an agreement, B, not pursuant to an agreement? Why wouldn't it just have one provision that
didn't make any reference to an agreement? MR. HEFFERON: Because (a) covers an entire
universe of things which appear, in many instances, away from the closing table. For example, an agreement
between an attorney and a developer that the attorney says I will do all the title work on the raw land for this development if you later on send me the closings when you build on the land and sell the particular parcels.
30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 If there was no agreement requirement, agreement for referral, if that did not appear in (a), then any relationship between two people in the settlement service business would be presumptively a kickback. And so, you had to have that. JUSTICE SCALIA: The -- the -- the so-called
kickback in (a) is not for services not actually performed. The referral -- the referral is certainly a There's -- there's -
service performed to the lender.
there's nothing -- what should I say -- unethical about getting a fee for a referral. finder's fee. So, you know, under (a) a finder's fee is - is made unlawful, right? MR. HEFFERON: That's correct. Congress has It's -- it's called a
decided that that is not something that should be compensable as part of the real estate business. JUSTICE SCALIA: And under (b), something
quite different, and that is giving money to somebody who performs no service at all is made unlawful. for that you don't need an agreement, right? MR. HEFFERON: need to prove one. That's correct. You don't And
I think all parties here - Counsel, under your
JUSTICE SOTOMAYOR:
reading, as I understand it, the words "portion, split

31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 or percentage" means an amount less than the whole? MR. HEFFERON: That's correct. So what happens if a
JUSTICE SOTOMAYOR:
service provider gives 100 percent to the other side, as opposed to an amount less than the whole? MR. HEFFERON: covered by section 8(b). We don't believe that it is In most -- in section 2607(b).
In most instances, it would probably be provable as a kickback under 2607(a) since in normal circumstance one doesn't give all of one's fee away unless there is something else going on, typically in this instance a referral. JUSTICE SOTOMAYOR: Does that make much
sense, that if you give one meaning -- if you stay consistent with your meaning, what you are saying is a situation where the service provider gives away everything, 100 percent, they are just not liable under (b); if they give away 1 percent, they are -- if they keep 1 percent, they are liable? MR. HEFFERON: That's correct. Again,
Congress was trying to take a measured step here because it was for the first time stepping into this local market. Congress left State law remedies alone. In
fact, the preemption provision - JUSTICE SOTOMAYOR: Is -- is -- is there --
32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Judge Higginbotham, in his dissent, said there is a big difference between unearned fees and overcharge fees. He said unearned fees, in their simplest form, is no service whatsoever. an excessive value. What is wrong with that definition? Why is Overcharges are some service, but
that definition unworkable in terms of limiting and defining this statute? MR. HEFFERON: If the Court would find that
"portion, split or percentage" covers 100 percent, then we would agree with Judge Higginbotham that it would - that liability would not go any further than a situation where the person performed no services whatsoever. JUSTICE SCALIA: Is this 100 percent
thing -- is this a real problem that Congress was addressing? Do you know of any 100 percent kickbacks or
100 percent payments to somebody else for services not performed as opposed to just keeping part and giving the rest? MR. HEFFERON: JUSTICE SCALIA: It -- it -- it - Isn't that enough reason
for its not being addressed, that it's not a real problem? MR. HEFFERON: Justice Scalia, there is no
indication that we are aware of in the legislative

33 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 history that such a thing was happening. Congress - JUSTICE SOTOMAYOR: about with subsidiaries? You think not? How What
Wasn't it common practice -
isn't it common practice that subsidiaries are often receiving parts of the payments because then they become -- they come out of the gross income of the major parent? MR. HEFFERON: It -- it -- it is a -- it is
a common arrangement if those subsidiaries are rendering services in connection with the real estate - JUSTICE SOTOMAYOR: So why isn't it a
potential common practice that they are getting 100 percent of something they didn't do? MR. HEFFERON: indication - JUSTICE SOTOMAYOR: If they are rendering - Again, there is no
if they are already rendering services? MR. HEFFERON: There is no indication in the
legislative history that that type of conduct was going on, and Congress was specifically identifying kickbacks and referral fees which it referred to, for example, as rebates and commissions, unearned commissions. And the
type of conduct which Congress meant to address was set forth in this statute and in the legislative history and
34 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it, of course, deputized HUD to do a study to see if more needed to be done. It recognized that full
payments may implicate the issue of rate- setting and that perhaps that's something that should be done, but it wasn't going to be done at this point. JUSTICE GINSBURG: Then why is the statute
labeled, titled, "Prohibition Against Kickbacks" - that's one thing -- - "and Unearned Fees"? How do
you -- what does "unearned fees" refer to in the title of 2607? MR. HEFFERON: Well, Congress made the
decision at the time, as Justice Scalia pointed out, that a fee for referral is -- is not properly earned. And the definition for the entire section, the title is "Kickbacks and Unearned Fees." entire section, (a) and (b). That refers to the All agree that 2607(b)
frequently is implicated if there is a kickback, so it can't be that the first word applies only to (a) and the second word only to (b). CHIEF JUSTICE ROBERTS: could be an earned kickback. MR. HEFFERON: There could be -- there could So you think there
be an earned kickback if Congress was willing to accept the principle that it's okay to earn money for a referral. That -- Congress rejected, rejected the
35 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 clear. principle that it's okay to get a -- to pay a kickback. CHIEF JUSTICE ROBERTS: If it's okay to get
money for a referral, what type of kickback is not okay? MR. HEFFERON: Well, it's -- let me be
Congress made the policy decision it is not okay
to pay a kickback or any money in order to get a pure referral, and, therefore, said that in section (a) and section (b) it is not proper to do that. JUSTICE SCALIA: It made the decision that a
finder's fee in this area, although in all other areas is perfectly okay, but a finder's fee in this area is a kickback. MR. HEFFERON: That's correct. Counsel, if your reading
JUSTICE SOTOMAYOR:
of the language is not plain, if there are two ways to read this statute, give me your best reason for why the policy statement should not be given deference. I know you said because it didn't go through notice -- through notice; but outside of that, why isn't this a HUD interpretation that the statute tells us HUD can do, an interpretation of the statute. We can argue
about whether it's an interpretation of Regulation X or not, but why wouldn't it be entitled to deference? MR. HEFFERON: It certainly is an We agree with that. And
interpretation of the statute.
36 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 HUD is given the authority -- now the bureau, previously HUD -- is given authority to interpret the statute. In this instance, there's not a -- the policy statement should not be due special deference for several reasons. First of all, it's incomplete. It
purports to be an interpretation of this statute, and it only touches very briefly and very generally on the language. All the words that we have all spent a lot of
time working on in this case, HUD says very little about that. It also doesn't - JUSTICE SOTOMAYOR: The Second Circuit had
said something a lot different, and HUD came back and invited HUD to do something, and HUD came back and said: You read it that way; we think this is a better reading. What more do we need from an agency? MR. HEFFERON: Because it, it did not treat
the subject with the kind of depth that you would expect or that this Court would want. JUSTICE KAGAN: Well, Mr. Hefferon, I don't
think that is true that -- we defer to agencies, not because we think that agencies do statutory interpretation in exactly the way courts do. We
actually defer to agencies because we think they provide something different, not because they are the best parser of statutory language, but because when they see
37 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 ambiguity they are able to import policy judgments into that ambiguity. agency did here. MR. HEFFERON: What the agency did on that And that seems to me exactly what the
point is it simply said that if one construes it the way they would like to construe it, it would address the concern that Congress had for unnecessarily high settlement charges. It provided no empirical or It
experiential explanation for why that was the case. didn't say that this type of practice was going on;
didn't say that the interpretation was going to address it. Furthermore, it didn't deal with the fact that its
interpretation also was going to sweep in price control and what effect that would be. In other words, the agency did not -- did not do the types of things that would cause this Court to defer to it. JUSTICE SCALIA: When an agency is
construing a criminal statute, a statute providing for criminal penalties, do you think the agency is constrained to apply the rule of lenity and to assume that if there is ambiguity it should be interpreted in favor of the defendant? MR. HEFFERON: Yes, Your Honor, because
the -- this is a criminal statute, and it is

38 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Honor. JUSTICE BREYER: All right. If you have, do particularly difficult, it seems to us, to give a policy statement deference because in order to get to the policy statement you have to assume the statute's ambiguous and then assume the regulation's ambiguous, and then you get to the -- the policy statement. It
would be appropriate for this Court to impress upon the agency to be quite clear and to be quite solicitous of defendant's rights to make sure that it doesn't interpret this statute broader than what - JUSTICE BREYER: Well, in 1992 they
promulgated the regulation, which is the strongest argument I think on the other side. argument. It's a strong
Have you -- has anybody looked at that Have you looked at it?
notice-and-comment proceeding? MR. HEFFERON:
We absolutely have, Your
they go into this point, a point about the point being this is a kickback statute? price regulation statute. It isn't an overcharge Therefore, promulgating a
regulation that makes it a crime, a federal crime to overcharge, which is what the regulation says, is outside the scope of the statute. that argument? Now did someone make
If so, I would like to be able to read
it, and I would like to be able to see what the agency

