Galiano v. Fidelity Nat'l Title Ins. Co. ( 2012 )

10-4941-CV
Galiano v. Fidelity Nat'l Title Ins. Co.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term 2011
(Argued: October 17, 2011 Decided: July 3, 2012)
Docket No. 10-4941-cv
GERRY GALIANO, on behalf of himself and all others similarly
situated, GARY KROMER, JOSEPH AMMIRATI, MICHELLE AMMIRATI, SUSAN
M. MAROTTA, AKA SUSAN MAROTTA, PETER MILEY, VINCENT TRULLI,
MARTIN MARTINUCCI, AKA MICHAEL MARTINUCCI, STEPHEN J. PHELAN, AKA
STEPHEN PHELAN,
Plaintiffs-Appellants,
v.
FIDELITY NATIONAL TITLE INSURANCE COMPANY, AKA FIDELITY NATIONAL
TITLES INSURANCE COMPANY, CHICAGO TITLE INSURANCE COMPANY, TICOR
TITLE INSURANCE COMPANY, FIDELITY NATIONAL FINANCE, INC., FIRST
AMERICAN TITLE INSURANCE COMPANY OF NEW YORK, UNITED GENERAL
TITLE INSURANCE COMPANY, FIRST AMERICAN CORPORATION, STEWART
TITLE INSURANCE COMPANY,
Defendants-Appellees.*
Before:
LYNCH, CHIN, AND CARNEY, Circuit Judges.
*
The Clerk of the Court is directed to amend the
official caption in accordance with the above.
Appeal from a judgment of the United States
District Court for the Eastern District of New York (Platt,
J.) granting defendants-appellees' motion to dismiss
plaintiffs-appellants' claims for relief under the Real
Estate Settlement Procedures Act.
AFFIRMED.
PETER D. ST. PHILLIP, JR. (Barbara Hart,
Vincent Briganti, Scott V. Papp, on
the brief), Lowey Dannenberg Cohen &
Hart, P.C., White Plains, New York,
for Plaintiffs-Appellants Gerry
Galiano, Gary Kromer, Monique
Kromer, Joseph Ammirati, Michelle
Ammirati, Susan Marotta, Peter
Miley, Vincent Trulli, and Martin
Martinucci.
Joseph S. Tusa, on the brief, Tusa, P.C.,
New York, New York, for Plaintiff-
Appellant Vincent Truilli, Jr.
Anthonio Vozzolo, Kendall S. Zylstra,
Peter Cohn, on the brief, Faruqi &
Faruqi, LLP, New York, New York, for
Plaintiffs-Appellants Jonathan
Dzedzy, Jaclyn Dzedzy, and Michael
Martinucci.
Lee Squitieri, on the brief, Squitieri &
Fearon, LLP, New York, New York, for
Plaintiff-Appellant Peter Miley.
-2-
Edward A. Wallace, Kenneth A. Wexler,
Amber M. Nesbitt, on the brief,
Wexler Wallace, LLP, Chicago,
Illinois, for Plaintiff-Appellant
Peter Miley.
Todd A. Seaver, Joseph J. Tabacco, Jr.,
on the brief, Berman DeValerio Pease
Tabacco Burt & Pucillo, San
Francisco, California, for
Plaintiff-Appellant Susan Marotta.
David J. Cohen, on the brief, Kolman Ely,
P.C., Penndel, Pennsylvania, for
Plaintiff-Appellant Stephen J.
Phelan.
BARRY R. OSTRAGER (Kevin J. Arquit, Patrick
T. Shilling, on the brief), Simpson
Thacher & Bartlett LLP, New York,
New York, for Defendants-Appellees
Fidelity National Title Insurance
Company, Chicago Title Insurance
Company, Ticor Title Insurance
Company, and Fidelity National
Financial, Inc.
