Chultem v. Ticor Title Insurance Co.

2015 IL App (1st) 140808THIRD DIVISION
December 16, 2015
Nos. 1-14-0808 and 1-14-0820 (consolidated)
DOLJIN CHULTEM, Individually and on Behalf ) Appeal from the
of All Others Similarly Situated, ) Circuit Court of
) Cook County
Plaintiffs-Appellants and Cross-Appellees, )
) Nos. 06 CH 09488
v. ) 06 CH 09489
)
TICOR TITLE INSURANCE COMAPNY, ) Honorable
CHICAGO TITLE AND TRUST COMPANY, and ) Mary L. Mikva,
FIDELITY NATIONAL FINANCIAL, INC., ) Judge Presiding.
)
Defendants-Appellees and Cross-Appellants. )
_________________________________________ )
)
PAUL COLELLA, Individually and on Behalf of )
All Others Similarly Situated, )
)
Plaintiffs-Appellants and Cross-Appellees, )
)
v. )
)
CHICAGO TITLE INSURANCE COMPANY and )
CHICAGO TITLE AND TRUST COMPANY, )
)
Defendants-Appellees and Cross-Appellants. )
PRESIDING JUSTICE MASON delivered the judgment of the court, with opinion.
Justice Lavin concurred in the judgment and opinion.
Justice Pucinski dissented, with opinion.
OPINION
¶1 In this consolidated class action appeal, plaintiffs Doljin Chultem and Paul Collella,
individually and on behalf of all others similarly situated, appeal the trial court's ruling that
defendants Ticor Title Insurance Company (Ticor), Chicago Title Insurance Company (Chicago
Title), Chicago Title and Trust Company (CT&T) and Fidelity National Financial, Inc. (Fidelity)
Nos. 1-14-0808 and 1-14-0820 (consolidated)
(collectively, the "title companies") did not make illegal kickback payments by splitting a fee
with attorneys for their referral of business to the title companies in violation of the Illinois Title
Insurance Act (215 ILCS 155/1 (West 2002)) (Title Act) 1 and the Illinois Consumer Fraud and
Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 2002)) (Consumer Fraud Act).
Plaintiffs assert that payments made by the title companies to attorneys who also served as title
agents (attorney agents) were unlawful because the title companies provided those attorneys with
a pro forma title commitment that determined the insurability of a property's title—a function
they assert must be performed by the attorney agents to earn the fee paid by the title companies.
Plaintiffs claim that because the attorney agents received the pro forma commitment, they did
not perform "core title services" and the title company's payment was unearned and, in reality, an
illegal kickback. Because recent case law fails to support plaintiffs' position, we affirm.
¶2 BACKGROUND
¶3 A. RESPA and HUD Policy Statements
¶4 We begin by providing a brief overview of the pertinent statutory and regulatory
framework to place in context the issues and arguments raised in this appeal. The Real Estate
Settlement Procedures Act (12 U.S.C. § 2601 et seq. (2000)) (RESPA) is a federal statute
establishing various requirements relating to the residential real estate settlement process.
Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 481 (1999). Congress
enacted RESPA to provide purchasers and sellers of real property with more detailed advance
disclosure of the settlement costs associated with real estate closings. Id. Congress also sought
to protect consumers "from unnecessarily high settlement charges caused by certain abusive
1
The Title Act incorporates the Real Estate Settlement Procedures Act (12 U.S.C. § 2607(2000)). See 215 ILCS 155/21 (West 2002).
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Nos. 1-14-0808 and 1-14-0820 (consolidated)
practices that have developed in some areas of the country." 12 U.S.C. § 2601(a) (2000). More
specifically, Congress sought to eliminate kickbacks or referral fees for title insurance business
that contributed to increased costs of settlement services. 12 U.S.C. § 2601(b)(2) (2000).
¶5 Two sections of RESPA address these practices. RESPA section 2607(a) (12 U.S.C. §
2607(a) (2000)) prohibits kickbacks for referrals and states:
"No person shall give and no person shall accept any fee, kickback, or thing of
value pursuant to any agreement or understanding, oral or otherwise, that business
incident to or a part of a real estate settlement service involving a federally related
mortgage loan shall be referred to any person." Id.To establish a violation of section 2607(a), the following elements must be demonstrated: "(1) a
payment or thing of value; (2) given and received pursuant to an agreement to refer settlement
business; and (3) an actual referral." Galiano v. Fidelity National Title Insurance Co., 684 F.3d
309, 314 (2d Cir. 2012).
¶6 RESPA section 2607(b) (12 U.S.C. § 2607(b) (2000)) prohibits unearned fee splitting and
states in pertinent part:
"No person shall give and no person shall accept any portion, split, or percentage
of any charge made or received for the rendering of a real estate settlement service in
connection with a transaction involving a federally related mortgage loan other than for
services actually performed." Id.Section 2607(b) is violated where: (1) a person gives or accepts any portion, split or percentage
of any charge; (2) the fee-split relates to the rendering of a real estate settlement service; and (3)
the fee-split or payment is made "other than for services actually performed." (Internal quotation
marks omitted.) Sosa v. Chase Manhattan Mortgage Corp., 348 F.3d 979, 983 (11th Cir. 2003).
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Simply stated, a party violates section 2607(b) where no services are performed in exchange for
the fee charged to the consumer by a title company and later split with another party. Clements
v. LSI Title Agency, Inc., 779 F.3d 1269, 1274 (11th Cir. 2015) (a plaintiff must plead that " 'no
services were rendered in exchange for a settlement fee' " (quoting Friedman v. Market Street
Mortgage Corp., 520 F.3d 1289, 1298 (11th Cir. 2008))).
¶7 As is apparent, each subsection addresses specific conduct not addressed by the other
subsection, i.e., "[s]ubsection (a) prohibits certain kickbacks (those agreed to in exchange for
referrals) and subsection (b) prohibits certain unearned fees (those paid from a part of the charge
to the customer)." Freeman v. Quicken Loans, Inc., 566 U.S. __, __, 132 S. Ct. 2034, 2043
(2012).
¶8 In enacting RESPA, Congress also included "safe harbor provision[s]" that exempt
certain payments from the prohibition against kickbacks. Johnson v. Matrix Financial Services
Corp., 354 Ill. App. 3d 684, 689 (2004). RESPA section 2607(c)(1)(B) provides that the
payment of a fee "by a title company to its duly appointed agent for services actually performed
in the issuance of a policy of title insurance" shall not be considered a prohibited payment. 12
U.S.C. § 2607(c)(1)(B) (2000). RESPA section 2607(c)(2) provides that the payment "to any
person of a bona fide salary or compensation or other payment for goods or facilities actually
furnished or for services actually performed" shall likewise not be considered a prohibited
payment. 12 U.S.C. § 2607(c)(2) (2000). The two safe harbor exemptions are not mutually
exclusive. Howland v. First American Title Insurance Co., 672 F.3d 525, 533 (7th Cir. 2012).
