Patrick Baehr v. Creig Northrop Team, P.C. ( 2020 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 19-1024
PATRICK BAEHR; CHRISTINE BAEHR,
Plaintiffs – Appellants,
v.
THE CREIG NORTHROP TEAM, P.C.; CREIGHTON EDWARD NORTHROP,
III; LINDELL C. EAGAN; LAKEVIEW TITLE COMPANY, INC.,
Defendants – Appellees,
and
CARLA NORTHROP; LONG & FOSTER REAL ESTATE, INC.,
Defendants.
Appeal from the United States District Court for the District of Maryland, at Baltimore.
Richard D. Bennett, District Judge. (1:13-cv-00933-RDB)
Argued: January 29, 2020 Decided: March 13, 2020
Before GREGORY, Chief Judge, KING, and QUATTLEBAUM, Circuit Judges.
Vacated and remanded for dismissal by published opinion. Judge King wrote the opinion,
in which Chief Judge Gregory and Judge Quattlebaum joined.
ARGUED: Gregory T. Lawrence, CONTI FENN & LAWRENCE LLC, Baltimore,
Maryland, for Appellants. Jay Norman Varon, FOLEY & LARDNER LLP, Washington,
D.C., for Appellees. ON BRIEF: Michael J. Silvestri, CONTI FENN & LAWRENCE
LLC, Baltimore, Maryland, for Appellants. Jennifer M. Keas, FOLEY & LARDNER LLP,
Washington, D.C.; Timothy G. Casey, LAW OFFICE OF TIMOTHY G. CASEY, PA,
Rockville, Maryland, for Appellees The Creig Northrop Team, P.C. and Creighton E.
Northrop, III. Andrew C. White, William N. Sinclair, SILVERMAN THOMPSON
SLUTKIN & WHITE LLC, Baltimore, Maryland, for Appellees Lindell C. Eagan and
Lakeview Title Company, Inc.
2
KING, Circuit Judge:
This appeal arises from a purported kickback scheme orchestrated by the
defendants, The Creig Northrop Team, P.C., Creighton Northrop, III (the “Northrop
Defendants”), the Lakeview Title Company, Inc., and Lindell Eagan (the “Lakeview
Defendants”). Homeowners Christine and Patrick Baehr (the “Baehrs”), as representatives
of the putative class of plaintiffs, specify in their operative single-count complaint that the
kickback scheme, in which the Lakeview Defendants paid the Northrop Defendants for
marketing services that were actually illegal business referrals, deprived them and the other
class members of “impartial and fair competition between settlement service[s] providers,”
in contravention of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C.
§ 2601 et seq. See Baehr v. The Creig Northrop Team, P.C., No. 1:13-cv-00933, at ¶¶ 23,
41-47 (D. Md. Aug. 15, 2014), ECF No. 89 (the “Operative Complaint”).
After conducting discovery, the Northrop and Lakeview Defendants jointly moved
for summary judgment, arguing, inter alia, that the Baehrs had not established that they
possessed Article III standing to sue. The district court thereafter awarded summary
judgment to the defendants on that ground. More specifically, the court reasoned that the
Baehrs had not suffered a concrete injury, and thus could not establish the necessary injury-
in-fact for standing. See Baehr v. The Creig Northrop Team, P.C., No. 1:13-cv-00933, slip
op. at 21-22 (D. Md. Dec. 7, 2018), ECF No. 244 (the “Summary Judgment Opinion”).
Alternatively, the Summary Judgment Opinion barred the Baehrs’s claim under RESPA’s
statute of limitations based on their failure to establish that the claim was equitably tolled.
Id. at 29. As explained below, we agree that the Baehrs lack standing to sue. Because a
3
federal court cannot exercise jurisdiction in the absence of standing, we vacate and remand
for dismissal of this case. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94, 102
(1998) (recognizing that standing “is part of the common understanding of what it takes to
make a justiciable case” and that when jurisdiction does not exist, “the only function
remaining to the court is that of announcing the fact and dismissing the cause” (internal
quotation marks omitted)).
I.
A.
In July 2008, the Baehrs purchased a home in Glenwood, Maryland (the “Glenwood
home”). 1 They hired Maija Dykstra, a real estate agent who was a member of The Creig
Northrop Team, P.C. (“The Northrop Team”), to represent them as buyers. The Northrop
Team is comprised of real estate agents who independently provide real estate brokerage
services under the brokerage license of Long & Foster Real Estate, Inc. 2 Creighton
Northrop, III, a real estate agent, is the President of The Northrop Team. As President of
The Northrop Team, Northrop splits real estate commissions with the other real estate
agents who are independent-contractor members of the Team.
1
Because the Baehrs appeal the district court’s award of summary judgment to the
defendants, we recite the facts in the light most favorable to the Baehrs, as the nonmoving
party. See Bauer v. Lynch, 812 F.3d 340, 342 n.1 (4th Cir. 2016).
