are two issues under arrest the are federal claim the first claim and the first issue is whether there was a split whether the record shows that there was a split the district court adopted judge  hardens dissent last time where before this court and said that you have to look at the individual charge the hundred fifty dollars fine north american and the eighty dollars buy were kovi and those are that's what has to be split we rely on two cases out of the seven search and why and the christakis case which have the same fact pattern as this case and say no what you do is you look at you look at the what is the settlement service look at it from the from the standpoint from the vantage point of the consumer the consumer is charged for a settlement service res to find settlement services in a functional way hydel examinations it's in the statute at twelve u s c twenty six zero two title examinations property surveys mold and fungus removals and other with a says what is the service that's being charged for from the consumer perspective and here the tubs were charged two hundred thirty dollars to record the releases they were charged for one settlement service and that's what it that's exactly what christakis held and i think that's the correct reading of rest stop it's not obviously s discuss is that what freeman says is that there has to be in order to assist quote in order to establish a violation of twenty six or seven be a plaintiff must demonstrate that a charge for settlement services was divided between two or more persons and then justice scalia talks about a two step process he says that you have to have their receiving the settlement service provider has to receive some money from the that comes from the mortgagee and then the money flows out so there's always going to be that froze yes but the issue the key issue is whether what settlements service is being charged for you see that's when both of them say when both of them say we're charging for the same settlement service and you look at it from the tubs vantage point is the consumers and this is a pro consumer statute after all which is to be nearly  not broadly well he said no justice lawyer says take it up to the full limit but not beyond the limit he says you can and you know that americans are going a split the right but if you look at it from that standpoint and say what was the getting into the expectation of one of the parties is me going on the contract road you're not the rest no your honor the language in rest is no person shall give another person shall accept any portion split or percentage so that's the that's the  of any charge made or received for the rendering of a real estate settlement service so the issue that as well as the last part is crucial other than for services actually right ok right and that's the second that's the second problem but we're just talking about the split and the split has to be for quote for the rendering of a real estate settlement service and so the question is what is  or real estate settlement service equivalence really doesn't address that quick unless it's just a pure unilateral or charge and what i'm saying to you is that if you say a real estate settlement service is the kinds of functional services that respa defines and twenty six o two title examinations property surveys in other words mold of fungus removal if you look at it that way according to the definitions the settlement service here was recording releases and once you say recording releases with the settlement service under respa then that money the pubs were functional sam point the way rest but let me give you an analogy i think is right when we file a notice of appeal we pay one amount of money to the court most lawyers and most high stone that's actually allocated but from our standpoint is that it gives him clients we're paying for the right to take it appeal whether it's allocated after that it is sort of image we don't know it's immaterial to us from our vantage point we're paying for the and it's wrong for wrong for two reasons the first reason it's wrong is that they change their theory after the lawsuit began at the time they charge the release recording fee if you look at line twelve o three it says requote release recording one hundred fifty dollars walkover was charging for a release recording fee they were both charging for the exact same service now after we began this lawsuit north american changed dramatically change all we didn't we said we were charging for release recording fee what we're really charging for quote to satisfy the mortgages and then they just took their regular and then that litany that you just read of requesting the payoff statements that's just their activity they're paid three hundred twenty five dollars to be the spokesman agents and that's what the spurs thing is you have to get a pay off statement from the lender to disperse money you have to send them a cover letter with the chac i mean they how this constitutes a split judgment esky it's a question of what how you define what a real estate settlement house servants who walk over you would be liable as well no because  parties do is equally response no not if you do the work you say that freeman in terms of the potential criminal liability here your honor not if you do the work work of you do the work they couldn't possibly be liable here but so the question that's under section a different section of rest but yes if you kick back money to somebody for no services you are a lot like the rest but what you would not be liable here because it did it perform services you have to do two things you have to have a split see if there's an allocation yes that's right now the second reason i think that defining the focusing on the settlement service that was rendered as the correct focus of this not the individual charges that they happen to make but what was the settlement service that the pubs were paying for that is as i said consistent with the written way rest that defines settlement services it's also consistent with as i said rest as consumer purpose because as a practical matter it's what the tub's from the standpoint of the consumers what they were paying for the and put it online twelve o three and made line twelve o three a total of two hundred thirty dollars and that's what actually they should have done under the hottest rock because god says