Stephen Egerer v. Woodland Realty, Inc.

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 09a0053p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
STEPHEN EGERER, et al.,
-
Plaintiffs-Appellants,
-
-
No. 08-1173
v.
,
>
-
Defendants-Appellees. -
WOODLAND REALTY, INC., et al.,
-
N
Appeal from the United States District Court
for the Western District of Michigan at Grand Rapids.
No. 06-00789—Richard A. Enslen, District Judge.
Argued: October 29, 2008
Decided and Filed: February 12, 2009
*
Before: MARTIN and GILMAN, Circuit Judges; DOWD, Senior District Judge.

_________________

COUNSEL
ARGUED: Michael W. Basil, CLAUSEN MILLER, Chicago, Illinois, for Appellants.
Brian J. Masternak, WARNER, NORCROSS & JUDD, Grand Rapids, Michigan, for
Appellees. ON BRIEF: Michael W. Basil, CLAUSEN MILLER, Chicago, Illinois, for
Appellants. Brian J. Masternak, Sarah Riley Howard, WARNER, NORCROSS &
JUDD, Grand Rapids, Michigan, for Appellees.
_________________

OPINION
_________________

DOWD, Senior District Judge. Plaintiffs Stephen Egerer, Stephanie Egerer, and
Kathy Boyink brought this putative class action suit against defendants Woodland
Realty, Inc., Woodland Title Agency, LLC, Chicago Title Insurance Company, and

*
The Honorable David D. Dowd, Jr., Senior United States District Judge for the Northern District
of Ohio, sitting by designation.

1
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 2

Chicago Title of Michigan, Inc., alleging that defendants violated the Real Estate
Settlement and Procedures Act of 1974, 12 U.S.C. § 2601, et seq. (“RESPA”), by paying
and receiving unlawful referral fees for title insurance business. The district court
granted summary judgment in favor of the defendants and the plaintiffs now appeal. For
the reasons set forth below, we affirm the judgment of the district court.

I. FACTUAL BACKGROUND

Plaintiffs Stephen and Stephanie Egerer sold their home in Michigan with the
assistance of defendant Woodland Realty, Inc. (“Woodland Realty”). The Woodland
Realty agent who sold the Egerers’ home, Pat Siler (“Siler”), was a relative of the
Egerers. Defendant Woodland Title Agency, LLC (“Woodland Title”), performed the
settlement services to complete the sale, which took place on June 14, 2004. Before
Woodland Title completed the transaction, Siler provided the Egerers with an “Affiliated
Business Arrangement Disclosure Statement” (“Disclosure”) (J.A. at 74). The
Disclosure, acknowledged and signed by the Egerers on April 4, 2004, stated that: 1)
the Egerers were “welcome to shop around” and not required to use Woodland Title for
their real estate settlement services;1 2) Woodland Realty had a business relationship
with Woodland Title; and 3) because of that business relationship, Woodland Realty may
receive a “financial or other benefit” for referring clients to Woodland Title. The
specific nature of that benefit was not contained in the Disclosure, but the actual benefit
received by a Woodland Realty agent from Woodland Title was a $15 credit in the form
of Woodland Title “Marketing Dollars,” which could be used by the agent to offset
marketing or promotional expenses (“Marketing Dollars Program”). In addition, the
Disclosure estimated the cost of title insurance to be $330 for a $50,000 title insurance
owner policy. The actual cost of title insurance was $350.

1
Stephen Egerer testified at his deposition that neither he nor Stephanie Egerer chose to shop
around for title insurance for a variety of personal reasons. (J.A. at 264).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 3

Plaintiff Kathy Boyink (“Boyink”)2 purchased a home in Michigan that was
listed for sale by Woodland Realty. In purchasing her home, Boyink utilized a buyer’s
agent. Boyink’s buyer’s agent was Heidi Parsons (“Parsons”), who was a long-time
friend and an agent with Prins Real Estate.3 Boyink followed Parsons’s recommendation
and engaged defendants for the necessary settlement services, which were completed for
the purchase of her home on October 6, 2005. Parsons and Prins Real Estate had no
relationship with Woodland Realty, Woodland Title or Chicago Title, and are not
defendants in this case.