¶9 Until recently, the Department of Housing and Urban Development (HUD) was the
administrative agency responsible for drafting regulations and rendering interpretations
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consistent with RESPA's objectives. 2 Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 124 (2d
Cir. 2007). Following RESPA's enactment, HUD promulgated regulations using language that
mirrors RESPA's provisions regarding the prohibition against kickbacks and unearned fees. The
regulations provide that "any referral of a settlement service is not a compensable service, except
as set forth in § 3500.14(g)(1)." 24 C.F.R. § 3500.14(b) (2001). Section 3500.14(g)(1) adopts
RESPA's "safe harbor" provisions in language identical to the statute. The regulation addressing
fee splitting provides further elaboration and states that "[a] charge by a person for which no or
nominal services are performed or for which duplicative fees are charged is an unearned fee and
violates this section." 24 C.F.R. § 3500.14(c) (2001). The regulations specify that for an
attorney, who provides multiple services and is in a position to refer settlement service business,
to receive "a payment for providing additional settlement services as part of a real estate
transaction, such payment must be for services that are actual, necessary and distinct from the
primary services provided by such person." 24 C.F.R. § 3500.14(g)(3) (2001). To further
clarify, the regulation provides the following example:
"[F]or an attorney of the buyer or seller to receive compensation as a title agent, the
attorney must perform core title agent services (for which liability arises) separate from
attorney services, including the evaluation of the title search to determine the insurability
of the title, the clearance of underwriting objections, the actual issuance of the policy or
policies on behalf of the title insurance company, and, where customary, issuance of the
title commitment, and the conducting of the title search and closing." 24 C.F.R. §
3500.14(g)(3) (2001).
2
On July 21, 2011, the Bureau of Consumer Financial Protection took over HUD's
consumer-protection functions. Freeman, 566 U.S. at __, 132 S. Ct. at 2039 n.4. In this opinion,
we continue to refer to HUD as the responsible agency.
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¶ 10 In 1996, HUD issued a statement of policy (HUD, RESPA Statement of Policy 1996-4, 61
Fed. Reg. 49398, 49399-400 (Sept. 19, 1996)) (Florida Policy Statement) 3 reflecting its
interpretation of the safe harbor exceptions set forth in section 2607(c)(1)(B) and section
2607(c)(2). Howland, 672 F.3d at 529. In HUD's opinion, "a title agent does not qualify under
the Section 8(c)(1)(B) safe harbor if the title insurance company performs any of the core title
services itself," including preparation of a preliminary or pro forma commitment. Id. at 529-30
(citing Florida Policy Statement, 61 Fed. Reg. at 49400). HUD further explained that an attorney
agent may receive compensation for services performed under section 2607(c)(2) even though
payment was prohibited under the first safe harbor provision on the basis that the attorney did not
perform any "core title agent services." (Internal quotation marks omitted.) Id. at 529. However,
HUD cautioned that the payment must be "reasonably related to the value of the services
performed" and less than the payment made to an attorney who performed all "core title
services." Id. at 530; see 24 C.F.R. § 3500.14(g)(2) (2001); Florida Policy Statement, 61 Fed.
Reg. at 49400.
¶ 11 In 2001, HUD issued a statement of policy (HUD, RESPA Statement of Policy 2001-1, 66
Fed. Reg. 53052-01 (Oct. 18, 2001)) (2001-1 SOP) detailing its position regarding the payment
of yield spread premiums by lenders to mortgage brokers. In the 2001-1 SOP, HUD reiterated
that its guidance and regulations have uniformly interpreted section 8b—codified at 12 U.S.C. §
2607(b)—as prohibiting all unearned fees. 2001-1 SOP, 66 Fed. Reg. at 53057. HUD explained
that section 8(b) "prohibits any person from giving or accepting any fees other than payments for
goods and facilities provided or services actually performed." Id. at 53053. HUD also explained
3
This policy statement is commonly referred to as the "Florida Policy Statement"
because it specifically addressed the issues and practices involving title insurance companies and
title insurance agents regarding their compliance with RESPA that HUD reviewed in Florida.
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that a single service provider incurs liability "under Section 8(b) when it charges a fee that
exceeds the reasonable value of goods, facilities, or services provided." Id. at 53059. The policy
statement considered a prohibited unearned fee to include a service provider charging "the
consumer a fee where no, nominal, or duplicative work is done, or the fee is in excess of the
reasonable value of goods or facilities provided or the services actually performed." Id.
¶ 12 Interpretation of section 2607(b) next significantly evolved following the United States
Supreme Court's decision in Freeman, 566 U.S. at __, 132 S. Ct. at 2034. In Freeman, the Court
addressed whether a charge for settlement services must be divided between two or more persons
to be considered a prohibited fee splitting payment under section 2607(b). Id. at __, 132 S. Ct. at
2037. The Freeman Court identified the dispute between the parties as to whether section
2607(b) "prohibits the collection of an unearned charge by a single settlement-service provider–
what we might call an undivided unearned fee–or whether it covers only transactions in which a
provider shares a part of a settlement-service charge with one or more other persons who did
nothing to earn that part." Id. at __, 132 S. Ct. at 2039. The court concluded that section
2607(b) does not apply where a settlement-service provider retains the fee charged to the
customer in its entirety, i.e., where there is no dividing or splitting of the fee with another party.
Id. at __, 132 S. Ct. at 2041. Thus, no violation of section 2607(b) occurred and the court
affirmed summary judgment in favor of the settlement-service provider. Id. at __, 132 S. Ct. at
2044. We further discuss below Freeman's application to the issue presented in this appeal.
¶ 13 B. Procedural History
¶ 14 This case commenced when Chultem and Colella each filed a complaint, individually and
on behalf of all others similarly situated, against the title companies claiming that the title
companies made unlawful payments to the attorney agents because the attorney agents did not
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perform "core title agent services" in addition to the services the attorneys rendered to their
clients in a real estate transaction. The Colella proposed class included transactions where
individuals purchased title insurance from Chicago Title during the period from January 1, 2001,
to September 1, 2005, and Chicago Title paid attorney agents their full compensation. The
Chultem proposed class included transactions where individuals purchased title insurance from
Ticor during the period from February 1, 2000, to September 30, 2005, and Ticor paid the
attorney agents in full after sending the attorney agents a preliminary title exam (A-Exam) that
was not changed in any way by the attorney agents.
¶ 15 According to the complaints, which were amended multiple times, the putative class
members purchased, sold or mortgaged real property and paid for a title insurance policy from
the title companies to protect the purchasers against any defect or irregularity in the property's
title. A portion of the premium paid for the policy was then shared by the title company with an
attorney agent in exchange for allegedly performing title services. The title companies typically
paid an attorney agent 70% to 80%, and at all times more than 50%, of the premium collected for
the title insurance policy. Plaintiffs claimed the title companies' payments to the attorney agents
were unlawful because the attorney agents did not perform any "core title services" 4 if the title
companies sent the attorney agents a title insurance commitment, i.e., either a Preliminary
Commitment provided by Chicago Title to the Colella class members or an A-Exam provided by
Ticor to the Chultem class members. Plaintiffs argued that those documents examined the real
property's title and determined the insurability of the property—a function that should be
4
Plaintiffs defined "core title services" as: "evaluation of the title search to determine
the insurability of the title, the clearance of underwriting objections, the actual issuance of the
policy or policies on behalf of the title insurance company, and, where customary, issuance of
the title commitment, and the conducting of the title search and closing."
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performed by the attorney agent to justify the payment received from the title companies.
Plaintiffs alleged that the title companies disguised prohibited kickbacks for the referral of
business by implementing a program where the attorney agents would receive payments from the
title companies—a portion that was collected from consumers—under the guise of providing
"core title agent services." The attorney agents received compensation from both the title
companies—for services as a title agent—and their clients—for services as an attorney. Based
on these common allegations, Chultem and Colella sought class certification.