39 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 said in response. MR. HEFFERON: Justice Breyer, the
regulatory history around this section, which is in Regulation X, is actually quite interesting and quite favorable to the reading the Fifth Circuit gave to the statute. The regulation does appear in 15a and 16a of
the blue brief. When it was proposed, there was no discussion whatsoever that suggested that HUD was going to actually legislate or regulate about the statute. merely at the time it was proposed, the regulation was going to be to recite section 2607(b), and that's it. It referred to the section as being a fee-splitting section. When the final rule was issued, there were three additional sentences added in this part of the regulation. There was no explanation for those three It
sentences, with the exception of HUD's general comment that it made other changes in this part of this regulation in order to address what services - JUSTICE BREYER: So you would say - Counsel, I'm sorry. May
JUSTICE SOTOMAYOR: I just correct you on that? MR. HEFFERON: Sure.
JUSTICE SOTOMAYOR:
Didn't HUD in that
40 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 preamble say explicitly, "The Secretary, charged by statute with interpreting RESPA, interprets 18(b) to mean that two persons are not required"? explicitly. MR. HEFFERON: statement, that's correct. JUSTICE SOTOMAYOR: Not in the policy It says that in the policy It says that
statement; in the preamble to Regulation X. MR. HEFFERON: In the - In, in 1996. I thought
JUSTICE SOTOMAYOR:
that was the final rulemaking you were talking about, because it didn't do rulemaking with respect to the policy statement. MR. HEFFERON: That's correct. The 1992
regulation is entitled "No split of charges other than for actual services." And so we read the regulation and
believe HUD at the time read the regulation as again merely repeating the idea that this was, this section was a limited section consistent with Congress's - JUSTICE BREYER: Is this a fair statement in
your view, and we will hear this on rebuttal, that in respect to the 1992 regulation there is a sentence which says, "A charge by a person for which nominal services are performed is an unearned fee and violates this section"? All right, I've ellipsed part.
41 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 All right, it says that. is taken as being: And that later on
This statute is a, to that extent, a
price regulation statute. Is it fair to say that notice of such a regulation was not given? MR. HEFFERON: Justice Breyer. Absolutely correct,
Notice was not given that that was As this Court
going to be put into the regulation. noted in Long Island Care At Home - JUSTICE BREYER: respect to that? MR. HEFFERON:
Was comment received in
I don't know whether
comment -- I don't know comment was received or not. There was no indication in the final rule when it discussed comments that that issue was commented upon. CHIEF JUSTICE ROBERTS: What -- You were you
about to tell us what we said in Long Island Home. MR. HEFFERON: In Long Island Care At Home,
the Court merely repeated in particular statements made in Chevron and Mead that, among other things, a regulation cannot get deference unless it -- if it is procedurally defective. In this instance -- and it
talked about the fact that circumstances sometimes arises when a notice of proposed rule doesn't give the public a notice that there is going to be something
42 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 happening so there is no comment given on a particular subject. And in this instance, that's precisely what occurred, which is one reason why Regulation X should not get special deference from this Court. JUSTICE SOTOMAYOR: But I'm not sure.
Congress didn't say that HUD could only give interpretations through rules. It said it could give
rules, pass rules and regulations, and give interpretations. So what's the procedural defect in it
just giving an interpretation? MR. HEFFERON: procedural defect. Well, there is not a
The issue is really a question of
which how much deference to give the agency when it gives the interpretation. JUSTICE SOTOMAYOR: We go back to whether
the policy -- whether the policy -- whether the statute is ambiguous or not. MR. HEFFERON: Correct, as well as if it is,
whether one gives Chevron deference. JUSTICE SOTOMAYOR: And what I'm trying to
figure out is what's the deficiency in the policy statement that's independent of the ambiguity you rely upon. MR. HEFFERON: Sure. What it is, is -- it
43 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 is incomplete; it doesn't give a -- an effective statutory analysis. It doesn't really give any It's also inaccurate in that
effective policy analysis.
it attempts to recount that this is a -- a reading which is of long standing, when we believe, and we cite in the red brief - JUSTICE SOTOMAYOR: longstanding for it - MR. HEFFERON: It attempts to explain why it Well, it says it's
is a finding -- a ruling of long standing, and we point out examples in the red brief where it isn't a finding of -- an interpretation of long standing. CHIEF JUSTICE ROBERTS: Which -- putting
aside the notice-and-comment point, which I think is at least ambiguous, which -- which of our cases stands for the proposition that whether or not we give Chevron deference depends on the thoroughness with which the agency addressed an issue, rather than simply an announcement of its interpretation? MR. HEFFERON: I believe that that was -- I
believe that that was a factor that the Court looked at in Long Island Care at Home. But the question for the
Court in this instance is, should it give this policy statement deference? If it doesn't qualify for Chevron
deference, then the question is, does it have the power

44 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct. that? MR. HEFFERON: JUSTICE SCALIA: Sure. We don't give deference to to persuade? thoroughness. Part of the power to persuade is its As Skidmore itself says, the detail in
which it addresses things, how it addresses arguments on the other side, and what it says about those arguments. JUSTICE SCALIA: But you concede that if we
give it Chevron deference, you lose? MR. HEFFERON: JUSTICE SCALIA: On the policy statement? No, on both -- the case.
If we give either the policy statement or the rule, Chevron deference, you lose. MR. HEFFERON: Is that right?
If the Court then also finds
that it's deserving of Chevron deference, that is correct. JUSTICE SCALIA: Ah. You want to talk to
interpretations that are beyond the limits of what the language will bear, do we? MR. HEFFERON: That -- that's absolutely
And it -- and it would be quite an odd result
for this Court to find that the policy statement effected some kind of price controlled direct rate regulation regime when that was specifically rejected by Congress in 1974.
45 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUSTICE SOTOMAYOR: little confused. Counsel, I'm -- I'm a
Under your interpretation or theirs,
the Court gets involved in determining whether fees, services were rendered. I mean, it's not as if your
interpretation is going to keep the Court out of that business. To be able to find a kickback, the Court has So
to determine whether services were rendered or not.
what's the difference in that inquiry when it involves a kickback and when it involves a single provider? In a kickback situation, the Court has to decide whether there was actually a service rendered that entitled the person to a percentage or not; correct? MR. HEFFERON: That's correct. So what's the difference
JUSTICE SOTOMAYOR:
between deciding that question and deciding that the - the one individual provided a service? MR. HEFFERON: We agree that in each
instance, the Court would have to make a factual determination. But it comes back to what Congress It specifically identified that it
intended in 1974.
was attempting to address certain abusive practices that had arisen in some areas. JUSTICE SOTOMAYOR: And it listed, as Why would it
Justice Ginsburg said, unearned fees.

46 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 matter to Congress? Give me a reason that it would
matter to Congress whether the unearned fee was by one person in a dual relationship or a single person alone? The issue was unearned fees. a service you didn't render. Rendering -- charging for That's what the whole
kickback idea was about, correct? MR. HEFFERON: That's with respect to
settlement service providers. JUSTICE SCALIA: earlier answer? it never came. MR. HEFFERON: On the question of whether or Did you complete your
I was just waiting for your point, and
not to provide Chevron -- actually provide deference, if Chevron was applicable? If Chevron's applicable to
policy statement, the policy statement does not deserve Chevron deference because it is an irrational reading of the statute. The statute does not cover the kinds of
direct regulation that the policy statement suggests that it cover. JUSTICE KAGAN: Mr. Hefferon, you might be
right that we never get to Chevron deference here because the statute is plain on its face, and there's no ambiguity for the -- the agency to think or do anything about. But let's just assume that there is ambiguity on
the statute, and the question is whether to provide this

47 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 interpretation with Chevron deference. So then, what's your argument for why there should be no Chevron deference to this interpretation, given that the statute under which this interpretation was promulgated refers identically to regulations and interpretations as something that HUD gets to do? MR. HEFFERON: Well, the statute does give
HUD interpretive authority, but in this instance, what it is doing -- in fact, it's not quite clear what words it is interpreting in a way, trying to -- trying to interpret the words, and any vague aspects of the words -- is not a gap-filling situation that we're talking about. Congress reasonably in this statute, as well as in the Truth in Lending Act, provided that the agency would have interpretive authority. A lot of what this
agency was going to be doing with respect to this statute is filling a lot of gaps. the special information booklet. these forms that I referred to. JUSTICE SCALIA: Doesn't any agency have It's going to create It's going to create
interpretive authority regarding the statute its implementing? MR. HEFFERON: JUSTICE SCALIA: That's correct. Is there agency that
48 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 doesn't? MR. HEFFERON: would think - JUSTICE SCALIA: specifically conferred? MR. HEFFERON: specifically conferred. JUSTICE SCALIA: it's specifically conferred? MR. HEFFERON: I don't believe the Court's Is it at all increased when I don't believe it has to be Does it have to be Certainly, most agencies
precedents suggest that it's increased if Congress has gone the next step to actually say "you have the authority to interpret the statute." The question is,
for purposes of -- of deference, is what is the question? The question that HUD sometimes -- that HUD
is deciding what form should go on the form, then that's interstitial lawmaking, and that's certainly something that might get more deference than if a question is interpreting the legal effect of these words that appear in 2607(b), it is not -- it's not a definition; they're not purporting to apply a definition; they're not filling a gap. And so this is -- this is not where you would look towards a Chevron deference. But Congress is
not expecting that -- that HUD would, after it has

49 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decided not to allow direct regulation of charges, that HUD would nonetheless try to do it through the back door through the interpretative - JUSTICE KAGAN: That's just a way of saying But I was suggesting
that there's no ambiguity here.
that if there is ambiguity here, I -- at least I have not found a reason not to give HUD deference in this situation. job. I mean, you say they didn't do a very good
But we don't usually grade agencies like that, and
say, well, you didn't do a very good job, so you're not entitled to Chevron deference. MR. HEFFERON: The nature of the question
that HUD's addressing is interpreting the legal - basically giving a legal interpretation of the statute. It doesn't really purport to give a policy interpretation of the statute because it simply refers to - JUSTICE SCALIA: interpretations all the time. MR. HEFFERON: But it is a -- the question We give deference to legal
of whether Congress intended -- whether they intended HUD to be giving the interpretation, or filling a gap, or whether it was simply getting guidance. JUSTICE SCALIA: I have no idea. What, am I
supposed to psychoanalyze Congress in every Chevron

50 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 case? MR. HEFFERON: HUD issued the policy
statement as a guidance document. JUSTICE BREYER: No, no. That's a good
question, and your problem is different people feel differently about the answer, which is why from my perspective --- and perhaps you're only answering a question for me and no one else has it -- but I would be pretty interested to know whether when you looked at the legislative history of this, what you discovered was a lot of complaints about consumers paying for things they didn't get, period. Which favors HUD's interpretation.
Or whether you see a whole long list of complaints about consumers having to pay referral fees, where that's just one person taking advantage of another person's business. relevant. I would -- I think it would be
And then if you've looked at all this, which
you can tell me you have, and I will try to -- but what do you find? MR. HEFFERON: don't find either. Your Honor, you actually
What you find is complaints about
providers doing things between each other, and a recognition that ultimately, the consumers perhaps unknowingly are being harmed by that. The Senate Report
and House Report both described that in great detail.

