Edward J. and Vicki Fangman, et al. v. Genuine Title, LLC, et al., Misc. No. 19, September
Term, 2015
MD. CODE ANN., REAL PROP. (1974, 2015 REPL. VOL.) § 14-127 – PRIVATE
RIGHT OF ACTION – Court of Appeals held that Md. Code Ann., Real Prop. (1974,
2015 Repl. Vol.) (“RP”) § 14-127 does not contain express or implied private right of
action, as neither RP § 14-127’s plain language, legislative history, nor legislative purpose
demonstrates any intent on General Assembly’s part to create private right of action.
United States District Court for
the District of Maryland
Civil Action No. RDB-14-0081
IN THE COURT OF APPEALS
Argued: March 31, 2016
OF MARYLAND
Misc. No. 19
September Term, 2015
______________________________________
EDWARD J. AND VICKI FANGMAN, ET
AL.
v.
GENUINE TITLE, LLC, ET AL.
______________________________________
Barbera, C.J.
*Battaglia
Greene
Adkins
McDonald
Watts
Hotten,
JJ.
______________________________________
Opinion by Watts, J.
______________________________________
Filed: May 20, 2016
*Battaglia, J., now retired, participated in the
hearing and conference of this case while an
active member of this Court; after being recalled
pursuant to the Constitution, Article IV, Section
3A, she also participated in the decision and
adoption of this opinion.
This case involves a purported class action lawsuit in the United States District
Court for the District of Maryland (“the federal court”) against a settlement and title
services company, various mortgage lenders, and alleged sham companies that were
formed by the settlement and title services company, for allegedly engaging in a home
mortgage kickback scheme in which the settlement and title services company, by itself
and through the sham companies, provided cash payments and marketing materials to
mortgage brokers who referred clients to the settlement and title services company for
settlement services. The federal court certified to this Court the following question of law:
“Does Md. Code Ann., Real Prop. [(1974, 2015 Repl. Vol.) (“RP”)] § 14-127 imply a
private right of action?”
We answer the certified question of law “no” and hold that RP § 14-127 does not
contain an express or implied private right of action, as neither RP § 14-127’s plain
language, legislative history, nor legislative purpose demonstrates any intent on the
General Assembly’s part to create a private right of action.
BACKGROUND
In a memorandum opinion accompanying the certification order, the federal court
stated the following facts,1 which we summarize.
1
“Where another court certifies a question of law to this Court, this Court accepts
the statement of facts in the certification order.” NVR Mortg. Fin., Inc. v. Carlsen, 439
Md. 427, 429 n.2, 96 A.3d 202, 203 n.2 (2014) (citation, brackets, and internal quotation
marks omitted)). See also Parler & Wobbler v. Miles & Stockbridge, 359 Md. 671, 681,
756 A.2d 526, 531 (2000) (“[W]e accept the facts as submitted by the certifying court.”
(Citations omitted)).
Edward J. Fangman and Vicki Fangman (collectively “the Fangmans”) seek to
represent a class of approximately 4,000 to 5,000 individuals (collectively “Appellants”)
who, from 2009 to 2014, retained Genuine Title, LLC (“Genuine Title”) for settlement and
title services and utilized various lenders (collectively “the Lender Appellees”) (together
with Genuine Title, “Appellees”)2 for the purchase and/or refinancing of their residences.
All Appellants allegedly used Genuine Title’s settlement and title services as a result of
referrals from the Lender Appellees. All of the Lender Appellees are servicers of federally
related mortgage loans.