2
Pursuant to Maryland law, licensed real estate agents must provide real estate
brokerage services on behalf of a licensed real estate broker. See Md. Code, Bus. Occ. &
Prof. § 17-310.
4
Pursuant to the Exclusive Right to Represent Buyer Agreement between the Baehrs
and Long & Foster, Dykstra, as the Baehrs’s real estate agent, located the Glenwood home
and helped the Baehrs submit an offer to purchase it for $835,000. The sellers of the
Glenwood home were represented by Northrop. After the Baehrs’s offer was accepted,
Dykstra informed them that the Lakeview Title Company would provide the settlement
services necessary to complete the purchase of the Glenwood home. The Baehrs were not
first-time home buyers and understood that they were free to procure settlement services
from any provider thereof, but they “were satisfied” that Dykstra would select the
settlement company. See J.A. 171. 3 In selecting the Lakeview Title Company, Dykstra
informed the Baehrs that The Northrop Team “do[es] all [its] settlements at [the] Lakeview
[Title Company].” Id. at 172. Despite shopping around for a mortgage lender, the Baehrs
proceeded to settle on the Glenwood home with the Lakeview Title Company without
investigating the Company or any other settlement services providers. The Baehrs did not
inquire about the Lakeview Title Company’s rates, quality of service, or affiliation with
The Northrop Team because they had “contracted with a reputable company” — that is,
The Northrop Team — and believed that The Northrop Team “would have [their] best
interest.” Id. at 173.
3
Citations herein to “J.A. __” refer to the contents of the Joint Appendix filed by
the parties in this appeal.
5
The HUD-1 Settlement Statement prepared for the Baehrs’s purchase of the
Glenwood home listed, inter alia, the following fees for settlement services provided by
the Lakeview Title Company: 4
Title Examination to the Lakeview Title Company: $375
Title Insurance Binder to the Lakeview Title Company: $50
Title Insurance to the Chicago Title Insurance Company: $2,990 5
Recording Services to the Lakeview Title Company: $50
See J.A. 145. Other than the title insurance premium of $2,990, which was based on a rate
filed with the State of Maryland, the Baehrs had paid similar fees for settlement services
when purchasing a less-expensive home in Germantown in 2000. Id. at 219; see also Md.
Code, Ins. §§ 11-403, 11-404, 11-407 (requiring that title insurance premiums be filed and
approved by Maryland Insurance Administration and prohibiting deviation from filed
rates). As they had for the Glenwood home, when purchasing the Germantown home, the
Baehrs paid $375 for the title examination and $50 for the title insurance binder. See J.A.
219. The Baehrs also paid $75 for document preparation, $10 for notary fees, and $10 for
copies. Id. In sum, the Baehrs paid $520 in discretionary fees to their settlement services
provider for the Germantown home purchase. By contrast, the Baehrs paid only $425 in
discretionary fees to the Lakeview Title Company for the Glenwood home purchase.
4
The HUD-1 Settlement Statement is a standardized form created by the
Department of Housing and Urban Development that lists all fees charged to the buyer and
seller in a real estate settlement. See What is a HUD-1 Settlement Statement?, Consumer
Fin. Prot. Bureau (Sept. 12, 2017), https://www.consumerfinance.gov/ask-cfpb/what-is-a-
hud-1-settlement-statement-en-178/.
5
The Lakeview Title Company collected the title insurance premium to split with
the Chicago Title Insurance Company, the title insurance underwriter.
6
B.
1.
Almost five years after closing on the Glenwood home, the Baehrs received an
unsolicited letter from a lawyer, G. Russell Donaldson, stating that they might have “a legal
claim based on illegal kickbacks paid for the referral of [their] business to a title company
that settled [their] purchase” of the Glenwood home. See J.A. 342. Shortly thereafter, the
Baehrs retained Donaldson and the law firm Conti Fenn & Lawrence LLC to pursue a claim
that they had been illegally referred to the Lakeview Title Company in contravention of
RESPA. Before receiving Donaldson’s letter, the Baehrs were satisfied with their
experience purchasing the Glenwood home and the settlement services that the Lakview
Title Company had provided. Indeed, even after learning of the purported kickback
scheme, the Baehrs believed that the Lakeview Title Company was entitled to the fees it
charged “for the work that [it] did.” Id. at 208, 327.
Nevertheless, on March 27, 2013, the Baehrs, as representatives of the putative class
of victims in these proceedings, filed suit in the District of Maryland against multiple
defendants. See Baehr v. The Creig Northrop Team, P.C., No. 1:13-cv-00933 (D. Md.
