[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 97-6109

________________________ D. C. Docket No. CV 96-H-0917-S JOHN ROBERT CULPEPPER; PATRICIA STARNES CULPEPPER, and on behalf of all similarly situated persons, Plaintiffs-Appellants,

versus INLAND MORTGAGE CORP., Defendant-Appellee.

________________________ Appeal from the United States District Court for the Northern District of Alabama

_________________________ (June 22, 1998) ON PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC (Opinion January 9, 1998, 11 thCir., 132 F.3d 692). Before EDMONDSON and HULL, Circuit Judge s, and CLARK, Senior Circuit Judge. HULL, Circuit Judge: The Petition for Rehearing is DENIED and no member of this panel nor other1 While this table-funded loan was nota good that Premiere owned and sold to Inland, Inland is correct in asserti ng that RESPA would not have prevented Premiere from funding and then selling the Culpeppers’ loan. As Inland’s brief makes clear, however, that is not what happe ned in this case. Rather, Inland tablefunded the transaction and paid a fee to Pre miere for “the slightly above-par yield on the mortgage note and for the right to service the loan.” Inland’s Responses to Interrogatories, R.1-16, ex. A at 5. 2 Judge in regular active service of the cour t having requested that the court be polled on rehearing en banc (Rule 35, Federal Rule s of Appellate Procedure; Eleventh Circuit Rule 35-5), the Suggestion of Rehearing En Banc is DENIED. Although the Petition is denied, we a ddress several con cerns raised by Petitioner Inland Mortgage to facilitate further proceedings. Inland’s Petition first contends that this court held that RESPA prohibits the pa yment of all reasonable yield spread premiums by mortgage lenders to mortgage brokers who actually furnish services or goods and thereby precludes buye rs from financing closing costs through yield spread premiums. This conten tion inaccurately describes our decision. The central issue presented by this litigation is not whether yield spread premium payments by a mortgage lender can ever be lawful; they can in certain circumstances. The only issue decided by th e court was whether as a matter of law Inland had proven in the instant record that this yield spread premium for this tablefunded loan was a payment for goods or services and therefore not a prohibited referral fee. 1 As emphasized in f ootnote 5 of the opinion, our decision was highly3 dependent upon the facts in the current r ecord about this table-funded financial transaction. For example, one problem for Inland atthe summary judgment stage in this case was that the evidence developed to date did not tie the yield spread premium to services provided by Premiere for Inland or for the Culpeppers. Instead, as our opinion noted, the evidence showed that th e Culpeppers paid a 1% fee for broker services directly to Premiere and that th e quality and quantity of Premiere’s services, for Inland and the Culpeppers, were the same irrespective of whether the interest rate was at par or above par. In land’s payment of the yield spread premium in this record appeared to be tied only to Premiere’s referring an above par loan. Inland now claims that the yield spread premium also repr esented additional payment for Premiere’s services to Inland and the Culpeppers, but th e evidence before the district court at the summary judgment stage did not show this. Second, Inland is concerned that our opinion summarily adjudicates the case in the Culpeppers’ favor. The Culpeppers did not move for summary judgment, and our opinion resolves only whether the di strict court properly granted summary judgment to Inland. Thus, we clarify that Inland’s inability to obtain judgment as a matter of law on the current record doe s not prevent Inland, on remand, from attempting to prove its case at trial. Nonetheless, we note that certain facts about the4 nature of this financial transaction seemto be undisputed which, at a minimum, presents a hurdle for Inland at trial. Third, Inland contends that our opinion creates a series of “economic[] anomalies” because we read RESPA to proh ibit certain transactions but not others. We are duty-bound to apply RESPA as written to determine whether, under the facts of this case, Inland’s payment of a yield sp read premium was lawf ul. Whether, as a matter of policy, RESPA shoul d be amended to remove yi eld spread premiums from the statute’s purview is an issue that we ar e not empowered to reso lve. Thus, we leave it to Inland and other interested parties to pursue that issue before Congress and HUD. PETITION FOR REHEARING AND SUGGESTION OF REHEARING EN BANC DENIED.