Northwest Title Agency, Inc. v. United States , 855 F.3d 1344 ( 2017 )

United States Court of Appeals
for the Federal Circuit
______________________
NORTHWEST TITLE AGENCY, INC.,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2016-2158
______________________
Appeal from the United States Court of Federal
Claims in No. 1:15-cv-00248-EGB, Senior Judge Eric G.
Bruggink.
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Decided: April 28, 2017
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WAYNE B. HOLSTAD, Holstad and Knaak, St. Paul,
MN, argued for plaintiff-appellant.
AMANDA TANTUM, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee. Also
represented by BENJAMIN C. MIZER, ROBERT E.
KIRSCHMAN, JR., STEVEN J. GILLINGHAM; GABRIEL LOPEZ,
NICOLE A. ALLARD, Office of Counsel, Region VIII, United
States Department of Housing and Urban Development,
Denver, CO.
______________________
2 NORTHWEST TITLE AGENCY, INC. v. US
Before NEWMAN, DYK, and TARANTO, Circuit Judges.
NEWMAN, Circuit Judge.
Northwest Title Agency, Inc. (NWTA) appeals from
the decision of the United States Court of Federal Claims,
granting summary judgment in favor of the United
States. 1 The Court of Federal Claims concluded that the
contracts whereby NWTA provides closing services for
homes owned by the Department of Housing and Urban
Development (HUD) unambiguously preclude NWTA from
charging additional closing fees. We affirm the judgment.
BACKGROUND
HUD, through the Federal Housing Administration
(FHA), administers the Single Family Mortgage Insur-
ance Program. In that capacity, HUD insures approved
lenders against the risk of loss on loans for the purchase
of single-family homes. In the event that the borrower of
an FHA-insured home loan defaults, the home is fore-
closed and is conveyed to HUD by the lender in exchange
for payment by HUD of the insured amount. HUD engag-
es contractors to perform the necessary closing activities
when HUD resells these properties. NWTA, a title agency
and settlement service provider, is such a contractor.
In 2010, NWTA and HUD entered into three nearly
identical two-year contracts pursuant to which NWTA
would provide closing services, in three states, for single
family properties owned by HUD. The contracts differed
as to the estimated number of services expected under the
contracts and the price for each service, but the contracts
were otherwise identical. The first contract, designated
1 Northwest Title Agency, Inc. v. United States, 126
Fed. Cl. 55 (2016) (“Fed. Cl. Op.”).
NORTHWEST TITLE AGENCY, INC. v. US 3
C-DEN-02376, was executed on February 11, 2010 for
properties in Wisconsin. The second, C-DEN-02375
executed on April 12, 2010, applies to Minnesota proper-
ties. Contract C-DEN-02363, executed on April 28, 2010,
applies to Missouri properties. Paragraph B.4.1 of the
three contracts included:
As total compensation for all services performed
under this contract, the contractor will be paid ac-
cording to the Contract Line Item Number (CLIN)
prices listed below for closings conducted. The
unit price per closing specified herein shall be in-
clusive of all costs, including, but not limited to:
the cost of all labor; supervision; fringe benefits,
travel, subcontracts, other direct costs, overhead;
general and administrative costs; profit/fee; the
completion of all documents necessary to close the
transaction as well as the cost to complete all fi-
nancing documents when requested by the buyer
or lender to complete the loan portion of the
transaction; the cost of phones, postage, postage
pre-paid envelopes; shipping (including closed
files to storage), delivery costs, courier costs, ex-
press mail, faxing, scanning, document reproduc-
tion [which includes forms HUD-9546
(Homeowner Satisfaction Survey) and HUD 9547
(Real Estate Broker Satisfaction Survey)]; notary
fees, transportation, wire transfer fees, recording
fees, annual reconciliation costs, title search costs
(see paragraph 4.2.2); ACA documents (see para-
graph 4.4.2.2), any and all licenses, insurance,
certificates or permits as stated in Section C, Par-
agraph 4.1.2; and all office requirements unless
otherwise specifically identified in this contract.
Id. (emphasis original). Paragraph B.4.2 was directed to
closing costs:
4 NORTHWEST TITLE AGENCY, INC. v. US
Except as explicitly allowed in Paragraph
C.4.4.2.2 below, the purchaser, lender, and/or sell-
er shall not pay any additional costs for closing
services, including an additional lender fee.
Id. (emphasis original). Paragraph C.4.3, entitled “Clos-
ing Activities,” provided that “HUD’s buyers may at all
times be assisted by their own advisors and attorneys and
may choose their own closing agent to represent their
interests in the transaction.” Paragraph C.4.2.3.1.2
permitted homebuyers to purchase optional title insur-
ance, either from NWTA or “any firm offering such insur-
ance.”
NWTA provided closing services under the contracts
until 2012 and offered and sold title insurance to home-
buyers. HUD allowed NWTA to charge homebuyers for
title insurance in all three states and for associated title
searches in Minnesota and Wisconsin. HUD disallowed
NWTA charges for additional title searches in Missouri
and disallowed closing service fees to homebuyers in all
three states.
On March 10, 2015 NWTA filed a complaint (later
amended) in the Court of Federal Claims, alleging that
HUD breached the contracts by preventing NWTA from
charging buyers “for any of the closing services referenced
in Section B.4.1.” Amended Complaint ¶8. NWTA sought
$4,242,850 to compensate for the revenue lost due to the
inability to charge closing fees to homebuyers.
