UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 07-1965
KIMBERLY HOPKINS, individually and on behalf of all others
similarly situated,
Plaintiff - Appellant,
v.
HORIZON MANAGEMENT SERVICES, INCORPORATED; DEUTSCHE BANK
NATIONAL TRUST COMPANY,
Defendants - Appellees.
Appeal from the United States District Court for the District of
South Carolina, at Spartanburg. Henry M. Herlong, Jr., District
Judge. (7:06-cv-02935-HMH)
Argued: October 30, 2008 Decided: December 3, 2008
Before GREGORY and DUNCAN, Circuit Judges, and Richard D.
BENNETT, United States District Judge for the District of
Maryland, sitting by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: James Mixon Griffin, LAW OFFICES OF JAMES MIXON GRIFFIN,
Columbia, South Carolina, for Appellant. Hamlet Sam Mabry, III,
HAYNSWORTH, SINKLER & BOYD, P.A., Greenville, South Carolina,
for Appellees. ON BRIEF: Richard A. Harpootlian, RICHARD A.
HARPOOTLIAN, P.A., Columbia, South Carolina; Tucker S. Player,
PLAYER LAW FIRM, L.L.C., Columbia, South Carolina, for
Appellant. Charles M. Sprinkle, III, Christopher T. Brumback,
HAYNSWORTH, SINKLER & BOYD, P.A., Greenville, South Carolina,
for Appellees.
Unpublished opinions are not binding precedent in this circuit.
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PER CURIAM:
Appellant, Kimberly Hopkins (“Hopkins”), brought suit in
the District Court of South Carolina alleging a violation of
Section 9 of the Real Estate Settlement Procedures Act
(“RESPA”). 12 U.S.C. § 2608. Hopkins claims that Appellees,
Deutsche Bank and Horizon Management acting as its agent
(collectively “Horizon”), violated Section 9, which prohibits
requiring the purchaser of real estate to buy title insurance
from a particular title company. Hopkins also sought class
certification. Horizon moved for summary judgment, claiming
that the case presented no genuine issue of material fact. The
district court granted Horizon’s motion for summary judgment and
denied certification of the class as moot. Because none of
Hopkins’s claims of statutory violations is supported by any
evidence in the record giving rise to a genuine issue of
material fact, we affirm.
I.
Horizon acts as a marketing and sales agent for properties
purchased at foreclosure sales, which are known as Real Estate
Owned (“REO”) properties. Hopkins signed a contract with
Horizon to purchase an REO property that had been acquired by
Deutsche Bank. J.A. at 43, 364-72. This contract included
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Addendum #1 (“Addendum”), which Hopkins signed, stating that
Horizon would select the title and closing agent.
Two title insurance policies were also needed to complete
the sale. An owner’s title policy protects the new owner of
record against claims to the title. In the Addendum, Horizon
contracted to pay the premium for the owner’s title insurance
policy, regardless of whether the purchaser requested an owner’s
policy. J.A. at 110, 458. Hopkins’ mortgage lender required
her to obtain a lender’s title policy and a closing protection
letter to ensure against mishandling of the closing documents.
J.A. at 459.
At closing, Horizon purchased the owner’s policy from
Fidelity Title, its chosen issuer. The policy was issued by
Jayhawk Title, an authorized title insurance agent for Fidelity.
Jayhawk is wholly owned by Robert L. Luce who, in his capacity
as an attorney, was Horizon’s closing agent. J.A. at 459.
Hopkins also initially selected a law firm, the Player Law
Firm, to represent her at the closing. The Player Firm
performed a title search on Hopkins’ behalf and issued a
lender’s commitment. Hopkins was subsequently informed by the
Luce firm, on behalf of Horizon, that the Addendum required the
title work to be done by Horizon’s chosen agent. J.A. at 460.
Significantly, however, no representation was made that this
undertaking included the issuance of the lender’s title policy.
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In the end, Hopkins bought her lender’s title policy from
Fidelity and was not represented by counsel at closing. J.A. at
460-61. She now claims that Horizon’s practices surrounding the
sale and closing constituted a violation of her rights under
Section 9 of the RESPA not to be required to choose a particular
title insurer.
II.
We review a grant of summary judgment de novo, viewing the
facts in the light most favorable to the non-moving party.
Summary judgment is appropriate where there is no genuine issue
of material fact and the moving party is entitled to judgment as
a matter of law. Meson v. GATX Tech. Servs. Corp., 507 F.3d
803, 806 (4th Cir. 2007). At the summary judgment stage, once
the moving party has identified the absence of a genuine issue
of material fact, the non-moving party bears the burden of
identifying specific facts that demonstrate the existence of a
genuine issue for trial. Fed. R. Civ. P. 56(e); Temkin v.
Frederick County Comm’rs, 945 F.2d 716, 718 (4th Cir. 1991).
Hopkins claims that the Addendum she signed resulted in
Horizon indirectly requiring her to purchase title insurance
from a particular title company in violation of Section 9.