¶ 16 In response, the title companies asserted that the payments were not unlawful because
attorney agents were required to perform core title agent services, which they in fact performed,
and plaintiffs received value from the title insurance issued as a direct result of the attorney
agents' services. The title companies also asserted that no statute supports and no case law
adopts plaintiffs' position that sending a Preliminary Commitment or A-Exam to an attorney
agent automatically renders payments by the title companies to attorney agents violative of
RESPA.
¶ 17 The parties continued to litigate their positions until the trial court ultimately denied
plaintiffs' amended second motion for class certification. Plaintiffs filed a petition for leave to
appeal pursuant to Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 16, 2011) regarding the
denial of class certification along with a motion to consolidate, which a different division of this
court allowed. On April 15, 2010, we issued an opinion reversing the trial court's order denying
class certification and remanded with instructions to certify the class. Chultem v. Ticor Title
Insurance Co., 401 Ill. App. 3d 226, 238 (2010). In reaching that conclusion, this court
considered only the predominance element under section 2-801 of the Illinois Code of Civil
Procedure (735 ILCS 5/2-801 (West 2006)), which requires "that common questions
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predominate over any questions involving only individual members." Chultem, 401 Ill. App. 3d
at 235. We stated that a transaction-by-transaction review to determine whether an attorney
agent provided " 'core title services' " or actually performed services was not necessary if the title
companies sent the attorney agents " 'pro forma commitments' " because the title companies
would have unlawfully paid the attorney agents the full amount of compensation for unearned
" 'core title services.' " Id. Accordingly, we identified two questions for the trial court to address
on remand: (1) "whether the defendants were sending their attorney agents pro forma
commitments" and (2) "whether the defendants lawfully can pay their attorney agents full
contract compensation after sending them pro forma commitments." Id. at 237. This court
reasoned that those determinations were questions common to all class members and would
establish a right to recovery in other class members. Id. at 236-37.
¶ 18 Following remand, the trial court certified the class and both parties filed motions for
partial summary judgment addressing the two questions identified by this court. The trial court
granted the plaintiffs' motion regarding the second question finding that the title companies were
prohibited from paying attorney agents in full after sending a pro forma title commitment as that
term was defined by the Florida Policy Statement.
¶ 19 The trial court denied both summary judgment motions on the issue of whether the
Preliminary Commitments and A-Exams were pro forma commitments and set the case for a
bench trial to address that issue. The trial court identified the underlying issue at trial as
"whether there were actual, necessary and distinct services remaining after the title companies
sent an A-Exam or a Preliminary Commitment to their attorney agents." The following pertinent
testimony was adduced during trial.
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¶ 20 The attorney agents in the underlying Colella and Chultem real estate transactions
testified regarding services they performed. Richard Cohn served as the attorney agent for
Chicago Title in the Colella transaction and also represented the property's sellers. Jay Orlowski
served as the attorney agent for Ticor in the Chultem transaction and likewise represented the
property's sellers.
¶ 21 Generally, an attorney agent performs the following services: (1) orders a title search
package; (2) identifies liens or encumbrances recorded against the title; (3) ensures the clearing
of liens recorded against the title; (4) verifies the individual selling the property held title to the
property; (5) recommends the waiver of exceptions to title; (6) attends closings; and (7)
maintains records of the transaction. Basically, an attorney agent ensures that exceptions to title
are cleared so that good title is transferred during the real estate transaction, i.e., obtains a release
or payoff of a mortgage recorded on the property and ensures the payoff letter matches the lien.
An attorney agent also communicates with the lender throughout the process to incorporate any
changes to the loan amount or identity of the lender and to identify the information that should
be included on the endorsements to the title policy. An attorney agent's role in clearing
underwriting objections and recommending the waiver of exceptions to title results in the
issuance of a title insurance policy. An attorney agent is exposed to liability for the exceptions
he or she deems should be waived. Unlike an attorney agent, a seller's attorney does not provide
comparable clearing and waiver services. As an attorney in an approved attorney agent program,
the attorney agent must comply with guidelines established by the title companies to ensure the
attorney agent does not waive exceptions without proper clearance.
¶ 22 Regarding the Colella transaction, Cohn knew before receiving the title search package
from Chicago Title that he would have to clear liens recorded on the property's title, and he
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received payoff letters before obtaining the search package. Cohn reviewed the search package
and identified exceptions that needed to be disclosed on the title commitment. Based on his
review, Cohn concluded that there were no judgments against either party that would need to be
cleared before issuance of the title policy. Cohn also compared the mortgages listed in the
search package with the payoff letters that he had already investigated before receiving the
package. Cohn likewise compared the tax information listed in the search package with the
information Cohn had previously obtained. Cohn instructed Chicago Title to change the owner's
name from "Thome" as reflected in the search package to "Thomas" as reflected in the payoff
letters and the sales contract (although Chicago Title never made the change), indicated that
Chicago municipal taxes must be paid and the condominium association must provide a payoff
letter regarding assessments—all of which were required to determine final insurability. Cohn
also attended the closing where he determined what exceptions to title should be waived.
¶ 23 Regarding the Chultem transaction, Orlowski stated that after receiving the search
package, he: (1) cleared the identified exceptions noted in the A-Exam; (2) verified the property's
legal description and property identification number; (3) determined whether the search package
was complete; (4) attended the closing; and (5) determined what exceptions should be waived to
get the final policy issued. Orlowski acknowledged that he did not identify the misspelling of
the sellers' names during his review of the search package.
¶ 24 Plaintiffs offered expert testimony regarding the services provided by attorney agents.
According to Jerrold Hobfoll, an attorney agent is expected to examine the raw data included in a
search package, determine insurability and complete an exam summary providing the title
company with the information necessary to prepare the title commitment. Hobfoll
acknowledged that attorney agents must waive exceptions at closing, which was a core title
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service under RESPA, and a seller's attorney would not provide that service. Hobfoll believed
that an attorney agent who does not perform core title services under section 8(c)(1)(b) may still
be paid for services actually performed under section 8(c)(2) provided that the payment is
reasonably commensurate with the reduced work load or responsibilities assumed by the attorney
agent. Hobfoll agreed that an attorney agent provided some services before and after a search
package was received from the title company, and that the attorney agent should be compensated
for those services, which ranged, in his opinion, from 20% to 50% of the full amount of the
attorney agent's fee. Hobfoll also agreed that an attorney who was not an attorney agent would
not assume responsibility or liability for the title examination function. Hobfoll conceded that
Cohen's search of tax information would be an actual service provided to the title company,
albeit a minimal one.
¶ 25 Consistent with Hobfoll's testimony, plaintiffs' expert Grant Mitchell stated that an
attorney agent may be paid for actual work performed under section 8(c)(2), even for work not
considered core title services. Mitchell opined that an attorney agent who received a pro forma
commitment may be paid for any actual service performed, but may not be paid the full contract
amount as an attorney agent.
¶ 26 Plaintiffs' expert Michael Rooney disputed the claim that the determination of insurability
was an ongoing process completed upon the issuance of a title insurance policy. But he agreed
that throughout the class period, the attorney agents issued or caused the issuance of title polices,
which was a core title service, and that a non-attorney agent representing a seller would not issue
a title commitment. Rooney acknowledged that attorney agents must perform the function of
clearing liens and judgments and exercise their authority to waive or cause the waiver of
exceptions at the closing. Rooney stated that unlike attorney agents, a seller's attorney incurs no
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liability associated with the clearing of exceptions to title. Rooney also acknowledged that after
an attorney agent received a search package, an attorney agent must still perform services to
determine insurability, i.e., whether the mortgage to be insured was valid and enforceable and
whether the deed would effectively transfer title to the purchaser.