Mar. 27, 2013), ECF No. 1 (the “Initial Complaint”). The single count of the Initial
Complaint alleged that the Northrop and Lakeview Defendants, plus Long & Foster Real
Estate, Inc. and Carla Northrop, violated RESPA’s prohibition against giving or receiving
kickbacks for settlement service referrals. Id. ¶ 1. That claim was predicated on a kickback
scheme that spanned from 2000 to 2014, and that was perpetrated by the Northrop and
Lakeview Defendants, Long & Foster, and Carla Northrop. The Initial Complaint alleged
7
that, between 2000 and 2007, the Lakeview Defendants paid illegal kickbacks for
settlement service referrals under the guise of a sham employment agreement between the
Lakeview Title Company and Carla Northrop. Id. ¶ 17. And the Initial Complaint alleged
that, between 2008 and 2014, the Lakeview Defendants paid illegal kickbacks for
settlement service referrals under the guise of a sham marketing agreement between the
Lakeview Title Company and The Northrop Team. Id. ¶ 19. According to the Initial
Complaint, as a result of the kickback scheme, the Baehrs and the putative class “were
deprived of an impartial and fair competition between settlement service[s] providers in
violation of RESPA.” Id. ¶ 25.
2.
On January 29, 2014, the district court dismissed defendants Long & Foster and
Carla Northrop with prejudice. See Baehr v. The Creig Northrop Team, P.C., No. 1:13-
cv-00933, slip op. at 16, 18 (D. Md. Jan. 29, 2014), ECF No. 58 (the “Dismissal Opinion”);
see also Baehr v. The Creig Northrop Team, P.C., No. 1:13-cv-00933, slip op. at 10 (D.
Md. Jul. 24, 2014), ECF No. 84 (confirming that dismissals of Long & Foster and Carla
Northrop were with prejudice). The court also granted the Baehrs’s motion for class
certification, but redefined the putative class thusly:
All Maryland residents who retained Long & Foster Real Estate, Inc.,
Creighton Northrop, III, and [T]he Creig Northrop Team, P.C. to represent
them in the purchase of a primary residence between January 1, 2008 to the
present and settled on the purchase of their primary residence at Lakeview
Title Company, Inc.
8
See Dismissal Opinion 31. 6
Nearly seven months thereafter, on August 15, 2014, the Baehrs filed their
Operative Complaint, which names as defendants the Northrop Defendants and the
Lakeview Defendants. According to the Operative Complaint, the Northrop and Lakeview
Defendants arranged for The Northrop Team to exclusively refer its clients to the Lakeview
Title Company for settlement services. In exchange for The Northrop Team’s efforts to
steer clients to the Lakeview Title Company, the Lakeview Defendants paid the Northrop
Defendants illegal kickbacks in the form of monthly cash payments of up to $12,000.
Those illegal kickbacks were concealed using a sham marketing agreement between The
Northrop Team and the Lakeview Title Company. See Operative Complaint ¶ 16.
Pursuant to the marketing agreement, the Northrop Defendants designated the Lakeview
Title Company as their exclusive settlement services provider and furnished the Lakeview
Title Company with unspecified marketing services. The Lakeview Title Company agreed
to remit monthly payments of $6,000 to the Northrop Defendants for those marketing
services. Notwithstanding, the Northrop Defendants did not provide “any real joint
marketing or services reasonably related to actual amounts paid” by the Lakeview Title
Company to the Northrop Defendants. Id. ¶ 20. Rather, “the compensation was based on
referrals and not for any marketing services rendered pursuant to the [m]arketing
6
During oral argument of this appeal, the Baehrs’s lawyer specified that the putative
class consists of 1,088 members. See Oral Argument at 1:16, Baehr v. The Creig Northrop
Team, P.C., No. 19-1024 (4th Cir. Jan. 29, 2020), http://www.ca4.uscourts.gov/oral-
argument/listen-to-oral-arguments.
9
[a]greement.” Id. The Operative Complaint specifies that, under the marketing agreement,
the Northrop Defendants have received over $500,000 from the Lakeview Defendants.
Id. ¶ 19.
The Operative Complaint also alleges that the Northrop and Lakeview Defendants
“actively concealed” the marketing agreement from their clients, including the Baehrs. See
Operative Complaint ¶ 21. More specifically, the Lakeview Title Company provided each
client with Long & Foster’s Affiliated Business Disclosure that “purported to disclose”
“business relationships (e.g., direct or indirect ownership interests, joint ventures and/or
contractual relationships including marketing agreements and/or office leases)” between
Long & Foster or “its subsidiaries or affiliates” and the entities specified therein. Id.(internal quotation marks omitted). Despite the marketing agreement between The
Northrop Team and the Lakeview Title Company, the Lakeview Title Company was not
among the entities specified in the Affiliated Business Disclosure. Because they “had no
reason to doubt the [Affiliated Business Disclosure], and reasonably relied” on its
“affirmative representation . . . that it included the title companies that Long & Foster, or
its affiliates (including [T]he Northrop Team) had a financial relationship with,” the Baehrs
did not learn of the kickback scheme until March 16, 2013, when they were contacted by
Donaldson. Id. ¶¶ 21-22.