II. PROCEDURAL BACKGROUND

Plaintiffs’ amended complaint contends that Woodland Title’s Marketing Dollars
Program constitutes an unlawful fee, kickback, or thing of value in violation of RESPA.
As a consequence, plaintiffs allege that they paid more for settlement services than they
would otherwise have paid. Defendants dispute that the Marketing Dollars Program
violates RESPA or increased the cost of title insurance to the plaintiffs.

After plaintiffs filed their amended complaint, defendants moved to dismiss
and/or for summary judgment on plaintiffs’ RESPA claim and state-law claim.4
Defendants argued that plaintiffs’ RESPA claim fails because: 1) the Egerers’ claims
were filed outside of the statute of limitations; 2) Boyink was not referred to defendants
for settlement services by any of the defendants and therefore cannot maintain a claim

2
Kathy Boyink was added as a plaintiff in the amended complaint filed on February 27, 2007,
along with defendants Chicago Title Insurance Company and Chicago Title of Michigan, Inc. (collectively,
“Chicago Title”). The original complaint was filed by Stephen and Stephanie Egerer on September 29,
2006, in the Circuit Court of Muskegon County, Michigan against Woodland Realty and Woodland Title.
Woodland Realty and Woodland Title removed the case to the United States District Court for the Western
District of Michigan on November 2, 2006, on the grounds that plaintiffs’ RESPA claim conferred federal
question jurisdiction on the district court pursuant to 28 U.S.C. § 1331. In addition to claiming a RESPA
violation, plaintiffs also asserted a state-law claim for violation of Michigan’s Consumer Protection Act,
MCL § 445.903(1) et seq.
3
Boyink Dep. pp. 6:25 to 7:5 (J.A. at 259).
4
Cross motions for judgment were pending before plaintiffs amended their complaint. However,
the district court denied those motions without prejudice to renew after the appearance of all parties joined
in the amended complaint.
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 4

against them for violating § 2607(a); and 3) plaintiffs have not adequately alleged an
actual “injury in fact” as a result of the Marketing Dollars Program.5

Plaintiffs opposed defendants’ motion on the merits and filed their own motion
for judgment on the pleadings. Plaintiffs argued they were entitled to judgment on the
pleadings because the Marketing Dollars Program is an unlawful referral fee concealed
from plaintiffs in violation of RESPA. Because of those fees, plaintiffs contend that they
paid more for settlement services. Alternatively, plaintiffs argued that if the district
court was not persuaded that judgment should be entered in their favor, the district court
should allow plaintiffs additional time to conduct discovery before deciding defendants’
motion.

Because the parties’ motions presented information and documents outside of the
pleadings, the district court analyzed the motions pursuant to Fed.R.Civ.P. 56. Based
on this analysis, the district court granted defendants’ motion as to plaintiffs’ federal
RESPA claim, denied plaintiffs’ motion for judgment on the pleadings, and remanded
plaintiffs’ state-law claim. Plaintiffs moved for reconsideration, which was denied by
the district court, and plaintiffs filed a timely appeal.

III. LAW AND ANALYSIS

A. Standard of Review

A district court’s order granting summary judgment is reviewed de novo.
Brannam v. Huntington Mortgage Co., 287 F.3d 601, 603 (6th Cir. 2002) (citing Taylor
v. Michigan Dept. of Corrections, 69 F.3d 76 (6th Cir. 1995); Lake v. Metropolitan Life
Ins. Co., 73 F.3d 1372, 1376 (6th Cir. 1995)). When reviewing the district court’s
decision granting summary judgment, we view all evidence in the light most favorable
to the non-moving party. Summary judgment is proper when no genuine issue of

5
Defendants’ “injury-in-fact” argument in support of summary judgment was not addressed by
the district court because judgment was granted on other grounds, and we likewise find it unnecessary to
address that issue in this case. However, the question of whether a plaintiff must allege a concrete injury,
such as an overcharge, in order to have standing to sue for a RESPA violation was very recently addressed
by this Court in Carter, et al. v. Welles-Bowen Realty, et al., No. 07-3965, 2009 WL 151319 (6th Cir.
Jan. 23, 2009).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 5

material fact exists and the moving party is entitled to judgment as a matter of law.
Kleiber v. Honda of Am. Mfg., 485 F.3d 862, 868 (6th Cir. 2007) (citing Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

B. Real Estate Settlement and Procedures Act of 1974, 12 U.S.C. § 2601,
et seq.
Count I of plaintiffs’ first amended complaint alleges that defendants violated
RESPA by “paying or accepting referral fees and other things of value in connection
with the referral of real estate settlement services work to Woodland Title for Mr. &
Mrs. Egerer [&] Ms. Boyink.” (J.A. at 36-37).