¶ 27 Following trial, the parties filed post-trial briefs. The title companies also moved to
decertify the class, which the trial court denied. The trial court issued a written order finding that
"actual, necessary and distinct services" still remained for attorney agents to perform relating to
the issuance of a title insurance policy even where they received a title exam or preliminary
commitment that met most of the requirements of a pro forma commitment under the Florida
Policy Statement. The trial court rejected plaintiffs' assertion that the attorney agents must
perform all of the core title services to avoid violating section 2607, and that under Freeman, it
was irrelevant whether an attorney agent was overpaid for their services when performing less
than all core title services. Accordingly, the trial court ruled that the title companies' payments
to attorney agents under their attorney agent programs did not violate RESPA's prohibition
against either kickbacks for referral fees or fee splitting because the evidence offered at trial
established that attorney agents provided title services independent of the services provided as
counsel for the seller. Thus, the court entered judgment in favor of the title companies because
plaintiffs could not demonstrate a RESPA violation, which necessarily precluded a finding of a
violation of the Title Act and Consumer Fraud Act. Plaintiffs timely appealed.
¶ 28 The title companies filed a cross-appeal contending that if the judgment in their favor is
reversed, we should consider whether the trial court erred in refusing to decertify the class.
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¶ 29 ANALYSIS
¶ 30 On appeal, plaintiffs claim that the trial court erred in entering judgment in favor of the
title companies on the basis that sections 2607(a) and (b) were not violated where an attorney
agent performed any service in connection with the issuance of a title insurance policy in
exchange for a portion of the payment received by the title company from consumers in a real
estate transaction. Plaintiffs claim that the payments made to the attorney agents were illegal
because they did not earn their compensation. We disagree.
¶ 31 We will not reverse a trial court's judgment entered following a bench trial unless the
judgment was against the manifest weight of the evidence. Chicago's Pizza, Inc. v. Chicago's
Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008); see also Corral v. Mervis
Industries, Inc., 217 Ill. 2d 144, 154 (2005) (trial court's findings of fact will not be reversed
unless the findings are against the manifest weight of the evidence). A judgment is against the
manifest weight of the evidence "only when an opposite conclusion is apparent or when the
findings appear to be unreasonable, arbitrary, or not based on the evidence." Eychaner v. Gross,
202 Ill. 2d 228, 252 (2002). We review a court's interpretation of RESPA de novo. Freeman v.
Quicken Loans, Inc., 626 F.3d 799, 801 (5th Cir. 2010), aff'd, 566 U.S. __, 132 S. Ct. 2034(2012); see also Solon v. Midwest Medical Records Ass'n, 236 Ill. 2d 433, 439 (2010) (issues
involving statutory construction are questions of law subject to de novo review).
¶ 32 Plaintiffs suggest that the only standard of review applicable to the issues on appeal is de
novo because their appeal presents solely questions of law. In essence, plaintiffs contend that the
trial court erred in denying their motion for summary judgment on the issue of whether the
Preliminary Commitments and A-Exams provided to attorney agents constituted pro forma
commitments, which under plaintiffs' theory would preclude the attorney agents from collecting
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their full fee. But while we agree that we review the trial court's interpretation of RESPA de
novo, the court's findings regarding the nature of the attorney agent programs, i.e., whether they
were "make-work" programs, as plaintiffs contended, or whether they instead required the
attorney agents to actually perform services in exchange for a fee, are entitled to deference under
the manifest weight standard.
¶ 33 We first consider the application of Freeman's rationale to this case. Because RESPA is
a federal statute, pronouncements of the United States Supreme Court are controlling with
respect to the statute's interpretation. State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL
113836, ¶ 33. Plaintiffs correctly note that Freeman addressed section 2607(b) (whether the
prohibition against fee-splitting requires sharing a fee between two parties) and did not
separately analyze section 2607(a) (kickbacks), and that this case involves claimed violations of
both subsections. We find this distinction is irrelevant because Freeman's reasoning relating to
2607(b) is readily applicable to section 2607(a). Moreover, the record establishes that the title
companies and the attorney agents split the fee collected from consumers relating to the purchase
of a title insurance policy, which is the precise context the court analyzed in Freeman.
Furthermore, we consider Freeman dispositive because it indisputably considered section
2607(b)'s "other than for services actually performed" statutory language. Both safe harbor
provisions use an abridged version of that phrase, but importantly incorporate the same "services
actually performed" language. Unless a contrary intent by Congress is clearly evident, "use of
the same words or phrases in different sections of statute should be given a consistent meaning."
Clardy v. Rapistan Division of Lear Siegler, Inc., 254 Ill. App. 3d 1066, 1070 (1993). It is well
settled that statutory "provisions should be read in concert and harmonized." Hartney Fuel Oil
Co. v. Hamer, 2013 IL 115130, ¶ 25. As recognized by Freeman, subsection (b) is a neighboring
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provision to subsection (a). Freeman, 566 U.S. at __, 132 S. Ct. at 2038. Thus, both subsections
must be read in harmony and consistently. Accordingly, Freeman's reasoning applies here.
¶ 34 In Freeman, the court stated that "a settlement-service provider who gives a portion of a
charge to another person who has not rendered any services in return would violate § 2607(b),
even if an express referral arrangement does not exist or cannot be shown." (Emphasis added.)
Id. at __, 132 S. Ct. at 2043. Conversely, Freeman recognized that "a service provider could
avoid [RESPA] liability by providing just a dollar's worth of services in exchange for [a] $1,000
fee" because RESPA is not a price control statute and is not concerned with the "value, amount
or quality of services" rendered. Id. at __, 132 S. Ct. at 2044. The court reasoned that if
Congress had intended for RESPA to be a price control provision, there would have been no
need for Congress to direct HUD to provide, five years after RESPA's enactment,
recommendations to Congress regarding whether price controls should be enacted. Id. at __, 132
S. Ct. at 2039 (citing 12 U.S.C. § 2612(a) (1976 ed.)).
¶ 35 From this, the only reasonable interpretation of section 2607(b) is that it prohibits fee-
splitting with a party where no services are provided in return for the fee, which is consistent
with RESPA's underlying purpose of preventing the abusive practice of paying a party merely
for the referral of business. See Martinez v. Wells Fargo Home Mortgage, Inc., 598 F.3d 549,
553 (9th Cir. 2009) (section 2607(b) "prohibits only the practice of giving or accepting money
where no service whatsoever is performed in exchange for that money"); Hazewood v.
Foundation Financial Group, LLC, 551 F.3d 1223, 1226 (11th Cir. 2008) (a section 2607(b)
violation requires that no services were provided in return for the settlement fee). Consequently,
adopting Freeman's rationale, the relevant inquiry is whether any service was performed by the
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attorney agent in return for the fee paid by the title company so that the compensation paid to the
attorney agent was not unearned or merely a kickback.
¶ 36 Here, the title companies offered evidence supporting a finding that the attorney agents
performed actual title settlement services. The record reveals that after attorney agents received
a search package and contemporaneously with or shortly thereafter an A Exam or Preliminary
Commitment, attorney agents still performed services, some of which included: (1) clearing any
cloud to the real property's title, i.e., any liens; (2) providing instructions on what to include on
title commitments; (3) recommending the waiver of exceptions to title; (4) making changes to the
A-Exam or Preliminary Commitment; and (4) attending closings. The record further reveals that
a non-attorney agent does not perform the same clearing and waiver services at closing nor is he
or she exposed to potential liability associated with the waiver of exceptions. Importantly, the
clearing and waiver of exceptions are necessary functions to determine final insurability.
