Catherine Mercado & Michael B. Kuknyo v. Calumet Fed. Sav. & Loan Ass'n, 763 F.2d 269 (7th Cir. 1985). · Go Syfert
Catherine Mercado & Michael B. Kuknyo v. Calumet Fed. Sav. & Loan Ass'n, 763 F.2d 269 (7th Cir. 1985). Cases Citing This Book View Copy Cite
83 citation events (52 in the last 25 years) across 22 distinct courts.
Strongest positive: Willis v. Quality Mortgage USA, Inc. (almd, 1998-05-12)
Treatment trajectory · 1986 → 2026 · click a year to view as-of
1986 2006 2026
Top citers, strongest first. 35 distinct citers. How cited ↗
discussed Cited as authority (verbatim quote) Willis v. Quality Mortgage USA, Inc. (2×) also: Cited as authority (rule)
M.D. Ala. · 1998 · signal: see also · quote attribution · 1 verbatim quote · confidence high
the statute requires at least two parties to share fees
discussed Cited as authority (verbatim quote) Keith Durr v. Intercounty Title Company of Illinois, an Illinois Corporation, Appeal of D. Alan Harris (2×) also: Cited as authority (rule)
7th Cir. · 1994 · signal: see also · quote attribution · 1 verbatim quote · confidence high
respa is a broad statute
cited Cited as authority (rule) SALMON v. UZZOLINO
D.N.J. · 2025 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270 (7th Cir. 1985).
cited Cited as authority (rule) Morris v. CrossCountry Mortgage, LLC
E.D.N.C. · 2023 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 271 (7th Cir. 1985)).
discussed Cited as authority (rule) Lang v. FIRST AMERICAN TITLE INS. CO. OF NEW YORK (2×) also: Cited "see"
W.D.N.Y. · 2011 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 272 (7th Cir.1985) (“Whatever Congress may have meant by § 8, it did not mean to make every violation of a contract a violation of federal law, too.”).
discussed Cited as authority (rule) Freeman v. Quicken Loans, Inc. (2×)
5th Cir. · 2010 · confidence medium
Thus, the provision requires two parties each committing an act: one party gives a "portion, split, or percentage," and another party receives a "portion, split, or percentage." See id. at 265 ("Therefore, § 8(b) only prohibits overcharges when a `portion' or `percentage' of the overcharge is kicked back to or `split' with a third party."); Mercado v. Calumet Federal Sav. & Loan Ass'n, 763 F.2d 269, 270 (7th Cir.1985) ("The statute requires at least two parties to share fees.").
discussed Cited as authority (rule) Arthur R. Tubbs v. N Amer Title Agency Inc. (2×)
3rd Cir. · 2010 · confidence medium
Sav. & Loan, 763 F.2d 269, 271 (7th Cir.1985) (observing that § 8(b)’s plain language requires a plaintiff to allege that a defendant shared a “portion, split, or percentage” of an unearned portion of a fee with some “other person” to state a claim); Haug v. Bank of Am., 317 F.3d 832 , 836 (8th Cir.2003) (interpreting § 8(b) as “an anti-kickback provision that unambiguously requires at least two parties to share a settlement fee in order to violate the statute”). 3 The Tubbses rely principally on the Eleventh Circuit’s decision in Sosa v. Chase Manhattan Mortgage Corp., 348 F…
discussed Cited as authority (rule) Arthur v. Ticor Title Ins. Co. of Florida
4th Cir. · 2009 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985)); see also id. at 266 (“[Section 8(b) ] prohibits ‘splitting fees with anyone for anything other than services actually performed.’” (quoting Willis v. Quality Mortgage USA, Inc., 5 F.Supp.2d 1306, 1308 (M.D.Ala.1998))). 1 It is difficult to reconcile this interpretation of Section 8(b) with the theory of liability proposed by plaintiffs.
cited Cited as authority (rule) Kingsberry v. Chicago Title Insurance
W.D. Wash. · 2008 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985); see also Kruse, 383 F.3d at 56-57 (discussing proposed bill).
cited Cited as authority (rule) Blankfeld v. Richmond Health Care, Inc.
