Joe Morrisette v. NovaStar Home Mortgage, Inc. , 284 F. App'x 729 ( 2008 )

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
JULY 3, 2008
No. 08-10036
THOMAS K. KAHN
Non-Argument Calendar
CLERK
________________________
D. C. Docket No. 06-00578-CV-WS-B
JOE MORRISETTE,
ANNETTE MORRISETTE,
Plaintiffs-Appellants,
versus
NOVASTAR HOME MORTGAGE, INC.,
et al.,
Defendants,
TRANSNATION TITLE INSURANCE COMPANY,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Southern District of Alabama
_________________________
(July 3, 2008)
Before BARKETT, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Joe and Annette Morrisette, appeal from the district court’s order granting
Transnation Title Insurance Company’s motion to dismiss based on the
Appellants’ failure to state a claim under § 8 of the Real Estate Settlement
Procedure Act (RESPA), codified at 12 U.S.C. § 2607.1 The Appellants were
charged a $221 fee for a title insurance policy issued by Transnation. Appellants
allege that because the title insurance premium was only $161 under Alabama law,
the remaining $50 “surcharge” constituted a fee for something “other than services
actually performed” within the meaning of § 8(b) of RESPA. See 12 U.S.C. §
2607(b).
Appellants’ claims that the $221 title insurance premium exceeded the
maximum amount authorized by Alabama law are not actionable under RESPA.
We have recently joined the Second, Third, Fourth, Seventh and Eight Circuits in
holding that § 8(b) of RESPA “does not govern excessive fees because it is not a
price control provision.” Friedman v. Market Street Mortgage Corp. (Friedman II),
1
We review de novo a “district court’s grant of a motion to dismiss under Rule 12(b)(6)
for failure to state a claim, accepting the allegations in the complaint as true and construing them
in the light most favorable to the plaintiff.” Castro v. Sec’y of Homeland Security, 472 F.3d
1334, 1336 (11th Cir. 2006).
2
520 F.3d 1289, 1296 (11th Cir. 2008). We have rejected the notion that courts
should break single fees into various “components” for evaluation, as Appellants
would have us do here with the allegedly “earned” versus “unearned” portions of
the fee. Id. at 1297. Moreover, we have held that “subsection 8(b) requires a
plaintiff to allege that no services were rendered in exchange for a settlement fee.”
Id. at 1298 (emphasis added). Appellants merely claim that they were charged an
inflated fee for a service that was indisputably provided by Transnation: the
issuance of the title insurance policy.2 Appellants’ claims are barred by our prior
precedent, and the district court rightly found that such claims are beyond the
purview of RESPA.3
AFFIRMED.
2
Appellants allege that Transnation split the fee with Swafford Settlement Services but
not with the lender. Appellents concede, however, that Swafford did perform a service by acting
at Transation’s agent and selling the policy on Transnation’s behalf.
3
Appellants’ argument that the Department of Housing and Urban Development’s 2001
Statement of Policy is entitled to full Chevron deference is also barred by Friedman II. Id. at
1297 (declining to give Chevron deference to the SOP given the plain language of § 8(b)).
3