Moreover, plaintiffs do not contend that attorney agents under the programs provided no services
in exchange for their compensation.
¶ 37 Based on the evidence in the record and in light of the reasoning set forth in Freeman, we
cannot conclude the trial court's finding that the attorney agent programs satisfied the minimum
threshold of requiring an attorney agent to perform actual services relating to the issuance of a
title insurance policy was against the manifest weight of the evidence. See Lane v. Residential
Funding Corp., 323 F.3d 739, 744 (9th Cir. 2003) (noting that section 2607 prohibits payments
that are for the referral of business and nothing else (quoting Schuetz v. Banc One Mortgage
Corp., 292 F.3d 1004, 1013 (9th Cir. 2002)). Consequently, the title companies' payments to
attorney agents were not merely kickbacks for the referral of business or unearned fees because
the attorney agents performed services to earn the fees. As Freeman tells us, RESPA is not
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concerned with whether the attorney agents were paid too much for their actual services, but asks
only whether actual services were rendered. Thus, the title companies' payments were not
unlawful under section 2607.
¶ 38 Plaintiffs also assert that the trial court erred in declining to assess the reasonableness of
the fee paid to attorney agents in comparison to the amount of services provided relating to the
issuance of a title insurance policy. Plaintiffs claim that attorney agents were prohibited from
receiving full payment for their services when they only performed a portion of the contracted
for services under the program because they were provided a pro forma commitment, which
eliminated the need for attorney agents to perform many "core title agent services."
¶ 39 We again turn to Freeman, which holds that the reasonableness of the amount paid to a
party for services provided is irrelevant to establish a violation of section 2607(b). Freeman, 566
U.S. at __, 132 S. Ct. at 2039. Freeman reiterated that RESPA does not address overcharges for
services. Id. at __, 132 S. Ct. at 2040. Here, though not framed as a claim that the attorney
agents were paid excessive fees, the plaintiffs' claim resonates as an "overpaid" claim because
they assert that attorney agents were "overpaid" if they received the full contract payment
amount even though they did not provide all of the services that the payment amount was for,
e.g., they received 100% of their fee for only performing 20% of the work. But under Freeman,
a payment to a party cannot be divided between an earned and unearned portion. Id. at __, 132
S. Ct. at 2010. Thus, Freeman is dispositive and directly refutes plaintiffs' claim.
¶ 40 Ultimately, the relevant consideration under section 2607 is whether a title company paid
a fee to another party who did nothing to earn that fee. Freeman instructs that we must analyze
whether the fee paid by the title company was earned by an attorney agent in that the attorney
agent in fact rendered services in exchange for the fee, but the reasonableness of the amount of
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the fee is irrelevant. 5 Here, as stated, the attorney agents performed services to earn the
payments made by the title companies, and we need not consider the reasonableness of the
amount paid to the attorney agent under Freeman. Moreover, plaintiffs' position that a title
company is prohibited from paying attorney agents their full contract amount when they did not
provide all required "core title services" essentially advocates for a per se violation of RESPA—
a position found to be inconsistent with HUD's general resistance to per se kickback rules. 6
Howland, 672 F.3d at 534. Particularly persuasive is the Seventh Circuit Court of Appeals'
decision in Howland, (id. at 535) (a decision issued less than three months before Freeman) in
which the court expressly stated "we do not read the [Florida Policy Statement] to suggest a per
se rule that a title agent who does not qualify under the Section 8(c)(1)(B) safe harbor may not be
paid a full contractual title examination fee under Section 8(c)(2)." Id. at 534. The Howland
court ultimately held that RESPA kickback claims premised on unreasonably high compensation
for services actually performed were inherently unsuitable for class action treatment. Id. at 535.
¶ 41 We are also not persuaded by plaintiffs' position that the Florida Policy Statement should
be given deference pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837, 842 (1984), which established a two-part test for judicial review of an agency's
construction of a statute which it administers. Under the Chevron test, a court must first
determine whether Congress has directly addressed the precise question at issue. Id. If
5
As Freeman noted, federal courts have consistently recognized that section 2607(b)
"does not reach unreasonably high fees." Freeman, 566 U.S. at __, 132 S. Ct. at 2040 (citing
Kruse v. Wells Fargo Home Mortgage, Inc., 383 F.3d 49, 56 (2nd Cir. 2004); Santiago v. GMAC
Mortgage Group, Inc., 417 F.3d 384, 387 (3d Cir. 2005), and Friedman v. Market Street
Mortgage Corp., 520 F.3d 1289, 1297 (11th Cir. 2008)).
6
Plaintiffs pled in their complaint that the title companies' performance of "core title
services" "necessarily renders all payments to attorney agents through these programs mere
kickbacks in violation of Illinois and federal law."
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Congress' intent is clear, the inquiry ends and the court and the agency must give effect "to the
unambiguously expressed intent of Congress." Id. at 842-43. If Congress has not directly
addressed the specific issue or the statute is ambiguous, then the court must determine whether
the agency's interpretation of the ambiguous provision is based on a permissible construction of
the statute. Id. at 843. The agency's interpretation of a statutory scheme it is entrusted to
administer is given considerable weight, unless it is arbitrary, capricious, or manifestly contrary
to the statute. Id. at 844.
¶ 42 We note that Freeman declined to resolve the issue of whether the later 2001-1 SOP
warranted Chevron deference, which illustrates that judicial deference to a HUD statement of
position is not always warranted. Freeman, 566 U.S. at __, 132 S. Ct. at 2040. The 2001-1 SOP
opined that a service provider faces liability under 2607(b) by not only collecting an entirely
unearned fee, but also by charging a fee that " 'exceeds the reasonable value of goods, facilities,
or services provided.' " Id. at __, 132 S. Ct. at 2039 (quoting 66 Fed. Reg. 53059 (2001)).
Freeman found that any consideration regarding the "value" of the services provided set forth in
2001-1 SOP resulted in price regulation and that was a palpable overreach going " 'beyond the
meaning that the statute can bear.' " Id. at __, 132 S. Ct. at 2040 (quoting MCI
Telecommunications Corp. v. American Telephone & Telegraph Co., 512 U.S. 218, 229 (1994)).
¶ 43 Plaintiffs continued to maintain during oral argument that the Florida Policy Statement
and corresponding regulations must be given deference and Freeman is inapplicable because it
addressed a different policy statement. Plaintiffs attempt to distinguish Freeman mainly on the
basis that a different policy statement was considered, but a close analysis of the policy
statements—2001-01 SOP and Florida Policy Statement—reveals that the principles in both are
consistent. Both HUD interpretations pronounced HUD's position that RESPA was violated
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where another party received a payment that was not reasonably commensurate with the services
provided, i.e., the interpretations require an analysis of the reasonableness of the fees in
comparison to the services provided. Compare Florida Policy Statement, 61 Fed. Reg. at 49400
("agent may receive payment for services actually performed pursuant to section 8(c)(2), so long
as the payment is reasonably commensurate with the reduced level of responsibilities assumed
by the agent"), with 2001-1 SOP, 66 Fed. Reg. at 53059 (prohibiting a fee "in excess of the
reasonable value of goods or facilities provided or the services actually performed"). Freeman
expressly found this approach to be "manifestly inconsistent with the statute HUD purported to
construe" and Congress' intent. Freeman, 566 U.S. at __, 132 S. Ct. at 2039. Consequently,
Freeman's rationale precludes affording any deference to the Florida Policy Statement.