Fla. Dist. Ct. App. · 2005 · confidence medium
Sav. & Loan Ass'n, 763 F.2d 269, 271 (7th Cir.1985) ("But the objective of a statute is not a warrant to disregard the terms of the statute.
cited Cited as authority (rule) Gregory Weizeorick v. Abn Amro Mortgage Group, Incorporated
7th Cir. · 2003 · confidence medium
Sav. & Loan Ass'n, 763 F.2d 269, 270 (7th Cir.1985).
cited Cited as authority (rule) Haehl v. Washington Mutual Bank, F.A.
S.D. Ind. · 2003 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985), in turn quoting S.Rep. 93-866, 93d Cong., 2d Sess. *936 (1974), reprinted in 1974 U.S.Code Cong. & Admin.News 6551.
cited Cited as authority (rule) Weizeorick v. ABN Amro Mortgage Group, Inc.
7th Cir. · 2003 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270 (7th Cir.1985).
cited Cited as authority (rule) Welch v. Centex Home Equity Co., LLC
D. Kan. · 2003 · confidence medium
Savings & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985) (quoting S.Rep.
examined Cited as authority (rule) Haug v. Bank of America (4×) also: Cited "see"
8th Cir. · 2003 · confidence medium
Savings & Loan Ass'n, 763 F.2d 269, 270-71 (7th Cir.1985) ( Mercado ) (quoting S.Rep.
examined Cited as authority (rule) Haug v. Bank of America, N.A. (4×) also: Cited "see"
8th Cir. · 2003 · confidence medium
Savings & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985) (Mercado) (quoting S.Rep.
discussed Cited as authority (rule) Mullinax v. Radian Guaranty Inc.
M.D.N.C. · 2002 · confidence medium
Savings & Loan Ass’n, 763 F.2d 269, 270 (7th Cir.1985) (holding that a violation of RESPA’s anti-kickback provision occurs when a defendant overcharges the plaintiff in accordance with an agreement to pay or otherwise share the profits with another person); Pearce v. American Defender Life Ins.
examined Cited as authority (rule) Francisco J. Echevarria, Barbara Echevarria and Bobbie L. Hall v. Chicago Title & Trust Company (3×) also: Cited "see"
7th Cir. · 2001 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985) (affirming the dismissal under Fed.R.CivP. 12(b)(6) of a RESPA § 8(b) claim because “the complaint [did] not allege that [the defendant] gave or received ‘any portion, split, or percentage of any charge’ to a third party”).
examined Cited as authority (rule) Echevarria, Francisc v. Chicago Title Trust (3×) also: Cited "see"
7th Cir. · 2001 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir. 1985) (affirming the dismissal under Fed.
discussed Cited as authority (rule) Christakos v. Intercounty Title Co. (2×)
N.D. Ill. · 2000 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985).
cited Cited as authority (rule) Chandler v. Norwest Bank Minnesota
8th Cir. · 1998 · confidence medium
Sav. & Loan Ass'n, 763 F.2d 269, 271 (7th Cir.1985).
discussed Cited as authority (rule) Chandler v. Norwest Bank Minnesota, National Ass'n (2×)
8th Cir. · 1998 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985).
discussed Cited as authority (rule) Barbosa v. Target Mortgage Corp.
S.D. Fla. · 1997 · confidence medium
Intercounty Title Co. of Illinois, 14 F.3d 1183, 1187 (7th Cir.), citing Mercado v. Calumet Federal Sav. & Loan Ass’n, 763 F.2d 269, 270 (7th Cir.1985), cert. denied, 513 U.S. 811 , 115 S.Ct. 63 , 130 L.Ed.2d 20 (1994); see also Duggan v. Independent Mortgage Co., 670 F.Supp. 652, 653-54 (E.D.Va.1987) (citing same proposition from Mercado); Campbell v. Machias Sav.
cited Cited as authority (rule) Campbell v. MacHias Savings Bank
D. Me. · 1994 · confidence medium
Durr v. Intercounty Title Co., 14 F.3d 1183, 1186-87 (7th Cir.1994) (citing Mercado v. Calumet Fed'l Sav. & Loan Ass'n, 763 F.2d 269, 270-71 (7th Cir.1985)).
discussed Cited as authority (rule) Bloom v. Martin