12 U.S.C. § 2607 prohibits kickbacks and unearned fees. In particular, § 2607(a)
provides in relevant part:

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 . . . shall be
referred to any person.
Under RESPA, the referral of settlement service business is not compensable,
except as provided by 12 U.S.C. § 2607(c), which contains a list of fees, salaries,
compensation and payments that are not prohibited by § 2607(a).6 A “referral” is
defined by 24 C.F.R. § 3500.14(f) as follows:

(1) A referral includes any oral or written action directed to a person which
has the effect of affirmatively influencing the selection by any person of
a provider of a settlement service or business incident to or part of a
settlement service when such person will pay for such settlement service
or business incident thereto or pay a charge attributable in whole or in
part to such settlement service or business.
Claims pursuant to § 2607(a) must be brought within one year from the date the
violation occurs in accordance with 12 U.S.C. § 2614, which provides in relevant part:

Any action pursuant to the provisions of section . . . 2607 . . . of this title may be
brought . . . within . . . 1 year in the case of a violation of section 2607 . . . from
the date of the occurrence of the violation . . . .

6
See also 24 C.F.R. § 3500.14(g)(1).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 6

C. Egerers’ RESPA Claims

1. Plaintiffs are not Entitled to Equitable Tolling of RESPA Statute of
Limitations
The plaintiffs, Stephen and Stephanie Egerer, concede that their RESPA claims
are outside of the one-year statute of limitations.7 However, they argue that RESPA’s
statute of limitations is subject to the doctrines of equitable tolling and estoppel, and that
they have both alleged and provided evidence sufficient to support the application of
these doctrines and are entitled to more discovery to develop additional supporting
evidence. Plaintiffs claim that they are entitled to equitable tolling because defendants
concealed and misled them regarding the defendants’ business relationship, the
Marketing Dollars Program, and true cost of title insurance, all of which could not have
been reasonably discovered.

The district court recognized that this Court has not yet ruled on the question of
whether the RESPA statute of limitations is subject to equitable tolling. However, based
on an analysis of Young v. United States, 535 U.S. 43 (2002),8 Jones v. TransOhio Sav.
Ass’n, 747 F.2d 1037 (6th Cir. 1984),9 and other courts that have held that RESPA’s
statute of limitations is subject to equitable tolling,10 Judge Enslen concluded that
equitable tolling is available to RESPA plaintiffs.

7
The one year period begins to run “from the date of the occurrence of the violation.” The
Egerers completed the sale of their home on June 14, 2004. The original state court class action complaint
was filed by the Egerers on September 29, 2006 - more than twenty-seven months after the sale of their
home.
8
“It is hornbook law that limitations periods are customarily subject to equitable tolling, unless
tolling would be inconsistent with the text of the relevant statute. Congress must be presumed to draft
limitations periods in light of this background principle.” Young, 535 U.S. at 49.
9
Judge Enslen reasoned that, although the Sixth Circuit has not ruled on the RESPA issue, “it
has ruled that the similarly worded Truth in Lending Act is subject to equitable tolling. Jones v. TransOhio
Sav. Ass’n, 747 F.2d 1037, 1041 (6th Cir 1984).” (J.A. at 48, fn. 7).
10
Lawyers Title Ins. Corp. v. Dearborn Title Corp., 118 F.3d 1157, 1166-67 (7th Cir. 1997);
Boudin v. Residential Essentials, LLC, No. 07-0018-WS-C, 2007 WL 2023466, at *4 (S.D. Ala. July 10,
2007); Carr v. Home Tech Co., Inc., 476 F. Supp. 2d 859, 869 (W.D. Tenn. 2007); Mullinax v. Radian
Guar. Inc., 199 F. Supp. 2d 311, 328 (M.D.N.C. 2002); Pedraza v. United Guar. Corp., 114 F. Supp. 2d
1347, 1353 (S.D. Ga. 2000); Kerby v. Mortg. Funding Corp., 992 F. Supp. 787, 793-96 (D. Md. 1998);
Moll v. United States Title Ins. Co., 700 F. Supp. 1284, 1286-89 (S.D.N.Y. 1988).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 7