In the second amended complaint,3 the Fangmans alleged that they and all other
class members “were victims of an illegal kickback scheme” in which the Lender Appellees
received unearned fees and kickbacks from Genuine Title and “sham companies” that were
created by Genuine Title (collectively, “the Genuine Title Appellees”) for the purpose of
2
For purposes of proceedings in this Court, the Fangmans and other purported class
members have been designated as “Appellants” and Genuine Title and the Lender
Appellees have been designated as “Appellees.” The Lender Appellees include: Wells
Fargo Home Mortgage, Inc.; Wells Fargo, N.A.; West Town Bank & Trust; Emery Federal
Credit Union; PNC Mortgage; PNC Bank, N.A.; MetLife Home Loans, LLC; MetLife
Bank, N.A.; Net Equity Financial; Eagle National Bank; E Mortgage Management; and JP
Morgan Chase Bank.
3
In the federal court, the Fangmans have filed three amended complaints, adding
various plaintiffs and defendants. The third amended complaint corrected one
typographical error and removed allegations against two defendants. As the federal court
stated, however, the second amended complaint is the operative complaint because it was
the subject of eleven pending motions to dismiss. The motions to dismiss are discussed
below. In the second amended complaint, the Fangmans also identified Maverick Funding
Corp. and Bank of America, N.A. as defendants; claims against those two defendants,
however, were dismissed by separate orders.
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distributing the kickbacks.4 According to the second amended complaint, the Lender
Appellees’ employees and/or agents received and accepted cash payments, free marketing
materials, and other things of value from the Genuine Title Appellees in exchange for
referring borrowers to Genuine Title for settlement and title services.5 The Genuine Title
Appellees and Lender Appellees allegedly concealed these payments from Appellants and
failed to disclose the payments on Appellants’ HUD-1 settlement statements.
Additionally, Appellants alleged that Genuine Title and the Lender Appellees failed to
disclose that Genuine Title was participating with referring loan officers/banks and with
the Genuine Title Appellees, and also failed to disclose their affiliated business
relationships.
As some point, regulators began to investigate the alleged scheme. Appellants
alleged that, once the investigation began, Genuine Title drafted and back-dated sham title
services agreements for the purpose of disguising cash payments as legitimate fees for
alleged services provided. Appellants alleged that cash payments were not made in
accordance with the fee schedule contained in the title services agreement. For example,
in some instances, pursuant to the sham title services agreements, Genuine Title agreed to
4
The alleged sham companies that were created by Genuine Title, also Appellees in
this case, include: Brandon Glickstein, Inc.; Dog Days Marketing, LLC; and Competitive
Advantage Marketing Group, LLC. In the second amendment complaint, the Fangmans
alleged that these companies do not have their own office space, and that they share a
resident agent, principal, and/or employee with Genuine Title.
5
In the second amended complaint, for all but one of the Lender Appellees,
Appellants specifically identified by name at least one referring mortgage broker who they
alleged received payments and marketing materials from Genuine Title through the
kickback scheme.
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make cash payments to referring mortgage brokers for title services that were not actually
performed. Appellants alleged that, as a result of the kickback scheme, they were deprived
of “kickback[-]free settlement services and process” and their settlement fees would have
been “much lower” had the kickback scheme not been in place.
On December 6, 2013, the Fangmans filed in the Circuit Court for Baltimore County
an initial class action complaint against Genuine Title. Genuine Title then removed the
case to the federal court.6 On January 2, 2015, the Fangmans, along with thirty other
Appellants, filed the first amended complaint on behalf of themselves and the alleged class,
adding as defendants the Genuine Title Appellees and all but one of the Lender Appellees.
On May 20, 2015, Appellants filed the second amended complaint, adding as a defendant
one Lender Appellee and adding sixteen additional plaintiffs.7 In the second amended
complaint, Appellants alleged that the Genuine Title Appellees and Lender Appellees
violated 12 U.S.C. § 2607(a) and (b), part of the Real Estate Settlement Procedures Act
(“RESPA”);8 RP § 14-127; and Md. Code Ann., Com. Law (1975, 2013 Repl. Vol.) (“CL”)
6
The federal court’s docket, included in the record in this case, states that the notice
of removal to the federal court was filed in the federal court on January 10, 2014.