James I. Serota, Stephen L. Saxl, on the
brief, Greenberg Traurig, LLP, New
York, New York, for Defendants-
Appellees The First American
Corporation, First American Title
Insurance Company of New York, and
United General Title Insurance
Company.
David M. Foster, Mark A. Robertson, on
the brief, Fulbright & Jaworski
L.L.P., Washington, DC, and New
-3-
York, New York, for Defendant-
Appellee Stewart Title Insurance
Company.
CHIN, Circuit Judge:
In this putative class action, plaintiffs-
appellants allege that defendants-appellees –- title
insurance companies -- sold title insurance at improperly
inflated rates as a result of illegal kickbacks in violation
of the anti-kickback provision of the Real Estate Settlement
Procedures Act ("RESPA"). See RESPA § 8(a), 12 U.S.C.
§ 2607(a) ("§ 8(a)"). The district court (Platt, J.)
dismissed the action. Plaintiffs appeal. For the reasons
set forth below, we affirm.
STATEMENT OF THE CASE
1. Facts
The following facts are drawn from plaintiffs'
first amended consolidated class action complaint of July 9,
2008 (the "Complaint"). We construe the Complaint
liberally, accepting all factual allegations in the
Complaint as true, and drawing all reasonable inferences
-4-
in plaintiffs' favor. See Chambers v. Time Warner, Inc.,
282 F.3d 147, 152 (2d Cir. 2002).
Defendants are title insurance companies that sell
title insurance policies to purchasers of commercial and
residential real estate in New York. Title insurance
premiums for New York residential properties generally range
from approximately $1,800 to $3,700. For more expensive
homes and commercial properties, New York title insurance
rates can amount to tens of thousands of dollars.
Plaintiffs purchased title insurance from, and paid title
insurance premiums to, defendants in connection with their
purchases of New York property.
Title insurance rates in New York are established
and regulated by the New York Insurance Department (the
"Insurance Department"). See N.Y. Ins. Law §§ 2305, 2306.
The Insurance Department sets insurance rates by reviewing
information -- including "past and prospective loss
experience" and financial data –- submitted by individual
insurers and "rate service organizations." See N.Y. Ins.
Law §§ 2304 (outlining factors and materials considered by
-5-
the Insurance Department), 2313(a) (defining "rate service
organization"). Rate service organizations are licensed by
the Insurance Department and include associations of state
title insurers that file rates on behalf of their members.
See N.Y. Ins. Law § 2313(a).
Defendants are members of the Title Insurance Rate
Service Association, Inc. ("TIRSA"), an association of state
title insurers licensed by the Insurance Department as a
rate service organization.1 TIRSA annually submits
aggregated financial data from its members to the Insurance
Department. TIRSA also prepares the New York Title
Insurance Rate manual, which is submitted to the Insurance
Department for approval and sets forth collectively fixed
title insurance rates to be charged by its members.
TIRSA's collectively fixed rates are based, in
part, on: (1) a percentage of the total value of the
property being insured; (2) the cost of insuring the risk
associated with issuing the title policy; (3) the costs
1
TIRSA was named a defendant in the Complaint; the
claims against TIRSA were discontinued on December 17, 2010.
-6-
associated with the search and examination of prior
ownership records; and (4) "agency commissions" usually paid
to title agents. The cost of insuring the risk captures
both prior events that cause defects to title, many of which
are or can be excluded from the policy's coverage, and
future losses an insurer cannot control; it is based on,
inter alia, the age of the property, the complexity of the
ownership history, and the accessibility of prior ownership
records. Agency commissions cover payments made to title
agents, including payments for the search and examination of
prior ownership records.
While title agents do provide actual services to
defendants, the commissions they are paid exceed the value
of the services. In short, title insurers, including
"[d]efendants[,] paid illegal kickbacks to title agents[,
lawyers, brokers, and lenders,] for referrals and gave fees
and other things of value to others for unearned settlement
services and settlement services not provided" to plaintiffs
and other purchasers of title insurance. (Comp. ¶ 91; see
Compl. ¶¶ 32, 37). The "vast majority" of agency
-7-
commissions and "roughly 85 percent of total title insurance
premiums" consist of kickbacks and other illegitimate costs.