The district court then considered whether equitable tolling was appropriately
applied in this case to toll the RESPA statute of limitations. After considering the five
factors identified by Truitt v. County of Wayne11 and the doctrine of fraudulent
concealment as described in Pinney Dock & Transp. Co. v. Penn Cent. Corp.,12 Judge
Enslen determined that it was not appropriate to equitably toll the Egerers’ RESPA
claims in this case. Accordingly, the district court dismissed the Egerers’ RESPA claims
as time barred by 12 U.S.C. § 2614 without reaching the merits.

In order to establish equitable tolling by the doctrine of fraudulent concealment,
the plaintiffs must allege and establish that: 1) defendants concealed the conduct that
constitutes the cause of action; 2) defendants’ concealment prevented plaintiffs from
discovering the cause of action within the limitations period; and 3) until discovery,
plaintiffs exercised due diligence in trying to find out about the cause of action. Pinney
Dock, 838 F.2d at 1465 (citing Dayco Corp. v. Goodyear Tire & Rubber Co., 523 F.2d
389, 394 (6th Cir. 1975)); see also Jarrett v. Kassel, 972 F.2d 1415, 1423 (6th Cir.
1992); Mills v. Equicredit Corp., 294 F.Supp.2d 903, 908 (E.D. Mich. 2003).

a. Defendants did not take affirmative steps to conceal plaintiffs’ cause
of action
The record does not support a finding that defendants affirmatively concealed
conduct that allegedly violates RESPA. In fact, the Disclosure, which was presented to
and signed by the Egerer plaintiffs, clearly stated that a business relationship existed
between Woodland Realty and Woodland Title, and that Woodland Realty may receive
a “financial or other benefit” as a result of referring plaintiffs to Woodland Title for
settlement services. In addition, the Disclosure identified the $330 title insurance fee as
“estimated.” Defendants did not affirmatively conceal the business relationship,

11
148 F.3d 644 (6th Cir. 1998). In Truitt, this Court identified five factors to determine whether
equitable tolling of a statute of limitations is appropriate. These factors are: 1) lack of notice of the filing
requirement; 2) lack of constructive knowledge of the filing requirement; 3) diligence in pursuing one’s
rights; 4) absence of prejudice to the defendants; and 5) plaintiff’s reasonableness in remaining ignorant
of the particular legal requirement. Truitt, 148 F.3d at 648 (citing Andrews v. Orr, 851 F.2d 146, 151 (6th
Cir. 1988)).
12
838 F.2d 1445 (6th Cir. 1988).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 8

Marketing Dollars Program, or actual cost of title insurance from the Egerers. These
basic facts, which now support plaintiffs’ RESPA cause of action, were disclosed - not
concealed - by defendants.

Additionally, plaintiffs argue that defendants affirmatively concealed plaintiffs’
cause of action because defendants did not bring potential legal claims to their attention,
and cited Veltri v. Building Service 32B-J Pension Fund13 to the district court in support
of this proposition. However, plaintiffs’ reliance on Veltri is misplaced.

Veltri involved an untimely appeal regarding pension benefits, which plaintiff
alleged was due to the ERISA plan administrator’s failure to properly notify him of his
right to appeal. In that case, the applicable Code of Regulations required that Veltri be
notified of his right to file both an administrative appeal and a civil action in court
challenging an adverse benefits determination. Veltri, 393 F.3d at 323. The Veltri court
found that “defendants did nothing that even approached compliance with the
requirement that they inform Veltri of his right to file an action in court,”14 and held that
the statute of limitations for filing an action in court to challenge the denial of his
benefits claim was equitably tolled because the pension fund failed to notify him of his
right to do so.