7
Thus, there were forty-eight identified plaintiffs—the Fangmans and forty-six other
plaintiffs.
8
12 U.S.C. § 2607(a) and (b) of RESPA provide:
(a) Business referrals
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.
(b) Splitting charges
-4-
§ 13-301, part of the Maryland Consumer Protection Act.9
In response to the second amended complaint, the Genuine Title Appellees and
Lender Appellees filed in the federal court eleven separate motions to dismiss. On
November 24, 2015, the federal court conducted a hearing on the motions to dismiss.10 On
December 9, 2015, the federal court issued a memorandum opinion in which the federal
court, with one exception,11 denied the motions to dismiss the RESPA claims, granted the
motions to dismiss the Maryland Consumer Protection Act claims, and stayed the motions
to dismiss the RP § 14-127 claims so that this Court could determine whether RP § 14-127
permits a private right of action.12 As to the RP § 14-127 claims, the federal court observed
“that no Maryland state court decision has resolved the present issue,” and thus it was
certifying the question of law to this Court. On the same day, December 9, 2015, the
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.
9
CL § 13-301(k) of the Maryland Consumer Protection Act defines unfair or
deceptive trade practices.
10
Genuine Title was not represented at the hearing. Apparently, Genuine Title has
ceased doing business. Appellants alleged that Jay Zuckerberg was the owner of Genuine
Title. According to the federal court, Zuckerberg is listed as an interested party in the case.
11
Because Bank of America, N.A. had previously been dismissed from the case, the
federal court denied Bank of America, N.A.’s motion to dismiss as moot.
12
The federal court noted that Appellants and three Appellees—Wells Fargo Home
Mortgage, Inc., Wells Fargo, N.A., and JP Morgan Chase Bank—filed joint consent
motions to suspend consideration of the respective Appellees’ “pending motions while they
document a proposed resolution to the claims asserted against” those Appellees. The
federal court granted in part and denied in part the joint consent motions, suspending
consideration of “all pending motions” filed by Appellees, staying the motions to dismiss
as to the RP § 14-127 claims, and granting the motions to dismiss as to the Maryland
Consumer Protection Act claims.
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federal court issued a certification order and stayed Appellants’ claims as to RP § 14-127
in the federal court pending this Court’s response.
DISCUSSION
The Parties’ Contentions
Appellants contend that RP § 14-127 provides an implied private right of action.
Appellants argue that RP § 14-127 was enacted to protect a narrow class of individuals—
namely, consumers of residential title and settlement services—and that Appellants are in
that class for whose benefit RP § 14-127 was enacted; i.e., they are consumers of residential
title and settlement services. Appellants assert that the injuries that they suffered—
including overcharges, lack of impartiality in the referral, and a reduction of competition
among settlement service providers—constitute the exact type of harm that RP § 14-127
was designed to prevent. Appellants maintain that RP § 14-127’s language focuses on, and
RP § 14-127’s purpose is, the protection of consumers in real estate transactions involving
land in Maryland. According to Appellants, implying a private right of action under RP §
14-127 is consistent with RP § 14-127’s language and purpose.
Appellees13 respond that there is no evidence that the General Assembly intended
to create a private right of action under RP § 14-127 and that there is no basis in law or fact
for implying a private right of action. Appellees contend that RP § 14-127 neither identifies
13
As mentioned above, see supra note 10, Genuine Title apparently has ceased doing
business. As such, we note that the following Appellees filed in this Court a joint brief:
Eagle National Bank; PNC Bank, N.A.; Brandon Glickstein, Inc.; Competitive Advantage
Media Group, LLC; Dog Days Marketing, LLC; MetLife Bank, N.A.; MetLife Home
Loans, LLC; West Town Bank and Trust a/k/a West Town Savings Bank; and Net Equity
Financial, Inc. We now refer to these parties as “Appellees.”
