Hopkins v. Horizon Management

Filing 920081203

Opinion

UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 07-1965

KIMBERLY HOPKINS, individually and on behalf of all others similarly situated, Plaintiff - Appellant, v. HORIZON MANAGEMENT SERVICES, NATIONAL TRUST COMPANY, INCORPORATED; DEUTSCHE BANK

Defendants - Appellees.

Appeal from the United States District Court for the District of South Carolina, at Spartanburg. Henry M. Herlong, Jr., District Judge. (7:06-cv-02935-HMH)

Argued:

October 30, 2008

Decided:

December 3, 2008

Before GREGORY and DUNCAN, Circuit Judges, and Richard BENNETT, United States District Judge for the District Maryland, sitting by designation.

D. of

Affirmed by unpublished per curiam opinion.

ARGUED: James Mixon Griffin, LAW OFFICES OF JAMES MIXON GRIFFIN, Columbia, South Carolina, for Appellant. Hamlet Sam Mabry, III, HAYNSWORTH, SINKLER & BOYD, P.A., Greenville, South Carolina, for Appellees. ON BRIEF: Richard A. Harpootlian, RICHARD A. HARPOOTLIAN, P.A., Columbia, South Carolina; Tucker S. Player, PLAYER LAW FIRM, L.L.C., Columbia, South Carolina, for Appellant. Charles M. Sprinkle, III, Christopher T. Brumback,

HAYNSWORTH, SINKLER & BOYD, P.A., Greenville, South Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.

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PER CURIAM: Appellant, Kimberly Hopkins ("Hopkins"), brought suit in

the District Court of South Carolina alleging a violation of Section 9 of the Real Estate Settlement Procedures Act

("RESPA"). Deutsche

12 U.S.C. § 2608. Bank and Horizon

Hopkins claims that Appellees, acting 9, as which its agent

Management

(collectively

"Horizon"),

violated

Section

prohibits

requiring the purchaser of real estate to buy title insurance from a particular title company. moved for Hopkins summary also sought class

certification.

Horizon

judgment,

claiming The

that the case presented no genuine issue of material fact.

district court granted Horizon's motion for summary judgment and denied certification of the class as moot. Because none of

Hopkins's claims of statutory violations is supported by any evidence in the record giving rise to a genuine issue of

material fact, we affirm.

I. Horizon acts as a marketing and sales agent for properties purchased at foreclosure sales, which are known as Real Estate Owned ("REO") properties. Hopkins signed a contract with

Horizon to purchase an REO property that had been acquired by Deutsche Bank. J.A. at 43, 364-72. This contract included

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Addendum

#1

("Addendum"),

which

Hopkins

signed,

stating

that

Horizon would select the title and closing agent. Two title insurance policies were also needed to complete the sale. An owner's title policy protects the new owner of In the Addendum, Horizon

record against claims to the title.

contracted to pay the premium for the owner's title insurance policy, regardless of whether the purchaser requested an owner's policy. J.A. at 110, 458. Hopkins' mortgage lender required

her to obtain a lender's title policy and a closing protection letter to ensure against mishandling of the closing documents. J.A. at 459. At closing, Horizon purchased the owner's policy from

Fidelity Title, its chosen issuer.

The policy was issued by

Jayhawk Title, an authorized title insurance agent for Fidelity. Jayhawk is wholly owned by Robert L. Luce who, in his capacity as an attorney, was Horizon's closing agent. J.A. at 459.

Hopkins also initially selected a law firm, the Player Law Firm, to represent a title her at the on closing. The Player and Firm a

performed

search

Hopkins'

behalf

issued

lender's commitment.

Hopkins was subsequently informed by the

Luce firm, on behalf of Horizon, that the Addendum required the title work to be done by Horizon's chosen agent. Significantly, however, no representation was J.A. at 460. that this

made

undertaking included the issuance of the lender's title policy. 4

In

the

end,

Hopkins

bought

her

lender's

title

policy

from

Fidelity and was not represented by counsel at closing. 460-61.

J.A. at

She now claims that Horizon's practices surrounding the

sale and closing constituted a violation of her rights under Section 9 of the RESPA not to be required to choose a particular title insurer.

II. We review a grant of summary judgment de novo, viewing the facts in the light most favorable to the non-moving party.

Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Meson v. GATX Tech. Servs. Corp., 507 F.3d At the summary judgment stage, once

803, 806 (4th Cir. 2007).

the moving party has identified the absence of a genuine issue of material fact, the non-moving party bears the burden of

identifying specific facts that demonstrate the existence of a genuine issue for trial. Fed. R. Civ. P. 56(e); Temkin v.