There are two title policies at issue, the lender’s and the
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owner’s, and Hopkins argues that Horizon’s practices associated
with each were in violation of Section 9. We take them in turn.
A.
Hopkins first claims that because Horizon chose the issuer
of the owner’s title policy, she was effectively required to
purchase this policy from the title company selected by Horizon.
However, Hopkins concedes that Horizon “paid for the owner’s
policy.” J.A. at 92, 101. This admission defeats any claim
that Hopkins was required to purchase this title insurance “from
any particular title company.” 12 U.S.C. § 2608(a). Her
argument that “purchase” in the language of Section 9 should be
read to mean “obtain possession” rather than “pay for” contrasts
with the plain meaning of the term and is without merit. The
owner’s policy was in Hopkins’s name and its insurance covers
her against claims to title of the property she now owns.
However, Horizon, not Hopkins, paid for the policy, and thus
Section 9 of the RESPA does not apply. If Hopkins could show
that she was required to pay further money to maintain the
owner’s insurance, she might arguably be “purchasing” a part of
the policy. The record is, however, devoid of evidence that
this is the case.
Hopkins also contends that the costs of the owner’s policy
were indirectly passed on to her in violation of Section 9
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because she was required to pay closing fees to the closing and
title agent, Luce, who was chosen by Horizon. She claims these
fees were in turn used to purchase the owner’s policy. This
interpretation of the closing fee finds no support in the
record. J.A. at 87 (Hopkins testifies that seller paid the
premium for the owner’s policy); J.A. at 129 (denominating the
owner’s policy premium as $270 and recording in line 1108 that
it was paid from seller’s funds at settlement); cf. Supp. J.A.
at 30 (instructing that lines 1108-1110 of the HUD form are
those that deal with title insurance). Hopkins’s argument that
Horizon is passing on the cost of the owner’s title insurance in
the pricing of the property, separately from the question of the
closing fee, also cites nothing in the record; and she falls
short of showing that Horizon required her to purchase owner’s
title insurance from a particular title company as a condition
of the sale.
B.
Hopkins also argues that Horizon’s choice of the title
agent and owner’s policy indirectly required her to use a
particular title company for the purchase of the lender’s title
policy. Hopkins initially had title work performed by the
Player Law Firm. Horizon’s lawyer, Luce, refused to accept this
work since under South Carolina state law title work is a legal
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service, Doe Law Firm v. Richardson, 636 S.E.2d 866, 868 (S.C.
2006), and it is therefore subject to ethical and malpractice
considerations. However, this refusal by Luce did not
constitute rejection of any title policy Hopkins may have
chosen. J.A. at 215-16, 224-227. Once informed that the title
work must be done by Luce, Hopkins chose Luce to be her title
agent for the sale; he performed the title search and
examination. Luce also issued a lender’s title commitment for
the benefit of Hopkins’s mortgage lender. J.A. at 459.
However, there is no evidence that Hopkins was required as a
condition of sale to purchase the lender’s policy from Horizon’s
title agent or the company providing the owner’s policy.
Hopkins claims that she was told by her own agent, whom she
had hired as her mortgage broker, that she was required to
purchase the lender’s policy from the same issuer as the owner’s
policy. Whether or not this statement affected the transaction,
the district court correctly concluded that it cannot be imputed
to Horizon. J.A. at 471. According to an informal Department
of Housing and Urban Development opinion, a seller may violate
Section 9 by choosing a title attorney or agent if that attorney
or agent requires the buyer to use a particular title insurance
company. Supp. J.A. at 80; J.A. at 471. However, Hopkins has
pointed to no evidence in the record which could support a
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finding that in this case the title agent, Luce, constrained
Hopkins’s choice of title insurer. See J.A. at 471-72.
In addition, whatever conditions Hopkins’s lenders may have
imposed upon her selection of insurer cannot be imputed to
Horizon. As the district court found in a well-reasoned and
thorough opinion, Hopkins chose her own mortgage broker, and any
requirements that her broker imposed are not the responsibility
of or attributable to Horizon. J.A. at 469, 471.
Hopkins asserts that the transaction was economically
coercive because she received a significant discount on the
lender’s policy when she purchased it from the same title
insurance company that had issued the owner’s policy to Horizon.
J.A. at 470. The fact that Hopkins paid less for a lender’s
policy purchased from the company already providing owner’s
insurance may be an economic benefit, but it is not a
“requirement” and thus does not come within the language of
Section 9.
Finally, Hopkins claims that Horizon was affirmatively
required to inform her of her right to choose her own title
insurance company. No notice requirement appears in the RESPA
or in the associated regulations. We decline to impose such a
requirement where, as here, the language of the Congressional
enactment is clear on its face.
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III.
Hopkins has not met the burden of showing that a genuine
issue of material fact exists in this case. Accordingly, the
opinion of the district court granting summary judgment and
denying the class certification as moot is
AFFIRMED.
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