Predicated on the kickback scheme, the Operative Complaint alleges that the
Northrop and Lakeview Defendants deprived the Baehrs of “an impartial and fair
competition between settlement service[s] providers in violation of RESPA,” 12 U.S.C.
§ 2607(a). See Operative Complaint ¶ 23. To that end, the Operative Complaint seeks,
10
inter alia, statutory treble damages totaling more than $11,200,000. See 12 U.S.C.
§ 2607(d)(2) (authorizing damages equal to “three times” amount paid for settlement
services provided in contravention of RESPA).
3.
Following discovery, on June 19, 2015, the Northrop and Lakeview Defendants
jointly moved for summary judgment. The Northrop and Lakeview Defendants contended
that summary judgment was warranted for two reasons. First, they asserted that the
Baehrs’s claim was not subject to equitable tolling and thus was barred by RESPA’s one-
year statute of limitations. Second, they asserted that the Baehrs had not suffered a concrete
injury and thus lacked Article III standing to sue. On December 7, 2018, the district court
granted the Northrop and Lakeview Defendants’ summary judgment motion. The court
concluded that the Baehrs lacked Article III standing because they were not overcharged
for settlement services and had not otherwise suffered a concrete injury as necessary to
establish injury-in-fact. See Summary Judgment Opinion 15-22. Alternatively, the court
concluded that the Baehrs’s claim was barred by RESPA’s one-year statute of limitations
because the Baehrs were not diligent in investigating The Northrop Team’s affiliation with
the Lakeview Title Company. Id. at 22-29. The Baehrs timely noted this appeal, and we
possess jurisdiction under 28 U.S.C. § 1291.
II.
We review “de novo a district court’s award of summary judgment, viewing the
facts and inferences reasonably drawn therefrom in the light most favorable to the
11
nonmoving party.” See United States v. Ancient Coin Collectors Guild, 899 F.3d 295, 312
(4th Cir. 2018) (internal quotation marks omitted). An award of summary judgment is
warranted if “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” See Fed. R. Civ. P. 56(a).
III.
Article III standing is “part and parcel of the constitutional mandate that the judicial
power of the United States extend only to ‘cases’ and ‘controversies.’” See Libertarian
Party of Virginia v. Judd, 718 F.3d 308, 313 (4th Cir. 2013) (quoting U.S. Const. art. III,
§ 2). That constitutional mandate thus “requires a party invoking a federal court’s
jurisdiction to demonstrate standing.” See Wittman v. Personhuballah, 136 S. Ct. 1732,
1736 (2016). To that end, the “irreducible constitutional minimum of standing contains
three elements”: (1) the plaintiff must have suffered an injury-in-fact, which (2) must be
causally connected to the conduct complained of, and that (3) will likely be redressed if the
plaintiff prevails. See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992). As no case
or controversy exists without injury-in-fact, it is the “[f]irst and foremost” element of
Article III standing. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998).
In order to establish injury-in-fact, a plaintiff must show that she suffered “an
invasion of a legally protected interest” — i.e., an injury — that is “concrete and
particularized.” See Lujan, 504 U.S. at 560. Crucially, concreteness and particularization
are distinct requirements for injury-in-fact; the former is “quite different” from the latter.
See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1548 (2016). An injury is particularized if it
12
“affect[s] the plaintiff in a personal and individual way.” Id. And an injury is concrete if
it is “de facto” — that is, if it “actually exist[s].” Id.Concrete injuries are not, however, limited to those injuries that result in tangible
harm. See Spokeo, 136 S. Ct. at 1549. Indeed, injury-in-fact is often predicated on
intangible harm. See, e.g., Fed. Election Comm’n v. Akins, 524 U.S. 11, 24-25 (1998)
(informational injury); Lujan, 504 U.S. at 562-63 (aesthetic injury); Heckler v. Mathews,
465 U.S. 728, 739-40 (1984) (stigmatic injury). Notwithstanding, a statutory violation is
not necessarily synonymous with an intangible harm that constitutes injury-in-fact. See
Spokeo, 136 S. Ct. at 1549. For that reason, when a plaintiff sues to vindicate a statutory
right, she still must establish that she suffered a concrete injury from the violation of that
right. That is, a plaintiff cannot merely allege a “bare procedural violation, divorced from
any concrete harm” and “satisfy the injury-in-fact requirement of Article III.” Id.The strictures of Article III standing are no less important in the context of class
actions. See Krakauer v. Dish Network, LLC, 925 F.3d 643, 652 (4th Cir. 2019). In a class
action, “we analyze standing based on the allegations of personal injury made by the named
plaintiffs.” See Hutton v. Nat’l Bd. of Exam’rs in Optometry, Inc., 892 F.3d 613, 620 (4th
Cir. 2018) (internal quotation marks omitted). A putative class thus cannot establish
Article III standing “without a sufficient allegation of harm to the named plaintiff in
particular.” Id. (internal quotation marks and alteration omitted). In response to a summary
judgment request, the named plaintiff is obliged to “set forth by affidavit or other evidence
specific facts” that, when taken as true, establish each element of Article III standing. See
Lujan, 504 U.S. at 561 (internal quotation marks omitted); Judd, 718 F.3d at 313.