51 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 We are talking about rebates, commissions, unearned commissions and kickbacks and referral fees. That's what Congress identified in 2601 as the "certain abusive practices" that had arisen in some areas of the country. panacea. This was not meant to be a And in
State law remedies stayed in place.
fact if you look at most of the court of appeals cases that give rise to these -- this circuit split, they all also bring a claim under State law, whether it's fraud or contract or unjust enrichment. That only drives the point home that it is not irrational for Congress to have decided when it was taking a step into this area for the first time to actually legislate an important area, but not go all the way, and instead leave other remedies in place. And
that's what the proper reading of this statute should be; that's the reading the Fifth Circuit gave it as well. JUSTICE GINSBURG: Did you give a complete
answer to the question what does (b) cover that (a) does not? So one -- one suggestion that is made is well, you
didn't -- if all this statute has to do -- do, with is kickbacks, then all you need is (a) and there is no necessity for (b). You said one thing was contract,
approving a contract, and not -- is there anything else?

52 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 MR. HEFFERON: Thank you, Justice Ginsburg.
Actually I didn't give a complete answer now that I recall. It does cover -- the best example is the
classic reason why the -- this section was put in, in the first place, why it was proposed; and that would be an unearned commission. Title insurance companies at
the time would enter into commission agreements with agents where the agent would get 10 percent of the title premium; in exchange the agent would do the title work. In a situation, if the title agent in fact didn't do the title work, it would be receiving an unearned fee, that is, part of the title insurance commission, for no work. And that, however, would not
normally be covered under (a) because the agreement, the underlying agreement to give the commission was not to refer business; it was actually to do some of the title work. So that situation would be covered, but most situations, as I think all parties agree, is this statute is -- is typically a kickback, it just simply removes the agreement requirement. JUSTICE SCALIA: And under -- under (b) Under (b)
there doesn't have to be an agreement to pay.
there doesn't have to be an agreement to pay the title company to nor work. It's just if it's a -- if it's a
53 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 refinancing and the title company did the same title search, you know, two years ago, it says heck, I'm not going to do it again, but it still gets the 10 percent, right? MR. HEFFERON: JUSTICE SCALIA: That's correct. Even though there is no
agreement to pay it for no work. MR. HEFFERON: That's correct.
So in sum, the elements of the Fifth Circuit's interpretation are all supportive of our view, that is, that the language, the structure, the context and the history of this statute all show that it is important but it's limited; and it does not address direct charges made by lenders, and the Fifth Circuit had it right. JUSTICE SOTOMAYOR: I'm sorry, could you go If a -- if a bank
back to Justice Scalia's question?
has an appraisal fee from the past and decides, I don't need a new one, but still charges you for an appraisal fee, would that violate the statute? MR. HEFFERON: If the -- I think the
question was in the context of the title agent doing the title work. If an appraiser was charging -- was
charging the consumer directly, not doing the work, it would not violate the statute, again, because the
54 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 under - JUSTICE SCALIA: They would be liable under statute requires two providers - JUSTICE SOTOMAYOR: Or if the bank charged
you for a title search that it did? MR. HEFFERON: If -- if the bank arranged - If it had one already?
JUSTICE SOTOMAYOR: MR. HEFFERON:
If the bank arranged for a
title searcher to do title work, and then the bank charged the consumer, and then it split the charge with the title searcher - JUSTICE SOTOMAYOR: No, no. So, going back
to Justice Scalia's question, if the provider decides I'm going to use what I had before; I'm not going to redo the work, but still charges you a second time, they are not liable under your reading of the statute? MR. HEFFERON: Not under 2607(b) and perhaps
State law, I assume, for fraud, wouldn't they? MR. HEFFERON: That's correct. CHIEF JUSTICE ROBERTS: MR. HEFFERON: Thank you, counsel. State law, I would assume so.
-- thank you. Mr. Russell, you
CHIEF JUSTICE ROBERTS: have 5 minutes.
REBUTTAL ARGUMENT OF KEVIN K. RUSSELL

55 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 correct. JUSTICE BREYER: MR. RUSSELL: two-step analysis. No? ON BEHALF OF THE PETITIONERS MR. RUSSELL: Thank you. Justice Breyer,
you had asked why Congress would engage in a statute that gets at overcharges and there is a rate regulation kind of thing, which is very unusual, and I agree it's unusual. That's a reason to read this statute not to do
that, to only get at truly unearned fees, which are the equivalent of fraudulent fees, which the law does forbid pervasively. In this case, Congress - JUSTICE BREYER: -- you are outside the reg. Once you say that, you're I mean, when you read the
reg and the policy statement, it's pretty clear what they are thinking of. MR. RUSSELL: No, to be - And the policy statement is
JUSTICE BREYER:
even clearer; what they are thinking of is overcharges, period. MR. RUSSELL: No, I don't think that's
I think that there was a
First step is they decided that
split fees are not the only thing that the statute gets at. And then -- but this -- an unsplit fee starts to be
unearned, and they had a separate interpretation of what

56 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 it means for a fee to be unearned. JUSTICE GINSBURG: policy statement? and - MR. RUSSELL: It's towards the end where At any rate -
Where is that in the
The difference between unearned
they enumerate the different kinds of unearned fees. JUSTICE BREYER: It's here. It's on -- it's
on 5305.7 and what they are explaining is that -- and they are talking about a third situation and they say one settlement service provider charges a fee to a consumer where no work is done, or the fee exceeds the reasonable value of the services performed by that provider. MR. RUSSELL: That's correct. And so if it exceeds the
JUSTICE BREYER:
reasonable value of the services performed by that provider, you have to say, what is the reasonable value of the services performed by that provider? And that
involves the agency in the job of deciding what's a fair or just price for this particular service. MR. RUSSELL: with you about that. I'm not -- I'm not disagreeing
They list four different -- or
three or four different kinds of charges that could be unearned. You don't have to agree with them with
respect to each of those things.

