United States Court of Appeals Fifth Circuit F I L E D June 11, 2003
In the
Charles R. Fulbruge III
United States Court of Appeals Clerk for the Fifth Circuit
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m 02-60539
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ANNA D. SNOW; TERESA J. HALEY; RONALD DUFF; SABRINA DUFF;
RICKY WILLIAMS; ANGELA WILLIAMS, AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
FIRST AMERICAN TITLE INSURANCE COMPANY,
Defendant-Appellee.
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m 02-60627
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ANDREA CHENAULT; JOANNA SMITH; PAMELA EDWARDS; FRANKIE JUDD;
DEBBIE L. WILSON; KENNETH W. WILSON; CELESTINE TURNER;
GUY E. WATTS, JR.; JANIE G. WATTS; LISA TIMMONS, AND ALL OTHERS SIMILARLY SITUATED,
Plaintiffs-Appellants,
VERSUS
MISSISSIPPI VALLEY TITLE INSURANCE COMPANY; OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,
Defendants-Appellees.
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Appeals from the United States District Court for the Northern District of Mississippi
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Before SMITH, DENNIS, and CLEMENT, annual bonuses to agents who collect certain Circuit Judges. high amounts of premiums. Mississippi Valley Title Insurance Company and Old Republic JERRY E. SMITH, Circuit Judge: National Title Insurance Company pay most of their agents sixty percent of the premiums they In these cases consolidated for appeal, collect, but agents with certain high volumes plaintiffs sued for alleged violations of the Real receive seventy percent of their collections. Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2601 et seq., in connection with Plaintiffs allege that these compensation their purchase of title insurance. The district plans violate RESPA’s anti-kickback and feecourt in each case ruled that RESPA’s one- splitting provisions, 12 U.S.C. § 2607(a)-(b). year statute of limitations bars recovery. They sued more than one year after their real Agreeing with that conclusion, we affirm. estate closings. Defendants argued that RESPA’s one-year statute of limitations, 12 I. U.S.C. § 2614, therefore barred the suits. The Plaintiffs are putative classes of real estate district courts agreed and entered judgment for purchasers.1 Defendants are title insurance defendants. companies. Plaintiffs bought title insurance from agents working for the defendant compa- II. nies. Plaintiffs paid for the insurance at their These appeals have different procedural real estate closings. postures. The Snow court entered a judgment of dismissal under FED. R. CIV. P. 12(b)(6); the Though defendants have different compen- Chenault court entered summary judgment sation plans, plaintiffs allege that these plans under FED. R. CIV. P. 56(c). When reviewing have a common effect: The agents receive ad- a dismissal, we take the well-pleaded facts in ditional compensation for generating high vol- the complaint as true. Kane Enters. v. Macumes of title insurance sales for defendants. Gregor (U.S.A.) Inc., 322 F.3d 371, 374 (5th First American Title Insurance Company pays Cir. 2003). When reviewing a summary judgment , though, we look to whether the plaintiff adduced specific evidence creating a genuine 1 Neither district court certified a class before issue of material fact. Chaplin v. Nationsentering judgment, so plaintiffs appear in their Credit Corp., 307 F.3d 368, 371-72 (5th Cir. individual capacities.
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2002). plans.2
These differences do not affect our review, The statute of limitations for private because plaintiffs and defendants in both cases plaintiffs suing for an alleged violation of agree on the relevant facts and dispute only the § 2607 is one year. 12 U.S.C. § 2614. The meaning of certain statutory language in parties disagree over what triggers this one- § 2614. We therefore accept the undisputed year statute of limitations. Section 2614 states facts and review the question of statutory in- that the limitations period runs “from the date terpretation de novo. United States v. Phipps, of the occurrence of the violation.” 319 F.3d 177, 183 (5th Cir. 2003). Defendants argue that “the violation” (if any)
occurred at the closing when the agents earned III. the allegedly prohibited credit toward future Congress enacted RESPA “to ensure that payment under defendants’ compensation real estate consumers ‘are provided with great- plans. Thus, defendants conclude that § 2614 er and more timely information on the nature bars these suits because plaintiffs sued more and costs of the settlement process and are than one year after their closings. protected from unnecessarily high settlement charges caused by certain abusive practices.’” Plaintiffs acknowledge that a violation (if O’Sullivan v. Countrywide Home Loans, Inc., any) occurred at the closing and therefore that 319 F.3d 732, 738 (5th Cir. 2003) (quoting 12 they could have sued immediately thereafter. U.S.C. § 2601(a)). To this end, RESPA Yet, plaintiffs counter that the closing is not prohibits any person from giving or accepting the only event that triggers the one-year “any fee, kickback, or thing of value pursuant period. They argue that limitations began to to any agreement or understanding . . . that run anew when defendants paid the credit that business incident to or a part of a real estate the agents had earned at the closing. Thus, service . . . shall be referred to any person,” 12 plaintiffs conclude that § 2614 does not bar U.S.C. § 2607(a), and from accepting any their suits, because they sued less than one unearned fee in relation to a settlement service, year after defendants tendered the additional 12 U.S.C. § 2607(b). income to the agents.