¶ 44 Likewise, we believe HUD's regulations regarding the prohibition against kickbacks and
unearned fees (24 C.F.R. § 3500.14 (2001)) may be read in harmony with Freeman to the extent
that they both require an analysis to identify the services the attorney agents provided under the
programs. Freeman's reasoning that a party earns the fee paid by a settlement service provider
when any service is performed does not contradict the guidance provided in the regulations. But
the regulation is now at odds with Freeman because the regulation, much like the Florida Policy
Statement, requires a comparison of the services performed by the attorney agents in comparison
to the fee paid by the title companies to ensure the amount paid bears a "reasonable relationship
to the market value of the goods or services provided" (24 C.F.R. 3500.14(g)(2) (2001)) where
such a consideration is not relevant under Freeman. Notably, the regulation provided HUD with
the authority to investigate whether settlement fees were the product of a kickback or an
unearned fee split, but it does not vest HUD with the authority to regulate the reasonableness of
fees charged. Id. Because Freeman is clear that RESPA is not a price control statute, the
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regulation's interpretation of section 2607 to the extent that it requires an analysis of the "value"
of the services rendered by attorney agents is no longer authoritative and warrants no deference.
¶ 45 Similarly, section 21 of the Title Act (215 ILCS 155/21(a)(5) (West 2002)) does not
provide a basis for giving deference to the Florida Policy Statement over Freeman. Section 21
generally permits the suspension, revocation or refusal to grant a certificate of authority,
registration or license or the imposition of a fine for violating the Act where a payment was
made in "violation of any State or federal law or regulations or opinion letters issued under the
federal Real Estate Settlement Procedures Act of 1974." Id. But section 21 does not expressly
include HUD statements of policy. Moreover, a claim under the Title Act must be premised on a
finding that RESPA (section 2607) was violated, which was not the case here. See 215 ILCS
155/21 (West 2002) (incorporating RESPA). Under Freeman's rationale, payments to attorney
agents are not prohibited where actual services were provided relating to the issuance of a title
insurance policy. Thus, nothing in section 21 requires a departure from Freeman's holding and
rationale, or deference to the Florida Policy Statement.
¶ 46 Finally, we find plaintiffs' reliance on this court's prior decision on the issue of class
certification as a basis to reverse the trial court's judgment misplaced. Notably, plaintiffs do not
dispute that the attorney agents performed actual services relating to the issuance of a title
insurance policy. But plaintiffs assert that evaluating whether an attorney agent performed actual
work is irrelevant because this court instructed the trial court only to determine whether attorney
agents received a pro forma commitment as defined by the Florida Policy Statement. Plaintiffs
claim that the relevant inquiry on remand was not whether the attorney agents performed any
work and the trial court was only directed to determine whether the A-Exam and Preliminary
Commitment were pro forma commitments.
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¶ 47 Importantly, this court's prior decision was limited to whether the class should be
certified under section 2-801 of the Code of Civil Procedure (735 ILCS 5/2-801 (West 2006)).
Chultem, 401 Ill. App. 3d at 235. This court determined that the questions of whether pro forma
commitments were given to attorney agents and if it was illegal to pay the full contract rate when
pro forma commitments were provided (rendering the safe harbor provisions of sections
8(c)(1)(B) and 8(c)(2) inapplicable) were questions common to the class that predominated over
any individual questions eliminating the need for a transaction-by-transaction analysis. Id. at
236. Although it is true that we deemed it necessary to determine whether the attorney agents
received pro forma commitments, the context of that determination was limited to identifying
whether there was an issue common to the class that predominated over individual issues. This
court expressly declined to address the merits of the underlying actions and limited our analysis
to examining the "propriety of class certification." Id. at 237. More importantly, this court's
decision was issued before Freeman, which as noted, supports the proposition that the actual
work performed by attorney agents under the programs is a relevant consideration under section
2607 because, if any services were performed, the attorney agents were not paid an unearned fee
for the referral of title insurance business.
¶ 48 We are also not persuaded by plaintiffs' claim that the law of the case precludes an
analysis of the work performed by attorney agents under the program on the basis that this court
previously resolved the issue. In our prior decision, we stated that "[t]he allegations in plaintiffs'
complaint, taken as true for purposes of determining class certification, are that Ticor's A-exam
and CTI's preliminary commitment are 'pro forma commitments' and, as such, any attorney agent
would not be providing 'core title services' for the payments to come within the section
8(c)(1)(B) exemption." (Emphasis added.) Id. at 235. Thus, this court assumed the allegations
to be true for purposes of deciding the procedural matter of whether the class should be certified.
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See Howland, 672 F.3d at 534 n.3 ("Chultem merely assumed (without evidence) that the
plaintiffs could prove that a payment of the full contract rate would violate RESPA."). Again,
the context of our prior decision was to determine the limited issue of whether litigation should
proceed as a class action–an issue distinct from resolving any claim on its merits.
¶ 49 Our decision in Aguilar v. Safeway Insurance Co., 221 Ill. App. 3d 1095 (1991), is
dispositive. In Aguilar, our prior decision on appeal reversed a section 2-615 dismissal of a
complaint (Ill. Rev. Stat. 1989, ch. 110, ¶ 2-615), finding that the complaint stated a cause of
action and remanding with directions that the complaint be reinstated. Aguilar, 221 Ill. App. 3d
at 1099. The plaintiffs in their second appeal claimed that our first decision precluded the
defendants on remand from raising affirmative defenses because doing so was contrary to this
court's prior ruling. Id. at 1098. Plaintiffs asserted that the trial court's only function was to
reach a determination of damages to be assessed against each defendant. Id. at 1100. But this
court's mandate did not direct that on remand the proceedings should be limited to proof of
damages; the trial court was merely directed to reinstate the complaint. Id. at 1099. In the
second appeal, we rejected the plaintiffs' claim and held that the prior appeal "did not purport to
enter judgment, and beyond directing the reinstatement of plaintiffs' complaint, the court did not
limit further proceedings in any way. The filing of an answer and affirmative defenses is fully
consistent with the mandate of this court to reinstate the complaint and proceed with the
litigation." Id. at 1101.
¶ 50 Similarly here, our prior decision directed the trial court to certify the class and continue
litigation. See Chultem, 401 Ill. App. 3d at 238 ("As plaintiffs have met all the requirements of
section 2-801, including the predominance requirement, we reverse and remand with instructions
the circuit court certify these cases as class actions."). Contrary to plaintiffs' positions, nothing
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in our prior decision purported to: (1) determine the title companies' liability; (2) find that
plaintiffs had established a violation of RESPA; or (3) limit the issue on remand to only address
damages. The only direction to the trial court was to certify the class–which the trial court
followed on remand.
¶ 51 Plaintiffs' prior appeal was limited to reviewing a procedural issue, i.e., whether they met
the statutory requirements for class certification. See Avery v. State Farm Mutual Auto Mobile
Insurance Co., 216 Ill. 2d 100, 236 (2005) (reiterating that " '[a] class action is a potent
procedural vehicle' " (quoting Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334-35
(1977))); Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 449-50 (2004) ("a class action
complaint should be dismissed at the pleading stage if the complaint fails to meet the statutory
requirements for class certification" (internal quotation marks omitted)). Because this court did
not address matters concerning the merits of plaintiffs' substantive claims, the law of the case
doctrine is inapplicable here and the trial court properly considered the merits of plaintiffs' class
action complaint on remand. See Aguilar, 221 Ill. App. 3d at 1101 (" 'Although questions of law
actually decided in a previous appeal are binding, matters concerning the merits of a controversy
which were not decided by the appellate court do not become the law of the case.' " (quoting
Huber v. Seaton, 186 Ill. App. 3d 503, 505 (1989), citing Zokoych v. Spalding, 84 Ill. App. 3d
661, 667 (1980))).
