FOURTH DIVISION April 15, 2010
Nos. 1-09-1619 & 1-09-1622 (Consolidated)
DOLJIN CHULTEM, Individually and on Behalf Appeal from the of All Others Similarly Situated, Circuit Court of Cook County. Plaintiffs-Appellants,
v. Nos. 06 CH 9488 06 CH 9489 TICOR TITLE INSURANCE COMPANY, CHICAGO TITLE AND TRUST COMPANY, and FIDELITY NATIONAL FINANCIAL, INC.,
Defendants-Appellees.
PAUL A. COLELLA, Individually, and on Behalf of All Others Similarly Situated,
Plaintiffs-Appellants,
v.
CHICAGO TITLE INSURANCE COMPANY and CHICAGO TITLE AND TRUST COMPANY, Honorable Peter Flynn, Defendants-Appellees. Judge Presiding.
JUSTICE O'BRIEN delivered the opinion of the court:
This consolidated appeal involves two cases filed as class actions. In each case, the
plaintiff sued the defendants for their alleged breaches of the Title Insurance Act (Title Act)(215
ILCS 155/1 (West 2002) (incorporating the Real Estate Settlement Procedures Act (RESPA), 12
U.S.C.§2607 (2000))), and the Consumer Fraud and Deceptive Business Practices Act
(Consumer Fraud Act) 815 ILCS 505/1 et seq. (West 2002)). The circuit court denied plaintiffs' Nos. 1-09-1619 & 1-09-1622 (Consolidated)
motions for class certification. We granted leave to appeal pursuant to Supreme Court Rule
306(a)(8) (210 Ill. 2d R. 306(a)(8)). For the reasons that follow, we reverse and remand with
instructions that the circuit court certify these cases as class actions.
In order to clearly set forth the issues in this case, we begin with a background discussion
of the RESPA and the Title Act.
I. The Statutory and Regulatory Framework Governing the Illinois Title Insurance Industry
The Title Act (incorporating RESPA) governs the title insurance industry in Illinois.
RESPA was enacted in 1974 to provide consumers "greater and more timely information on the
nature and costs of the [real estate] settlement process" and to protect consumers from
"unnecessarily high settlement charges caused by certain abusive practices." 12 U.S.C.
§2601(a)(2000). Consistent with that goal, RESPA sections 8(a) and (b) prohibit persons from
giving or receiving kickbacks for the referral of title insurance business and from giving or
receiving a portion of any title insurance premium "other than for services actually performed."
12 U.S.C. §§2607(a), (b) (2000).
RESPA provides two limited exemptions to the prohibition against kickbacks in section
8. First, RESPA section 8(c)(1)(B) provides "[n]othing in this section shall be construed" as
prohibiting a title insurance company from paying its agents "for services actually performed in
the issuance of a policy of title insurance." 12 U.S.C. §2607(c)(1)(B) (2000). Second, RESPA
section 8(c)(2) provides "[n]othing in this section shall be construed" as prohibiting "the payment
to any person of a bona fide salary or compensation or other payment for goods or facilities
actually furnished or for services actually performed." 12 U.S.C. §2607(c)(2) (2000).
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A. The Section 8(c)(1)(B) Exemption
The section 8(c)(1)(B) exemption (which allows for title insurance companies to pay their
agents for services actually performed in the issuance of a title insurance policy) only applies in
situations where an attorney agent performs "core title agent services." The federal agency
charged with administering RESPA, the Department of Housing and Urban Development
(HUD), issued regulations explaining RESPA section 8(c)(1)(B):
"[F]or an attorney of the buyer or seller to receive compensation as a title agent, the
attorney must perform core title agent services (for which liability arises) separate from
attorney services, including the evaluation of the title search to determine the insurability
of the title, the clearance of underwriting objections, the actual issuance of the policy or
policies on behalf of the title insurance company, and, where customary, issuance of the
title commitment, and the conducting of the title search and closing." 24 C.F.R.
§3500.14(g)(3)(2001).