“[T]he term ‘thing of value’ includes any We agree with defendants’ interpretation:
payment, advance, funds, loan, service, or oth- The phrase “the date of the occurrence of the er consideration.” 12 U.S.C. § 2602(2). The violation” refers to the closing, i.e., when the RESPA regulations elaborate this statutory de- plaintiffs paid for the insurance, because that is finition to include “credits representing monies when the agents earned the allegedly that may be paid at a future date.” 24 C.F.R. prohibited “thing of value.”3 We interpret § 3500.14(d). The parties agree that defendants gave, and their agents received, a “thing of value” when plaintiffs paid for the 2 Defendants, of course, contest that this “thing title insurance at their closings, because the of value” violated the statute, but we need not agents thereby earned a credit toward future address that question. payment under defendants’ compensation
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We use “closing” interchangeably with the (continued...)
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§ 2614 in this way for four main reasons. limitations. The Secretary of Housing and Urban Development, state attorneys general, First and most importantly, the statutory and state insurance commissioners may sue text and structure better support this reading. within three years of any violation of RESPA. In § 2614, Congress spoke of a single 12 U.S.C. § 2614. Private plaintiffs, too, have triggering violation, not multiple violations. a three-year limitations period for suits “Any action pursuant to . . . section . . . 2607 alleging a violation of § 2605. Id. Only for . . . may be brought in [a court] . . . where the private plaintiffs suing under §§ 2607 and violation is alleged to have occurred, within 2608 did Congress impose a one-year . . . 1 year in the case of a violation of section limitations period. Id. 2607 . . . from the date of the occurrence of the violation[.]” 12 U.S.C. § 2614 (emphasis By extending indefinitely the limitations peadded ). Had Congress wanted the various riod for private plaintiffs suing under § 2607, steps in a single transaction to trigger the stat- plaintiffs’ interpretation would “create[ ] a ute of limitations multiple times, it would have limitations period that is longer than Congress spoken of multiple “violations.” could have contemplated,” Klehr v. A.O.
Smith Corp., 521 U.S. 179, 187 (1997), for When creating the private right of action such suits. The interpretation thus would nefor kickbacks and fee-splitting, Congress also gate Congress’s decision to impose three difspoke of a single “violation.” 12 U.S.C. ferent limitation periods in § 2614. We are § 2607(d)(2). As plaintiffs recognize, this use obliged, however, to preserve these policy of the term “violation” refers to the single in- choices. See United Sav. Ass’n v. Timbers of tegrated transaction, regardless how many Inwood Forest Assocs., Ltd., 484 U.S. 365, steps it has. This undermines their own 371 (1988). argument, however, because the same term should be given the same meaning throughout Furthermore, Congress directed RESPA the statute. United States v. Ho, 311 F.3d toward the closing. The primary ill that 589, 606 (5th Cir. 2002). § 2607 is designed to remedy is the potential for “unnecessarily high settlement charges,”
Plaintiffs’ interpretation also would upset § 2601(a), caused by kickbacks, fee-splitting, Congress’s policy choices regarding limitations and other practices that suppress price periods for RESPA actions. Section 2614 competition for settlement services. This ill actually contains three separate statutes of occurs, if at all, when the plaintiff pays for the service, typically at the closing. Plaintiffs therefore could have sued at that moment, and (...continued)
“the standard rule [is] that the limitations date of plaintiffs’ payment for the title insurance, period commences when the plaintiff has a because they are identical in this case, as they are in most real estate transactions. We recognize, complete and present cause of action.” Bay however, the possibility that purchasers could pay Area Laundry & Dry Cleaning Pension Trust for a settlement service subject to § 2607(a)-(b) at Fund v. Ferbar Corp., 522 U.S. 192, 201 a time other than the closing, in which case “the date of the occurrence of the violation” presumably would be the date of payment, not the unrelated closing.