-6-
a specific class of protected individuals nor confers a beneficial right on any specific class
of individuals, let alone Appellants. Appellees argue that, on its face, RP § 14-127 does
not confer any right at all, and instead is a broad prohibition on individuals who are
involved in real estate transactions in Maryland from paying or receiving anything in
exchange for settlement business. According to Appellees, RP § 14-127 simply prohibits
a certain type of conduct and is designed to protect the public at large, not a narrow, specific
class of individuals. Appellees assert that neither RP § 14-127’s plain language nor its
legislative history supports the position that RP § 14-127’s purpose was to create a private
right of action. Appellees point out that, when RP § 14-127 was amended in 2010, the
General Assembly was aware that RESPA provided a private right of action, yet chose not
to provide a similar private right of action under RP § 14-127. Appellees maintain that RP
§ 14-127’s purpose is to criminalize certain conduct; in other words, according to
Appellees, RP § 14-127 is a criminal statute with no private right of action.
Standard of Review
Pursuant to the Maryland Uniform Certification of Questions of Law Act, Md. Code
Ann., Cts. & Jud. Proc. (1973, 2013 Repl. Vol.) (“CJP”) §§ 12-601 to 12-613, this Court
has the power to “answer a question of law certified to it by a court of the United States . .
. if the answer may be determinative of an issue in pending litigation in the certifying court
and there is no controlling appellate decision, constitutional provision, or statute of this
State.” CJP § 12-603. In considering a certified question of law, “this Court’s statutorily
prescribed role is to determine only questions of Maryland law, not questions of fact. . . .
[And], we confine our legal analysis and final determinations of Maryland law to the
-7-
questions certified.” Parler & Wobbler v. Miles & Stockbridge, 359 Md. 671, 681, 756
A.2d 526, 531 (2000) (citations omitted).
As to statutory interpretation, in Montgomery Cnty. v. Phillips, 445 Md. 55, 62-63,
124 A.3d 188, 192 (2015), we stated that “[t]he cardinal rule of statutory construction is to
ascertain and effectuate the intent of the General Assembly[,]” explaining:
[T]o determine that purpose or policy, we look first to the language of the
statute, giving it its natural and ordinary meaning. . . . When the statutory
language is clear, we need not look beyond the statutory language to
determine the General Assembly’s intent. If the words of the statute,
construed according to their common and everyday meaning, are clear and
unambiguous and express a plain meaning, we will give effect to the statute
as it is written. In addition, we neither add nor delete words to a clear and
unambiguous statute to give it a meaning not reflected by the words the
General Assembly used or engage in forced or subtle interpretation in an
attempt to extend or limit the statute’s meaning. . . .
If the language of the statute is ambiguous, [] then courts consider not
only the literal or usual meaning of the words, but their meaning and effect
in light of the setting, the objectives and purpose of the enactment under
consideration. . . .
If the true legislative intent cannot be readily determined from the
statutory language alone, [] we may, and often must, resort to other
recognized indicia—among other things, the structure of the statute,
including its title; how the statute relates to other laws; the legislative history,
including the derivation of the statute, comments and explanations regarding
it by authoritative sources during the legislative process, and amendments
proposed or added to it; the general purpose behind the statute; and the
relative rationality and legal effect of various competing instructions.
(Citation and brackets omitted).
RP § 14-127
Unabridged, RP § 14-127 currently provides:
(a) Definitions. — (1) In this section the following words have the meanings
indicated.
-8-
(2) “Consideration” includes:
(i) A fee;
(ii) Compensation;
(iii) A gift, except promotional or advertising materials for
general distribution;
(iv) A thing of value;
(v) A rebate;
(vi) A loan; or
(vii) An advancement of a commission or deposit money.
(3) “License” has the meaning stated in § 10-101 of the Insurance
Article.
(4) “Residential real estate transaction” means a transaction involving
a federally related mortgage loan as defined in 12 U.S.C. § 2602 and 12
C.F.R. § 1024.2.
(5) “Title insurance producer” has the meaning stated in § 10-101 of
the Insurance Article.
