Cohen v. Chicago Title Insurance

242 F.R.D. 295, 2007 U.S. Dist. LEXIS 26137, 2007 WL 1067034
CourtDistrict Court, E.D. Pennsylvania
DecidedApril 5, 2007
DocketNo. CIV.A.06-873
StatusPublished
Cited by22 cases

This text of 242 F.R.D. 295 (Cohen v. Chicago Title Insurance) is published on Counsel Stack Legal Research, covering District Court, E.D. Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cohen v. Chicago Title Insurance, 242 F.R.D. 295, 2007 U.S. Dist. LEXIS 26137, 2007 WL 1067034 (E.D. Pa. 2007).

Opinion

MEMORANDUM AND ORDER

SANCHEZ, District Judge.

Pearl Cohen asks this Court to certify a class of all those mortgagors in Pennsylvania who refinanced and bought a lender’s policy from Chicago Title Insurance Co., paying more than Chicago Title’s filed rate structure provides. Chicago Title argues lenders’ policies are provided by independent brokers, whose records are not assembled in a single [297]*297database, making certification of a class legally and factually impossible. Because I find the class meets the requirements of Federal Rule of Civil Procedure 23, I will certify the class.

FACTS1

The facts of the case are straightforward. Cohen re-financed the mortgage on her Philadelphia home in 1999 and purchased title insurance. In 2002, Cohen again refinanced with a $57,600 mortgage and paid Chicago Title $606.75 for title insurance. Chelsea Land Transfer, Inc., an agent of Chicago Title, provided closing and settlement services. As a member of the Title Insurance Rating Bureau of Pennsylvania (TIRBOP), Chicago Title’s rates are approved by and filed with the Insurance Commissioner of Pennsylvania and published in the TIRBOP Manual. The TIRBOP Manual lists reissue rates for title insurance issued within 10 years of a previous policy on the same property. The reissue rate is set at 10 percent less than the rate for an original policy. The TIRBOP Manual also sets a refinance rate for policies issued within three years of a previous policy on the same property. The refinance rate is 20 percent less than the reissue rate. Cohen was charged an undis-counted rate for title insurance rather than the refinance rate to which she was entitled. Cohen paid $169.89 more than the TIRBOP Manual rate of $436.86.

The title insurance industry issues two kinds of policies: owner’s policies and lenders’ policies. An owner’s policy protects the buyer from clouds on the title for as long as she owns the property; a lender’s policy protects the lender against a challenge to the borrower’s title and remains in place only as long as the mortgage remains on record. At

settlement for the purchase of real property in Pennsylvania, a buyer typically buys both owner’s and lenders’ insurance policies. When a property owner refinances her mortgage, the borrower buys only a new lender’s insurance policy. Lenders’ policies are paid for by the borrower, but are held by and benefit the lending institution.

Cohen alleges Chicago Title deprived thousands of Pennsylvania borrowers of the advantage of a refinance or a reissue rate and asks this Court to certify a class of:

All persons or entities in the Commonwealth of Pennsylvania who within 10 years of having previously purchased title insurance in connection with their mortgage or fee interest, refinanced the identical mortgage or fee interest, and were charged a title insurance premium by Chicago Title that exceeded the applicable premium discount for title insurance on file with the Pennsylvania Insurance Commissioner that such persons or entities should have been charged.

Pl.’s Proposed Order, H l.2

Cohen’s complaint recites three causes of action: money had and received, unjust enrichment, and violation of Pennsylvania’s Unfair Trade Practices and Consumer Protection Law (UTPCPL).3 To prevail on a claim for “money had and received,” Cohen must show she is entitled to “recover money paid to the defendant ... because ... the money had been paid by mistake or under compulsion.” Springfield Tp. v. Mellon PSFS Bank, 586 Pa. 1, 889 A.2d 1184, 1186 n. 2 (2005) (quoting Black’s Law Dictionary, at 29 (7th edition)). Cohen’s second count, unjust enrichment, sounds in quasi-contract or contract implied in law. Schott v. Westinghouse Electric Corp., 436 Pa. 279, [298]*298259 A.2d 443, 448 (1969). Quasi-contracts “are obligations created by law for reasons of justice.” Sevast v. Kakouras, 915 A.2d 1147, 1153 n. 7 (Pa.2007). Under the UTPCPL, a person who has been victimized by “fraudulent or deceptive conduct,” 73 P.S. § 201-2(4)(xxi),4 has a private right of action and may be entitled to treble damages. 73 P.S. § 201-9.2.5

DISCUSSION

A class is properly certified when a “discrete legal question ... applies in the same manner to each member of the class.” J.B. v. Valdez, 186 F.3d 1280, 1289 (10th Cir. 1999). Class relief is “peculiarly appropriate” when the “issues involved are common to the class as a whole” and when they “turn on questions of law applicable in the same manner to each member of the class.” General Telephone Co. of Southwest v. Falcon, 457 U.S. 147, 155, 102 S.Ct. 2364, 72 L.Ed.2d 740 (1982) (holding it was error to presume a plaintiffs claim was typical of other claims). A class action “saves the resources of both the courts and the parties by permitting an issue potentially affecting every [class member] to be litigated in an economical fashion under Rule 23.” Falcon, 457 U.S. at 155, 102 S.Ct. 2364.

To proceed as a class representative, Cohen must satisfy the requirements of Federal Rule of Civil Procedure Rule 23(a) and (b).6 The Court may certify a class when “the [299]*299class is too numerous to permit joinder; there are questions of law or fact common to the class; plaintiffs claims are typical of the claims of the class; and plaintiffs will fairly and adequately protect the interests of the class.” Fed.R.Civ.P. 23(a). These requirements are generally referred to as numerosity, commonality, typicality, and adequacy.

A class does not need a magic number of claimants to satisfy the numerosity requirement, nor must Cohen allege the exact number or identity of the class members. Cumberland Farms, Inc. v. Browning-Ferris Industries, Inc., 120 F.R.D. 642, 645 (E.D.Pa.1988). Courts are permitted to “accept common sense assumptions” about the numerosity requirement. In re Linerboard Antitrust Litig., 203 F.R.D. 197, 205 (E.D.Pa.2001). Chicago Title from 2000 to 2005 underwrote 97,760 title insurance policies at the basic rate for $118,566,591 in premiums. In the same time period, Chicago Title wrote 44,298 policies at the reissue rate and 15,660 policies at the refinance rate. Cohen argues, based on statistics regarding mortgage refinancing for the period, as many as 90 percent of the insureds at the basic rate should have received the reissue or the refinance rate. Based on these statistics, the numerosity requirement of Rule 23(a)(1) is satisfied.

The commonality prong requires Cohen to share at least one question of fact or law with the prospective class. Baby Neal v. Casey, 43 F.3d 48, 56 (3d Cir.1994).

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Bluebook (online)
242 F.R.D. 295, 2007 U.S. Dist. LEXIS 26137, 2007 WL 1067034, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cohen-v-chicago-title-insurance-paed-2007.