57 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JUSTICE BREYER: But what I'm doing there,
you see, is now I'm trying to make sense out of an agency interpretation which is other than what it says, where what they're trying to do is to change the nature of the statute from a kickback statute into a statute that protects consumers across the board from paying for things they don't get. MR. RUSSELL: Well, I would - Now that's where I'm sort
JUSTICE BREYER:
of interested in what the legislative history said, etcetera, etcetera. thought coming in. It's much more complicated than I I have to look at a lot of things. Sure. Well, Congress said its
MR. RUSSELL:
purpose was, was to get at abusive practices that unnecessarily increase the costs of settlement. What -
the legislative history was focused on kickbacks, but there were examples in the HUD/VA report at page 16 of that report and in the Washington Post articles about markups that are a form of undivided, unearned fee. Congress knew subsequent to the passage of this statute, HUD has frequently found and reported to Congress instances of unearned fees, including those involving loan discount fees; and the States -- 21 States have filed a brief in this case tell you that there is a pervasive problem with settlement closings
58 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 included padded charges for things that were never performed. With respect to the agency's interpretation, I would point you particularly to this 1996 rulemaking where the agency withdrew an exemption for certain payments between consumers and providers for the use of a particular kind of computer service. That exemption would have been unnecessary had HUD thought, as Quicken does, that the statute only regulates transactions between providers. And in
withdrawing that exemption, HUD explained in quite a lot of detail that it rejected specifically that -- the split fee requirement. And so I don't think there is
any question that they have grappled with this question and that they have explained why they think that split fees aren't covered. The question ultimately is whether that's a reasonable conclusion in light of this statute - JUSTICE BREYER: And then part of that is - I
you might want to say something about the other part.
mean the purpose of this kind of APA/Chevron stuff is to prevent agencies saying the supreme importance of their own mission, taking a statute, running with it and in particular transforming into a criminal law something that really wasn't much there.
59 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
Now procedure is important in that.
And
that's why I'm very interested in whether -- whether - whether they gave notice to the public: "Dear public,
we are thinking that this is far more than a kickback statute. that." MR. RUSSELL: They gave -- they gave the We would like to hear what you think about
public more notice than the Court found sufficient in Long Island Care At Home, which is, they told the public this provision is at issue; we are going to issue an interpretation about it; and they ultimately did. In
Long Island Care they did the opposite of what they had proposed to do, and this Court said that was enough. this case -- and even in 1996, they received comments with respect to the case law that said that only splits are required and they said we disagree. CHIEF JUSTICE ROBERTS: Counsel. The case is submitted. (Whereupon, at 11:12 a.m., the case in the above-entitled matter was submitted.) Thank you, counsel. In
60
A able 37:1 38:24 38:25 45:6 above-entitled 1:11 59:21 absolutely 38:15 41:6 44:20 abusive 28:20 45:22 51:4 57:14 accept 11:23 14:11 16:16,21 16:22 23:25 24:7 34:23 accepted24:18 accepter24:17 accepting 3:14 13:9 18:12 24:21 acceptor 14:11 accepts 3:15 7:15 accurate 21:22 act 3:13 15:20,23 47:15 action 19:21 actions 18:11 actual 40:16 added39:16 additional 23:24 39:16 address 7:3 33:24 37:6,11 39:20 45:22 53:13 addressed32:22 43:18 addresses 44:3,3 addressing 32:16 49:13 administering 3:12 advantage 50:15 advisable 29:2 agencies 22:2
36:20,21,23 48:2 49:9 58:22 agency 3:11,22 4:5 21:21 36:15 37:3,4,15,18 37:20 38:7,25 42:14 43:18 46:23 47:15,17 47:21,25 56:19 57:3 58:5 agency's 58:3 agent 15:5 52:8,9 52:10 53:22 agents 52:8 ago 53:2 agree 18:20 24:12 32:11 34:16 35:25 45:18 52:19 55:5 56:24 agreed26:20 agreement 29:10 29:15,16,17,20 30:1,2,21 52:14 52:15,21,23,24 53:7 agreements 52:7 Ah 44:14 ALITO 17:12 alleged10:20 allow49:1 ambiguity 21:4,5 37:1,2,22 42:23 46:23,24 49:5,6 ambiguous 21:7 38:4,4 42:18 43:15 amended5:11 7:8 American 21:25 Amicus 1:19 2:7 18:6 amount 23:4 31:1 31:5 analysis 43:2,3
55:22 ANN 1:17 2:6 18:5 announcement 43:19 answer5:10 16:11 46:10 50:6 51:20 52:2 answerable 14:16 answering 50:7 answers 4:2 anybody 26:8 38:13 anybody's 22:22 23:22 APA/Chevron 58:21 appeals 5:8 51:7 appear 29:19 30:2 39:6 48:19 APPEARANC... 1:14 appendix 15:20 19:19 applicable 46:14 46:14 applies 26:9 34:18 apply 16:25 19:13 37:21 48:21 apportioning 7:25 appraisal 10:19 12:2,3,4,9,18 14:7,20,21 53:18,19 appraisals 6:11 11:7 appraiser10:17 53:23 appropriate 38:6 approving 51:25 area 28:10 35:10
35:11 51:13,14 areas 28:21 35:10 45:23 51:5 argue 35:21 argues 5:14 arguing 16:2 argument 1:12 2:2,5,9,12 3:4,7 5:19,23,24 7:21 18:5 28:2 38:12 38:13,24 47:2 54:25 arguments 44:3 44:4 arisen45:23 51:4 arises 41:24 arose 6:9 arranged54:4,6 arrangement 33:10 articles 57:18 aside 43:14 asked55:3 aspect 15:17 aspects 47:11 Assistant 1:17 associated8:17 assume 21:1 37:21 38:3,4 46:24 54:18,19 assumption 5:8 27:18 attempting 45:22 attempts 43:4,9 attorney 29:21 29:21 attributable 17:16 authority 3:24,25 36:1,2 47:8,16 47:22 48:13 avoid 10:11 aware 32:25 a.m 1:13 3:2
59:20 B b 14:17 29:5,15 30:18 31:18 34:16,19 35:8 51:20,24 52:22 52:23 back 15:4 29:3 36:12,13 42:16 45:20 49:2 53:17 54:10 bank 11:10 13:5 13:15,16 18:25 53:17 54:2,4,6 54:7 basically 49:14 basis 6:12 7:5 22:12,24 bear 44:19 behalf 1:15,21 2:4,7,11,14 3:8 18:6 28:3 55:1 believe 15:19 22:4 31:6 40:17 43:5,20,21 48:6 48:10 benefit 21:3 best 8:8 35:16 36:24 52:3 better36:14 beyond 44:18 big 16:15 21:24 22:6,6 32:1 bill 11:12 23:6 blue 7:14 28:19 39:7 board 57:6 booklet 47:19 borrow4:23 5:21 borrowed5:22 borrowing 5:20 bottom 17:14,20 breaks 17:14 Breyer4:17 5:2
61
5:18 6:23 11:9 11:20 12:7,15 12:19,22,25 13:5,14,19,25 14:4 18:18,22 19:4,6,23 20:2 20:5 21:15 22:8 27:5,17 38:10 38:17 39:2,21 40:20 41:7,10 50:4 55:2,10,15 55:20 56:7,15 57:1,9 58:19 brief 7:14 19:5 19:20 28:19 39:7 43:6,11 57:24 briefed7:4,6 briefly 36:7 briefs 18:23,24 19:7 bring 4:1 19:21 51:9 broader38:9 broadly 15:14 brought 22:5 build 29:24 bunch10:3 bureau 36:1 business 15:6 30:4,17 45:6 50:16 52:16
21:10 22:10,10 23:19 25:10,12 25:24 27:17 29:13 36:9 37:9 44:8 50:1 55:9 57:24 59:14,15 59:19,20 cases 11:7 20:11 43:15 51:7 categories 17:15 17:16 cause 37:16 caused28:20 cert 7:11 certain 28:20 45:22 51:4 58:5 certainly 7:22 9:13 11:5 17:3 30:8 35:24 48:2 48:17 certifications 11:8 change 12:5 13:11,13 57:4 changes 39:19 charge 3:14,16 3:22 7:17 11:10 12:3,13 13:9,24 14:19,21 17:13 23:4,19 24:1,3 24:4,4,17 25:5 26:6,15,16,22 40:23 54:8 C charged3:11 C 2:1 3:1 12:1,2,17 13:11 called30:11 13:13 14:19,20 canon 9:11,12,15 26:3,3 40:1 9:17 54:2,8 Care 41:9,18 charges 7:15 43:22 59:9,12 11:23 15:24 carefully 28:9 16:2,3 26:2 case 3:4 5:3,14 27:2,3 28:10,12 5:15,17 6:7,22 28:13,20 29:9 6:23 9:24 10:2 37:8 40:15 49:1 10:17 11:19 53:14,19 54:13
56:10,23 58:1 charging 13:16 20:23 26:15 46:4 53:23,24 Chevron 41:20 42:20 43:16,24 44:6,10,12 46:13,14,16,21 47:1,3 48:24 49:11,25 Chevron's 46:14 Chief 3:3,9 7:20 8:3 9:19 10:14 10:25 18:2,8 25:18 27:24 28:4 34:20 35:2 41:16 43:13 54:21,23 59:17 circuit 6:9 7:10 36:11 39:5 51:8 51:17 53:14 Circuit's 5:12 53:10 circumstance 6:10 31:9 circumstances 18:19 41:23 cite 43:5 City 17:4 claim 51:9 clarify 16:2 classic 9:24 52:4 clear 8:19 35:5 38:7 47:9 55:12 clearer55:16 close 20:12 closing 26:19 27:4 28:14 29:9 29:20 closings 29:23 57:25 collected18:13 collects 18:16 come 33:7 comes 27:18
45:20 coming 57:12 comment 39:19 41:10,13,13 42:1 commented 41:15 comments 41:15 59:14 commission 52:6 52:7,13,15 commissions 33:23,23 51:1,2 common6:10 9:14 33:4,5,10 33:13 companies 52:6 company 10:18 10:21 14:12 52:25 53:1 compensable 30:17 complaints 50:11 50:14,21 complete 46:9 51:19 52:2 completely 17:24 25:16 complicated7:6 57:11 comprehensive 16:12 computer58:7 concede 44:5 concern 27:15 37:7 concerned27:20 conclusion 58:18 conduct 33:20,24 conferred48:5,7 48:9 conflict 7:10 confused45:2 Congress 3:11 5:10,24 7:8 8:8
15:18 17:18,19 22:4 28:6,9,16 28:22,23,25 29:14 30:15 31:21,23 32:15 33:2,21,24 34:11,23,25 35:5 37:7 42:7 44:25 45:20 46:1,2 47:14 48:11,24 49:21 49:25 51:3,12 55:3,9 57:13,20 57:22 Congress's 40:19 connection 33:11 considering 6:17 6:19 consistent 31:15 40:19 constrained 37:21 construe 12:13 37:6 construed3:13 4:5 construes 37:5 construing 9:17 37:19 consumer3:16 11:17,25 12:25 13:19,20,23 14:13 18:14,16 18:18 19:1,25 20:7,8 21:12,13 24:5,18 53:24 54:8 56:11 consumers 11:21 19:14,22 20:18 20:24 26:24 28:16 50:11,14 50:23 57:6 58:6 consumer-pro... 24:9
