estate closing at which their two prior mortgages on their house were discharged the defendants to title agents charge them one hundred fifty dollars pay that to themselves did no work we allege charge that the district court made first in saying that sign iago required a split of the fees second in assuming facts contrary to our complaint we allege that the title agent did no work and the settlement agent did no work and he found that they followed up to verify this work and that was not converted to rule fifty six it was not it was not ok and the third that he relied on this insurance rates manual that had been handed up at oral argument for a totally different purpose under us for something about a state law claim and without converting that to a rule fifty six motion and then finally through the succession of errors he put us in the wrong with he said well you're really just complaining that they had an unreasonable charge that they did the work but they charge the wrong amount i would like to begin with the first point because you o said that a markup is part of rest by other words it's our markup isn't looted in the statute is the does make it a little bit different the only difference here honor is they put the two charges on two lines of the hug inside one hundred settlement sheet that might save the right because this is all about disclosure i mean the i'm not saying that any more i know i certainly wouldn't be knowledgeable enough to question this but because there aren't two line items the borrower may look and say no wait a minute you're charging me one fifty on this line and eighty on the other and it's for the same thing why are you doing that but when you when you first you will mark up for a split it's on one line item it's buried in there so even the most careful borrower wouldn't have reason to question well first of all your honor on the hudson sheet the eighty dollars is buried in the hundreds of thousands of dollars so you can't it's on the pay off statement that appears in a ninety one in a ninety four in other words the the walkover faxes to the settlement agent before the closing  payoff statement that has this as a breakdown but the plaintiffs now see the payoff statement as a matter of reality and we also allege that in our complaint all they see is the one hundred seventh sheet that has the total payoff amount on it which is hundreds of thousands of dollars for the whole mortgage and second answer to your question terms of the score which are they the defendants put very line item on something that says government charge so i think hugh or me or anybody looking at that would think that this was some kind of mandated charge by the government not that it was simply an honor and feel that they're keeping for themselves so i think for both of those reasons if we want to look at the disclosure aspect of it there's been no disclosure of that i think that the one case to talk about splitting your honor and dr hardiman to address your question the one case that either of us have been able to find  really has the same fact pattern this is the christakis case from the northern district of illinois where exactly the same thing happened and that's in a much more restrictive circuit the seventh circuit takes a much more restrictive view of than this circuit does rest it requires this kind of bribery almost and christakis said yes this is a splitting what happens here is that there's a total amount paid to the settlement agent in our case two hundred thirty dollars paid to cancel two mortgages the they keep one hundred fifty of it they have control over this whole pot settlement pot they keep one hundred  fifty dollars for themselves they give eighty dollars telco via that's a splitting and there's no functional difference if you're going to require us under the statute there's no functional difference between that and any other kind of split that would violate rest i would say your honor i don't think that there is a any difference between a markup and what we're calling i think when you put it on two different lines you might call it a duplicate of fifty rather than a markup if you put it on one line you're piggybacking your marking up if you put it on two lines it's a duplicative fee duplicative fees are mean literally the statute says you cannot accept any portion or percentage of any charge other than for services actually performed so if you look at the reality of this there was a total amount paid to discharge t mortgages they accepted a portion of it or a percentage i think it's literally within the stressing the several hundred thousand dollars constitutes one fee and everything under that is a split is now are saying that the two hundred thirty if you look at functionally what happened here there was two hundred thirty dollars apportioned in this settlement to cancel two mortgages and they split it keeping one hundred fifty themselves and giving eighty to walk over i thought they were listed as different charges though they are listed one their charge they lit but they had control of this they listed it your honor they chose to list their charge under governor what's called the listed as a got well i don't know but so maybe you have an action for them you know i don't know fraud or misstatement or see if it should have been listed as a government chart charge maybe that's actionable but that doesn't mean this was a split or a portion or a percentage doesn't your honor the touchstone of santiago as i read it is that a markup where you pay all you do in a markup is you pay a person t legitimate amount for their services and you keep the honor and portion that's what a markup is you're paying a flood certifier thirty bucks and then you charge the  think you're quite right that the district court had no no warrant to not take at face value your allegation that they did nothing for the one fifty is the policy but they've been help you and if so what difference if any do you do with your out of the polic statement the word markup comes from that santiago said with part of respite comes from the two thousand and one policy statement and duplicative fees are about two words away from that i mean the it's the same sense of the policy statement says no nominal or duplicate work is done or there is a mark up it's in the in the same policy statement and i submit that if you do the syme jago analysis there really is no distinction between a is almost you know we're parsing here but the statute the statute uses the words and then you have a regulation that i take it goes in the regulation if we follow it goes your way  she would have followed the two thousand and one policy statement because she found it persuasive i will give we're bound by that that panel's decision that it's on a big as to a markup yes and i'm saying i don't look