Collins v. FMHA-USDA

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 18, 1997
• Docket: 96-2351
• Status: Published

Opinion

United States Court of Appeals,

Eleventh District.

No. 96-2351

Non-Argument Calendar.

John L. COLLINS, Plaintiff-Appellant,

v.

FMHA-USDA, (Administrator), et al., Defendants-Appellees.

Feb. 18, 1997.

Appeal from the United States District Court for the Middle District of Florida. (No. 95-44-CIV-OC-10), Wm. Terrell Hodges, Judge.

Before HATCHETT, Chief Judge, and EDMONDSON and CARNES, Circuit Judges.

PER CURIAM:

John Collins appeals the district court's Rule 12(b)(6)

dismissal of his lawsuit alleging a discriminatory conspiracy and

various deficiencies in the processing of his mortgage loan

application through the Farmers Home Administration ("FMHA").

I.

Construing the facts and allegations most favorably to

Collins, his claims arose out of a real estate transaction gone

awry. According to his second (and last) amended complaint,

Collins took an option to purchase a home to be built by John A.

Rankin Construction Company, Inc. for $46,400. The paperwork for

the option and for an FMHA loan application was prepared by realtor

Frances Rankin. Subsequently, figures on the paperwork were

changed to reflect a purchase price of $49,200. Collins claimed

that this change was made without his knowledge or consent, as the

result of a conspiracy between FMHA employees and Frances Rankin. Collins alleged other deficiencies in the processing of his loan

application, including inadequate good faith estimates of closing

costs, inadequate information about encroachments on his property,

and an inadequate investigation of his complaints after the

closing. In addition, Collins alleged the existence of a

prohibited undisclosed controlled business relationship and an

overcharge of closing costs.

Based on these alleged facts, Collins asserted claims under

the Real Estate Settlement Procedures Act ("RESPA"), 12 U.S.C. §§

2604, 2607, and regulations promulgated thereunder, 24 C.F.R. §§

3500.7, 3500.14, 3500.15, 3500.19, and under the Fraud & False

Statements Statute, 18 U.S.C. § 1001, the Civil Rights Conspiracy

Statute, 42 U.S.C. § 1985(3), and the Action for Neglect to Prevent

Statute, 42 U.S.C. § 1986, against FMHA, certain employees of FMHA,

the realtor, the builder, two title insurance companies, and an

attorney. The defendants moved to dismiss Collins' second amended

complaint for failure to state a claim. The federal defendants

also moved to dismiss on grounds of immunity under the Federal Tort

Claims Act, 28 U.S.C. §§ 1346(b) and 2671, et seq., and based on

the doctrine of sovereign immunity.

The district court dismissed: (1) the civil rights claims

because Collins had failed to allege that an invidiously

discriminatory animus motivated the conspiracy; (2) the claims

under 18 U.S.C. § 1001 and 12 U.S.C. § 2604, because they do not

permit private civil remedies; and (3) the claims under 12 U.S.C.

§ 2607, because Collins had failed to allege facts entitling him to

relief. The district court did not reach the federal defendants immunity issues. This appeal followed.

II.

On appeal, Collins does not challenge the dismissal of his

claim under 18 U.S.C. § 1001. Accordingly, we deem that claim to

be abandoned. See Rogero v. Noone, 704 F.2d 518, 520 n. 1 (11th

Cir.1983).

As to the other claims, without reaching the federal

defendants' immunity contentions, we affirm the district court's

dismissal. We do so without further discussion, except as to

Collins' claim involving the RESPA. Because that claim presents an

issue of first impression in this circuit, further discussion of it

is warranted.

III.

Collins contends that the district court erred in finding that

there exists no implied private civil remedy for violations of the

RESPA, specifically 12 U.S.C. § 2604(c). That statutory provision

requires each lender to provide the borrower with a "good faith

estimate" of the amount or range of charges for specific settlement

services the borrower is likely to incur. That provision does not,

however, explicitly authorize a private remedy. The question is

whether it implicitly provides for a private civil remedy.

In determining whether a federal statute implicitly creates a

private remedy, a court should inquire: (1) whether the statute

was created for the plaintiff's special benefit, (2) whether there

is any indication of legislative intent to create a private remedy,

(3) whether a private remedy would be consistent with the

legislative purpose, and (4) whether the area is so traditionally relegated to the states that it would be inappropriate to infer a

cause of action based solely upon federal law. Cort v. Ash, 422

U.S. 66, 78, 95 S.Ct. 2080, 2088, 45 L.Ed.2d 26 (1975). Because

the ultimate question is one of legislative intent, the most

significant of these factors is whether there is any indication of

congressional intent to create a private remedy. See, e.g.,

Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16,

100 S.Ct. 242, 245, 62 L.Ed.2d 146 (1979).

The present § 2604(c) replaced the prior § 2605, which had

explicitly provided an action for damages for its violation.

Pub.L. No. 93-533 § 6, 88 Stat. 1726 (1974), repealed by Pub.L. No.

94-205 § 5, 89 Stat. 1158 (1976). That Congress eliminated the

provision when it amended the statute strongly suggests Congress

intended that there no longer be a private damages remedy for

violation of § 2604(c). Moreover, several other provisions of

RESPA still explicitly provide private civil remedies, see, e.g.,

12 U.S.C. §§ 2605(f), 2607(d)(2) and (5), 2608(b). That, too,

indicates Congress did not intend such a remedy for § 2604(c)

violations. See also State of Louisiana v. Litton Mortgage Co., 50

F.3d 1298, 1301-02 (5th Cir.1995) (finding no implied cause of

action under 12 U.S.C. § 2609).

Where, as here, neither the statute nor the legislative

history reveals a congressional intent to create a private cause of

action, and actually indicate that Congress intended not to provide

such a remedy, we need not carry the Cort v. Ash inquiry further.

See Dime Coal Co., Inc. v. Combs, 796 F.2d 394, 399 (11th

Cir.1986). Accordingly, we hold that the district court did not err in dismissing Collins' RESPA claim, because there is no private

civil action for a violation of 12 U.S.C. § 2604(c), or any

regulations relating to it.

IV.

The judgment of the district court is AFFIRMED.