¶ 52 Likewise, we are not persuaded by plaintiffs' claim that the trial court's judgment cannot
be reconciled with its prior summary judgment ruling. In both rulings, the trial court determined
that the relevant inquiry was whether an attorney agent provided actual, necessary and distinct
services. The trial court's ruling after trial was based on resolution of that issue after
consideration of the evidence. But even if there was an inconsistency between the order denying
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summary judgment and the court's ruling after trial, it would not warrant reversal because an
order denying summary judgment is an interlocutory order and nothing precluded the trial court
from modifying or vacating that interlocutory order before final judgment. See Hernandez v.
Pritikin, 2012 IL 113054, ¶ 42 ("[T]his court has repeatedly held that the circuit court has the
inherent power to modify or vacate an interlocutory order granting summary judgment any time
before final judgment."). In any event, plaintiffs' claim that they were somehow prejudiced by
the claimed inconsistency is belied by the fact that following class counsel's complaint on this
point, the trial court offered plaintiffs the opportunity to submit any additional evidence they felt
was necessary—an offer which was declined. Under these circumstances, counsel cannot
complain that they were misled about the issues to be resolved at trial.
¶ 53 In sum, applying Freeman's rationale to the facts of this case, we conclude that plaintiffs
failed to establish a violation of RESPA because the attorney agents provided services to earn
their payment from the title companies. Freeman holds that the reasonableness of the amount
paid to the attorney agents is irrelevant. Because Freeman now interprets section 2607, we are
no longer at liberty to give deference to the Florida Policy Statement and the related regulations
addressing the issues presented in this appeal, which are inconsistent with Freeman.
Consequently, the trial court did not err in entering judgment in favor of the title companies. As
such, we need not address the alternative grounds the title companies raise as a basis to affirm
the trial court's judgment, which include: (1) their good faith compliance with RESPA; (2) state
regulators authorized attorney agents to participate in the programs; (3) plaintiffs suffered no
actual damages; (4) plaintiffs failed to prove proximate cause; and (5) plaintiffs cannot
demonstrate a need for injunctive relief.
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¶ 54 Cross-Appeal
¶ 55 The title companies' cross-appeal addresses whether the trial court erred in certifying the
class and then refusing to decertify the class. The title companies assert that disposition of their
cross-appeal is contingent on and must be decided only if we reverse the trial court's ruling in
their favor. Because we find no error in the trial court's ruling in favor of the title companies, we
need not address the title companies' cross-appeal.
¶ 56 CONCLUSION
¶ 57 We affirm the trial court's ruling that the title companies' payments to attorney agents
were not prohibited under section 2607 where attorney agents provided settlement services in
return for the payment, and the reasonableness of the monetary amount of those payments is
irrelevant. Consequently, plaintiffs failed establish a violation of the Title Act (215 ILCS 155/1
(West 2002)) and Consumer Fraud Act (815 ILCS 505/1 (West 2002)), claims which are both
premised on a violation of section 2607.
¶ 58 Affirmed.
¶ 59 JUSTICE PUCINSKI, dissenting.
¶ 60 With great respect to my colleagues and to the trial judge, I dissent.
¶ 61 When this case first came to the Appellate Court in Chultem v. Ticor Title Insurance Co.,
401 Ill. App. 3d 226 (2010) (Chultem I), our colleagues remanded to the trial court to certify a
class and stated: "if the plaintiffs are able to prove at trial Ticor's A-exam and CTI's preliminary
commitments are 'pro forma commitments' and defendants cannot lawfully send their attorney
agents pro forma commitments and pay them full compensation, they will prevail on their
individual claims and will have established a right to recovery for all class members regardless
of the services performed by said attorney agents." Id. at 236. In Chultem I, our colleagues
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specifically found that the "trier of fact will not have to make a transaction-by-transaction review
of whether the attorney agents performed core title services pursuant to the section 8(c)(1)(B)
exemption." (Emphasis omitted.) Id.
¶ 62 Yet, after agreeing that if, in fact, the title companies were sending pro forma
commitments to their title agent/ attorneys, the title companies could not legally pay them the
full amount of their contract, the trial court then went on and did exactly what it should not have
done, i.e., it held a trial on what the attorneys did, and NOT on whether the documents sent met
the definition of pro forma commitments.
¶ 63 Our colleagues in Chultem I based their decision on a reading of the Real Estate
Settlement Procedures Act (RESPA) (12 U.S.C. § 2607 (2000). They noted that "RESPA
sections 8(a) and (b) prohibit persons from giving or receiving kickbacks for the referral of title
insurance business and from giving or receiving a portion of any title insurance premium other
than for services actually performed. 12 U.S.C. §§ 2607 (a), (b) (2000)." Chultem I, 401 Ill.
App. 3d at 227.
¶ 64 In order to figure out what Congress meant by those sections, our colleagues gave
Chevron deference to and relied on the regulations promulgated by HUD:
" '[F]or an attorney of the buyer or seller to receive compensation as a title agent, the
attorney must perform core title agent services (for which liability arises) separate from
attorney services, including the evaluation of the title search to determine the insurability
of the title, the clearance of underwriting objections, the actual issues of the policy or
policies on behalf of the title insurance company, and, where customary, issuance of the
title commitment, and the conduction of the title search and closing.' " Id. at 228 (quoting
24 C.F.R. § 3500.14(g)(3) (2001)).
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¶ 65 Our colleagues also relied on the RESPA Statement of Policy 1996-4, later issued in the
Federal Register (61 Fed. Reg. 49398, 49400 (Sept. 19, 1996)):
"[I]f the title insurance company provides its title insurance agent with a pro forma
commitment, *** the tile insurance agent is not 'actually performing' these services. As
such, the title insurance agent would not be providing 'core title services' for the
payments to come within the section 8(c)(1)(B) exemption." (Internal quotation marks
omitted.) Chultem I, 401 Ill. App. 3d at 228.
¶ 66 Finally, our colleagues relied on the RESPA Statement of Policy 1996-4 (61 Fed. Reg.
49399 (Sept. 19, 1996)), which defines "pro forma commitment" as:
"[A] document that contains a determination of the insurability of the title upon which
a title insurance commitment or policy may be based and that contains essentially the
information stated in Schedule A and B of a title insurance commitment (and may legally
constitute a commitment when countersigned buy an authorized representative). A pro
forma commitment is a document that contains determinations or conclusions that are the
product of legal or underwriting judgment regarding the operation or effect of the various
documents or instruments or how they affect the title, or what matters constitute defects
in title, or how the defects can be removed, or instructions concerning what items to
include and/or to exclude in any title commitment or policy to be issued on behalf of the
underwriter." (Internal quotation marks omitted.) Chultem I, 401 Ill. App. 3d at 228-29.