(Compl. ¶¶ 37, 38). Thus, "[t]itle insurers get business by
encouraging those making the purchasing decisions . . . to
direct business to that insurer. The best way to encourage
[such business] is . . . [through] financial inducements."
(Compl. ¶ 32).2
2. Proceedings Below
On July 9, 2008, plaintiffs filed the Complaint in
the Southern District of New York. The Complaint alleged
claims under RESPA § 8(a) and (b).3 Plaintiffs asked the
district court to, inter alia, "permanently enjoin[] and
restrain[] [defendants] from[] unlawfully fixing or
maintaining their title insurance rates at supracompetitive
levels." (Compl. ¶ B). Plaintiffs sought to recoup "'three
times the amount of any charge paid' for the unearned
2
Defendants, of course, deny these allegations. We
assume them to be true only for the purposes of this appeal.
3
The Complaint also alleged claims under the Sherman Act
(§ 1), New York General Business Law (§ 349), and common law
principles of unjust enrichment. Plaintiffs voluntarily
discontinued all but their RESPA claims.
-8-
settlement services." (Compl. ¶ E (citing RESPA § 8(d), 12
U.S.C. § 2607(d)).4
In November of 2008, this case was transferred to
the United States District Court for the Eastern District of
New York (Platt, J.) because its operative facts were
substantially duplicative of those in Dolan v. Fidelity
National Insurance Co., No. 08-cv-0466, ECF Doc. No. 1
(E.D.N.Y. Feb. 1, 2008), a putative class action also filed
in the Eastern District of New York (Platt, J.) against many
of the same defendants in this case.5
On March 2, 2009, plaintiffs in this case moved to
change venue and transfer the case back to the Southern
District of New York. The district court denied the motion.
4
RESPA § 8(d) provides for liability "three times the
amount of any charge paid for such settlement service." RESPA
§ 8(d), 12 U.S.C. § 2607(d) (emphasis added); see also Freeman v.
Quicken Loans, Inc., 132 S. Ct. 2034, 2038 (2012).
5
On June 17, 2009, the district court dismissed the
Dolan complaint on filed-rate doctrine grounds; this Court
affirmed the dismissal. See Dolan v. Fidelity Nat'l Title Ins.
Co., No. 08-cv-00466, 2009 WL 3934153 (E.D.N.Y. June 17, 2009),
aff'd, 365 F. App'x 271 (2d Cir. 2010) (summary order), cert.
denied, 131 S. Ct. 261 (2010). The plaintiffs in Dolan did not,
however, assert a RESPA claim.
-9-
On October 5, 2010, defendants moved to dismiss
plaintiffs' RESPA claims pursuant to Rule 12(b)(6). See
Fed. R. Civ. P. 12(b)(6). On November 8, 2010, the district
court granted the motion on the grounds that plaintiffs
failed to state a plausible claim under RESPA § 8(a) and (b)
and because the claim was precluded by the safe harbor
provision of RESPA, § 8(c), and the filed rate doctrine.
This appeal followed.
DISCUSSION
We review de novo a district court's dismissal of
a complaint pursuant to Rule 12(b)(6). Chambers, 282 F.3d
at 152. "To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to
state a claim to relief that is plausible on its face. . . .
The plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully."
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal
citations and quotation marks omitted).
On appeal, plaintiffs challenge only the dismissal
of their § 8(a) claim. They argue that the district court
-10-
erred in granting defendants' motion to dismiss under RESPA
§ 8(a) and under the filed rate doctrine.6 For the reasons
that follow, we conclude that plaintiffs failed to state a
plausible claim under RESPA § 8(a). We affirm the district
court's dismissal of the action on this ground.