N.D. Cal. · 1994 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270 (7th Cir.1985) (no violation of Section 8 occurs unless the lender gives or receives “any portion, split, or percentage of any charge to a third party”); Durr v. Intercounty Title Co. of III., 14 F.3d 1183, 1187 (7th Cir.1994) (reaffirming rule stated in Mercado); Duggan v. Independent Mortgage Corp., 670 F.Supp. 652, 653 (E.D.Cir.1987) (granting summary judgment for defendant on 12 U.S.C. § 2607 (b) claim where, “[a]s in Mercado , there is no third party present”).
discussed Cited as authority (rule) Durr v. Intercounty Title Co. of Illinois
N.D. Ill. · 1993 · confidence medium
Sav. & Loan Ass’n, 763 F.2d 269, 270-71 (7th Cir.1985): We affirm because the complaint does not allege that Calumet gave or received “any portion, split, or percentage of any charge” to a third party.
discussed Cited as authority (rule) The National Association for the Advancement of Colored People v. American Family Mutual Insurance Company
7th Cir. · 1992 · confidence medium
Cf. Walton v. United States Consumers Club, Inc., 786 F.2d 303, 310-11 (7th Cir.1986); Mercado v. Calumet Federal Savings & Loan Ass'n, 763 F.2d 269, 271 (7th Cir.1985)." In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987).
discussed Cited as authority (rule) National Ass'n for the Advancement of Colored People v. American Family Mutual Insurance
7th Cir. · 1992 · confidence medium
Cf. Walton v. United States Consumers Club, Inc., 786 F.2d 303, 310-11 (7th Cir.1986); Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985).” In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987).
cited Cited as authority (rule) Cleremont L. Covalt and Ahnighita M. Covalt v. Carey Canada Inc. And Union Carbide Corporation
7th Cir. · 1988 · confidence medium
See also, e.g., In re Erickson, 815 F.2d 1090, 1094 (7th Cir.1987); Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271-72 (7th Cir.1985).
cited Cited as authority (rule) In the Matter of Marie ERICKSON, Debtor-Appellee. Appeal of DORCHESTER STATE BANK
7th Cir. · 1987 · confidence medium
Cf. Walton v. United Consumers Club, Inc., 786 F.2d 303, 310-11 (7th Cir.1986); Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985).
cited Cited "see" Krzalic, Nedzad v. Republic Title Co
7th Cir. · 2002 · signal: see · confidence high
See Mercado v. Calumet Federal Savings & Loan Ass'n, 763 F.2d 269 (7th Cir. 1985).
discussed Cited "see" Nedzad Krzalic and Danijela Krzalic v. Republic Title Co. (2×)
7th Cir. · 2002 · signal: see · confidence high
See Mercado v. Calumet Federal Savings & Loan Ass'n, 763 F.2d 269 (7th Cir.1985).
cited Cited "see" Trudy WALTON, Et Al., Plaintiffs-Appellees, v. UNITED CONSUMERS CLUB, INCORPORATED, Defendant-Appellant
7th Cir. · 1986 · signal: see · confidence high
See Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271 (7th Cir.1985).
cited Cited "see" Central States Southeast and Southwest Areas Pension Fund, Plaintiff v. Bellmont Trucking Co., Inc.
7th Cir. · 1986 · signal: see · confidence high
See Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271-72 (7th Cir.1985).
cited Cited "see" United States v. Medico Industries, Inc.
7th Cir. · 1986 · signal: see · confidence high
See Mercado v. Calumet Federal Savings & Loan Ass’n, 763 F.2d 269, 271-72 (7th Cir.1985).
Retrieving the full opinion text from the archive…
Catherine MERCADO and Michael B. Kuknyo, Plaintiffs-Appellants,
v.
CALUMET FEDERAL SAVINGS & LOAN ASSOCIATION, Defendant-Appellee
84-1875.
Court of Appeals for the Seventh Circuit.
May 20, 1985.
763 F.2d 269
Jeffrey Burge, Hammond, Ind., for plaintiffs-appellants., J. Stirling Mortimer, Chicago, 111., for defendant-appellee.
Easterbrook, Wood, Coffey, Easter-Brook.
Cited by 47 opinions  |  Published
EASTERBROOK, Circuit Judge.