(b) Scope of section. — This section does not prohibit:
(1) The payment of a commission to a title insurance producer who
has a license; or
(2) The referral of a real estate settlement business or a professional
fee arrangement between attorneys, if the referral or professional fee
arrangement does not violate § 17-605 of the Business Occupations and
Professions Article.
(c) Payment or receipt of consideration prohibited. — (1) A person who has
a connection with the settlement of real estate transactions involving land in
the State may not pay to or receive from another any consideration to solicit,
obtain, retain, or arrange real estate settlement business.
(2) A person may not be considered to be in violation of paragraph (1)
of this subsection solely because that person is a participant in an affiliated
business arrangement, as defined in 12 U.S.C. § 2602, and receives
consideration as a result of that participation as long as that person complies
with 12 U.S.C. § 2607(c)(4), 12 C.F.R. § 1024.15, and Appendix D to 12
C.F.R. Part 1024.
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(d) Compliance with federal law regarding disclosure. — A person who
offers settlement services in connection with residential real estate
transactions involving land in the State shall comply with 12 U.S.C. §
2607(c)(4), 12 C.F.R. § 1024.15, and Appendix D to 12 C.F.R. Part 1024, as
applicable, regarding disclosures of affiliated business arrangements, as
defined in 12 U.S.C. § 2602.
(e) Violation; penalties. — A person who violates this section is guilty of a
misdemeanor and on conviction is subject to imprisonment not exceeding 6
months or a fine not exceeding $ 1,000 or both.
(f) Separate violations. — Each violation of this section is a separate
violation.
Implied Private Rights of Action
In Baker v. Montgomery Cnty., 427 Md. 691, 708-11, 50 A.3d 1112, 1122-23
(2012), we discussed in detail how to assess whether a State statute contains an implied
private right of action, stating:
A private cause of action in favor of a particular plaintiff or class of plaintiffs
does not exist simply because a claim is framed that a statute was violated
and a plaintiff or class of plaintiffs was harmed by it. Rather, the issue is a
matter of statutory construction. . . .
The U.S. Supreme Court fashioned the prevailing test for determining
whether a statute contains implicitly a private cause of action:
In determining whether a private remedy is implicit in a statute
not expressly providing one, several factors are relevant. First,
is the plaintiff one of the class for whose especial benefit the
statute was enacted[?] Second, is there any indication of
legislative intent, explicit or implicit, either to create such a
remedy or to deny one? Third, is it consistent with the
underlying purposes of the legislative scheme to imply such a
remedy for the plaintiff?
Cort v. Ash, 422 U.S. 66, 78, 95 S. Ct. 2080, 2087-88, 45 L.Ed.2d 26, 36
(1975) (internal citations omitted). This Court utilized the Cort test in Erie
Ins[.] Co[. v. Chops], 322 Md. [79,] 90-91, 585 A.2d [232,] 237 [(1991)],
which dealt with a Maryland statute. . . .
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Touche Ross [& Co. v. Redington, 442 U.S. 560, 575-76 (1979)]
emphasized that the central inquiry remains whether the legislative body
intended to create, either expressly or by implication, a private cause of
action. Courts discern . . . whether a private cause of action was intended by
analyzing the language of the statute to identify its purpose and intended
beneficiaries, reviewing the statute’s legislative history, and determining
whether the statute provides otherwise an express remedy. As a result, in a
case in which neither the statute nor the legislative history reveals a
legislative intent to create a private right of action for the benefit of the
plaintiff, we need not carry the Cort v. Ash inquiry further.