HUD has further stated:
"HUD also will not consider a title insurance agent to be an agent for purposes of
section 8(c)(1)(B) and to have actually performed (or incurred liability for) core title
services when the service is undertaken in whole or in part by the agent's insurance
company (or an affiliate of the insurance company). For example, if the title insurance
company provides its title insurance agent with a pro forma commitment, typing, or other
document preparation services, the title insurance agent is not 'actually performing' these
services. As such, the title insurance agent would not be providing 'core title services' for
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the payments to come within the section 8(c)(1)(B) exemption." RESPA Statement of
Policy 1996-4, 61 Fed. Reg. 49398, 49400 (eff. September 19, 1996).
HUD defines "pro forma commitment" as:
"[A] document that contains a determination of the insurability of the title upon
which a title insurance commitment or policy may be based and that contains essentially
the information stated in Schedule A and B of a title insurance commitment (and may
legally constitute a commitment when countersigned by an authorized representative). A
pro forma commitment is a document that contains determinations or conclusions that are
the product of legal or underwriting judgment regarding the operation or effect of the
various documents or instruments or how they affect the title, or what matters constitute
defects in title, or how the defects can be removed, or instructions concerning what items
to include and/or to exclude in any title commitment or policy to be issued on behalf of
the underwriter." RESPA Statement of Policy 1996-4, 61 Fed. Reg. 49399 (eff.
September 19, 1996).
B. The Section 8(c)(2) Exemption
As discussed above, RESPA section 8(c)(2) provides "[n]othing in this section shall be
construed" as prohibiting "the payment to any person of a bona fide salary or compensation or
other payments for goods or facilities actually furnished or for services actually performed." 12
U.S.C. §2607(c)(2) (2000). HUD's enforcement position is:
"[I]t is difficult to justify the payment (or retention) of a significant portion of the
title insurance risk premium to a title insurance agent who fails to perform and assume
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responsibility for the title examination function. Likewise, if the title insurance company
provides other services, or carries out the title insurance agent functions, or provides or
controls 'part time examiners,' HUD may scrutinize the net level of retention realized by
the agent to determine whether the agent's compensation from the insurer reflects a
meaningful reduction from the compensation generally paid to agents in the area who
perform all core title services. The level of such reduction in compensation must be
reasonably commensurate with the reduced level of responsibilities assumed by such
person for the services provided and the underwriting risks taken." (Emphasis added.)
RESPA, Statement of Policy 1996-4, 61 Fed. Reg. 49400 (eff. September 19, 1996).
Plaintiffs contend the emphasized portion of the HUD policy statement indicates
defendants cannot pay full contract compensation to their attorney agents for anything less than
core title services. When the attorney agents perform anything less than core title services, the
compensation must be reduced to reflect their reduced level of responsibilities.
II. Doljin Chultem's Cause of Action
In plaintiff Doljin Chultem's third-amended complaint, she pleaded that on August 31,
2005, she purchased certain real property in Illinois. That sale included the purchase of a title
insurance policy from defendants Ticor Title Insurance Company (TTI), Chicago Title and Trust
Company, and Fidelity National Financial, Inc. TTI is a wholly owned subsidiary of Chicago
Title and Trust Company. Chicago Title and Trust Company is a subsidiary of Fidelity National
Financial, Inc.
Ms. Chultem pleaded that title insurance policies are issued by the title insurance
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companies directly through their employees or by agents of such companies (title agents).
Some title insurance companies, including defendants, utilize as title agents attorneys who also
represent one or more parties to the real estate transaction. These title insurance companies,
including defendants, compensate these "attorney agents" over and above the attorney fees paid
by the attorneys' clients, the parties to the real estate transaction.
Ms. Chultem pleaded that Illinois and federal law, which disallow the payment of
kickbacks and unearned fees, prohibit title insurance companies from paying attorneys merely for
the referral of business to the title insurance company. If the title insurance company
compensates a title insurance agent, including an attorney agent, without requiring the attorney
agent to perform all the necessary title insurance agent services, then the payment is a kickback
or unearned fee. If a title insurance company pays a title insurance agent from the proceeds of
the title insurance policy premium, the title insurance company is required by Illinois and federal
law to prepare the title insurance commitment based exclusively on the attorney agent's
examination of title and determination of title insurability. If a title insurance company examines
title and prepares a preliminary or pro forma title commitment not based exclusively on the
attorney agent's determination of title insurability, it has violated Illinois and federal law.