the twelve o three is for government recording charges so they follow the what instructions line flow three would have read twelve would have read two hundred thirty dollars and then they would have paid it after settlement they would have paid it to a kovi and to themselves even they will admit that that's a split so and they did when the judge shot irene assassin that question suppose what suppose you know put it on one line for both rick yes that would be a violation well at this point you're talking about not even form over substance you're talking about for now just obliterating substance entirely because if you're saying oh if the defendant can choose which line to put it on on a settlement she to decide whether there's a split or nah that makes no sense in terms of the purpose behind respa so and that's another reason why you have to focus on is what was the settlement service that the consumer was being charged for judge hardman thought there was a problem his dissent the charge i mean it's adopted but there was a problem of aggregating you know you'd always aggregate you could sort of pick and choose an aggregate to manufacture litigation but you can't do that what we're talking about is one the exact same settlement service is being charged for i mean you can't pick just anything willy nilly off of a hard one and combine them together what we're saying here is that two entities charged for the democrats settlement service a combined amount was paid by the pubs for that settlement service at the closing and the title agency distributed that between two entities and that's a violation under route twenty six as having a quick and lo thank you you just time i think thank you with the expectation i think that the court envision to develop discovery record to follow that's exactly what happened plaintiffs received all the discovery that a focus for and we're back here in front of this court this time on a fully developed summary be to do what they're going to do record the satisfaction of lien and then the southern company pockets the difference not having performed the service for the money that is put in your pocket that you're saying would be a is a quote charge for the rendering of the settlement service there's an interesting fact here about the eighty dollars to forty dollars per mortgage walk of your waived its service fee those forty dollars are simply the cost that the clerk eighty with the one fifty you're not creating a quote charge for the rendering of a settlement service i don't think that's inconsistent with the colloquy gesturing as below and in fact there's another reason not to concerned about that the charge here the one fifty charge was not for the same service as the eighty two in fact as i said the eighty for mccovey wasn't for a service at all it was a pass through of the of the charge from the recording provider first receives a fee from the consumer and then pay some port of that portion of that fee to a third party as she said she presently that charges issue in our case is the one fifty and there's no dispute that all getting this problem where you just paid off the was or explicit the christakis in there was or explicit i think part is a little more attention after freeman so yeah then they ask you about that issues very similar to the ones before us it certainly does similar fact pattern i agree with that here's the problem with those cases after freeman and really we can talk about the stock as because it was a work just follow so there was no dispute that the settlement agents fee was for the same service as the prior lenders in fact the settlement agent conceded as much as i refunded the money to the consumer we don't have that here that the title agenc proceeds from the new mortgage company worth worth giving that language these this is from christakis these payments meaning the want to the settlement agent and went to the prior lender were made from the same pool of funds from the loan proceeds over which in our county settlement agent had control and directed payments made from but he is not violated by splitting some pot of money is violated only by splitting a charge for the rendering of a settlement service the new pot of money from the new mortgage company is not a charge for the rendering of settlement service the next piece of  be we've talked about if you can take a step back to freeman i think implicit in freeman is that the settlement service provider cannot split what it doesn't receive because of the  to school years talk justice league is talking about saying a settlement service provider receives money and then pays part of that money to someone else i think it's a stretch particularly the supreme court admonished this i think in that case pretty clearly that really stick to the language of and rest more generally to say that something can be split the thing that can be split is not what the settlement agent receives there isn't a two hundred thirty dollars charge here to judge and he's questioned a title agency could have split here when our client the settlement agent is determining how much you can charge for a particular set of services and then what services are included within that charge it goes to the right manual in fact it has to when that document is submitted to the new jersey department of banking and insurance and approved it becomes the fees they have to charge not may or wish but but have to charge so there's a provision in this rate manual that says when your settlement agent and you are arranging for the satisfaction of prior mortgages you shall charge seventy five dollars per mortgage that's what's happening here and that is the basis of the charge the title agency testimony in the record below is that this provision of the right manual with seven point one b is the basis for the seventy five dollars charge and more importantly i think we know that from the actual about number of the charge rights of twelve a three is one hundred  fifty dollars and we know that seventy five per mortgage which matches matches exactly to the seven point one b charge of seventy five dollars for a mortgage so we've had in the papers the plaintiff's dispute whether there isn't a disputed issue of fact about what was the charge actually for was it for recording or not it was for recording he's right title agency didn't record this document but i think we're now