Thus, our analysis begins with the language of the statute at hand and
whether it confers a beneficial right upon a particular class of persons. If a
statute’s language provides a right to a particular class of persons, there is a
strong inference that the legislature intended the statute to carry an implied
cause of action. Conversely, that inference becomes attenuated when the
statute is framed as a general prohibition or a command to a governmental
entity or other group or confers a generalized benefit. For example, in
Cannon [v. Univ. of Chicago, 441 U.S. 677, 693 n.13 (1979),] the Supreme
Court listed several statutory schemes that conferred a right on a class of
persons and created an implied private cause of action: “All citizens of the
United States shall have the same right . . . as is enjoyed by white citizens
thereof,” “no person shall be denied the right to vote,” and “employees shall
have the right to organize and bargain collectively.”
(Internal quotation marks, footnote, brackets, and most citations omitted) (last ellipsis in
original).14 To reiterate, in assessing whether a State statute contains an implied private
right of action, we are concerned with three specific inquiries: (1) Is the plaintiff one of the
class for whose special benefit the statute was enacted? (2) Is there any indication of
14
In Baker, 427 Md. at 709 n.15, 50 A.3d at 1122 n.15, this Court noted that, “[w]hen
a court determines whether a federal statute contains a private cause of action, there is a
fourth factor . . . : ‘Is the cause of action one traditionally relegated to state law, in an area
basically the concern of the States, so that it would be inappropriate to infer a cause of
action based solely on federal law.’” (Quoting Cort, 422 U.S. at 78) (brackets omitted).
This fourth factor is not implicated in this case because this case does not involve
determining whether a federal statute contains an implied private right of action.
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legislative intent, explicit or implicit, either to create such a remedy or to deny one? (3) Is
it consistent with the underlying purposes of the legislative scheme to imply such a remedy
for the plaintiff? Baker, 427 Md. at 709, 50 A.3d at 1122; see also Scull v. Groover,
Christie & Merritt, P.C., 435 Md. 112, 122, 76 A.3d 1186, 1191 (2013).
This Court has applied the three-factor test from Cort in several cases to determine
whether an implied private right of action existed. For example, in Erie Ins. Co., 322 Md.
at 91-92, 83, 585 A.2d at 238, 233, we held that there was no express or implied private
right of action under Md. Code Ann., Transp. (1977, 1987 Repl. Vol.) (“TR”) § 17-106(b),
which provided: “After July 1, 1983, each insurer or other provider of required security
immediately shall notify the [Motor Vehicle] Administration [(“the MVA”)] of only those
terminations or other lapses that are final and occur within the first 6 months of any required
security issued to or provided for a resident of this State.” In Erie Ins. Co., 322 Md. at 81,
585 A.2d at 233, a husband and wife, the Chopses, were injured in an automobile accident
that occurred in West Virginia; the accident was solely the fault of Carol Iser (“Iser”), who
was driving a vehicle that she owned and that was registered in Maryland. At the time of
the accident, Iser’s vehicle was uninsured because, two months prior to the accident, Erie
Insurance Company (“Erie”) had cancelled Iser’s automobile liability insurance policy for
nonpayment of the premium. See id. at 81-82, 585 A.2d at 233. Despite the lack of
insurance, the Chopses sued Erie, alleging that Erie was liable because it had breached the
duty that it owed under TR § 17-106(b) to notify the MVA that it had cancelled Iser’s
automobile liability insurance policy. See Erie Ins. Co., 322 Md. at 82, 585 A.2d at 233.
In the trial court, the Chopses argued that Erie’s violation of TR § 17-106(b) made it liable
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as though Iser’s automobile liability insurance policy had not been cancelled or,
alternatively, that Erie’s violation of TR § 17-106(b) was evidence of negligence that was
a proximate cause of the Chopses’ damages. See Erie Ins. Co., 322 Md. at 82, 585 A.2d at
233. Following a trial, the Chopses were granted judgment against Erie; Erie appealed;
and, before the case was considered by the Court of Special Appeals, this Court issued a
writ of certiorari on its own motion. See id. at 82, 585 A.2d at 233.