at a feat i think is last the absence of ambiguity in santiago does not suggest that there is not an ambiguity and maybe as to your undivided under and situation i take your point and therefore you the regulation comes in the policy is the atman and were differing to that i would be happy if you follow that course yes and maybe my colleagues and you would tell me that this is inappropriate describe hopefully as a class yes the essential claim is that this was a national pattern of activity not before the just record we have made no neither one of the the parent operates nationally but the its subsidiary operates locally and whether we bring it in any state as to any state beyond new jersey is really something that's not in the record and and i don't and i don't and i want to be candid with you i don't know i mean i think we may just limit this to a new jersey class action  they pay totally know it all they paid title agency in other words all all of it came out of the same settlement proceeds and that's why the christakis case in chicago said that it really is the same as a split because the tile the settlement agent took this money the the total amount to discharge the mortgage and split it into two one for the earned peace to the people who did the work and the other to the honor and peace themselves and that's exactly what i mean christakis really is our case and christakis holds that this is a is a split under the statute and even under the most restrictive the seventh circuit standard which is i think the most restrictive view of a split we've covered i think judge hardiman this my second point which was not taking our complaint at face value the third error is relying on this insurance manual which they put in under for a totally different reason and i think we brief that and were right that it shouldn't have contrary evidence there even a member they could not on the record i couldn't either i could neither and then finally putting us into this unreasonable problem we're not alleging obviously that they did the work and charge the wrong fee we're saying they didn't do the work and so the real work real question before the court is does it a claim under saw thiago either expressly under the statute or as judge mckee you suggested finding an ambiguity and and looking then at the regs and the policy statements under which we i think clearly i think i'd like to begin where we've been instructed to begin in cases like this and that's what the language of the statute the statuary in statute prohibits the giving or accepting of and i'm quoting now any portion comma split comma or percentage of any charge and then it goes on to say for a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed it doesn't say as our opponents would have it say that it prohibits giving or accepting any charge other than for services actually performed the words portion split or percentage were placed in the statute deliberately they have to have some meaning our opponents interpretation reads them out of the statutes that you would be exactly the same according to our opponents if those words simply weren't there that now that doesn't make a lot of sense that is a good then you are saying that congress intended if you have a situation we did absolutely nothing and kept everything you not covered but if you have absolutely nothing the hundred dollars should have be nothing and give ninety nine cents to somebody else then you don't have the stats or the make any sense your honor if i had a split i think that the best answer to that question and we thought about that question is that congress was addressing specific factual situations that came to their attention at the time that the statute was originally an act in one nine hundred seventy four we've quoted for the court the statements made by senator brock and representative blackburn we've quoted for the court the senate committee report they were dealing with a particular problem it may not be every problem it but it was the problem that they were dealing with and that's why you see in the eighth circuit in the hawg case and the seventh circuit in  now you know there's old law from the supreme court where the supreme court has said over and over again that congress is permitted to take on social problems one step at a time that i think the leading cases williamson against lee optical which goes way back to the  but i think that's the answer to your question you know i think congress could have passed the broader statute congress could have just said you can you not get any money of any kind from anyone from any source in any way shape or form except for work that you perform that's not the statute that congress wrote i think well i thought it was because of the ability to bury a fee under a line item i thought it was a disclosure issue but this i may be completely wrong on that mr law because the answer to my question seem what's what's your well would you agree with his with seemed to me to be a satisfactory explanation about my question regarding one line item versus two lines if you understand my point if i think i'm going to item and i'm going to keep fifty for myself and give the next guy fifty that the buyer a borrower couldn't possibly know that but if listing charges that are you know earned or frivolous at least you c this is a little bit technical but let me try to walk through it the disclosure statement that we begin with is the document that a seventy nine in the appendix that's a hud form and on that hu form you will see in the upper right hand corner the two amounts that were paid from the new loan proceeds to pay off what was owed to walk over here because there were two mortgages on the tub's property that had to be paid off during the two thousand and eight refinancing and you'll see two amounts there one hundred twenty four thousand dollars in change fourteen thousand dollars and change then if you move on to pages a ninety one and a ninety four in the appendix you will see the pay off statements from walkover you now these statements as m rocca acknowledged and as the amended complaint says and as judge arenas in the district court recognized these pay off statements were sent to the title agency but they were also sent to mrs tubbs if you look at pages eight hundred ninety one and eighty ninety four you'll see their address to jane tubbs and you'll see that they lay out a series of components that together add up to two figures that i just mentioned one hundred twenty four thousand and the ten thousand and fourteen thousand and one of those items on each of the two payoff statements is a forty dollar fee that's the fee that what covina in turn paid dollar for dollar to the camden county clerk to record the satisfaction of each of the two mortgages and you'll see that that's also in the record