Ms. Chultem pleaded that defendants have developed attorney agent programs designed
to compensate attorney agents in exchange for the referral of business. Under such attorney
agent programs, title insurance transactions are conducted in accordance with standard
procedures created and implemented by defendants. In violation of Illinois and federal law,
defendants pay their attorney agents based solely on the amount of title insurance premiums
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generated from the referred clients and without regard to the time spent by the attorney agents or
the quality and quantity of services performed by the attorney agents. Attorney agents in these
programs receive a predetermined percentage of the title insurance premium pursuant to a fee
schedule. These payments typically range from approximately 70% to 80% of the premium
collected, depending upon the time period, and at all times exceed 50% of the premium collected.
Ms. Chultem pleaded that pursuant to the attorney agent program and in violation of
Illinois and federal law, defendants perform the very services that are legally required to be
performed by the attorney agents. Specifically, defendants, independent of the attorney agents,
examine title and determine insurability of title, clear underwriting objections (by waiving
exceptions to title commitments or policies), issue title commitments and policies, and conduct
the title searches and closings. Defendants' performance of these services necessarily renders all
payments to attorney agents through these programs mere kickbacks in violation of Illinois and
federal law.
Ms. Chultem pleaded that as part of its attorney agent programs and in violation of
Illinois and federal law, defendants examine title and prepare preliminary or pro forma title
commitments not based exclusively on the attorney agent's determination of title insurability.
From at least early 2000 through September 2005, defendant TTI provided an "A-exam" to
attorney agents, which incorporated in the form of a preliminary title commitment all of the
information in TTI's electronic database relating to the property being bought and sold. In 2005,
the A-exam was replaced by a different document called an attorney agent examination
worksheet, but which still contained the same information in the form of a preliminary or pro
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forma title commitment.
Count I pleaded violations of the Title Act and RESPA. Count II pleaded violations of
the Consumer Fraud Act. Count III sought injunctive relief. Ms. Chultem also sought to bring
the action as a class action on behalf of all people who purchased, sold or mortgaged real
property in Illinois and who paid for a title insurance policy from one or more defendants, any
part of which premium then was shared with an attorney pursuant to defendants' attorney agent
program.
III. Paul Colella's Cause of Action
Mr. Colella pleaded in his third-amended complaint that on July 20, 2005, he purchased
certain real property in Illinois. That sale included the purchase of a title insurance policy from
defendants Chicago Title Insurance Company (CTI), Chicago Title and Trust Company, and
Fidelity National Financial, Inc.
Similar to Ms. Chultem's complaint, Mr. Colella pleaded that defendants developed
attorney agent programs that violated Illinois and federal law by paying the attorney agents based
solely on the amount of title insurance premiums generated from the referred clients and without
regard to the quality or quantity of services actually performed by the attorney agents. The
attorney agents in these programs receive a predetermined percentage of the title insurance
premium pursuant to a fee schedule. These payments typically range from approximately 70% to
80% of the premium collected.
Similar to Ms. Chultem's complaint, Mr. Colella pleaded that pursuant to the attorney
agent program and in violation of Illinois and federal law, defendants perform the very services
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that are legally required to be performed by the attorney agents. Specifically, defendants,
independent of the attorney agents, examine title and determine insurability of title, clear
underwriting objections, issue title commitments and policies, and conduct the title searches and
closings.
Mr. Colella pleaded that as part of its attorney agent programs and in violation of Illinois
and federal law, defendants examine title and prepare preliminary or pro forma title
commitments not based exclusively on the attorney agent's determination of title insurability.
From the inception of its attorney agent program in 1997 until 2001, CTI's Metro Northwest
Region sent attorney agents a title search package that included a "Title Examination" in the form
of a title commitment. From 2001 through September 2005, CTI sent a preliminary title
commitment with the title search package to attorney agents in the Metro Northwest Region.
From September 2005 through April 2006, CTI sent the title search package, already prepared in
the form of a title commitment, to Metro Northwest attorney agents.