I. Applicable Law
Congress enacted RESPA, in part, to eliminate
"kickbacks or referral fees that tend to increase
unnecessarily the costs of certain settlement services." 12
U.S.C. § 2601(b)(2). RESPA § 8(a) prohibits kickbacks for
referrals of real estate settlement business. See RESPA
§ 8(a), 12 U.S.C. § 2607(a); see also Freeman, 132 S. Ct. at
2038, 2043; Cohen v. JP Morgan Chase & Co., 498 F.3d 111,
121 (2d Cir. 2007).7 A violation of § 8(a) involves three
6
The trial court dismissed the Complaint on three
grounds: (1) RESPA's safe harbor provision; (2) the filed rate
doctrine; and (3) Iqbal. We elect to decide this case on the
third basis only. In light of our disposition below, we do not
consider plaintiffs' request to order the transfer of the case to
the Southern District of New York.
7
Specifically, § 8(a) provides: "No person shall give
and no person shall accept any fee, kickback, or thing of value
pursuant to any agreement or understanding . . . that business
incident to or a part of a real estate settlement service . . .
shall be referred to any person." RESPA § 8(a), 12 U.S.C.
-11-
elements: (1) a payment or thing of value; (2) given and
received pursuant to an agreement to refer settlement
business; and (3) an actual referral. Egerer v. Woodland
Realty, Inc., 556 F.3d 415, 427 (6th Cir. 2009); see also
Culpepper v. Irwin Mortg. Corp., 491 F.3d 1260, 1265 (11th
Cir. 2007) (citing Culpepper v. Inland Mortg. Corp., 132
F.3d 692, 695-96 (11th Cir. 1998); Paul Barron, Dan Rosin &
Michael A. Berenson, 1 Federal Regulation of Real Estate and
Mortgage Lending § 2:45 (4th ed. 2011); Joyce Palomar, 2
Title Insurance Law § 21.2 (2011). Further, when there is a
violation of § 8(a), § 8(d) provides a private right of
action to "the person or persons charged for the settlement
service involved in the violation in an amount equal to
three times the amount of any charge paid for such
settlement service." RESPA § 8(d), 12 U.S.C. § 2607(d); see
§ 2607(a); see also 12 U.S.C. § 2602(2) (defining "thing of
value"); 12 U.S.C. § 2602(3) (defining "settlement service"); 24
C.F.R. § 3500.14(f) (defining "referral").
RESPA's "safe harbor provision," however, § 8(c),
provides that § 8(a) shall not be construed as prohibiting
payments by a title company for goods, facilities actually
furnished, or services actually performed. RESPA § 8(c), 12
U.S.C. § 2607(c).
-12-
also Freeman, 132 S. Ct. at 2038 (RESPA § 8(a) and (b) "are
enforceable through, inter alia, actions for damages brought
by consumers of settlement services against '[a]ny person or
persons who violate the prohibitions'" of these sections.
(quoting RESPA § 8(d), 12 U.S.C. § 2607(d))).8
RESPA, however, "is not a price-control statute."
Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 57 (2d
Cir. 2004) (quoting Krzalic v. Republic Title Co., 314 F.3d
875, 881 (7th Cir. 2002)); see Arthur v. Ticor Title Ins.
Co., 569 F.3d 154, 156 (4th Cir. 2009). RESPA is thus not a
mechanism for federal courts to regulate the reasonableness
of title insurance rates. See Kruse, 383 F.3d at 56(discussing RESPA § 8(b) and (d)); Arthur, 569 F.3d at 159(quoting Kruse, 383 F.3d at 56, and collecting cases).
8
Additionally, three Circuit Courts have held that RESPA
creates a statutory cause of action, even if the plaintiff is not
overcharged. See Edwards v. First Am. Corp., 610 F.3d 514, 518
(9th Cir. 2010), cert. granted, 131 S. Ct. 3022 (2011), and cert.
dismissed, No. 10-708, 2012 WL 2427807 (June 28, 2012); Carter v.