62
context 5:3 53:11 53:22 contract 51:10 51:24,25 control 21:20 27:14 37:13 controlled28:8 44:23 controls 29:2 converting 8:11 correct 4:5 5:16 14:14,18 15:12 30:15,22 31:2 31:20 35:13 39:23 40:6,14 41:6 42:19 44:13,21 45:13 45:14 46:6 47:24 53:5,8 54:20 55:19 56:14 corresponding 23:20 costs 57:15 counsel 30:24 35:14 39:22 45:1 54:21 59:17,18 country 28:21 51:5 courier6:11 11:8 11:11,13 13:16 13:16,20,21,24 27:11 course 21:19 24:4 34:1 court 1:1,12 3:10 5:8 6:12,15 7:11 16:21 18:9 25:10 27:19,21 28:5 32:9 36:18 37:16 38:6 41:8 41:19 42:5 43:21,23 44:11 44:22 45:3,5,6
45:10,19 51:7 59:8,13 courts 4:25 7:3 36:22 Court's 48:10 cover9:21 15:19 24:20 46:17,19 51:20 52:3 covered5:13 7:18 16:9 24:13 24:14 25:11 31:7 52:14,18 58:16 covers 9:21 16:2 29:18 32:10 create 47:18,19 creates 11:22 crime 11:17 38:21,21 criminal 20:20 21:2 37:19,20 37:25 58:24 critical 11:24 culpable 24:16 Curiae 1:19 2:8 18:7 customer14:13 customers 25:3 cutting 23:4
53:18 54:11 deciding 21:21 45:16,16 48:16 56:19 decision 5:12 34:12 35:5,9 defect 42:10,13 defective 41:22 defendant 21:3,6 21:9 37:23 defendant's 38:8 defer36:20,23 37:17 deference 3:20 16:24 17:1,6 35:17,23 36:4 38:2 41:21 42:5 42:14,20 43:17 43:24,25 44:6 44:10,12,17 46:13,16,21 47:1,3 48:14,18 48:24 49:7,11 49:18 deficiency 42:22 defined5:25 defining 32:8 definition 32:6,7 34:14 48:20,21 Department 1:18 D depending 13:8 D 3:1 depends 43:17 deal 7:8 37:12 deprived15:1 Dear 59:3 depth 36:17 debate 22:6 deputized34:1 debates 6:6,7 described50:25 decades 3:11 deserve 46:15 decide 5:1,3,9 deserving 44:12 6:16 7:5,11 designed15:13 10:1,8,17 23:14 detail 44:2 50:25 27:20 45:11 58:12 decided6:12 determination 8:16 30:16 49:1 22:23 45:20 51:12 55:22 determine 45:7 decides 6:22,23 determining
20:20,22 22:3 45:3 developed28:21 developer29:21 development 29:23 difference 21:17 32:2 45:8,15 56:3 different 9:22 10:7 13:8 30:19 36:12,24 50:5 56:6,22,23 differentiate 22:12 differently 50:6 difficult 10:1 38:1 direct 28:24 44:23 46:18 49:1 53:14 directly 3:16 18:16 53:24 disagree 17:1 59:16 disagreeing 56:21 disclose 17:20 disclosure 17:24 28:12 discount 5:13 6:4 6:8 11:6 23:18 25:13 26:3 57:23 discovered50:10 discretion 19:24 20:3,12,16 discussed41:15 discussion 39:9 disparate 17:6,8 dissent 32:1 distinction 25:6 distinguish22:24 divided4:7 division 8:6
document 50:3 doing 21:20 26:25 28:9 47:9 47:17 50:22 53:22,24 57:1 door 49:2 double 15:13 doubt 21:3 drives 51:11 dual 46:3 due 36:4 duty 15:13 D.C 1:8,15,18,21 E E 2:1 3:1,1 earlier46:10 earn 10:10 34:24 earned10:6,23 11:3 20:22,24 21:14 22:20,23 23:6,15 27:22 34:13,21,23 effect 14:24 15:2 37:14 48:19 effected44:23 effective 43:1,3 either6:15 8:14 44:9 50:21 elements 53:9 eliminates 29:9 ellipsed40:25 embezzlement 9:5 eminently 3:19 4:8 empirical 37:8 encompass 6:3 15:14 encompassed 19:18 ends 29:12 enforcement 19:21 engage 55:3
63
enrichment 51:10 ensure 27:2 enter52:7 entire 5:17 18:17 29:18 34:14,16 entirely 10:7,13 entitled3:20 17:6 35:23 40:15 45:12 49:11 entrusted8:12 enumerate 56:6 enumeration 16:12 equally 19:12 equivalent 55:8 ESQ 1:15,17,21 2:3,6,10,13 essentially 16:17 estate 3:12,14 5:25 7:18 15:5 20:23 30:17 33:11 estimate 28:13 ET 1:3 etcetera 57:11 57:11 evaluate 23:10 23:13 eventually 6:7 exactly 36:22 37:2 example 8:10 9:5 10:2 13:10 14:23 15:4 29:20 33:22 52:3 examples 43:11 57:17 exceeds 56:11 56:15 exception 39:18 excessive 16:3 32:5
favors 21:6 50:12 February 1:9 federal 21:21 22:2 38:21 fee 3:17 4:18 5:4 5:9 6:8 7:15 8:1 9:25 10:12,20 15:5,15 18:11 18:13,16,17 20:9 21:13 22:10,14,20,25 23:1,14,17,18 23:21 25:2,3,4 25:7,12,13,16 26:3 27:19 30:11,12,13 31:10 34:13 35:10,11 40:24 46:2 52:12 53:18,20 55:24 56:1,10,11 57:19 58:13 F feel 50:5 face 46:22 fees 4:7,12,13,14 fact 3:20 17:3 5:13,15 6:11,11 26:14 28:14 11:6 16:9 19:22 31:24 37:12 20:9,24 22:13 41:23 47:9 51:7 22:14 24:20 52:10 28:23 32:2,2,3 factor 43:21 33:22 34:8,9,15 factual 45:19 45:3,25 46:4 failure 28:18 50:14 51:2 55:7 fair 40:20 41:4 55:8,23 56:6 56:19 57:22,23 58:16 fall 12:11 14:1 fee-splitting falls 16:19 39:13 far 59:4 Fifth 39:5 51:17 farther28:23 53:9,14 fast 4:11 figure 27:22 fastener8:20 42:22 fault 12:8 figured26:5 favor 37:23 filed57:24 favorable 39:5 filling 47:18 favoring 21:9 48:22 49:22
exchange 52:9 exemption 58:5 58:8,11 exist 5:5,6 exorbitant 23:4,7 expect 36:17 expected27:9 expecting 48:25 experiential 37:9 expertise 20:19 20:21 21:19 explain 18:25 19:15 43:9 explained58:11 58:15 explaining 20:4,6 56:8 explanation 19:17 37:9 39:17 explicitly 40:1,4 extent 7:4 41:2
final 39:15 40:11 41:14 find 21:5 32:9 44:22 45:6 50:19,21,21 finder's 30:12,13 35:10,11 finding 28:15 43:10,11 finds 44:11 first 3:4 16:1 22:5 24:3 28:11 28:18 29:7 31:22 34:18 36:5 51:13 52:5 55:22 fits 8:8 flood 11:8 focused57:16 follow29:11 Footnote 19:18 forbid 55:8 forbids 9:2 FORET 1:3 form 32:3 48:16 48:16 57:19 forms 47:20 forth 22:3,7 33:25 found 28:16 49:7 57:21 59:8 four 15:22,23 56:22,23 fraud 51:9 54:18 fraudulent 55:8 Freeman 1:3 3:5 frequently 34:17 57:21 front 4:20 full 8:4 34:2 funding 6:2 funds 8:11 further32:12 Furthermore 37:12
fuss 22:6 G G 3:1 gap 48:22 49:22 gaps 47:18 gap-filling 47:12 general 1:18 16:14 39:18 generally 25:13 36:7 genuine 21:5 getting 4:20 30:11 33:13 49:23 Ginsburg 3:21 4:3 14:9,15 15:9,16 16:4 24:24 25:9 34:6 45:25 51:19 52:1 56:2 give 9:13 11:23 14:11,23,24 17:1,21 18:11 19:2 21:3 23:25 24:6 26:12,22 31:10,14,18 35:16 38:1 41:24 42:7,8,9 42:14 43:1,2,16 43:23 44:6,9,17 46:1 47:7 49:7 49:15,18 51:8 51:19 52:2,15 given12:3 27:7 28:13 35:17 36:1,2 41:5,7 42:1 47:4 giver14:10 15:10 24:16 gives 14:16 31:4 31:16 42:15,20 giving 14:12,19 14:20 18:11 19:11 24:21
64
26:17 30:19 32:18 42:11 49:14,22 go 13:10 32:12 35:18 38:18 42:16 48:16 51:14 53:16 goes 10:16,20 going 11:10 15:18 26:11 31:11 33:20 34:5 37:10,11 37:13 39:9,12 41:8,25 45:5 47:17,18,19 53:3 54:10,12 54:12 59:10 gold 27:12 gold-plated 27:12 good 21:20 49:8 49:10 50:4 goodness 19:6 goodwill 19:25 government 20:13 grade 49:9 Graham5:12 6:5 granted7:11 grappled58:14 great 50:25 gross 33:7 guess 21:8,9 guidance 49:23 50:3 guilty 11:14,17 guise 22:5 H hands 29:12 happen19:24 happening 33:1 42:1 happens 27:13 31:3
harbor11:23 hard 10:4 11:4 22:3 harder10:21 11:5 harmed50:24 head 18:24 headlong 9:17 hear 3:3 40:21 59:5 heck 53:2 Hefferon 1:21 2:10 28:1,2,4 29:4,7,18 30:15 30:22 31:2,6,20 32:9,20,24 33:9 33:15,19 34:11 34:22 35:4,13 35:24 36:16,19 37:4,24 38:15 39:2,24 40:5,9 40:14 41:6,12 41:18 42:12,19 42:25 43:9,20 44:7,11,16,20 45:14,18 46:7 46:12,20 47:7 47:24 48:2,6,10 49:12,20 50:2 50:20 52:1 53:5 53:8,21 54:4,6 54:15,19,22 held 5:12 17:5 Higginbotham 32:1,11 high 28:19 37:7 higher27:8 history 33:1,20 33:25 39:3 50:10 53:12 57:10,16 hold 19:14 home 41:9,17,18 43:22 51:11 59:9
21:17 22:9,9 51:14 53:13 59:1 impress 38:6 inaccurate 43:3 inadvertently 22:4 include 6:1 7:21 included16:14 22:11 26:7 58:1 includes 6:2 including 10:3 28:12 57:22 income 33:7 incomplete 36:5 43:1 increase 28:12 57:15 increased48:8 48:11 independent 42:23 indication 32:25 33:16,19 41:14 indirectly 3:16 I individual 45:17 idea 9:20 20:1 industry 20:23 40:18 46:6 information 49:24 47:19 identically 47:5 injunctive 4:1,3,4 identified17:22 innocent 11:17 28:22 45:21 inquire 22:19 51:3 inquiry 45:8 identifying 33:21 instance 31:11 immense 16:19 36:3 41:22 42:3 16:20 43:23 45:19 impact 17:6,8 47:8 implementing instances 29:19 47:23 31:8 57:22 implicate 34:3 insurance 52:6 implicated34:17 52:12 import 37:1 intended26:24 importance 45:21 49:21,21 58:22 interest 4:21,23 important 17:19 5:21 23:21
Honor 17:4 37:24 38:16 50:20 House 28:25 50:25 HUD 3:22,25 15:19 16:17,24 17:1,1 19:20 20:3,6,19,21 20:25 21:9 22:13 29:3 34:1 35:20,20 36:1,2 36:9,12,13,13 39:9,25 40:17 42:7 47:6,8 48:15,15,25 49:2,7,22 50:2 57:21 58:9,11 HUD's 16:5,6,16 16:22 19:18 20:16 21:2,19 24:25,25 39:18 49:13 50:12 HUD/VA 57:17
25:14 26:1,4,14 27:8,9 interested50:9 57:10 59:2 interesting 39:4 interpret 36:2 38:9 47:11 48:13 interpretation 3:19 4:8 7:7 11:15,16 12:21 15:17 16:5,7,16 17:10 18:21 20:16 21:2,6 22:22 23:13,22 24:15,15 35:20 35:21,22,25 36:6,22 37:11 37:13 42:11,15 43:12,19 45:2,5 47:1,3,4 49:14 49:16,22 50:12 53:10 55:25 57:3 58:3 59:11 interpretations 16:7 42:8,10 44:18 47:6 49:19 interpretative 49:3 interpreted 37:22 interpreting 40:2 47:10 48:19 49:13 interpretive 47:8 47:16,22 interprets 40:2 interstitial 48:17 invited36:13 involve 5:4 11:7 24:22 involved5:15 45:3 involves 7:7 45:8
65