Frederick County Comm'rs, 945 F.2d 716, 718 (4th Cir. 1991). Hopkins claims that the Addendum she signed resulted in Horizon from a indirectly particular requiring title her to in purchase violation title of insurance 9.

company

Section

There are two title policies at issue, the lender's and the

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owner's, and Hopkins argues that Horizon's practices associated with each were in violation of Section 9. We take them in turn.

A. Hopkins first claims that because Horizon chose the issuer of the owner's title policy, she was effectively required to purchase this policy from the title company selected by Horizon. However, Hopkins concedes that Horizon "paid for the owner's policy." J.A. at 92, 101. This admission defeats any claim

that Hopkins was required to purchase this title insurance "from any particular title company." 12 U.S.C. § 2608(a). Her

argument that "purchase" in the language of Section 9 should be read to mean "obtain possession" rather than "pay for" contrasts with the plain meaning of the term and is without merit. The

owner's policy was in Hopkins's name and its insurance covers her against claims to title of the property she now owns.

However, Horizon, not Hopkins, paid for the policy, and thus Section 9 of the RESPA does not apply. that she was required to pay further If Hopkins could show money to maintain the

owner's insurance, she might arguably be "purchasing" a part of the policy. The record is, however, devoid of evidence that

this is the case. Hopkins also contends that the costs of the owner's policy were indirectly passed on to her 6 in violation of Section 9

because she was required to pay closing fees to the closing and title agent, Luce, who was chosen by Horizon. She claims these This in the

fees were in turn used to purchase the owner's policy. interpretation record. of the closing fee finds no support

J.A. at 87 (Hopkins testifies that seller paid the

premium for the owner's policy); J.A. at 129 (denominating the owner's policy premium as $270 and recording in line 1108 that it was paid from seller's funds at settlement); cf. Supp. J.A. at 30 (instructing that lines 1108-1110 of the HUD form are those that deal with title insurance). Hopkins's argument that

Horizon is passing on the cost of the owner's title insurance in the pricing of the property, separately from the question of the closing fee, also cites nothing in the record; and she falls short of showing that Horizon required her to purchase owner's title insurance from a particular title company as a condition of the sale.

B. Hopkins agent and also argues policy that Horizon's choice of her the to title use a

owner's

indirectly

required

particular title company for the purchase of the lender's title policy. Hopkins initially had title work performed by the

Player Law Firm.

Horizon's lawyer, Luce, refused to accept this

work since under South Carolina state law title work is a legal 7

service, Doe Law Firm v. Richardson, 636 S.E.2d 866, 868 (S.C. 2006), and it is therefore subject to ethical and malpractice considerations. constitute chosen. rejection However, of any this title refusal policy by Luce did may not have

Hopkins

J.A. at 215-16, 224-227.

Once informed that the title

work must be done by Luce, Hopkins chose Luce to be her title agent for the sale; he performed the title search and

examination. the benefit

Luce also issued a lender's title commitment for of Hopkins's mortgage lender. J.A. at 459.

However, there is no evidence that Hopkins was required as a condition of sale to purchase the lender's policy from Horizon's title agent or the company providing the owner's policy. Hopkins claims that she was told by her own agent, whom she had hired as her mortgage broker, that she was required to

purchase the lender's policy from the same issuer as the owner's policy. Whether or not this statement affected the transaction,

the district court correctly concluded that it cannot be imputed to Horizon. J.A. at 471. According to an informal Department

of Housing and Urban Development opinion, a seller may violate Section 9 by choosing a title attorney or agent if that attorney or agent requires the buyer to use a particular title insurance company. pointed Supp. J.A. at 80; J.A. at 471. to no evidence in the record However, Hopkins has could support a

which

8

finding that in this case the title agent, Luce, constrained Hopkins's choice of title insurer. See J.A. at 471-72.

In addition, whatever conditions Hopkins's lenders may have imposed Horizon. upon her selection of insurer cannot be imputed to

As the district court found in a well-reasoned and

thorough opinion, Hopkins chose her own mortgage broker, and any requirements that her broker imposed are not the responsibility of or attributable to Horizon. Hopkins coercive lender's asserts she when that J.A. at 469, 471. transaction a significant it from was economically on the

the

because policy

received she

discount the same

purchased

title

insurance company that had issued the owner's policy to Horizon. J.A. at 470. policy The fact that Hopkins paid less for a lender's from an thus the company already providing it the is owner's not a of

purchased may be and

insurance

economic does not

benefit, come

but

"requirement" Section 9. Finally,

within

language

Hopkins

claims

that

Horizon

was

affirmatively

required to inform her of her right to choose her own title insurance company. No notice requirement appears in the RESPA We decline to impose such a

or in the associated regulations.

requirement where, as here, the language of the Congressional enactment is clear on its face.

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III. Hopkins has not met the burden of showing that a genuine issue of material fact exists in this case. opinion of the district court granting Accordingly, the judgment and

summary

denying the class certification as moot is AFFIRMED.

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