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.