45:9 56:19 involving 5:14 6:4 57:23 irrational 46:16 51:12 Island 41:9,17 41:18 43:22 59:9,12 issuance 16:17 issue 4:18,25 5:16 6:5 9:22 10:7,15 34:3 41:15 42:13 43:18 46:4 59:10,10 issued39:15 50:2 itemized17:21 items 17:22 i.e 5:20 7:17 J Jackson 17:4 job49:9,10 56:19 Judge 32:1,11 judgments 37:1 Justice 1:18 3:3 3:9,21 4:3,10 4:14,17 5:2,18 6:14,20,23,25 7:20 8:3,13 9:6 9:10,19 10:14 10:25 11:9,20 12:7,15,19,22 12:25 13:5,14 13:19,25 14:4,9 14:15,23 15:1,9 15:16 16:4,15 16:23 17:12 18:2,8,18,22 19:4,6,23 20:2 20:5,10,14,19 21:1,15 22:8,17 23:3,9,11,12 23:23 24:12,24
lawmaking 48:17 leave 51:15 left 31:23 legal 48:19 49:13 49:14,18 legislate 39:10 51:14 legislation 29:1 legislative 32:25 33:20,25 50:10 57:10,16 lender3:13 7:15 30:9 lenders 53:14 Lending 47:15 lenity 37:21 let's 46:24 liability 32:12 liable 13:6 19:12 19:14 31:17,19 54:14,17 life 21:25 light 58:18 limited6:2 40:19 53:13 limiting 32:7 limits 44:18 line 17:14,21,22 list 17:21 50:13 K L 56:22 K 1:15 2:3,13 3:7 labeled34:7 listed15:24 54:25 labeling 17:13 45:24 Kagan 23:23 labels 17:19 little 10:21 36:9 24:12 29:4,13 laid 20:17 45:2 36:19 46:20 land 29:22,24 loan 4:22 5:12 49:4 language 4:6,8 6:1,2,4,8 10:3 keep 31:19 45:5 7:13 14:24 10:18,21 11:6 keeping 32:18 24:23 35:15 14:12 23:18 keeps 3:18 36:8,25 44:19 25:12,14,25 Kennedy 20:10 53:11 26:3,9 27:1 20:14,19 22:17 large 15:18 57:23 KEVIN 1:15 2:3 law28:8 31:23 loans 1:6 3:5 2:13 3:7 54:25 51:6,9 54:18,19 10:3 11:1 kickback 5:14 55:8 58:24 local 28:7 31:22 9:24 10:9,10,16 59:15 logic 7:22
25:9,18 26:8 27:5,17,24 28:4 29:4,13 30:6,18 30:24 31:3,13 31:25 32:14,21 32:24 33:3,12 33:17 34:6,12 34:20 35:2,9,14 36:11,19 37:18 38:10,17 39:2 39:21,22,25 40:7,10,20 41:7 41:10,16 42:6 42:16,21 43:7 43:13 44:5,8,14 44:17 45:1,15 45:24,25 46:9 46:20 47:21,25 48:4,8 49:4,18 49:24 50:4 51:19 52:1,22 53:6,16,17 54:2 54:5,10,11,17 54:21,23 55:2 55:10,15,20 56:2,7,15 57:1 57:9 58:19 59:17
15:3,11,14 19:9 19:10 21:18 27:15 30:5,7 31:9 34:17,21 34:23 35:1,3,6 35:12 38:19 45:6,9,10 46:6 52:20 57:5 59:4 kickbacks 6:3 28:22 32:16 33:21 34:7,15 51:2,23 57:16 kicked15:4 kind 10:4,6 11:4 36:17 44:23 55:5 58:7,21 kinds 46:17 56:6 56:23 knew57:20 know5:14 8:18 11:3 16:12 23:4 23:5 26:8 30:13 32:16 35:18 41:12,13 50:9 53:2 knowing 11:12 knowledgeable 26:9
long 4:5 22:13 41:9,17,18 43:5 43:10,12,22 50:13 59:9,12 longstanding 43:8 look 7:12 27:6 48:24 51:7 57:12 looked38:13,14 43:21 50:9,17 looking 13:8 looks 19:9,10 23:23 lose 44:6,10 lot 36:8,12 47:16 47:18 50:11 57:12 58:11 lower4:20 5:22 6:12,15 7:3 27:8,21 M M 1:21 2:10 28:2 maintain 25:6 major28:11 33:7 market 28:7,17 31:23 markups 57:19 matter1:11 7:22 46:1,2 59:21 Mead 41:20 mean 4:19 6:8,20 8:4,5,13,14,14 8:17,20,24 9:15 9:16 10:12 11:1 11:16 17:9,19 19:8,23 21:4 25:6,18 26:10 26:13 40:3 45:4 49:8 55:11 58:21 meaning 7:16 9:13 15:7 29:5 31:14,15
66
means 5:21 8:16 8:20,23 12:13 16:8 26:14 31:1 56:1 meant 33:24 51:5 measure 9:14,16 measured31:21 mechanic 13:11 mention 26:1 mere 26:13 merely 39:11 40:18 41:19 middle 28:7 mine 11:7 27:16 minute 23:3 minutes 54:24 mission 58:23 money 4:20 5:20 29:11,12 30:19 34:24 35:3,6 morning 3:4 mortgage 25:25 26:11 27:1 N N 2:1,1 3:1 nails 8:18,19,19 narrower10:15 natural 7:23 8:5 8:23 12:24 13:12 nature 49:12 57:4 necessary 29:1 necessity 51:24 need8:14 29:10 30:21,23 36:15 51:23 53:19 needed28:17 34:2 never46:11,21 58:1 new53:19 nominal 40:23 normal 21:19
22:13 24:25 passing 28:6 25:1,11 32:4 pay 5:5,20 11:2 55:4,16 12:9,13 13:2,3 overrule 5:11 13:15 14:5 20:9 O'Connell 1:17 21:13 25:20,21 2:6 18:4,5,8,20 26:2 27:4 35:1 19:4,17 20:2,6 35:6 50:14 20:14,21 21:11 52:23,24 53:7 22:8,21 23:8,11 paying 4:20 5:4 23:16 24:12 5:19 11:25 12:6 O 25:9,23 26:23 13:21,21,24 O 2:1 3:1 27:17,25 14:6,7,7 50:11 objection 9:20 57:6 P obvious 19:8 payment 15:21 occurred42:4 P 3:1 19:22 20:8,9 occurs 24:7 package 10:6 27:7 odd 44:21 padded58:1 payments 32:17 offered25:19 page 2:2 7:14 33:6 34:3 58:6 official 8:10 15:20 28:19 pays 11:13 13:19 oh 19:23 20:11 57:17 24:5 oil 13:11,13 paid 12:5 13:4,13 pegs 8:19 okay 9:10 11:9 25:13 29:9 penalties 37:20 34:24 35:1,2,3 panacea 51:6 people 11:23 35:5,11 parcels 29:25 28:13 30:3 50:5 once 24:17 55:10 parent 33:8 percent 7:17,21 one's 31:10 parser36:25 7:25 9:21,23,25 opposed31:5 part 8:15 10:5,5 11:2,2 25:20,22 32:18 10:22 17:9 26:12,12,14,17 opposite 59:12 30:17 32:18 26:20,21 31:4 oral 1:11 2:2,5,9 39:16,19 40:25 31:17,18,19 3:7 18:5 28:2 44:1 52:12 32:10,14,16,17 order6:3 16:21 58:19,20 33:14 52:8 53:3 23:14 35:6 38:2 partial 9:21,23 percentage 7:17 39:20 9:24 7:21,23,24 8:22 ordinary 9:3 particular26:1,4 8:23 21:23 31:1 origination 5:15 28:17,17 29:24 32:10 45:12 6:1 41:19 42:1 perfectly 13:12 outside 35:19 56:20 58:7,24 35:11 38:23 55:11 particularly 17:9 performed7:19 overcharge 38:1 58:4 11:24 12:4 13:4 16:18 17:9 parties 30:23 14:6 15:7,25 22:10,25 25:7 52:19 22:15 23:2,18 32:2 38:19,22 parts 10:22 33:6 23:20 25:2,4,5 overcharges pass 42:9 25:8,17 26:16 15:19,21 22:11 passage 57:20 26:17 30:8,9
31:9 normally 52:14 noted41:9 notice 35:19,19 41:4,7,24,25 59:3,8 notice-and-co... 38:14 43:14 novelty 21:25
32:13,18 40:24 56:12,16,18 58:2 performs 30:20 period 50:12 55:17 person 10:9 14:10,11,12,15 15:10 19:2,2,11 26:9 32:13 40:23 45:12 46:3,3 50:15 personal 8:11 persons 19:11 40:3 person's 50:16 perspective 13:9 50:7 persuade 44:1,1 pervasive 57:25 pervasively 55:9 Petitioners 1:4 1:16,20 2:4,8 2:14 3:8 18:7 25:15,24 55:1 Petitioner's 18:21 19:20 24:15 phone 25:25 phrase 7:22 8:9 8:17 place 51:6,15 52:5 plain 18:10 24:23 35:15 46:22 plate 27:13 please 3:10 18:9 28:5 point 5:19 22:9 22:21 34:5 37:5 38:18,18,18 43:10,14 46:10 51:11 58:4 pointed34:12 points 4:19 6:4
67
11:2,3 25:20,21 26:1,3,7,10,12 26:15,15,18,20 26:22 policy 17:11 19:18,19 20:17 22:11 35:5,17 36:4 37:1 38:1 38:3,5 40:5,7 40:13 42:17,17 42:22 43:3,23 44:7,9,22 46:15 46:15,18 49:15 50:2 55:12,15 56:3 portion 7:16,23 8:4,4,7,9,11,22 8:23,24 9:2,8 10:7,11,16 30:25 32:10 position 22:14 24:25,25 Post 57:18 potential 33:13 power43:25 44:1 practice 26:11 33:4,5,13 37:10 practices 20:23 28:20 45:22 51:4 57:14 preamble 40:1,8 precedents 48:11 precisely 42:3 precluded6:17 6:19 preemption 31:24 premium 52:9 present 6:9 23:5 presented5:9 6:21 27:21 presumptively 30:4 pretty 19:8 50:9
55:12 prevent 58:22 previously 36:1 price 16:17 21:20 27:14 28:24 29:2 37:13 38:20 41:3 44:23 56:20 prices 16:18 21:22 22:3 primarily 28:7,9 principle 34:24 35:1 probably 8:5 31:8 problem7:9 21:17,17 23:24 27:6,6 32:15,23 50:5 57:25 procedural 42:10 42:13 procedurally 41:22 procedure 59:1 Procedures 3:12 proceeding 38:14 procure 25:13 26:3 procured25:15 prohibit 8:10 18:10 prohibiting 3:13 Prohibition34:7 prohibits 9:4 promulgated 38:11 47:5 promulgating 38:20 proper12:23 22:3 35:8 51:16 properly 34:13 proposals 28:24 proposed28:25 39:8,11 41:24
52:5 59:13 proposition 43:16 prosecute 20:7 prosecutor 20:1 20:12 prosecutorial 19:24 20:3,15 protect 11:21 26:24 protection 28:17 protects 57:6 provable 31:8 prove 17:7 29:10 30:23 provide 3:15 36:23 46:13,13 46:25 provided37:8 45:17 47:15 provider3:17,18 18:15 24:5,18 31:4,16 45:9 54:11 56:10,13 56:17,18 providers 18:14 20:25 24:8,21 24:22 46:8 50:22 54:1 58:6 58:10 provider-provi... 24:10 providing 37:19 provision 4:6 7:8 11:22 15:8,13 16:19 17:5,7 29:16 31:24 59:10 provisions 15:15 psychoanalyze 49:25 public 8:10 41:25 59:3,3,8,9 purchaser14:10 pure 35:6
raised6:23 22:6 rate 4:21,23 5:21 23:21 25:14,19 25:20,22 26:1,4 26:14,17,22 27:9 34:3 44:23 55:4 56:1 raw29:22 reached25:1 reaching 4:6,10 4:11 read 9:15 18:23 35:16 36:14 38:24 40:16,17 55:6,11 reading 7:24 8:6 Q 8:23 14:16 qualify 43:24 19:16 30:25 question 4:2,22 35:14 36:14 5:9,10 6:21,22 39:5 43:4 46:16 7:3,6,7 10:1,12 51:16,17 54:14 16:11 19:8 reads 14:10 27:21 42:13 real 3:12,14 5:25 43:22,25 45:16 7:18 15:5 20:23 46:12,25 48:13 30:17 32:15,22 48:15,15,18 33:11 49:12,20 50:5,8 really 10:18 51:20 53:17,22 11:12 42:13 54:11 58:14,14 43:2 49:15 58:17 58:25 Quicken1:6 3:5 reason 6:25 9:20 5:1,14 7:4,4 19:10 20:7 10:3 15:4,10 21:20 32:21 17:13 25:25 35:16 42:4 46:1 58:9 49:7 52:4 55:6 quite 30:19 38:7 reasonable 3:19 38:7 39:4,4 4:9 17:24 25:4 44:21 47:9 56:12,16,17 58:11 58:18 quote 25:24 reasonableness 28:19 22:19 23:14 quoting 28:18 reasonably 47:14 R reasons 6:16 7:2 R 3:1 36:5
purport 49:15 purporting 48:21 purports 36:6 purpose 15:23 16:14 57:14 58:21 purposes 6:9 15:20 28:15 48:14 pursuant 29:15 29:15 put 6:25 41:8 52:4 putting 43:13 puzzling 15:17
68
rebates 33:23 51:1 rebuttal 2:12 40:21 54:25 recall 52:3 receive 19:3 27:3 received10:10 15:22 24:2,4,17 41:10,13 59:14 receiver15:11 receives 15:10 receiving 13:9 19:12 33:6 52:11 recite 39:12 recognition 50:23 recognize 29:1 recognized34:2 recognizing 17:5 recount 43:4 red43:6,11 redo 54:13 reduction 23:20 25:14 refer34:9 52:16 reference 29:17 referral 15:6,11 28:23 30:2,8,8 30:11 31:12 33:22 34:13,25 35:3,7 50:14 51:2 referred33:22 39:13 47:20 refers 19:11 24:9 24:10 34:15 47:5 49:16 refinancing 53:1 reform 28:11 reg 55:11,12 regarding 47:22 regime 44:24 regulate 39:10 regulates 58:10