into those old cases where at best they're trying to raise a sort of metaphysical doubt about whether a factual dispute exists i think it's clear that from the the matching of the charge seventy five dollars per mortgage to the rate manual that's the basis the charge and it is and below in the record below u n questioning from plaintiffs counsel a representative from the rating bureau of the folks who put this document together and submitted to the new jersey department of vacuum insurance for approval testified yeah the stuff you're talking about is a s actually swept up in another charge it's the three twenty five charge or are referenced i think on eleven zero one again if we want to know what that charges for there is one place to go you know and  that charges for attending or conducting a closing and that's not what's happening here are the players responses but all of the stuff you did is to prepare for the closing and the disbursements that follow the closing so c include everything that was done to prepare for the closing a few problems with that which are pretty any documentary manual contractor or otherwise were told to give effect all of its  want your honor here is included in the three twenty five number for instance if you look down just a little farther on there a manual in section seven point two there is a charge permitted use twenty five dollars each to print documents and copy documents these are the settlement document you might receive from others pre settlement we have to go get this disclosure or that certification well plainly that's done to prepare for the closing but the document approved by the new jersey governmental folk says that's a separate charge from the three twenty five so on rest the summary is no slid under freeman we don't have the sequence that freeman envisions and from christakis and was oric if you look at the punch christakis there the court says we think the statute is broad enough to cover the situation where consumer pays a fee to party a in a party b but only one of them does the work that i think is an undivided a charge and doesn't do anything for it i would say that's not us in this case but for the legal question it doesn't matter and energy gets a charge and simply does nothing for it justice scalia characterize that as an undivided under and fee orac not only that prefer even and therefore couldn't didn't anticipate freeman correctly they don't control players have said well wait a minute the seventh circuit has already required before those cases and all that freeman did it's required it's true that the seventh circuit before freeman said basically it was required but the split that freeman requires is not the kind of play that christakis approves the only time honors that the one fifty in our case and the eighty wherever together was in the pot a new new money from the new mortgage company and so if that's what's being split again case the types testimony was they didn't read it and so they didn't have any understanding about what it would cover and more importantly a p is not a representation or labeling case that you if you i don't think that his point that freeman is inconsistent with wrists are somehow overruled why zero i can christakis is not correct the seventh circuit is required very strictly required to split he regine the language of from christakis but i'd like to reach of the sentence before what he read said mrs christakis claims that she paid fifty two dollars and fifty cents for the settlement charge to record the release for the settlement charge to record the release twenty three dollars the fifty's of which went to the allen who actually recorded the release and thus earn the fee and twenty nine dollars of which went to intercounty who did nothing in return and then the language she read these payments were made from the same pool of funds from the loan proceeds over which intercounty a settlement agent had control and directed payments therefore intercounty receive an honor in portions of a settlement fee that was honor and in violation of twenty six seven rely on it's called recording services the that's what the heading of seven point one is it's a recording service charge the three twenty five that you ask him about he but the fact that they're now claiming there's a different settlement service and that's what absolves them that there's no split because there were two different settlement services well they can't get summary judgment on that because they changed their whole theory of the case after the case began they charge for one thing and then they just change then they shift it as say oh no it's really for satisfying mortgages and then they try to and numerate these dispersement activities that are already compensated for somewhere else i mean there was no other party in the pick nobody was charging for the same thing and the hut hudud taken a position that as this sort of unilateral overcharge could violate rest and that's what freeman was about and they said no the statute require and they were taking this position that a portion split would mean one hundred percent and they said no that's not what portions of it means to me as it has to be allocated they didn't address and that's what the issue for the panel is it's n initially that was not addressed by freeman what is the settlement service charge what is the settlement service charge that has to be split either you're going to agree with judge hardiman to send and say it's these two separate charges the eighty you know what walk over the eighty dollars and one hundred fifty dollars and those are separate and each of those has to be further split and that's one way of i mean that's that's the way judge hard that's being charged for if you say if you define a settlement service from a functional standpoint like title examination like the illustrations that the statute gives you like mold in fungus removal like property searches all of those functional things that happened and say the settlements service being rendered was recording the releases if that's the settlement service charge then that was split that was allocated between two entities where it was in wrath so it really is a question that the sixty four dollar question here is how to define a real estate settlement service under under twenty six of seven and that was not i mean it was not addressed by freeman freeman