Catherine Mercado bought a house with funds lent by the Calumet Federal Savings & Loan Association. According to the complaint, from which we take all the facts, she told Calumet that Michael B. Kuknyo, her son, would live in the house and make payments on the mortgage. For several years Calumet accepted Kuknyo’s payments and all went well.

Then Calumet noticed that the house was insured in Kuknyo’s name, and it asked Mercado to transfer formal ownership of the property to him. When Mercado gave Calumet the documents of sale, Calumet declared the loan in default because she had not obtained its approval to sell (for which, we suppose, it could have extracted compensation). It accelerated the loan and demanded immediate payment on pain of foreclosure. Calumet also offered Mercado the option of refinancing the loan at a higher rate of interest. The refinancing would have entailed new application fees and closing charges. Calumet says that the higher charge was the appropriate one for a borrower not living in the premises. On a view more favorable to Mercado, Calumet simply sought to take advantage of an increase in the market rate of interest between the time of the loan and the time of the transfer to Kuknyo.

Mercado preferred the original loan to the proposed refinancing and brought this suit. She and Kuknyo maintain that the acceleration and refinancing would violate § 7(b) of the Real Estate Settlement Procedures Act of 1974 (RESPA), 12 U.S.C. § 2607(b), which provides that “[n]o person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.” (Section 7 was later redesignated section 8, but we use the original numbering.) Mercado and Kuknyo contend that the refinancing, new charges and closing costs are a “real estate settlement service,” see United States v. Graham, Mortgage Corp., 564 F.Supp. 1239 (E.D.Mich.1983), and that Calumet seeks new compensation without new “services actually performed.”

The district court dismissed the suit for failure to state a claim on which relief may be granted. The court thought it “apparent from the face of plaintiffs’ amended complaint that any fees received by this defendant in connection with the subject mortgage were for ‘services actually performed.’ This action is a transparent attempt to transform section 2607(b) into a general mortgage loan antifraud provision in circumvention of the statute’s plain language and purpose.”

We affirm because the complaint does not allege that Calumet gave or received “any portion, split, or percentage of any charge” to a third party. Section 8 of RESPA is an anti-kickback statute. The statute requires at least two parties to share fees. As the Senate Report explained, § 8 “is intended to prohibit all kickback and referral fee arrangements whereby any payment is made or ‘thing of value’ furnished for the referral of real[*271] estate settlement business. The section also prohibits a person that renders a settlement service from giving or rebating any portion of the charge to any other person except in return for services actually performed.” S.Rep. 93-866, 93d Cong., 2d. Sess. (1974), reprinted at 1974 U.S.Code Cong. & Admin.News 6551. The complaint does not allege the presence of any “other person.” Calumet simply seeks additional fees on the refinancing of the mortgage. Calumet may be right or it may be wrong in believing that Mercado and Kuknyo committed a default permitting the acceleration of the loan, but the bank’s error, if any, does not create the “other person” and the “portion, split, or percentage” of which the statute speaks.

We emphasized in United States v. Gannon, 684 F.2d 433 (7th Cir.1981) (en banc), that RESPA was designed to address a variety of practices that raised the cost of real estate settlement services. We held that a counter attendant at Cook County’s title registration office violated RESPA by accepting “gratuities” of two or three dollars for recording changes of title. The attendant’s acts met the common definition of a split; he took part of a payment for himself and passed on the rest. He had no right to make his services contingent on this payment, yet he did. The “gratuities” also involved multiple parties. Cook County imposed a statutory fee, which was supposed to cover all of the attendant’s services, yet the attendant collected a larger fee and kept part for himself.