regulation 17:5 28:24 35:22 38:11,20,21,22 39:4,6,11,17 39:20 40:8,15 40:16,17,22 41:3,5,8,21 42:4 44:24 46:18 49:1 55:4 regulations 17:10 42:9 47:5 regulation's 38:4 regulatory 39:3 reject 16:24 rejected28:24 34:25,25 44:24 58:12 relate 29:8 related9:12 relationship 24:9 24:11 30:3 46:3 relevant 50:17 relief 4:1,3,4 rely 19:25 42:23 remainder18:1 remand 26:5 27:22 remedies 31:23 51:6,15 removes 52:21 render46:5 rendered17:23 21:23 45:4,7,11 rendering 7:18 33:10,17,18 46:4 repeated41:19 repeating 40:18 report 29:3 50:24 50:25 57:17,18 reported57:21 represent 17:23 represents 21:24 reproduced7:13 required40:3
59:16 requirement 17:25 30:1 52:21 58:13 requires 54:1 requiring 17:22 28:12 reserve 18:1 residential 27:1 resolve 7:10 RESPA 26:23 28:6 40:2 RESPA's 28:15 respect 11:6 29:8 40:12,22 41:11 46:7 47:17 56:25 58:3 59:15 Respondent 1:22 2:11 28:3 Respondent's 22:18 23:12 response 39:1 rest 25:5 32:19 result 44:21 retains 18:17 right 3:22 4:24 6:17,23,24 9:9 11:1,14 13:18 13:25 21:8 25:23 29:5 30:14,21 38:17 40:25 41:1 44:10 46:21 53:4,15 rights 38:8 rise 51:8 ROBERTS 3:3 7:20 8:3 9:19 10:14,25 18:2 25:18 27:24 34:20 35:2 41:16 43:13 54:21,23 59:17 rule 21:5 37:21
39:15 41:14,24 44:9 rulemaking 40:11,12 58:4 rules 42:8,9,9 ruling 43:10 run 9:16 11:6 running 58:23 Russell 1:15 2:3 2:13 3:6,7,9,21 3:25 4:4,13,16 4:24 5:7,24 6:18,24 7:2 8:2 8:7,25 9:9,11 10:8,24 11:5,18 11:21 12:12,16 12:20,23 13:2,7 13:18,23 14:2,5 14:14,18,25 15:3,12,16 16:1 16:6,20 17:3,18 18:3 54:23,25 55:2,14,18,21 56:5,14,21 57:8 57:13 59:7 S S 2:1 3:1 safe 11:22 saying 13:15 17:7 20:17,25 21:11 25:21 27:6 31:15 49:4 58:22 says 8:18,21 9:7 9:12 11:10 12:8 15:19,21 17:2 19:1,20 24:25 26:11 29:10,14 29:22 36:9 38:22 40:3,5,23 41:1 43:7 44:2 44:4 53:2 57:3 Scalia 4:10,14 6:14,20,25 8:13
9:6,10 14:23 15:1 16:15,23 21:1 23:3,9,12 26:8 30:6,18 32:14,21,24 34:12 35:9 37:18 44:5,8,14 44:17 46:9 47:21,25 48:4,8 49:18,24 52:22 53:6 54:17 Scalia's 53:17 54:11 scenario 24:13 24:14 schedule 16:17 scope 38:23 search 53:2 54:3 searcher54:7,9 second 22:5 28:15 34:19 36:11 54:13 Secretary 40:1 section 18:10 22:15 28:16,18 31:7,7 34:14,16 35:7,8 39:3,12 39:13,14 40:18 40:19,25 52:4 securing 26:25 see 4:18 13:14 22:19 27:13 34:1 36:25 38:25 50:13 57:2 sees 13:20 sell 29:24 Senate 28:25 50:24 send 29:23 sense 16:3 31:14 57:2 sent 29:2 sentence 40:22 sentences 39:16
69
39:18 separate 18:11 55:25 service 3:15,17 4:19,22 5:4,5 6:1 7:19 11:11 11:13 13:16,17 13:20,21,24 14:5 15:6,22 18:14,15 20:24 21:22,24 22:15 22:25 23:19 24:8,18,21,22 25:2,4,5 26:16 26:16 27:7,11 27:12,12 30:4,9 30:20 31:4,16 32:4,4 45:11,17 46:5,8 56:10,20 58:7 services 7:19 11:8,24 13:3,3 13:4 15:25 17:23 21:14 23:1,17 25:7,16 27:3 30:7 32:13 32:17 33:11,18 39:20 40:16,23 45:4,7 56:12,16 56:18 set 22:2 24:1,8 24:10 33:24 sets 23:24 setting 34:3 settlement 3:12 3:14 5:25 7:18 26:2 28:10,20 30:4 37:8 46:8 56:10 57:15,25 shared18:14 shares 3:17 show17:7 53:12 shows 12:4 28:8 side 4:18,25 5:19 5:23 31:4 38:12
44:4 similarly 17:9 simplest 32:3 simply 4:19,22 17:20 23:6 37:5 43:18 49:16,23 52:20 single 10:5 45:9 46:3 situation 8:8 15:4 18:25 19:13 31:16 32:12 45:10 47:12 49:8 52:10,18 56:9 situations 15:15 52:19 six 18:23 Sixth 5:11 Skidmore 44:2 Smith 11:10,12 11:14 17:4 Solicitor 1:17 solicitous 38:7 solve 7:10 somebody 8:1 9:2 26:11 27:10 30:19 32:17 sophisticated 26:25 sorry 39:22 53:16 sort 11:4,5 22:4 57:9 SOTOMAYOR 30:24 31:3,13 31:25 33:3,12 33:17 35:14 36:11 39:22,25 40:7,10 42:6,16 42:21 43:7 45:1 45:15,24 53:16 54:2,5,10 so-called30:6 special 36:4 42:5
47:19 specific 16:11 specifically 5:11 5:25 7:9 33:21 44:24 45:21 48:5,7,9 58:12 spent 36:8 split 4:16 6:9 7:16,23 8:5,22 9:8 10:7 16:9 24:20 30:25 32:10 40:15 51:8 54:8 55:23 58:13,15 splits 59:15 splitting 8:1 24:24 standard 21:5 26:10 standardize 28:11 standing 43:5,10 43:12 stands 43:15 starts 55:24 state 8:9 28:8 31:23 51:6,9 54:18,19 statement 17:11 19:18,19 20:17 22:11 35:17 36:4 38:2,3,5 40:6,8,13,20 42:23 43:24 44:7,9,22 46:15 46:15,18 50:3 55:12,15 56:3 statements 41:19 States 1:1,12,19 2:7 18:6 57:23 57:24 statute 3:13 5:11 5:13 7:8,13,15 7:16 9:2,7
12:11 14:1,3,10 14:22 15:7 16:13,14 17:13 18:12,15 19:9,9 19:10,15 20:16 20:18 21:2,12 21:18,21 22:12 22:18 23:16,25 24:2,14,19,23 25:1,12 27:14 27:15 28:8 32:8 33:25 34:6 35:16,20,21,25 36:2,6 37:19,19 37:25 38:9,19 38:20,23 39:6 39:10 40:2 41:2 41:3 42:17 46:17,17,22,25 47:4,7,14,18 47:22 48:13 49:14,16 51:16 51:22 52:20 53:12,20,25 54:1,14 55:3,6 55:23 57:5,5,5 57:21 58:9,18 58:23 59:5 statutes 8:10 9:5 9:18 20:20 statute's 38:3 statutory 22:24 23:24 36:21,25 43:2 stay 31:14 stayed51:6 step 31:21 48:12 51:13 55:22 stepping 28:7 31:22 stop 15:24 strong 38:12 strongest 38:11 structure 53:11 study 29:3 34:1
stuff 10:4 58:21 subject 36:17 42:2 submitted59:19 59:21 subsection 29:5 29:6 subsequent 17:11 57:20 subsidiaries 33:4 33:5,10 successor 3:23 suddenly 9:25 sufficient 59:8 suggest 48:11 suggested39:9 suggesting 49:5 suggestion 51:21 suggests 46:18 suits 4:1 suit-commenc... 3:23 sum 53:9 supplement 17:24 Supporting 1:19 2:8 18:7 supportive 53:10 suppose 6:14 8:4 supposed4:21 5:2 49:25 supreme 1:1,12 58:22 sure 22:17 27:1 38:8 39:24 42:6 42:25 44:16 57:13 surely 8:6 surplusage 9:18 sweep37:13 system22:2 T T 2:1,1 table 29:20
70
tacks 8:18,19 take 5:7 9:8 21:16 31:21 taken22:14 41:2 talk 44:14 talked41:23 talking 9:22,23 10:9,16 40:11 47:13 51:1 56:9 TAMMY1:3 tell 18:22 41:17 50:18 57:24 telling 21:8 tells 28:16 35:20 term 4:22 5:25 terms 18:10 32:7 thank 18:2 27:24 52:1 54:21,22 55:2 59:17 theirs 45:2 theoretically 5:3 thing 9:4 11:1 15:18 32:15 33:1 34:8 51:24 55:5,23 things 9:1 10:3 11:7 15:23 16:13 28:10 29:7,19 37:16 41:20 44:3 50:11,22 56:25 57:7,12 58:1 think 4:8,25 5:7 5:15 6:18 7:23 8:7 9:3,12,17 10:11 12:20,24 13:7,23 14:25 17:12,18 19:5 19:14,15 20:2 20:15,17 21:7 21:12 22:8 23:9 23:13,18 24:13 25:10 26:13 27:7,15 30:23 33:3 34:20
36:14,20,21,23 37:20 38:12 43:14 46:23 48:3 50:16 52:19 53:21 55:18,21 58:13 58:15 59:5 thinking 3:22 24:3 55:13,16 59:4 third 56:9 THOMAS 1:21 2:10 28:2 thoroughness 43:17 44:2 thought 4:19 40:10 57:12 58:9 three 39:16,17 56:23 time 16:25,25 18:1 21:16 26:2 31:22 34:12 36:9 39:11 40:17 49:19 51:13 52:7 54:13 times 18:23 title 29:22 34:9 34:14 52:6,8,9 52:10,11,12,16 52:24 53:1,1,22 53:23 54:3,7,7 54:9 titled34:7 toenails 8:20 told 59:9 touches 36:7 track 19:7 traditional 15:3 15:14 transaction 24:6 24:6,7,7 transactions 29:8 58:10
transforming 58:24 tread 28:9 treat 36:16 tree 23:5 true 7:22 16:1 36:20 truly 55:7 Truth47:15 try 49:2 50:18 trying 31:21 42:21 47:10,10 57:2,4 Tuesday 1:9 turn 7:12 two 6:16,16 8:15 9:1 12:12 18:11 18:11,14 23:24 24:8,20,22 28:9 29:7 30:3 35:15 40:3 53:2 54:1 two-step55:22 type 33:20,24 35:3 37:10 types 37:16 typically 31:11 52:20
W Wait 23:3 waiting 46:10 want 16:24 19:13 19:14 21:15 26:18 36:18 44:14 58:20 wanted17:14 Washington 1:8 1:15,18,21 57:18 wasn't 12:4 17:8 27:7 33:4 34:5 58:25 way 4:19 5:19 10:25 36:14,22 37:5 47:10 49:4 51:15 ways 12:12 35:15 U weeks 28:14 ultimately 50:23 went 28:23 58:17 59:11 weren't 15:25 V underlying 52:15 we're 6:17 15:18 understand 4:11 v 1:5 3:5 17:4 47:12 12:7 21:18 27:2 vague 47:11 whatsoever32:4 30:25 value 32:5 56:12 32:13 39:9 understanding 56:16,17 willing 34:23 9:3 25:23 verbs 23:25 24:1 withdrawing undivided22:14 24:8,10 58:11 57:19 view16:21 22:18 withdrew58:5 unearned4:7,13 40:21 53:10 wooden8:19 4:14 5:9 6:8,10 violate 14:21 word 8:8 11:24 7:15 9:25 10:5 15:8 18:19 34:18,19 10:12,20,22 20:18 53:20,25 words 7:14,25 11:4 15:15 16:8 violated13:1 8:16 9:12 11:22 18:11,13,16 18:13,15 19:24 25:19
19:22 20:9,22 22:10,13,14,25 23:21 25:16 27:19 32:2,3 33:23 34:8,9,15 40:24 45:25 46:2,4 51:1 52:6,12 55:7,25 56:1,3,6,24 57:19,22 unethical 30:10 United1:1,12,19 2:7 18:6 universe 29:19 unjust51:10 unknowingly 50:24 unlawful 30:14 30:20 unnecessarily 28:19 37:7 57:15 unnecessary 58:8 unsplit 55:24 unusual 55:5,6 unworkable 32:7 use 8:11 54:12 58:6 usually 22:1 49:9
violates 21:12 22:15 40:24 violating 19:1 violation 14:2 17:8,17 24:19 29:11 violations 4:1 VIR 1:3
71
30:25 36:8 37:15 47:9,11 47:12 48:19 work 11:1,9 20:13 29:22 52:9,11,13,17 52:25 53:7,23 53:24 54:7,13 56:11 working 36:9 worry 20:11 wouldn't 7:9,10 12:8 19:1 20:7 29:16 35:23 54:18 writes 13:15 written15:13 28:13 wrong 6:15 32:6 X x 1:2,7 35:22 39:4 40:8 42:4 Y Yeah 21:11 years 53:2 $ $100 11:11,13 13:15 $20,000 23:5 1 1 15:20 31:18,19 10 11:2 52:8 53:3 10-1042 1:4 3:4 10:11 1:13 3:2 100 7:17,21,25 9:21,23,25 31:4 31:17 32:10,14 32:16,17 33:14 11:12 59:20 15a 39:6 16 57:17 16a 39:6
18 2:7 18(b) 40:2 1974 28:6,23 44:25 45:21 1992 38:10 40:14 40:22 1996 40:10 58:4 59:14 2 2 25:20,21 26:22 2,000 23:5 2001 22:11 2012 1:9 21 1:9 57:23 2601 28:18 51:3 2607 34:10 2607(a) 31:9 2607(b) 4:2 18:10 22:16 24:13 31:7 34:16 39:12 48:20 54:15 28 2:11 3 3 2:4 11:3 33a 19:20 5 5 54:24 5305.7 56:8 54 2:14 6 6 19:18 6a 7:14 8 8 25:20,22 26:12 26:12,14,17,20 26:21 8(b) 31:7 9 9 11:2