Mr. Colella pleaded that from 1999 through the late summer of 2005, CTI's Southwest
Metro Region provided a preliminary title commitment to attorney agents along with the search
package. From the inception of its attorney agent programs until at least April 2006, CTI also
sent preliminary title commitments to its attorney agents throughout other parts of Illinois.
Mr. Colella pleaded that from the inception of its attorney agent programs in 1997
through the present, CTI trained employees to examine title and determine insurability, the very
tasks defendants must require of their attorney agents in order to lawfully compensate these
agents from the proceeds of title insurance policy premiums. CTI makes the decisions whether to
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release or insure over any exceptions to the title insurance commitment, which is an essential part
of the title insurance agents' function. Defendants' performance of these services necessarily
renders all payments to attorney agents through these programs mere kickbacks in violation of
Illinois and federal law.
Count I pleaded violations of the Title Act and RESPA. Count II pleaded violations of
the Consumer Fraud Act. Count III sought injunctive relief. Mr. Colella also sought to bring the
action as a class action on behalf of all people who purchased, sold or mortgaged real property in
Illinois and who paid for a title insurance policy from one or more defendants, any part of which
premium then was shared with an attorney pursuant to defendants' attorney agent program.
IV. Procedural History
On November 13, 2007, plaintiffs moved to certify the two cases as class actions pursuant
to section 2-801 of the Code of Civil Procedure (735 ILCS 5/2-801 (West 2006)). Following a
hearing on February 22, 2008, the circuit court denied plaintiffs' motion without prejudice,
finding "one would not be able to tell whether a given transaction was illegal without looking at
that transaction which means liability couldn't be determined across the board."
On September 12, 2008, plaintiffs filed separate renewed motions for class certification
(the second motions). Plaintiffs' proposed new class definitions in each case were as follows:
"All persons who bought, sold or mortgaged residential real property within the
State of Illinois and who paid for title insurance from Defendants where any part of the
premium for the title insurance was then shared by Defendants with their attorney agents
pursuant to Defendants' attorney agent programs if:
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1. Defendants' transaction file contains no attorney agent title
examination; or,
2. the preparation date of the first title insurance commitment prepared for
the transaction precedes the date of the attorney agent's title examination; or
3. the following are true when comparing Defendants' title search results
(title search package, title examination, A-exam, pre-commitment, pre-
examination, or other 'pro-forma commitment') with the first title insurance
commitment prepared in the transaction:
a) the name of the proposed insured owner does not change;
b) the name of the record owner does not change;
c) the legal description of the real estate does not change;
d) the title exceptions do not change; and
e) the tax identification number does not change."
In their briefs in opposition to plaintiffs' second motions for certification, all defendants
argued: (1) individual issues predominated, because each real estate transaction would have to be
examined to determine whether the attorney agent rendered compensable services; and (2) the
proposed class was not ascertainable, because the process of reviewing defendants' transaction
files to determine class membership would be burdensome.
Following additional discovery, plaintiffs tailored new class definitions to fit the
circumstances of each case and proposed them in their replies in support of the second motions.
In the Chultem action, the proposed class was defined as:
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"All persons who bought, sold or mortgaged residential real property involving a
federally related mortgage loan within the State of Illinois and who paid for title
insurance from Ticor Title Insurance Co. from February 1, 2000 to September 30, 2005,
in a transaction where Ticor Title Insurance Co.'s records reflect:
(A) The A-Exam returned by the attorney agent contains no changes or
additions to the information transmitted by Ticor Title Insurance Co. to the
attorney agent, and
(B) Ticor Title Insurance Co. paid the attorney agent the full
amount of compensation due under the operative agency agreement or
contract with such attorney agent."
In the Colella action, the proposed class was defined as:
"All persons who bought, sold or mortgaged residential real property
involving a federally related mortgage loan within the State of Illinois and who
paid for title insurance from Chicago Title Insurance Co. from January 1, 2001 to
September 1, 2005, in a transaction where Chicago Title Insurance Co.'s records
reflect that the attorney agent was paid the full amount of compensation due under
the operative agency agreement or contract with such attorney agent."
On May 26, 2009, the circuit court denied both motions for class certification. On June
22, 2009, the circuit court entered another order, on plaintiffs' unopposed motion, amending the
second motions for class certification to conform to the class definitions proposed in plaintiffs'
reply briefs. This permissive appeal followed.