Welles-Bowen Realty, Inc., 553 F.3d 979, 989 (6th Cir. 2009);
Alston v. Countrywide Fin. Corp., 585 F.3d 753, 759-62 (3d Cir.
2009).
-13-
II. Application
In this case, the district court did not err in
dismissing the Complaint because it did not contain
sufficient factual matter to state a plausible claim for
relief under § 8(a). See Iqbal, 556 U.S. at 678; Fed. R.
Civ. P. 12(b)(6). While the Complaint did allege a kickback
scheme, it did so in a wholly conclusory and speculative
manner. See Iqbal, 556 U.S. at 678-79.
First, the Complaint failed to allege facts
sufficient to establish the elements of a § 8(a) claim. The
Complaint failed to identify: (1) a payment or thing of
value; (2) given by defendants and received by plaintiffs'
title agents, lawyers, brokers, lenders, or other third
parties pursuant to an agreement to refer settlement
business; and (3) an actual referral. See RESPA § 8(a), 12
U.S.C. § 2607(a); Egerer, 556 F.3d at 427; Culpepper, 491
F.3d at 1265; see also Edwards, 610 F.3d at 515-17(identifying actors and alleging a kickback and referral);
Carter, 553 F.3d at 982-84 (same); Alston, 585 F.3d at 756-
58 (same).
-14-
Second, the Complaint failed to allege any
specifics as to the date, time, or amount of the alleged
§ 8(a) violations, or any connections between these
plaintiffs -- or their title agents, lawyers, brokers, or
lenders -- and these defendants. See Egerer, 556 F.3d at
428; see also Edwards, 610 F.3d at 515-17 (identifying and
connecting actors); Carter, 553 F.3d at 982-84 (same);
Alston, 585 F.3d at 756-58 (same). The Complaint contained
no allegations that defendants charged any plaintiff a rate
inflated by kickbacks.9
Third, plaintiffs are essentially relying on a
supposed industry-wide practice of kickbacks and referrals
to sustain their § 8(a) claim. In effect, the Complaint
presumed that (1) there were substantial differences between
title insurance rates and the actual costs incurred by title
insurers -- namely, the costs associated with the risk of
loss and the search and examination of prior ownership
9
An allegation of overcharge is not necessary to sustain
a § 8(a) claim. See Edwards, 610 F.3d at 518; Carter, 553 F.3d
at 989; Alston, 585 F.3d at 755. In this case, such an
allegation would not have been necessary, but would have served
the purpose of specifying the facts of the alleged kickback.
-15-
records -- and (2) these differences represented kickbacks
for referrals rather than profit margins. See Arthur, 569
F.3d at 160 n.2; Galiano v. Fidelity Nat'l Titles Ins. Co.,
No. 08-cv-04711, ECF Doc. No. 89, at 9 (E.D.N.Y. Nov. 8,
2010) (citing Arthur, 569 F.3d at 160 n.2). Without facts
as to the alleged kickbacks, referral agreements, or
referrals, however, plaintiffs are engaging in mere
conjecture; this speculation is insufficient to state a
plausible claim.
Finally, without specific facts as to the alleged
kickback scheme, plaintiffs' § 8(a) RESPA claim effectively
becomes a claim of overcharge. Because RESPA is not a
price-control statute, federal courts cannot review the
reasonableness or validity of title insurance rates for
actual services performed. See Kruse, 383 F.3d at 57.
Accordingly, because the Complaint did not allege
factual content that would have allowed the district court
to draw a plausible inference that defendants paid kickbacks
for business referrals in violation of § 8(a) in connection
with the title insurance policies purchased by plaintiffs,
-16-
the district court did not err in granting defendants'
motion to dismiss.
CONCLUSION
For the reasons set forth above, the judgment of
the district court is AFFIRMED.
-17-