However, the Veltri court was clear in holding that the pension fund’s failure to
inform Veltri of his right to file an action in court resulted in equitable tolling of the
statute only because of the regulatory notice requirement and Congress’s express policy
favoring placement of the burden of disclosure on pension plans and protecting the
interest of pension plan participants.15 In this case, there is no requirement that

13
393 F.3d 318 (2nd Cir. 2004).
14
Veltri, 393 F.3d at 323 (emphasis added).
15
See Veltri, 393 F.3d at 324:
While the Fund’s failure to inform Veltri of his right to file an action in court challenging its
denial of benefits for his pre-1970 services is not the kind of concealing activity that would
normally be held to mandate equitable tolling, the Fund’s nondisclosure must be viewed in light
of the regulatory notice requirement and of Congress’s policy of protecting the interests of
pension plan participants by ensuring disclosure and reporting to participants and ready access
to the Federal courts.
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 9

defendants inform plaintiffs that they may have a legal claim because of defendants’
business relationship, the Marketing Dollars Program, or because the actual cost of title
insurance may vary from the estimated cost, and defendants’ failure to do so is not the
type of concealing activity that normally justifies equitable tolling.

Construing the facts in a light most favorable to plaintiffs, we find that
defendants did not affirmatively conceal plaintiffs’ RESPA cause of action and were not
required to inform plaintiffs that they may have a cause of action. Therefore, we
conclude that plaintiffs have not established the first prong of fraudulent concealment.

b. Plaintiffs did not exercise due diligence to discover a cause of action

The Disclosure acknowledged and signed by the Egerers clearly stated that: 1) a
business relationship existed between Woodland Realty and Woodland Title;
2) Woodland Realty may receive a financial or other benefit for referring business to
Woodland Title; and 3) the cost of title insurance was “estimated.” However, the Egerers
did not inquire of their real estate agent or anyone else as to the particulars of the
business relationship, the financial benefit, or the actual cost of title insurance.

In an effort to establish that due diligence on their part would have been futile,
plaintiffs assert that Mr. Bouman (“Bouman”), an owner and officer of Woodland Realty
and Woodland Title, testified that the $15 marketing credit would not have been
disclosed to customers even if they had asked. However, Bouman’s testimony does not
actually support that assertion.16

(Emphasis added) (internal citations and quotation marks omitted).

16
Q. If a prospective customer comes into Woodland Title and says, “before I agree to close with
Woodland Title, I need to see all of the detailed paperwork dollar by dollar, payment by payment,
for all of your marketing, advertising, and promotional expenditures, before I’ll agree to close
with you over a competition down the street,” it’s your understanding that Woodland Title would
say, “no thanks, we’re not going to give you that information to earn your business?”
Q. Would you agree with me, sir?
A. I would find that inquiry to be very unusual but I cannot say how I would answer that
question, because it is a very unusual question coming from a consumer . . . and I’m not sure that
it would be in our interest, to hand out my operating statements to a consumer . . . [s]o I would
say that in a general sense my answer would maybe more in a question form, what is it that
you’re interested in the material for . . . .
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 10

Similarly, plaintiffs assert that Bouman testified it was misleading for Woodland
Realty to print an estimate of $330 for title insurance on the disclosure if the actual filed
rate submitted by Chicago Title to the State of Michigan was higher. Once again,
Bouman’s testimony does not support that assertion.17 Perhaps more importantly, the
rates charged by all title insurers must be filed with the State of Michigan and are
publicly available. (J.A. at 75-76).

Construing the facts in a light most favorable to plaintiffs, we find that the
plaintiffs did not exercise due diligence and would not have been prevented by
defendants from discovering their RESPA cause of action had they exercised due
diligence. Therefore, we conclude that plaintiffs have not established the second prong
of fraudulent concealment.

As the district court noted, we have not yet ruled on the question of whether the
RESPA statute of limitations is subject to equitable tolling. However, if the statute of
limitations in RESPA were subject to equitable tolling, the propriety of equitable tolling
is determined on a case-by-case basis and is to be narrowly applied. See Truitt v. County
of Wayne, 148 F.3d at 648; Hill v. United States Department of Labor, 65 F.3d 1331,
1336 (6th Cir. 1995). We conclude, like the district court, that equitable tolling should
not be applied to toll the statute of limitations on these facts, and affirm the district court
in granting summary judgment to defendants.18

Bouman Dep. pp. 54:9 to 55:20 (J.A. at 200).
17
Q. And if the rate Chicago Title has filed with the State of Michigan for $50,000 in owner’s
coverage effective for the time of this disclosure is actually $350, not the $330 listed on the
disclosure, you would agree that this disclosure misleads the customer and their ability to shop
the services around.
A. I would agree that if the $330 is an inaccurate figure based on the cost of $50,000 owner
policy of title insurance, that the word “estimated” would be inserted in there in the event that
there had been some change in the structure of charges in the interim of this document, and,
second, I don’t know whether this document is specific or example.
Bouman Dep. pp. 39:8 to 40:6 (J.A. at 196).