13
On appeal, the Baehrs contend that the deprivation of impartial and fair competition
between settlement services providers is a concrete injury under RESPA. Accordingly, the
Baehrs maintain that “an overcharge is not necessary to have standing to bring [their]
RESPA kickback claim.” See Br. of Appellant 33. The Baehrs also advance three concrete
injuries not alleged in the Operative Complaint. First, the Baehrs suggest that the Northrop
Defendants owed fiduciary duties to remit to the Baehrs any kickback paid by the Lakeview
Defendants and to provide impartial advice and advocacy. According to the Baehrs,
because those two duties went unfulfilled, the otherwise reasonable fees that they paid to
the Lakeview Title Company were an overcharge that caused them to suffer a concrete
injury. Second, the Baehrs suggest that they suffered a concrete injury because the
Northrop Defendants were unjustly enriched by the Baehrs’s engagement of the Lakeview
Title Company as their settlement services provider. Third, the Baehrs suggest that they
suffered a concrete injury by paying for settlement services provided in contravention of
RESPA.
A.
We first take up the Baehrs’s contention that, through RESPA, Congress elevated
the deprivation of impartial and fair competition between settlement services providers “to
the status of [a] legally cognizable injur[y].” See Lujan, 504 U.S. at 578. Because injury-
in-fact is a “hard floor” of Article III standing “that cannot be removed by statute,” the
question for us is whether the deprivation of impartial and fair competition between
settlement services providers — an intangible harm — is nevertheless a concrete injury.
See Summers v. Earth Island Inst., 555 U.S. 488, 497 (2009).
14
1.
The Supreme Court’s recent decision in Spokeo sets forth two considerations —
historical practice and congressional judgment — that are “instructive” for determining
whether an intangible harm constitutes a concrete injury. See 136 S. Ct. at 1549. The
Baehrs have not identified a harm “traditionally . . . regarded as providing a basis for a
lawsuit in English or American courts” that bears “a close relationship” to the deprivation
of impartial and fair competition among settlement services providers. Id. Instead, the
Baehrs’s argument is predicated on Congress’s inclusion of a cause of action in RESPA
for damages sustained through settlement service referrals sullied by kickbacks.
Cognizant that a statutory cause of action is not a replacement for concrete injury,
we recognize that a plaintiff suffers a concrete injury if she shows the harm stemming from
the “defendant’s statutory violation is the type of harm Congress sought to prevent when it
enacted the statute.” See Curtis v. Propel Prop. Tax Funding, LLC, 915 F.3d 234, 240-41
(4th Cir. 2019) (internal quotation marks omitted). Congress enacted RESPA to protect
consumers from “certain abusive practices” that had resulted in “unnecessarily high
settlement charges.” See 12 U.S.C. § 2601(a); see also Boulware v. Crossland Mortg.
Corp., 291 F.3d 261, 267 (4th Cir. 2002) (observing that RESPA is “directed against”
things that “increase the cost of real estate transactions”). Relevant here, those abusive
practices include “kickbacks or referral fees that tend to increase unnecessarily the costs of
certain settlement services.” See 12 U.S.C. § 2601(b)(2). Accordingly, as codified at 12
U.S.C. § 2607(a), RESPA provides that “[n]o person shall give and no person shall accept
any fee, kickback, or thing of value pursuant to any agreement or understanding . . . that
15
business incident to or a part of a real estate settlement service . . . shall be referred to any
person.” Id. § 2607(a). RESPA’s proscription against kickbacks is enforceable by federal
agencies, state attorneys general and insurance commissioners, and private citizens. Id.
§ 2607(d)(1) (criminal penalties), (d)(2) (damages), (d)(4) (injunctive remedies). The
cause of action for private citizens is limited, however, to claims for damages “equal to
three times the amount of any charge paid” for settlement services rendered in
contravention of § 2607(a). Id. § 2607(d)(2).
Plainly, in proscribing the payment of “formal kickbacks” for referrals of business
to settlement services providers, Congress aimed to eliminate a practice that it believed
interfered with the market for settlement services. See Boulware, 291 F.3d at 266, 268. To
say that RESPA protects consumers from kickbacks’ interference with the market for
settlement services is not to say, however, that interference with the market is the harm to
consumers that Congress sought to prevent through RESPA. Indeed, Congress specified
in RESPA that by prohibiting kickbacks, the harm it sought to prevent is the increased costs
that “tend” to result from kickbacks’ interference with the market for settlement services.