The government moved to dismiss NWTA’s suit. The
Court of Federal Claims converted the motion to a motion
for summary judgment, and after briefing the court
granted summary judgment, holding that “the contracts
unambiguously prohibit NWTA from charging buyers
additional costs for closing services.” Fed. Cl. Op. at 58.
The court declined to consider the affidavit of industry
practice submitted by NWTA, stating that the “customary
practice” is “irrelevant here because the contracts unam-
NORTHWEST TITLE AGENCY, INC. v. US 5
biguously prohibit the charging of such fees except when
the property is subject to an ACA Agreement.” Id. at 59.
The Court of Federal Claims also ruled that the fee prohi-
bition does not conflict with the buyers’ rights, as stated
in the contracts, to retain a title company of their own
choosing. Id. at 60.
NWTA appeals, disputing the court's contract inter-
pretation.
DISCUSSION
Summary judgment is appropriate when there is no
genuine issue of material fact and the moving party is
entitled to judgment as a matter of law. Castle v. United
States, 301 F.3d 1328, 1336 (Fed. Cir. 2002). We review
de novo the grant of summary judgment by the Court of
Federal Claims. TEG-Paradigm Envtl., Inc. v. United
States, 465 F.3d 1329, 1336 (Fed. Cir. 2006). Contract
interpretation is a question of law, which we also review
de novo. Id.
A
NWTA argues that the Court of Federal Claims erred
in holding that the contracts prohibit charging closing
fees to homebuyers. NWTA states that the contracts are
ambiguous, and that industry practice demonstrates that
homebuyers and sellers may be represented by separate
closing agents and would thereby pay separate closing
fees. The government responds that the contracts unam-
biguously prohibit the additional charges for “closing
services” that NWTA claims to be entitled to collect from
the homebuyers.
When interpreting a contract, “the language of [the]
contract must be given that meaning that would be de-
rived from the contract by a reasonably intelligent person
acquainted with the contemporaneous circumstances.”
Metric Constructors, Inc. v. Nat’l Aeronautics & Space
Admin., 169 F.3d 747, 752 (Fed. Cir. 1999) (quoting Hol–
6 NORTHWEST TITLE AGENCY, INC. v. US
Gar Mfg. Corp. v. United States, 351 F.2d 972, 975 (Ct. Cl.
1965)). When the contract’s language is unambiguous it
must be given its “plain and ordinary” meaning and the
court may not look to extrinsic evidence to interpret its
provisions. Coast Fed. Bank, FSB v. United States, 323
F.3d 1035, 1040 (Fed. Cir. 2003) (en banc).
The contracts provide: “[t]he unit price per closing
specified herein shall be inclusive of all costs.” Paragraph
B.4.1. (emphasis original). Paragraph B.4.2 continues:
“[e]xcept as explicitly allowed in Paragraph C.4.4.2.2
below, the purchaser, lender, and/or seller shall not pay
any additional costs for closing services, including an
additional lender fee.” Id. (emphasis omitted). The costs
and fee requested by NWTA are not within any explicit
exception. We conclude that a reasonable and prudent
contractor would not have read the contracts as authoriz-
ing the charge of closing fees to homebuyers. See H.B.
Mac, Inc. v. United States, 153 F.3d 1338, 1345 (Fed. Cir.
1998) (“[A] proper technique of contract interpretation is
for the court to place itself into the shoes of a reasonable
and prudent contractor and decide how such a contractor
would act in interpreting the contract documents.”).
The Court of Federal Claims correctly found the con-
tracts unambiguous, and not subject to modification by
the asserted trade practice and custom. “Trade practice
and custom may not be used, however, ‘to create an
ambiguity where a contract was not reasonably suscepti-
ble of differing interpretations at the time of contracting.’”
TEG-Paradigm, 465 F.3d at 1338 (quoting Metric Con-
structors, 169 F.3d at 752).
B
NWTA also argues that abiding by the plain-language
interpretation of the contract would violate the Real
Estate Settlement Procedures Act (RESPA) by providing a
purported discount for title insurance purchased from
NWTA. The government responds that prohibiting
NORTHWEST TITLE AGENCY, INC. v. US 7
NWTA from charging closing fees to homebuyers does not
violate RESPA because the contracts do not force or
coerce homebuyers to purchase title insurance from
NWTA. RESPA provides: “[n]o seller of property that will
be purchased with the assistance of a federally related
mortgage loan shall require directly or indirectly, as a
condition to selling the property, that title insurance
covering the property be purchased by the buyer from any
particular title company.” 12 U.S.C. § 2608(a).
We agree with the Court of Federal Claims that these
contracts are not reasonably interpreted as forcing home-
buyers to purchase title insurance from NWTA over
another title insurer. The contracts make title insurance
optional, and Paragraph C.4.3 explicitly provides buyers
the option to retain their own closing agents, advisors,
attorneys, and title insurers. That a homebuyer takes
advantage of closing services paid for by the government
under the contracts is not a coercion to purchase optional
title insurance from NWTA.
NWTA also argues that it was wrongly prohibited
from charging for additional title searches conducted in
Missouri as part of the title insurance process. NWTA
had not previously raised this argument, and has provid-
ed no evidence that additional searches were necessary to
issue title insurance.
CONCLUSION
We conclude that the contracts are unambiguous in
precluding NWTA from charging closing fees to homebuy-
ers, except in limited exceptions not applicable here.
Judgment in favor of the government is affirmed.
AFFIRMED