¶ 67 The Florida Policy of HUD with respect to RESPA kickbacks and pro forma
commitments became federal regulations in l996. (The same regulations were later reissued by
the Bureau of Consumer and Financial Protection.) Our colleagues in Chultem I relied on those
federal regulations in assessing the issues in the original appeal. I believe this demonstrates that
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this court has already given Chevron deference to the regulations. And, in fact, the trial court did
as well when it accepted the definition of pro forma commitments.
¶ 68 What the trial court did not do is compare Ticor A-exam and CTI's preliminary
commitments to the definition of pro forma commitments. This relatively simple document
comparing exercise would have answered the question posed in Chultem I and resolved this case.
¶ 69 A pro forma commitment, taking one part at a time, is:
(1) a document that contains a determination of the insurability of the title upon
which a title insurance commitment or policy may be based. CTI employees used
underwriting judgment and made the preliminary decision about insurability by analyzing
starter files, determining exceptions, whether to use the legal description of the previous
policy, what exceptions and tax exceptions to raise and if there were any liens, mortgages
or judgments which might affect the property that still needed to be released. Ticor
employees did the data entry, got information about the property from their files,
analyzed starter files to determine what exceptions to bring forward and what standard
exceptions and tax exceptions to raise and if there were any mortgages, liens or
judgments affecting the property that still needed to be released. These activities
determined the insurability of the title; and
(2) that contains essentially the information stated in Schedule A and B of the title
insurance commitment. Both CTI and Ticor's documents contained all the information
essentially stated in Schedule A and B of the title insurance commitment; and
(3) may legally constitute a commitment when countersigned buy an authorized
representative. Both CTI and Ticor actually issued the owner's title policy and the loan
title policy after the closing. The CTI policies and the Ticor policies did not rely on the
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title agent/attorney's signature, since, the title agent/ attorneys had no unilateral authority
to agree to any waivers; and
(4) a document that contains determinations of conclusions that are the product of
legal or underwriting judgment regarding the operation of effect of the various documents
or instruments or how they affect the title. Both CTI and Ticor preliminary commitments
contained all of the conclusions and legal or underwriting judgment that would affect
title. In fact, the CTI preliminary commitment was the only title commitment issued in
the transaction and Ticor printed the title commitment three days before the title
agent/attorney returned his A-Exam; or
(5) what matters constitute defects in title. This work was done in all cases by the
employees of the title company; or
(6) how the defects can be removed. This work was done in all cases by the
employees of the title company; or
(7) instructions concerning what items to include and/or to exclude in any title
commitment or policy to be issued on behalf of the underwriter. This work was all done
by employees of the title company. (Definition of pro forma commitment see: RESPA
Statement of Policy 1996-4, 61 Fed. Reg. 49399 (eff. September 19, 1996.)" p. 228.
See id. (quoting RESPA Statement of Policy 1996-4, 61 Fed. Reg. 49399 (Sept. 19, 1996)).
¶ 70 It is clear that the title agent/attorneys did not have the unilateral authority to waive
anything, that their signatures were totally duplicative because the title company had already
decided to issue the title commitment by providing the A-Exam and the preliminary commitment
and the actual title policy was not finally issued until after the closing by the title company, not
at the closing as my colleagues believe. That is because the bundle of papers put together at the
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closing were then sent to the title company by the client's attorney–which would have been done
by any attorney representing either the buyer or seller–and then the title company adds certain
information, including the new bank and mortgage information–to its computer data system and
issues the final owner's and loan policies.
¶ 71 My colleagues argue against Chevron deference, apparently believing that Congress was
crystal clear and unambiguous in its language and intent. Okay, let us test that theory.
¶ 72 If the language and intent are crystal clear then the words Congress used in RESPA: to
protect consumers "from unnecessarily high settlement charges caused by certain abusive
practices" (12 U.S.C. § 2601(a) (2012)) and the intent expressed in § 2601(b)(2), i.e., "the
elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of certain
settlement services" (12 U.S.C. § 2601(b)(2) (2012)) must defeat the defendant's position that
these shell games were permissible.
¶ 73 Congress wanted to stop any practice among title companies which gouged clients by
adding unnecessary costs for title policies. Title companies were competing for business. So
they developed several creative business models to get more referrals. One of these was by lining
up attorneys as title agents who would make referrals of business. These were clearly the
kickbacks for referrals that Congress wanted to stop. Now, Freeman tells us that RESPA is not a
price fixing law, and so, overcharges are permitted. However, the intent of Congress to prevent
unnecessary add-ons is something different. The two can be reconciled by looking at the
language and what was actually happening. These title agent/attorneys were getting rewarded
with kickbacks for their referrals–since they only referred title business to the respective title
companies by getting no work contracts with the title companies. It was simply a windfall for
the title attorney/agents. The add-ons to attorney agents are exactly the kind of kickbacks for
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referrals that Congress intended to stop, specifically because the attorney agents were not
necessary for the title company to do its work since the title company already did all the work
and prepared the pro forma commitment. The money to the attorney was not an overcharge; it
was an add-on for a totally superfluous, duplicative and unnecessary line item.
¶ 74 On the other hand, if the language and intent of Congress are less than clear, i.e.,
ambiguous, then Chevron deference to the HUD regulations is permitted, and then the definition
of pro forma commitments, which was adopted in Chultem I and the trial court, and the language
prohibiting payments to an attorney/agent who has received a pro forma commitment must be
accepted and the majority's analysis must still fail.
¶ 75 And, I note that the trial judge did in fact give deference to the regulations when she
determined that the commitments being sent to the title agent/attorneys were not pro forma
commitments, a determination she made, not by comparing the commitment documents the title
companies sent to its title agent/ attorneys with the definition of pro forma commitments, but by
permitting the defendants to develop what work title agent/attorneys performed. As our
colleagues in Chultem I correctly pointed out, if there were pro forma commitments being sent to
the title agents/attorneys, then no further inquiry was necessary because by definition there was
no additional title work to be done by the title agent/attorneys.
¶ 76 In fact, Congress was very specific that it left to HUD the job of writing the rules and
regulations by authorizing HUD "to prescribe such rules and regulations, to make such
interpretations, and to grant such reasonable exemptions for classes of transactions, as may be
necessary to achieve the purposes of" RESPA. 12 U.S.C. § 2617(a) (2012).
¶ 77 My colleagues here rely on Freeman to dismiss the regulations. But Freeman answered
an entirely different question–whether there could be a split of charges when only one entity or
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person is involved–and looked at an entirely different regulation (i.e., 66 Fed. Reg. 53057 (Oct.
17, 2001)), in which HUD ruled that it was not limited to situations in where there were at least
two persons splitting an unearned fee, that is in yield spread premiums. The Freeman court
determined that, in fact, there has to be more than one person or entity splitting a fee for it to be
split.
¶ 78 The question here is whether the title company may add on a fee for a title agent/attorney
who receives a pro forma commitment. There are two entities and there is an extra add-on. We
know that because the title companies billed the clients for title services at say $1,000, but only
kept $200 - $500 of it. The extra went to the title agent/attorney as an add-on, disguised as a
payment for services. (And, I note, it was not disclosed to the client.) But, round and round it
goes: if the pro forma commitment left no title services to perform, then the title agent/attorney
who received a pro forma commitment could not, by definition, be performing any title services.
This is covered by 61 Fed. Reg. 49399 (Sept. 19, 1996).
¶ 79 These were plain and simple kickbacks for referrals, and no matter how you dress them
up, they are still kickbacks; they are still wrong and the class can demonstrate violations of both
the federal and Illinois laws.
¶ 80 These plaintiffs have appropriately narrowed the class. I would reverse and remand.
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