Markocki v. Old Republic National Title Insurance

254 F.R.D. 242, 2008 U.S. Dist. LEXIS 99768
CourtDistrict Court, E.D. Pennsylvania
DecidedDecember 9, 2008
DocketCivil Action No. 06-2422
StatusPublished
Cited by7 cases

This text of 254 F.R.D. 242 (Markocki v. Old Republic National 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
Markocki v. Old Republic National Title Insurance, 254 F.R.D. 242, 2008 U.S. Dist. LEXIS 99768 (E.D. Pa. 2008).

Opinion

MEMORANDUM AND ORDER

PETRESE B. TUCKER, District Judge.

Presently before this Court is Plaintiffs Amended Motion for Class Certification. For the reasons set forth below, upon consideration of Plaintiffs Motions (Doc. 97), and Defendant’s Response thereto (Doc. 100), this Court will grant Plaintiffs Motion.

BACKGROUND

Plaintiff, Donna Markoeki, brings this class action on behalf of Pennsylvania homeowners seeking relief from predatory lending practices of Defendant title insurance company, Old Republic National Title Insurance Company, for violations of statutory and common law obligations. Compl., If 1. Plaintiff alleges that Defendant improperly collected excess and unearned premiums in violation of the Real Estate Settlement Procedures Act (“RESPA”).

A. The Business of Title Insurance

The purpose of title insurance in a real estate transaction is to insure against losses from past events and to eliminate most risks through the title examination and the settlement process. There are two types of title insurance policies available: an owner’s policy, generally purchased by the borrower-homeowner to protect the borrower’s property interest, and a lender’s policy, generally paid for by the borrower, but purchased for the protection of the lender’s security interest in the property. Alberton v. Commonwealth, 247 F.R.D. 469 (E.D.Pa.2008) recon. den.

While a typical transaction involves the issuance of both types of insurance policies, a refinance transaction involves the issuance of a lender’s policy only, paid for by the homeowner. The title agent facilitates the closing and handles the actual closing of the transaction, including paying of the earlier mortgage with new loan proceeds, obtaining releases, providing homeowners with the settlement sheet, or HUD-1, recording documents to update the public record, and issuing the title insurance loan policy.

In Pennsylvania, title insurers typically do not sell title insurance directly to the public, but rather though agents appointed by the insurer under a protocol established by Pennsylvania law. 40 P.S. §§ 910-24, 910-26. Defendant’s title agent, third-party Defendant, Citizens’ Abstract, was the appointed agent who handled Plaintiffs transaction.

B. Statutory Regulation of Title Insurance Premiums

All title insurers are governed by the Pennsylvania Title Insurance Companies Act. 40 P.S. § 910-1 et seq. This statute regulates the business of title insurers, as well as the specific rates insurers may charge for title insurance policies. The statute requires title insurers to either: (1) file individual proposed rates with the Insurance Commissioner, 40 P.S. § 910-37(a); or (2) elect to become a member of a rating organization that files proposed rates on behalf of all members of the organization. During the relevant time period, Defendant elected to file rates through the Title Insurance Rating [246]*246Bureau of Pennsylvania (“TIRBOP”). Compl., 1iH 15-24. The rates and regulations approved and enacted constitute the Manual of Title Insurance Rating Bureau of Pennsylvania (“Rate Manual”).

The Rate Manual provides for three different rate tiers, (1) the Basic Rate; (2) the Reissue Rate, which is 90% of the Basic Rate; and (3) the Refinance Rate, which is 80% of the Reissue Rate, or 72% of the Basic Rate. The Basic Rate is the default rate charged where neither the Reissue nor Refinance Rate apply. Both the Reissue and Refinance Rates, are discounted rates which reflect that when only a few years have passed since the issuance of the title insurance policy, there is a reduced risk of title defects and claims against the policy, warranting a lesser amount.

In every transaction in which a title insurance policy is issued, the title agent will first produce a “Title Commitment”, or “title binder”, which serves to bind the insurer to issue a policy in any particular transaction. The Title Commitment is prepared by Defendant’s appointed agents from standard, computerized forms, and contains the information necessary to determine whether a prior policy exists, calling for the charge of a reissue or refinance rate. This includes whether the property was purchased or refinanced within the previous ten (10) years, information about any outstanding mortgages, and often the name and address of the borrower.

Once filed, proposed rates enacted by the Insurance Commissioner are mandatory. Charging any amount other than the approved rates is prohibited by law:

... no title insurance company or agent of a title insurance company shall charge any fee for any policy or contract of title insurance except in accordance with filings or rates which are in effect for said title insurance company____

40 P.S. § 910-37(h).

C. Allegations of Defendant’s Excess and Unearned Charges to Plaintiff and the Proposed Class

Plaintiff purchased her home at 3351 Almond Street in Philadelphia, PA in April, 2003, financing her purchase with a mortgage from Countrywide Home Loans Servicing, L.P. Compl., H 26. She also purchased a title insurance policy covering the full value of the loan, as the lender required. Id. at 27. In November 2005, Plaintiff refinanced her home, with the closing and settlement services provided by Citizens’ Abstract. At that time, Citizens’ issued a lender’s title insurance policy on behalf of Defendant valued at $123,750.00. According to line 1108 of the Plaintiffs 2005 HUD-1 Settlement Statement, Defendant charged Plaintiff $978.75, the Basic Rate for this lender’s policy. Yet, Plaintiff alleges that because this refinancing transaction occurred within three (3) years of the date of closing on a previously insured mortgage on the property, she was actually entitled to the Refinance Rate of $704.70, or a 28% discount from the Basic Rate.

Plaintiff asserts that in addition to the required information being listed on the HUD-1 Settlement Statement, that it also appears on the Title Commitment, again substantiating her entitlement to the Refinance Rate. She further asserts that the class period 2000-2006, was a time of historically low interest rates, with a corresponding increase in refinancing transactions. Plaintiff relies on Housing Studies which indicate that consumers held their mortgage loans an average of two (2) years before refinancing. Joint Center For Housing Studies Of Harvard University, The State Of The Nation’s Housing: 2005, at pp. 6, 33 (2005), http:// www.jchs.harvard.edu/pubhcations/markets/ son2005/index.html. As a result, Plaintiff contends that ninety (90) percent of the consumers that were charged the Basic Rate were entitled to a nondiscretionary, discounted premium. According to Plaintiff, rather than charging the proper premium, Defendant issued a higher premium, and unlawfully retained the difference.

Plaintiff now brings this class action against Defendant, reciting the following causes of action: violations of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2607, money had and received, unjust enrichment/accounting/disgorgement/restitution, and violation of Pennsylvania Unfair Trade Practices and Consumer Protection Law (“UTPCPL”).

[247]*247Plaintiffs Proposed Order defines the class as follows:

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Cite This Page — Counsel Stack

Bluebook (online)
254 F.R.D. 242, 2008 U.S. Dist. LEXIS 99768, Counsel Stack Legal Research, https://law.counselstack.com/opinion/markocki-v-old-republic-national-title-insurance-paed-2008.