you'll see the county clerk stamp in the upper right hand corner and it'll say there were two pieces of the forty dollars a thirty dollars fee and a ten dollar fee so walk over your earned nothing on that that was just the straight pass through to the county court for then you'll see there's another fee judge arena's recognize this is well you look at these papers fairly closely there's another fee to walk over you have twenty five dollars that's a servicing fee that went to walk over this the iraq it doesn't mention that at all that's all included when you add them all up on each of the pay off statements you get to the total that you find in the upper right hand corner on page eighty seventy nine those are the two total amounts of the walkover you pay off and each of those items is laid out in the nothing to do with what hope you have is the fee that is charged by the title agency for receiving these payoffs statements which they've acknowledged they played it in the complaint walking at them which stands to reason they looked at the paper statements because they are the title agency and the title insure they need to be sure that the mortgage has been really dislike and we charge seventy five dollars per mortgage for that service and that's what judge arena said page eight of his opinion thank antecedent issue that i was talking about namely the meaning of the statute that allows this decision to be affirmed on the basis of what judge arenas said before he said what you just read but number two we we don't think that this complaint is as crystal clear as our opponents would like to have it it is true that there are a number of allegations in the complaint to the effect that we did nothing but there were also allegations in the complaint as i said a moment ago that we looked at and so i think there is an internal tension in the in the complaint because naturally we know the plaintiffs want to say we did absolutely nothing that they want to survive the motion to dismiss and that's why i started by talking about the language of the statute because i think that if you focus first on the language of the statute you don't even need to get to these factual concerns i did want to respond to jeff hartman's question about exactly what happened but for example if you look at the preceding page of judge arena says opinion page seven he starts out by saying defendants correctly argue the plaintiffs have no claim under respa because title agency did not actually split a fee for the same service with any third party and that's one hundred percent true there is absolutely no split of this one hundred fifty dollars fee it's a fee that was charged by our client and our client retained the figure actually to seventy five dollars fees combined into one line so there is no split and the plaintiffs can bring their case within the time market as that term was used by this court in the santiago case is simply incorrect judge arenas knew perfectly well what the same thiago case said he was one of only two judges who decided that case because judge chertoff and resigned before that case was decided so judge roth and judge arenas the side that case for this court and judge i mean us knew perfectly well that what the plaintiffs were alleging here was not a markup within the meaning of santiago santiago involved two kinds of charges that were permitted to go forward one was a tax service fee and one was a flood conservation fee whatever that is i don't purport to know exactly what that is but the tax service fee was eighty five dollars and the flood certification fee was twenty dollars those were the only numbers that appeared eighty five and twenty but it turned out according to the allegations of the plaintive that the defendant had gone elsewhere had obtained those services for less that is less than the eighty five dollars less than the twenty dollars and so they kept the difference that was what the court in santiago said was a markup or a split or a percentage or a portion bringing it within the statutory language the court said also in santiago that an overcharge would not qualify and the court sustained that this missile of the so called overcharge will now the pla ultimate overcharge this is the nothing i mean we but isn't judge pollock's the import of his question spot on that you have to assume at the rule twelve stage that they are correct when they allege you did nothing i know your position is in the real world we had to review the satisfaction piece to do our due diligence before we issued the insurance because only a fool would issue title insurance when the mortgage had up and satisfied right but you can't thirty seven for your guess within that certain things that you did yes that's the position that's our that's our second position you know if you after we do our statutory construction argument which ours our principle position we did go further and i think your hon i must say this is before twamley and it was before it bob and i still said the answer that question was no well after its wanly and about that answer that question is definitely no so there where the allegation is completely implausible or if it's inconsistent with other allegations in the complaint i think the court does have the leeway as the spring court has said now in twice to require some plausibility but i take judge pollak your point you're absolutely right allegations of antitrust violations were implausible on their face but just that there was no suggestion in the complaint of anything to make the court think that the conduct alleged was simply the conduct that was undertaken by the defendants individually because it was in their economic self interest to do so and the court said in twamley before we got to bow and it's unusual circumstances but in twamley the courts that you have to come forward with something to make us think that you have a reason for saying that what these defendants did was the product of collusion or a combination or an agreement and then not simply their independent action in their self interest if it if it's consistent with their independent economic self interest said the court then and you come forward with nothing to diminish that possibility then we can point can't go forward so i think that's how that and that one when i would like to say if i just may your honor you know my time is up but we do think that the court if the court this agrees with us and thinks that for some reason this case is is different and can proceed notwithstanding the lack of any portion received any money or imposed and charged with anything having to do with plaintiffs and if somebody else wants to come forward if there's another point if wes another transaction and claims they dealt with title group that's one thing but these plaintiffs have no claim against group they