18
Because plaintiffs cannot prevail on their tolling argument even assuming that the RESPA
statute of limitations were subject to equitable tolling, it is not necessary to decide that question in this
case.
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 11

2. Plaintiffs are not Entitled to Equitable Estoppel

Plaintiffs also assert that the district court erred by not considering the doctrine
of equitable estoppel with respect to the RESPA statute of limitations. Plaintiffs contend
that had the district court construed the facts in the light most favorable to plaintiffs,
those facts would have supported both the doctrines of equitable estoppel and equitable
tolling.

Unlike equitable tolling, which requires concealment of plaintiffs’ cause of
action, equitable estoppel applies when plaintiffs are aware of their claims but
defendants’ conduct prevents plaintiffs from timely filing suit. When this occurs,
defendants are estopped from asserting the statute of limitations as a bar to plaintiffs’
lawsuit.

The elements of an equitable estoppel claim are set forth in Sprague v. General
Motors Corp.19 as follows:

1) there must be conduct or language amounting to a representation of a material
fact; 2) the party to be estopped must be aware of the true facts; 3) the party to
be estopped must intend that the representation be acted on, or the party asserting
the estoppel must reasonably believe that the party to be estopped so intends;
4) the party asserting the estoppel must be unaware of the true facts; and 5) the
party asserting the estoppel must reasonably or justifiably rely on the
representation to his detriment.
Like equitable tolling, equitable estoppel requires affirmative steps or action on
the part of a defendant. Plaintiffs must have reasonably relied on defendants’ affirmative
conduct in failing to file suit within the statute of limitations. Also, like equitable
tolling, plaintiffs invoking equitable estoppel must establish due diligence.

Equitable estoppel, sometimes referred to as fraudulent concealment, is invoked
in cases where the defendant takes active steps to prevent the plaintiff from suing
in time, such as by hiding evidence or promising not to plead the statute of
limitations. Application of equitable estoppel should be premised on a
defendant’s improper conduct as well as a plaintiff’s actual and reasonable
reliance thereon [internal quotation marks and citations omitted]. . . . To invoke

19
133 F.3d 388, 403 (6th Cir. 1998).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 12

equitable estoppel, a plaintiff must “demonstrate that his ignorance is not
attributable to a lack of diligence on his part.” Netzer [v. Continuity Graphics,
Inc.], 963 F. Supp. [1308,] []1316 [(S.D. New York 1997) (“A plaintiff seeking
to invoke either doctrine [equitable tolling or estoppel] is also required to
demonstrate that his ignorance is not attributable to a lack of diligence on his
part.”)].
Bridgeport Music, Inc., et al. v. Diamond Time, LTD., 371 F.3d 883, 891 (6th Cir. 2004).

Like the district court, we are not persuaded that the facts construed in plaintiffs’
favor support the application of either equitable estoppel or equitable tolling. No
affirmative acts by defendants prevented plaintiffs from learning of a cause of action or
prevented plaintiffs from timely filing suit on a cause of action of which they were
aware. The basic facts that support the Egerers’ RESPA claims were disclosed to
plaintiffs in the Disclosure. Plaintiffs cannot demonstrate that they exercised due
diligence to learn of available causes of action or to timely file within the statute of
limitations based on known causes of action. Accordingly, like our conclusion above
that the RESPA statute of limitations should not be equitably tolled in this case, we also
conclude that defendants are not estopped from asserting the RESPA statute of
limitations as to the Egerers’ claims.