See 12 U.S.C. § 2601(b)(2).
To the extent that the fees charged by the Lakeview Title Company were reasonable,
the Baehrs do not contend that they were harmed by being overcharged for settlement
services. Instead, the Baehrs contend that they were harmed by being deprived of impartial
and fair competition between settlement services providers. Because the deprivation of
impartial and fair competition between settlement services providers is not the harm that
Congress enacted § 2607(a) of RESPA to prevent, that alleged injury reduces to “a
16
statutory violation divorced from any real world effect.” See Dreher v. Experian Info.
Sols., 856 F.3d 337, 346 (4th Cir. 2017). The upshot is that the deprivation of impartial
and fair competition between settlement services providers — untethered from any
evidence that the deprivation thereof increased settlement costs — is not a concrete injury
under RESPA.
2.
The Baehrs resist the conclusion that the deprivation of impartial and fair
competition is not a concrete injury under RESPA for two reasons. First, the Baehrs
emphasize our passing observation in Boulware that a violation of § 2607(a) need not
involve an overcharge to the consumer. See 291 F.3d at 266. Second, they point to out-
of-circuit decisions, which purportedly compel the conclusion that the deprivation of
impartial and fair competition between settlement services providers is a concrete injury
under RESPA. We are not persuaded by either tack.
To begin, Spokeo made clear that a statutory violation does not always amount to a
concrete injury. See 136 S. Ct. at 1549-50. Accordingly, we are satisfied that Boulware is
not at odds with our conclusion that the mere deprivation of impartial and fair competition
does not work concrete injury. 7
7
Recognizing that a violation of RESPA does not always result in the type of harm
that Congress sought to prevent is not to say that kickbacks that do not cause an overcharge
are insulated from liability under RESPA. After all, as explained above, RESPA’s private
cause of action is only one of several mechanisms for enforcing its proscription of
kickbacks. That is, RESPA imposes criminal penalties and authorizes certain federal and
state entities to sue to enjoin violations of § 2607(a). See 12 U.S.C. § 2607(d)(1), (d)(4).
17
As to the decisions of three other circuit courts upon which the Baehrs rely —
specifically, Edwards v. First American Corp., Alston v. Countrywide Financial Corp., and
Carter v. Welles-Bowen Realty, Inc. — we observe that those decisions preceded Spokeo.
See 610 F.3d 514 (9th Cir. 2010); 585 F.3d 753 (3d Cir. 2009); 553 F.3d 979 (6th Cir.
2009). Indeed, the Supreme Court explicitly recognized that Spokeo abrogated Edwards’
conclusion that a violation of § 2607(a) is a concrete injury regardless of any overcharge.
See Frank v. Gaos, 139 S. Ct. 1041, 1046 (2019) (per curiam). Even if Alston’s and
Carter’s similar conclusions remain viable after Spokeo — a question that we do not
answer herein — those cases stem from circumstances different than the circumstances of
this appeal. That is, both decisions concern schemes facilitated by business ownership
arrangements that enabled the defendants to receive de facto kickbacks for referrals. See
Alston, 585 F.3d at 756-57; Carter, 553 F. 3d at 982 & n.1. As the Sixth Circuit explained
in Carter, following RESPA’s enactment, Congress was particularly concerned that these
so-called affiliated business arrangements could be used to circumvent § 2607. See 553
F.3d at 987. By contrast, the Baehrs allege that the Lakeview Defendants were paying the
Northrop Defendants direct kickbacks under a sham marketing agreement. Insofar as the
conclusions in Alston and Carter were animated by Congress’s concerns about the
affiliated business arrangements at issue therein, those conclusions are inapposite to this
appeal.
For similar reasons, the Baehrs find no footing in the District of Maryland’s pre-
Spokeo decisions in Robinson v. Fountainhead Title Group Corp. and Fangman v. Genuine
Title, LLC. See 447 F. Supp. 2d 478 (D. Md. 2006); Civil Action No. RDB-14-0081, 2015
18
WL 8315704 (D. Md. Dec. 9, 2015). Like Alston and Carter, Robinson concerned a
scheme involving affiliated business arrangements, in which the defendants received de
facto kickbacks through their ownership stakes in sham settlement services providers. See
Robinson, 447 F. Supp. 2d at 482. The Baehrs’s reliance on Robinson is further undercut
by the district court’s recognition therein that the plaintiffs had alleged that they were
overcharged for settlement services. Id. at 487-88. And in Fangman, the district court
specifically applied Edwards’ now-abrogated conclusion that a RESPA violation is an
injury-in-fact before concluding that the plaintiffs had standing in part because they had
alleged an overcharge. See Fangman, 2015 WL 8315704, at *3, *5.
Lastly, we emphasize that this record is devoid of evidence that the Baehrs were
actually deprived of impartial and fair competition among settlement services providers.