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V. Analysis
Section 2-801 of the Code of Civil Procedure (735 ILCS 5/2-801 (West 2006)) governs
class certification. Pursuant to section 2-801, the court may certify a class only if plaintiffs
establish the following:
"(1) The class is so numerous that joinder of all members is impracticable.
(2) There are questions of fact or law common to the class, which common
questions predominate over any questions affecting only individual members.
(3) The representative parties will fairly and adequately protect the interest of the
class.
(4) The class action is an appropriate method for the fair and efficient adjudication
of the controversy." 735 ILCS 5/2-801 (West 2006).
In determining whether the proposed class should be certified, the court accepts the
allegations of the complaint as true. Ramirez v. Midway Moving & Storage, Inc., 378 Ill. App.
3d 51, 53 (2007). The circuit court has broad discretion in determining whether a proposed class
meets the requirements for class certification and should err in favor of maintaining class
certification. Ramirez, 378 Ill. App. 3d at 53. Decisions regarding class certification will be
overturned only when the court clearly abused its discretion or applied impermissible legal
criteria. Avery v. State Farm Mutual Automobile Insurance Co., 216 Ill. 2d 100, 125-26 (2005).
In the present case, neither party disputes plaintiffs' proposed classes satisfy the
numerosity and adequacy of representation requirements of section 2-801. The issue is whether
plaintiffs' proposed classes in their second-amended motions for class certification meet section
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2-801's "predominance" requirement that common questions predominate over any questions
involving only individual members.
Defendants argue that in determining whether they violated RESPA by providing
kickbacks to attorney agents for referral of title insurance business, the trier of fact necessarily
will have to examine whether either the section 8(c)(1)(B) exemption or section 8(c)(2)
exemption applies. Under section 8(c)(1)(B), the trier of fact must determine what work the
attorney agent performed in conjunction with each transaction and whether that work comprised
"core title services" for which he is entitled to full contract compensation. For any transaction
where the attorney agent did not perform core title services, the trier of fact then must proceed,
under the section 8(c)(2) exemption, to assess the services performed and weigh the reasonable
value of those services to determine the level of compensation due. Defendants contend since
liability turns on a transaction-by-transaction review of whether the attorney agent performed
core title services or received payment for services actually performed, common issues do not
predominate over individualized ones as required for class certification under section 2-801.
Defendants' arguments are unavailing. The allegations in plaintiffs' complaint, taken as
true for purposes of determining class certification, are that Ticor's A-exam and CTI's
preliminary commitment are "pro forma commitments" and, as such, any attorney agent would
not be providing "core title services" for the payments to come within the section 8(c)(1)(B)
exemption. See RESPA Statement of Policy 1996-4, 61 Fed Reg. 49400 (eff. September 19,
1996) ("if the title insurance company provides its title insurance agent with a pro forma
commitment *** the title insurance agent is not 'actually performing' these services. As such, the
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title insurance agent would not be providing 'core title services' for the payments to come within
the section 8(c)(1)(B) exemption"). Further, both of plaintiffs' proposed classes contain only
those attorney agents who were paid the full amount due under the applicable attorney agent
contract; plaintiffs contend the section 8(c)(2) exemption is not applicable here since said
exemption only applies when the attorney agent is paid less than the full contract rate for the
performance of something other than core title services. See RESPA, Statement of Policy 1996-
4, 61 Fed. Reg. 49400 (eff. September 19, 1996). Plaintiffs contend since the defendants paid
their attorney agents the full contract rate, said payments do not fall within the section 8(c)(2)
exemption.