3. Rule 56(f) Discovery and Timing of Merits Adjudication

Plaintiffs argue on appeal that the district court erred by: 1) not allowing
additional discovery to obtain information that would have precluded defendants’
statute- of-limitations defense; and 2) ruling on the statute-of-limitations defense during
the class-certification phase of the case. For the reasons discussed below, we find no
error in the district court’s denial of plaintiffs’ Rule 56(f) request for additional
discovery or the timing of that court’s ruling on defendants’ motion for summary
judgment.
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 13

a. Rule 56(f) discovery

Plaintiffs’ request for additional discovery is governed by Rule 56(f) of the
Federal Rules of Civil Procedure. If a party cannot present facts essential to its
opposition to a motion for summary judgment, the court may order a continuance to
allow discovery to be undertaken. See Fed.R.Civ.P. 56(f). Because Rule 56(f) makes
the trial court’s allowance of additional discovery discretionary, our standard of review
is abuse of discretion. Audi AG v. D’Amato, 469 F.3d 534, 541 (6th Cir. 2006) (citing
Plott v. General Motors Corp., 71 F.3d 1190, 1197 (6th Cir. 1995)); see also Glen Eden
Hospital Inc. v. Blue Cross and Blue Shield of Michigan, Inc., 740 F.2d 423, 428 (6th
Cir. 1984).

The affidavit required by Rule 56(f) to support a request for additional discovery
must indicate the need for discovery, what material facts may be uncovered, and why the
information has not been previously discovered. Cacevic v. City of Hazel Park, 226 F.3d
483, 488 (6th Cir. 2000) (citing Radich v. Goode, 886 F.2d 1391, 1393-94 (3d Cir.
1989)). In this case, plaintiffs’ request for additional discovery on the estoppel issues
was contained in a declaration of plaintiffs’ counsel filed as an exhibit to plaintiffs’
combined brief (Record Entry No. 50):

If given more time, additional discovery would be conducted in at least the
following areas:

a) Whether the doctrines of equitable tolling, waiver, estoppel, and other
equitable and legal principles preclude the Defendants from asserting and
enforcing any statutes of limitation against class members. The
Defendants have admitted in written discovery responses that the alleged
wrongful conduct was never disclosed to plaintiffs. The sole deposition
taken so far has already established that the Plaintiffs could not have
discovered the wrongful conduct through the exercise of reasonable
diligence. Additional evidence is expected to be adduced that
corroborates such testimony.
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 14

J.A. at 91 (emphasis added).20

Plaintiffs cite Glen Eden Hospital, supra, as a “factual setting directly analogous
to the present case” in support of their argument on appeal that Judge Enslen erred by
denying their request for additional discovery. Glen Eden Hospital was a “complex
antitrust case” in which we concluded that the district court abused its discretion by not
allowing Glen Eden Hospital to conduct further discovery before entering summary
judgment. In that case, the additional discovery sought by Glen Eden Hospital was
identified with specificity and was not cumulative, and the district court gave no reason
for declining Glen Eden Hospital’s request for further discovery. Glen Eden Hospital,
740 F.2d at 427.

In this case, plaintiffs opposed defendants’ statute-of-limitations defense on
equitable grounds. Plaintiffs’ brief opposing defendants’ summary judgment motion,
and their declaration in support of additional Rule 56(f) discovery, clearly state that
sufficient facts have already been discovered to preclude the entry of summary judgment
on the statute-of-limitations defense and that additional discovery will corroborate those
facts. The district court denied additional discovery on the grounds that the declaration
failed to “demonstrate the additional discovery has the potential to raise a genuine issue
of material fact, even when taken in a light most favorable to Plaintiffs.” We agree, and
conclude that the district court did not abuse its discretion in denying plaintiffs’ motion
for cumulative discovery before ruling on defendants’ motion for summary judgment.

20
This declaration requesting additional discovery to corroborate already-discovered facts that
plaintiffs believe preclude summary judgment on the RESPA statute of limitations is consistent with
plaintiffs’ argument in their brief in opposition to defendants’ summary judgment motion, to which this
declaration was attached:
Considering the allegations of the . . . Complaint, dismissal of the Plaintiff’s [sic] claims under
a 12(b)(6) standard is not appropriate. The Plaintiffs have alleged sufficient facts showing
fraudulent concealment of the illegal payment, and an inability to discover the illegal conduct
through the exercise of reasonable diligence. Construing all such allegations in the light most
favorable to the Plaintiffs, it is clear that Plaintiffs’ claims cannot be dismissed on the grounds
of the statute of limitations defense. In addition, a sufficient factual record has been developed
at this state of the proceeding that precludes the entry of summary judgment for the Defendants
on the issue of the statute of limitations defense.
Record Entry No. 50, p. 24 (emphasis added).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 15

b. Timing of merits adjudication

Plaintiffs cite Bentley v. Honeywell Int’l, Inc.21 in support of their argument that
the district court erred by granting summary judgment on defendants’ statute-of-
limitations defense during the class-certification phase. However, the present case is
distinguishable from Bentley. In Bentley, defendants opposed class certification because
some plaintiffs may have been subject to a statute-of-limitations defense. Bentley,
223 F.R.D. at 485. Here, the statute of limitations was asserted by the defendants as a
basis for dismissal of the suit and not as an argument against class certification. The
class-certification question was never reached in this case because the Egerer plaintiffs’
claims were time barred by the statute.22