See Lujan, 504 U.S. at 561 (requiring plaintiff on summary judgment to establish standing
by “set[ting] forth by affidavit or other evidence specific facts” (internal quotation marks
omitted)). Besides parroting the Operative Complaint in deposition testimony and
affidavits, the Baehrs set forth no evidence that impartial and fair competition between
settlement services providers was even relevant to their decision to obtain settlement
services from the Lakeview Title Company. See J.A. 208, 695, 698; see also Dreher, 856
F.3d at 347. On the contrary, the Baehrs did not investigate the Lakeview Title Company
or other settlement services providers, were admittedly satisfied with the settlement
services that they received, and continue to believe that the Lakeview Title Company
deserved to be compensated for those services.
19
We therefore readily conclude that the Baehrs did not suffer any real-world harm,
much less a concrete injury, from the deprivation of impartial and fair competition between
settlement providers. Accordingly, the Baehrs’s assertion that they were so deprived is
insufficient to establish Article III standing.
B.
Because we conclude that the deprivation of fair and impartial competition among
settlement providers is not a concrete injury under RESPA, we turn to the Baehrs’s three
novel theories of standing. We address — and reject — each of those theories seriatim.
1.
First, the Baehrs contend that the Northrop Defendants owed them fiduciary duties
to return any kickback paid by the Lakeview Defendants to the Baehrs and to provide
impartial advice and advocacy. The Baehrs assert that the Northrop Defendants’ failure to
fulfill those duties rendered the otherwise reasonable fees that they paid to the Lakeview
Title Company an overcharge. This theory fails because the Baehrs have not established
that the Northrop Defendants were their fiduciaries.
The Baehrs’s contention that the Northrop Defendants were their fiduciaries rests
solely on their boilerplate recitation that, under Maryland law, a real estate broker “stands
in a fiduciary relationship” to her client. See Wilkens Square LLLP v. W.C. Pinkard & Co.,
984 A.2d 329, 336 (Md. Ct. Spec. App. 2009). 8 True enough. But Maryland law also
8
A reported decision of the Maryland Court of Special Appeals is binding precedent
unless overturned by the high court of Maryland. See Archers Glen Partners, Inc. v.
(Continued)
20
specifies that a real estate broker “is an agent” for her “principal, with incumbent fiduciary
duties to that person alone.” See Proctor v. Holden, 540 A.2d 133, 142-43 (Md. Ct. Spec.
App. 1988). Put succinctly, in a real estate transaction, a seller’s representative does not
owe fiduciary duties to the buyer. See Lewis v. Long & Foster Real Estate, Inc., 584 A.2d
1325, 1329 (Md. Ct. Spec. App. 1991); see also Yerkie v. Salisbury, 287 A.2d 498, 500-01
(Md. 1972) (“[A] real estate broker is a fiduciary and when a seller employs a broker to
sell [her] property [s]he bargains for the disinterested skill, diligence and zeal of the broker
for [her] own exclusive benefit.”). In the Baehrs’s purchase of the Glenwood home,
Northrop provided brokerage services to the sellers. As the sellers’ representative,
Northrop thus did not “stand[] in a fiduciary relationship” to the Baehrs for the purchase
of the Glenwood home. See Wilkens Square, 984 A.2d at 336; see also Herbert v. Saffell,
877 F.2d 267, 274 (4th Cir. 1989) (explaining that, in Maryland, real estate agents “do not
owe a fiduciary duty to prospective purchasers under most circumstances”).
We are similarly unconvinced that The Northrop Team — a real estate team
organized as a professional corporation — was the Baehrs’s fiduciary in the purchase of
the Glenwood home. The Baehrs have not established that an agency relationship existed
between The Northrop Team and Dykstra — an independent consultant. See Brooks v.
Euclid Sys. Corp., 827 A.2d 887, 897 (Md. 2003) (setting forth three factors for
determining whether agency relationship exists under Maryland law). Nor do the Baehrs
Garner, 933 A.2d 405, 424 (Md. Ct. Spec. App. 2007) (observing that a “reported decision”
of the Maryland Court of Special Appeals “constitutes binding precedent”).
21
identify any authority to support their assertion that, in Maryland, a professional
corporation itself can owe fiduciary duties. Absent any such guiding authority, we leave
that question of Maryland law to the Maryland courts.
In short, the Baehrs have not established that either Northrop or The Northrop Team
were their fiduciaries in the Glenwood home purchase. See Proctor, 540 A.2d at 142(explaining that, in Maryland, “the party alleging the agency has the burden of proving its
existence and its nature and extent”). The Baehrs’s fiduciary-duty theory of standing is
thus unavailing.
2.