haven't even asserted one so we think that they dismissed what regardless of what the court does on anything else and of course we urge the court who affirm based on the statutory language but we garbus what the court doesn't anything else we think that title group should definitely be and mrs dobbs i think because it possibly because he's relatively new to the case he didn't realize this our complaint says exactly the opposite it says that they did the tubs don't get these that they aren't sent to the borrower's they're sent just directly from to the title agency and that's actually confirmed if you look at the page itself which appears at a ninety one it says mrs hubs name on the pop it's attention it's a fax attention the call to pull out while she's one of the defendant employees so i think he that was just an inadvertent misstatement it's paragraphs thirty six and forty three where we say that they don't get the the plaintiffs don't see the statements the second does the fallback position does she not and says well even if it were in big u s you would still i think that's a different point where she's saying you can remap and you have to look at whether they actually did real legitimate services or not i think it's two different portions one is in the footnote she says we would find the two thousand and one statement persuasive but then on the last page of the opinion she says  and this is in the text the paper new regulation next at twenty four c f r thirty five hundred point fourteen c specifically parsed charges for com quote nominal services and states that quote duplicative fees are on in on or wrestling with the fact that the that language seems to regularly at odds with the statutory language which requires a portion split or percentage i can conjure many situations where there's an unearned fee or a duplicat the but yet it does not constitute a portion split or percentage what we may not i think just to go back to the christakis this point i mean if you stand back and say what happened here two mortgages were just charged two mortgages were discharged how much was charged for the discharge of two mortgages two hundred thirty dollars it was a pool of two hundred thirty dollars that was paid out at that settlement to discharge two mortgages the defendants had control of that money what did they do with it they paid walk over eighty dollars and walk over it did the work they kept five hundred fifty dollars and they did no work i think that's that's a lot hovey if that was that's what they've they've run away for they've what he's saying is that when we refer to the them getting the pay off statement hud's they are clients paid three hundred twenty five dollars for them to act a settlement agents that goes on line to act as settlement agents what do you do as a settlement agent you get the payoffs they went for a walk over so you can figure out how to disperse the settlement funds in that's what a settlement agent then we pay them that amount eleven  one now what they're trying to say is oh well that's also justifies our charge at twelve o three for getting the pay off statement somehow is connected because we had to figure out how to pay eighty dollars to walk over for the mortgage charge there it's just another way of saying a duplicate if it's something that we've already paid them the hud regulation says that the level no one is supposed to include all of their charges i'm i'm still i sorry to beat the drum again but you're calling it a duplicate of you've been consistent in that today but when you look at the allegations of your complaint and i'm quoting from paragraphs thirty and thirty five quote plaintiff paid the release recording i think the substance of what we're trying to allege is i think and in the rest of the complaint that what kovi did all of the work yes they were separate they were it was a charge of separate charges that's well that's what they chose to do it judge har this is the central point what we're saying what the argument boils down to and this is what judge irene us was asking them at the oral argument do you mean to tell me that if you take the eighty dollars to walk over and put it on line twelve o three so now you've got two hundred thirty dollars that line twelve o three they lose that with your eyes while ation but they but they're in charge they do the form so you're saying i mean the logic of that argument is ok they can violate rest or not violate rest depending on how they which line item they choose to put put the form down but rest of the substance of it that's what santiago gets at what's the substance of the transaction here what is the impact on the consumer and is it functionally the same as a markup if if you if you're saying charge hardiman yes you put both charges on twelve three then it becomes a markup but if you keep their charge walk obvious charges wind fifteen zero one and they put their own separate charge at twelve o three it's not a markup but that's just a matter of form not so not i would i would prefer the statute cover both instances but i'm i'm wrestling with the statutory language which seems to say that it needs to be uses the word charge and it uses the words fortune percentage or forgot the third well maybe maybe it is i don't know i mean you could allege it seems to me the import of what you're arguing is if if one can simply allege that line item bubble wonder sixteen twenty far is the cohen vs j p morgan chase court the second circuit has taken it one step further and said yes a unilateral a charge that's not connected to any other anybody else's charge is a violation of arrest as a two thousand seven this decision which is cited in the defendant's brief we aren't taking that we don't have to go that far in this case because i think that what we're saying is  duplicative fee is essentially no different than a markup they're both used in in the stat in the in the hud regs they're both used in the policy statement they're both within the same consumer impact that amount that was used to discharge these two mortgages i mean that's the reality of what went on here two hundred thirty dollars was collected by the defendants and dispersed to discharge t mortgages and they dispersed eighty of it to walk over and they kept one hundred fifty of of himself and that's why i think it's within the statute living collect to thirty they collected hundreds of thousands yes but if even but you could say i mean looking the reality that there was a two hundred thirty dollars was used from this closing a stance a bully to discharge two mortgages eighty went to work over yeah who did all of the work we allege one hundred fifty was retained by them for an unearned fee and that's a split it's a portion it's a percentage however you want to call it but i think it is within the within the