Some language in Gannon, taken out of context, might support Mercado and Kuknyo. We said in Gannon that “Congress’ aim was to stop all abusive practices that unreasonably inflate federally related settlement costs to the public.” Id. at 438 (emphasis in original). Parts of the opinion in Gannon may be read to state that any payment in excess of the value of the services rendered is an abusive practice, the equivalent of splitting fees and equally to be condemned. The court had no occasion to consider unduly high fees in Gannon, however, for the case focused squarely on an arrangement under which a participant in the settlement process extracted more than a statutorily-prescribed fee, remitted the appropriate fee to the County, and kept the rest for himself.

If Cook County imposed a single fee of $100 per transfer of title, it would not be possible to attack that fee under RESPA by saying that everything over $25 is “too high” and “abusive” because the cost of service is only $25. Congress considered and explicitly rejected a system of price control for fees; it concluded that the price of real estate services should be set in the market. See 1974 U.S.Code Cong. & Admin.News 6549-50. It directed § 8 against a particular kind of abuse that it believed interfered with the operation of free markets — the splitting and kicking back of fees to parties who did nothing in return for the portions they received. Gannon received a portion of a fee without delivering any service other than the one he was legally obliged to perform in exchange for the statutory fee payable to the County. We held in Gannon that “a single individual can violate § 2607(b) by receiving in his official capacity a ‘charge’ for the rendering of settlement services, but personally keeping a portion of the charge in fact for something other than the performance of those services.” 684 F.2d at 438 (emphasis in original). Nothing of the sort occurred here.

Doubtless RESPA is a broad statute, directed against many things that increase the cost of real estate transactions. Full enforcement of its provisions will assist the buyers of houses. But the objective of a statute is not a warrant to disregard the terms of the statute. Congress always has some objective in view when it legislates, and it is always possible to move a little farther in the direction of that objective. The fact that Congress has pointed in a particular direction does not authorize a court to march in that direction without limit. The language and structure of the statute establish how far to go. We honor the decision of Congress by choosing stopping points no less than by achieving more of the ultimate end in view. Section[*272] 8(b) contains an intelligible stopping point, to which we adhere.

Our construction of the statute does not open the field to the sort of practices Congress meant to proscribe. It does no more than ensure that questions of the interpretation and enforcement of contracts are committed to state law and state courts. Mercado and Kuknyo say that Calumet is seeking unearned payment for services it did not render. Calumet is entitled to respond that it seeks only to enforce the conditions in the note and mortgage. If the borrower commits an act of default, then the contract entitles the lender to accelerate; a lender with a right to accelerate has a right to collect a fee for forbearing.

The ability to collect such fees tends to produce lower fees and rates of interest in the first place. If the contract said: “On closing the borrower will pay $50, and on an event of default the borrower must pay another $50,” it would be hard to characterize the second $50 as an unearned fee. An effort to ban the second fee would only lead the bank to increase the first one. It would not make any difference if the contract said: “On closing the borrower will pay $50, and on an event of default the borrower must pay a second, unearned fee of $50.” Cf. Albernaz v. United States, 450 U.S. 333, 101 S.Ct. 1137, 67 L.Ed.2d 275 (1981) (whether a statute imposes “multiple” punishments depends on the intent of the drafters, not on linguistic creation of separate penalties).

If the lender tried to collect $100 when the contract allowed only $50, the extra $50 would be “unearned”, and perhaps a court could characterize the threat to extract the extra $50 as “abusive” just as if an employee of the lender demanded $50 for himself. But all of this simply points up the problem at the core of the plaintiffs’ case: they seek to convert every violation of a loan agreement into a violation of RESPA. If Calumet’s demand for refinancing is authorized by the note and mortgage, then there is no demand for payment for services not rendered, no abuse. If Calumet’s demand is not authorized by the agreement with Mercado, then a state court will not enforce the acceleration or foreclose on the mortgage. Whatever Congress may have meant by § 8, it did not mean to make every violation of a contract a violation of federal law too.

AFFIRMED.