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(1997) (quotation marks omitted).4 Plaintiffs’ interpretation also would let the statute of limitations regenerate itself like a Indeed, plaintiffs should be indifferent to phoenix from the ashes. Plaintiffs note that whether defendants pay their agents in the some insurance companies, instead of cash future, because it would not affect the price payments, might give their high-volume agents plaintiffs paid for title insurance. This trips to events such as annually-occurring golf statutory emphasis on the closing further tournaments. Suppose, however, that a indicates that the limitations period begins to company rewarded its highest volume agents run when the agents earned the allegedly with trips to the Olympics. In this situation, prohibited credit at the closing. plaintiffs contend that the limitations period would begin at the closing and expire a year Second, plaintiffs’ interpretation would cre- later, only to be restarted years later when the ate several absurd results, which we must agents travel to the Olympics and then to run endeavor to avoid. United States v. Ret. for another year. Neither the statute nor the Servs. Group, 302 F.3d 425, 435-36 (5th Cir. caselaw supports this unheard-of proposition.6 2002). Most obviously, plaintiffs’ interpretation would allow them to recover In addition, under plaintiffs’ interpretation, twice for a single violation in connection with like plaintiffs would face unalike limitations a single settlement service, once for the periods. Suppose two persons buy title violation at closing and again for the violation insurance from the same agent on the same at payment. Nothing in the statute authorizes day at the same price and subject to the same this double recovery. To the contrary, compensation plan. For the first purchaser, Congress already imposed treble damages for the agent remits the full premium to the any kickback or fee-splitting violation. 12 insurance company but is credited with a U.S.C. § 2607(d)(2).5
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(...continued)
4 See also Clark v. Iowa City, 87 U.S. (20 terpretation, why they could not recover twice for Wall.) 583, 589 (1875) (“All statutes of limitations the treble value of the single charge paid. They begin to run when the right of action is also argue that Congress used the plural “procomplete [.]”). hibitions or limitations” to describe the violation but used the singular “charge paid” to describe the 5 Plaintiffs attempt but fail to dispel the possi- measure of liability. Yet, the phrase “prohibitions bility of such double recovery. They emphasize or limitations” plainly refers to the multiple rules § 2607(d)(2), which states that “[a]ny person or imposed by § 2607, not the number of violations persons who violate the prohibitions or limitations committed under the section. of this section shall be . . . liable to the person . . .
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charged for the settlement service involved in the Cf. Reiter v. Cooper, 507 U.S. 258, 267 violation in an amount equal to three times the (1993) (“While it is theoretically possible for a amount of any charge paid for such settlement statute to create a cause of action that accrues at service.” They argue first that the measure of one time for the purpose of calculating when the damages is the “charge paid,” and, because they statute of limitations begins to run, but at another paid only one charge, there can only be one re- time for the purpose of bringing suit, we will not covery. Yet, there is no reason, under their in- infer such an odd result in the absence of any such (continued...) indication in the statute.”).
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future payment. For the second purchaser, the periods.” Klehr, 521 U.S. at 187. agent retains his share of the premium and remits the remainder to the company. The first Fourth, the caselaw, albeit limited, uniformpurchaser enjoys an indefinitely extended ly supports defendants’ interpretation. No limitations period, whereas the limitations circuit has interpreted the phrase “the date of clock begins to tick immediately for the second the occurrence of the violation” in § 2614. purchaser. One district court, in a thorough opinion, has held that “the violation occurs and the RESPA nowhere suggests that Congress limitations period begins once a borrower intended such dissimilar treatment. “If overpays for a settlement service that is Congress had intended the statute of subject to [§ 2607].” Mullinax, 199 F. Supp. limitations to float in this way, it could have so 2d at 325. Several other courts have assumed provided in explicit language.” Mullinax v. in dictum that the violation occurs when a Radian Guar. Inc., 199 F. Supp. 2d 311, 325 plaintiff pays for the settlement service.8 (M.D.N.C. 2002). Plaintiffs, by contrast, cannot point to a case that holds or even assumes that the limitations Third, we create a simple and workable rule period can restart when the defendant pays an for the application of § 2614 by interpreting allegedly illegal kickback or fee. the phrase “the date of the occurrence of the violation” as the date of the closing, which is AFFIRMED. a definite and indisputable date known to potential plaintiffs and defendants. The date when defendants pay their agents, on the other hand, is unknown to plaintiffs; it could occur weeks, months, or even years after the closing.
Plaintiffs’ interpretation thus would generate confusion and uncertainty about the timeliness of many RESPA claims. In practice, it would encourage tardy plaintiffs to sue and hope that discovery turns up a recent payment that restarts the limitations period.7 This interpretation “thereby conflicts with a basic objectiveSSreposeSSthat underlies limitations
7 Plaintiffs have not raised, and we therefore express no opinion on, the question whether § 2614
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is subject to equitable tolling. Compare Hardin v. See, e.g., Salois v. Dime Savs. Bank, 128 F.3d City Title & Escrow Co., 797 F.2d 1037, 1039-41 20, 25 (1st Cir. 1997); Pedraza v. United Guar. (D.C. Cir. 1986) (holding that § 2614 is not Corp., 114 F. Supp. 2d 1347, 1349 (S.D. Ga. subject to equitable tolling) with Mullinax, 199 F. 2000); Bloom v. Martin, 865 F. Supp. 1377, 1386 Supp. 2d at 326-28 (holding that § 2614 is subject (N.D. Cal. 1994), aff’d, 77 F.3d 318 (9th Cir. to equitable tolling). 1996).