Defendants dispute plaintiffs' contention they provided pro forma commitments to their
attorney agents, and it was unlawful for them to pay their attorney agents the full contract rate
pursuant thereto. However, these are questions common to the class that predominate over any
individual issues. Specifically, if the plaintiffs are able to prove at trial Ticor's A-exam and CTI's
preliminary commitments are "pro forma commitments" and defendants cannot lawfully send
their attorney agents pro forma commitments and pay them full compensation, they will prevail
on their individual claims and will have established a right to recovery for all class members
regardless of the services performed by said attorney agents. In other words, a finding that
Ticor's A-exam and CTI's preliminary commitments are "pro forma commitments," and, it was
unlawful for defendants to pay their attorney agents the full amount due under the applicable
attorney agent contract, necessarily means neither the section 8(c)(1)(B) nor the section 8(c)(2)
exemption applies; therefore, the trier of fact will not have to make a transaction-by-transaction
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review of whether the attorney agents performed core title services pursuant to the section
8(c)(1)(B) exemption or whether the attorney agents performed lesser services pursuant to the
section 8(c)(2) exemption. Instead, as discussed, plaintiffs will have established a right to
recovery for all class members and all that will remain is an administrative determination of
damages. Accordingly, plaintiffs have satisfied the predominance requirement of section 2-801.
Defendants note, in assessing whether issues common to the class predominate over
individual issues, the court may look beyond the pleadings to understand the claims, defenses,
relevant facts, and applicable substantive law. See Smith v. Illinois Central R.R. Co., 223 Ill. 2d
441, 449 (2006). Accordingly, defendants ask this court to look beyond the pleadings to the
testimony of various attorney agents and to the language of the CTI Title Search Packages, which
informed the attorney agents it was their responsibility to determine insurability of title. These
attorney agents testified that they conducted independent examinations of title and drew their
own conclusions thereto. Defendants contend this evidence showed individual attorney agents
performed core title services and determined insurability of title. Therefore, defendants argue
there is no way to impose liability on defendants without a transaction-by-transaction
examination of the work performed by the attorney agents, to determine whether and to what
extent core title services were performed.
Defendants' argument is unavailing. As discussed above, if the defendants in fact were
sending their attorney agents pro forma commitments, then under the HUD regulatory materials
the attorney agents were not performing core title services for the payments to come within the
section 8(c)(1)(B) exemption. The questions of whether the defendants were sending their
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attorney agents pro forma commitments, and whether the defendants lawfully can pay their
attorney agents full contract compensation after sending them pro forma commitments, are
questions common to the respective classes which, if resolved in favor of plaintiffs, will settle the
entire controversy. See Smith, 223 Ill. 2d at 449 (where the predominance test is met, a
judgment in favor of the class members settles the entire controversy, and all that remains is for
the other class members to file proof of their claim). Contrary to defendants' argument, a
transaction-by-transaction examination of the work performed by the attorney agents is not
necessary to a resolution of these questions.
Next, the parties each make rather cursory arguments concerning the level of deference
the circuit court should have given to the HUD regulatory materials. Plaintiffs indicate the
circuit court should have deferred to the HUD regulatory materials that provided defendants
cannot pay full compensation to their attorney agents for reexamining pro forma commitments;
defendants argue such deference was not required. This issue goes to the merits of the
underlying actions and is not appropriate to be considered when examining the propriety of class
certification. See Cruz v. Unilock Chicago, Inc., 383 Ill. App. 3d 752, 764 (2008) (the trial
court's discretion is limited to an inquiry into whether the plaintiffs are asserting a claim which,
assuming its merits, will satisfy the requirements of section 2-801 as distinguished from an
inquiry into the merits of the plaintiffs' particular individual claims).
Next, defendants argue a federal district judge denied class certification in a case
involving similar facts and claims. See Howland v. First American Title Insurance Co., No. 07 C
2628 (N.D. Ill. 2009). Defendants contend Howland compels a result different than the one
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reached here. We disagree, as the district judge in Howland never discussed the issue as it is
presented here, i.e., whether the predominance requirement is satisfied where the plaintiffs allege
the title insurance companies paid the attorney agents in full after sending them pro forma
commitments.
On the pleadings and facts of the present case, the plaintiffs have satisfied all the class
certification requirements of section 2-801, making it evident a class action is appropriate. As
plaintiffs have met all the requirements of section 2-801, including the predominance
requirement, we reverse and remand with instructions the circuit court certify these cases as class
actions.
As a result of our disposition of this case, we need not address the other arguments on
appeal.
Reversed and remanded with instructions.
GALLAGHER and NEVILLE, JJ.'s concur.
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