Tammy Freeman v. Quicken Loans - US Supreme Court Oral Argument Transcript of 2-21-2012 Case 10-1042 Re RESPA

Hochgeladen von

Dokumentinformationen

Originalbeschreibung:

Originaltitel

Copyright

Verfügbare Formate

Dieses Dokument teilen

Dokument teilen oder einbetten

Freigabeoptionen

Stufen Sie dieses Dokument als nützlich ein?

Sind diese Inhalte unangemessen?

Copyright:

Verfügbare Formate

Tammy Freeman v. Quicken Loans - US Supreme Court Oral Argument Transcript of 2-21-2012 Case 10-1042 Re RESPA

Hochgeladen von

Copyright:

Verfügbare Formate

Official - Subject to Final Review

- - - - - - - - - - - - - - - - - x Washington, D.C. Tuesday, February 21, 2012

Official - Subject to Final Review

Official - Subject to Final Review

3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CHIEF JUSTICE ROBERTS: P R O C E E D I N G S (10:11 a.m.) We will hear

Alderson Reporting Company

Official - Subject to Final Review

For injunctive relief, that's

And that agency has long construed the

You said it too fast.

think it's a side issue because the courts below didn't

Official - Subject to Final Review

5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 decide that, and Quicken - JUSTICE BREYER: So what are we supposed to

that case involved origination fees. that's correct.

But this is -- this is an issue you

A point is a way of paying Since you pay more,

So your interest rate is Now, what's the

The argument is Congress

specifically defined the term "real estate settlement

Official - Subject to Final Review

precluded from considering -- I - JUSTICE SCALIA: I mean it's -- it would be

Is there any reason to put

Alderson Reporting Company

Official - Subject to Final Review

Official - Subject to Final Review

CHIEF JUSTICE ROBERTS:

word that best fits this situation.

It could mean either that or just

Alderson Reporting Company

Official - Subject to Final Review

9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 two things about that. One is that when you have a

JUSTICE SCALIA: MR. RUSSELL:

The canon, though, I don't

They are all the measure of

Official - Subject to Final Review

Maybe you can decide in that case whether

CHIEF JUSTICE ROBERTS:

Official - Subject to Final Review

out with respect to loan discount fees.

We are going to charge you So

And Mr. Smith, really knowing All

What protect consumers is the

What a consumer is paying "for" is what she

Official - Subject to Final Review

But -- but wouldn't -- it says that if

What you got was nothing. The

-- which was nothing.

And I think that latter

-- is the proper one.

Alderson Reporting Company

Official - Subject to Final Review

Then why is the bank

Alderson Reporting Company

Official - Subject to Final Review

-- to pay for a service

But the -- but the

The statute reads "No person The acceptor is

shall give and no person shall accept." the loan company.

The person who is giving would be the

the language "give" would have an effect. MR. RUSSELL: I think --

Alderson Reporting Company

Official - Subject to Final Review