Second, invoking Spokeo’s instruction “to consider whether an alleged intangible
harm has a close relationship to a harm that has traditionally been regarded as providing a
basis for a lawsuit in English or American courts,” the Baehrs theorize that they suffered a
concrete injury because the Northrop Defendants were unjustly enriched. See Spokeo, 136
S. Ct. at 1549 (emphasis added). Of course, the unjust enrichment cause of action is
ensconced in our legal traditions. We are satisfied, however, to reject the Baehrs’s unjust-
enrichment theory because it mistakenly identifies a plaintiff’s harm as providing the basis
for an unjust enrichment action. Unlike a statutory cause of action that provides a damages
remedy based on a plaintiff’s loss, the touchstone of unjust enrichment is a defendant’s
gain. See Hill v. Cross Country Settlements, LLC, 936 A.2d 343, 352 (Md. 2007)
(emphasizing that unjust enrichment “is not aimed at compensating the plaintiff, but at
forcing the defendant to disgorge benefits that it would be unjust for [her] to keep” (internal
quotation marks omitted)); Restatement (Third) of Restitution and Unjust Enrichment § 1
22
cmt. b (Am. Law Inst. 2011). That is, unjust enrichment provides a restitutionary remedy
where a defendant receives a recognizable benefit that it would be inequitable for her to
retain. See Hill, 936 A.2d at 351-52 (setting forth three-factor test for claim of unjust
enrichment in Maryland). 9 Accordingly, in an action for unjust enrichment, a plaintiff need
only establish that the defendant’s gain was “without adequate legal basis.” See
Restatement (Third) of Restitution and Unjust Enrichment § 1 cmt. b (Am. Law Inst.
2011). The plaintiff need not show that she suffered any harm from the defendant’s gain.
Id.
On this record, the Baehrs have not demonstrated that the benefit purportedly
obtained by the Northrop Defendants — that is, a kickback — worked any harm other than
the alleged violation of RESPA. Such a statutory violation, if proven, might give rise to
liability in a lawsuit brought under the unjust enrichment cause of action. But because a
plaintiff’s harm has not “traditionally been regarded as providing” the basis for unjust
enrichment actions, we are not persuaded that the Baehrs’s bald allegation of unjust
enrichment suffices to establish a concrete injury. See Spokeo, 136 S. Ct. at 1549. Indeed,
concluding that a defendant’s unjust enrichment always works a concrete injury to the
plaintiff in an action for statutory damages runs counter to Spokeo’s mandate that “a bare
9
Under Maryland law, unjust enrichment “may not be reduced neatly to a golden
rule,” but does consist of three elements: (1) “[a] benefit conferred upon the defendant by
the plaintiff”; (2) “[a]n appreciation or knowledge by the defendant of the benefit”; and (3)
“[t]he acceptance or retention by the defendant of the benefit under such circumstances as
to make it inequitable for the defendant to retain the benefit without the payment of its
value.” See Hill, 936 A.2d at 351.
23
procedural violation, divorced from any concrete harm” cannot “satisfy the injury-in-fact
requirement of Article III.” Id. At bottom, the Baehrs’s unjust-enrichment theory
misapprehends the mischief that provides the basis for the unjust enrichment cause of
action. Therefore, the unjust-enrichment theory also must fail.
3.
Third, the Baehrs contend that they suffered a concrete injury by paying for
settlement services provided in contravention of RESPA. To support this unlawful-
transaction theory, the Baehrs cite a single provision of the bankruptcy code, which
authorizes damages where a bankruptcy petition preparer improperly renders legal advice.
See 11 U.S.C. § 110(e)(2), (i)(1). We are satisfied to reject this under-developed theory
because it is at odds with Spokeo’s mandate that a statutory violation “divorced from any
concrete harm” is insufficient to establish injury-in-fact. See Spokeo, 136 S. Ct. at 1549.
That is, we do not discern from the Baehrs’s emphasis on their payment for settlement
services any harm other than the Northrop and Lakeview Defendants’ purported RESPA
violation. The Baehrs received settlement services for which they paid a reasonable rate
regardless of whether that payment was thereafter repackaged as a kickback. On this
record, the harm suffered by the Baehrs under their unlawful-transaction theory thus
reduces to the type of “bare procedural violation” that has long been insufficient for Article
III standing. Id.; Summers v. Earth Island Inst., 555 U.S. 488, 496 (2009) (“[D]eprivation
of a procedural right without some concrete interest that is affected by the deprivation . . . is
insufficient to create Article III standing.”). In the circumstances, we must reject the
Baehrs’s unlawful-transaction theory of standing.
24
IV.
Pursuant to the foregoing, the Baehrs have not suffered a concrete injury. The
Baehrs accordingly cannot establish injury-in-fact, and we therefore agree with the district
court’s determination that they lack Article III standing to sue. Because the court was
obliged to dismiss upon making that determination, we vacate the summary judgment
award and remand for dismissal. See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83,
94, 102 (1998).
VACATED AND REMANDED
25