In addition, plaintiffs contend that their hands were “prejudicially tied” in
opposing defendants’ motion for judgment on the merits because defendants objected
to certain discovery requests as unrelated to class certification. However, even
construing the facts in favor of plaintiffs, we cannot conclude on this record that
plaintiffs were prejudiced by lack of discovery in responding to defendants’ motion. As
discussed, supra, plaintiffs believed that they had sufficient facts to preclude judgment
on the statute-of-limitations defense notwithstanding defendants’ objections to discovery
that defendants contended was unrelated to class certification. Accordingly, we
conclude that the district court did not err by ruling on defendants’ motion during the
class-certification phase of this case.

D. Boyink’s RESPA Claim

In order for there to be a violation of 12 U.S.C. § 2607(a) and 24 C.F.R.
§ 3500.14(b), three elements must be present: 1) a payment or a thing of value; 2) made
pursuant to an agreement to refer settlement business; and 3) an actual referral.
Culpepper v. Irwin Mortgage Corp., 491 F.3d 1260, 1265 (11th Cir. 2007) (citing

21
223 F.R.D 471 (S.D. Ohio 2004).
22
The district court denied as moot plaintiffs’ motion for class certification after entering
judgment for defendants. (J.A. at 56-57).
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 16

Culpepper v. Inland Mortgage Corp., 132 F.3d 692, 696 (11th Cir. 1998)); Edwards v.
First American Corp., 517 F. Supp. 2d 1199, 1205 (C.D. Cal. 2007) (citing Culpepper,
132 F.3d at 696)); Paul Barron, Michael Berenson, & Dan Rosin, Federal Regulation of
Real Estate and Mortgage Lending, § 2:45 (Dec. 2008); see also Joyce Palomar, Title
Insurance Law, § 21:2 (“Only when referrals are motivated by an agreement that the
referee will pay or kickback to the referrer a thing of value is RESPA § 8(a) [12 U.S.C.
§ 2607(a)] implicated.”).

The district court held as a matter of law that Boyink did not have a cause of
action against defendants under 12 U.S.C. § 2607(a), and therefore granted defendants’
motion for summary judgment. The basis for that conclusion was that neither Boyink’s
real estate agent who recommended Woodland Title to Boyink, nor the agent’s firm,
were connected in any way to the defendants. Consequently, Judge Enslen concluded
that Parsons’s recommendation of Woodland Title to Boyink was not an “actual
referral.”

Plaintiffs do not allege or argue that Parsons or Prins Real Estate had any
relationship with defendants or any agreement or eligibility with respect to the
Marketing Dollars Program that plaintiffs allege violates RESPA. Further, plaintiffs
have not alleged or argued on appeal that Parsons or Prins Real Estate received any
benefit from Parsons’s recommendation to Boyink regarding settlement services.
Accordingly, the district court correctly found that Boyink does not have a cause of
action against defendants under 12 U.S.C. § 2607(a), and we affirm Judge Enslen’s
dismissal of Boyink’s RESPA claim.

IV. CONCLUSION

After a de novo review and construing the facts in the light most favorable to the
plaintiffs, we affirm the district court’s decision granting defendants’ motion for
judgment as to the Egerer plaintiffs on the grounds that those claims are barred by
RESPA’s applicable statute of limitations, and as to Boyink for failure to state a claim
under RESPA against defendants. Because the Egerer plaintiffs’ RESPA claims are time
barred, and Boyink failed to state a cause of action under RESPA, we affirm the district
No. 08-1173 Egerer, et al. v. Woodland Realty, Inc., et al. Page 17

court’s denial of plaintiffs’ motion for judgment on the pleadings. In affirming the
district court, we make no ruling as to whether defendants’ practices, as alleged by
plaintiffs, violate RESPA.