Plaintiffs obtained residential mortgage loans from Eagle Nationwide Mortgage Company, who referred them to Genuine Title for title and settlement services.  Plaintiffs allege that, as part of an illegal kick-back scheme, a portion of the payments they made to Genuine Title was split with Eagle, in violation of the Real Estate Settlement Procedures Act.

As a threshold matter, Defendants contend that the alleged harm is insufficiently “concrete” to confer Article III standing. “Edmondson has not suffered concrete harm, according to Defendants, because she was not charged excessive fees for title and settlement services.”  Here, however, “Plaintiffs have not alleged a statutory violation divorced from any real world effect. Edmondson not only alleges that she was overcharged for title and settlement services, but has also provided evidence in an effort to corroborate her contention…. In addition, whereas the  Baehr v. Creig Northrop Team, 953 F.3d 244 (4^th Cir. 2020) plaintiffs were satisfied with their homebuying experience, and with the settlement services they had received, Edmondson asserts that Defendants’ services were materially impaired by the kickback arrangement.  The Court expresses no view at this time as to whether Edmondson or any of the putative class members were overcharged for services rendered. Indeed, Defendants’ expert concluded that, based on a sample of HUD-1 statements, Genuine Title charged Edmondson a fee that was below the market rate for comparable title and settlement services. On the other hand, Plaintiffs offered data from the Department of Housing and Urban Development, indicating that Edmondson’s $440 charge was significantly above the average fee for comparable services in the state of Maryland. At this stage of the proceedings, Edmondson has proffered enough evidence about being overcharged – in conjunction with a purportedly diminished quality of service – to meet the requirements of Article III standing.”

On class certification, the defendants argued individual questions regarding the statute of limitations would predominate.  In particular, they argued that equitable tolling should not apply “because Plaintiffs would have, with reasonable diligence, uncovered the facts substantiating their claim long before they filed suit. Specifically, the underlying kickback scheme was the subject of two lawsuits and at least two joint enforcement actions by the Consumer Financial Protection Bureau and by Maryland’s Attorney General, all of which led to widely available media reports and other public information. Whether Plaintiffs have demonstrated their equitable tolling defense to statute of limitations is a question for another day. Pertinent here, however, the Court is not persuaded by Defendants’ assertions that ultimate resolution of this question will require individualized inquiries, such that class certification is inappropriate….

“The present case is much more akin to In re Monumental, 365 F.3d 408 (5th Cir. 2004) than it is to Thorn v. Jefferson-Pilot, 445 F.3d 311 (4th Cir. 2006). Defendants argue that members of the putative class may have, or should have, encountered information in the public domain related to litigation and enforcement actions surrounding the underlying Genuine Title kickback scheme. Regardless of the answer to this question, the Court does not believe that individualized hearings will be necessary to reach a decision. Following the guidance supplied by the Fourth Circuit, this Court can assess, on a class-wide basis, whether the information and media reporting related to prior litigation and enforcement proceedings would have prompted a reasonable person to uncover the facts substantiating Plaintiffs’ RESPA claims.”

The Court also rejected the argument that predominance was not met because the Court would have to conduct an individualized inquiry as to whether each loan fell under the exception from RESPA for “business, commercial, or agricultural purposes.”  While it is possible that some putative class members’ loans will fall within a relevant exemption, the Court “is not persuaded that this number will exceed a negligible percentage of loans encompassed by the class definition. For instance, based on Genuine Title’s loan processing data, Plaintiffs have identified 3,472 loans that fall within their proposed class definition. The vast majority of these loans are either VA refinance loans or FHA loans, both of which impose limitations that would render RESPA’s exemptions inapplicable.”

 

Edmondson v. Eagle National Bank, No.16-3938, 2020 WL 3128955 (D. Md. June 12, 2020).