Upon review, we determined that, because Erie did not notify the MVA until forty
days after it cancelled Iser’s policy, the evidence supported the trial court’s finding that
Erie had failed to notify the MVA of the cancellation of Iser’s policy within the time
required by TR § 17-106(b), which required immediate notification. See Erie Ins. Co., 322
Md. at 83-84, 585 A.2d at 234. Nonetheless, this Court held that the duty that was imposed
on Erie by TR § 17-106(b) was not a “tort duty” because TR § 17-106(b) “did not create a
legally cognizable duty running from Erie to all persons who might thereafter suffer
economic damage by reason of involvement in an accident with an uninsured motorist upon
Erie’s failure to give immediate notice to the MVA of the termination of coverage.” Erie
Ins. Co., 322 Md. at 86, 585 A.2d at 235. We also held that the General Assembly “did
not intend to create a new cause of action imposing strict liability on an insurer who failed
to give immediate notice of cancellation to the MVA.” Id. at 86, 585 A.2d at 235. As to
the latter holding, applying the test set forth in Cort, we explained:
Although the Chops[es] may properly be said to be within the class of
persons in whose favor [TR § 17-106(b)] was intended, it seems equally
apparent that the principal focus of the uninsured motorist laws is for the
general protection of the public. Additionally, while permitting recovery by
the [Chopses] would not be inconsistent with the underlying purpose of the
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legislative scheme, we do not believe such a broad extension of existing laws
is necessary to properly implement the legislation. We note that the [General
Assembly] has provided other remedies for those who are involved in
accidents with uninsured motorists, including the requirement of uninsured
motorist coverage in every automobile liability policy issued, sold, or
delivered in this State, and the establishment of a fund for payment of claims
arising out of accidents with uninsured motorists occurring in this State.
Finally, as we have noted, the [General Assembly] did not expressly or
impliedly establish the sanction sought by the [Chopses], even though the
[General Assembly] has done so in other related matters involving insurance.
Erie Ins. Co., 322 Md. at 91-92, 585 A.2d at 238 (citations omitted). Indeed, as to TR §
17-106(b)’s legislative history, we stated that TR § 17-106(b) and other related statutes
sought “to insure that there w[ould] be at least minimum limits of financial responsibility
in the event [that] an accident [] occur[red,]” and that “the principal risk against which [TR
§ 17-106(b) was] directed [was] the risk of economic loss, and not the risk of personal
injury.” Erie Ins. Co., 322 Md. at 87, 585 A.2d at 236. We stated that there was “no
suggestion that the [General Assembly] intended the application of a strict sanction [that]
it did not spell out” in TR § 17-106(b); thus, we concluded that, in light of TR § 17-106(b)’s
legislative history, “no such sanction should be implied[.]” Erie Ins. Co., 322 Md. at 90,
585 A.2d at 237.
As another example, in Baker, 427 Md. at 697-98, 699-700, 50 A.3d at 1115, 1117,
we held that there was no express or implied private right of action under TR § 21-809(j),15
which provided: “If a contractor operates a speed monitoring system on behalf of
Montgomery County, the contractor’s fee may not be contingent on the number of citations
15
In Baker, 427 Md. at 696, 50 A.3d at 1115, we cited the 2009 Replacement
Volume of the Transportation Article.
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issued or paid.” In Baker, 427 Md. at 695-96, 50 A.3d at 1114, certain local governments
of Montgomery County, including Montgomery County itself, established speed cameras,
which recorded, among many others, the plaintiffs traveling in their vehicles at least ten
miles per hour over posted speed limits on certain roads. The local governments issued
citations to the plaintiffs, each carrying a maximum civil penalty of $40. See id. at 696, 50
A.3d at 1114. The plaintiffs paid the penalties and then filed a complaint against the local
governments, asserting that the local governments’ contracts with the speed monitoring
system contractor, ACS State and Local Solutions, Inc. (“ACS”), violated TR § 21-809(j).
See Baker, 427 Md. at 696, 50 A.3d at 1114-15. The trial court concluded that the local
governments, not ACS, operated the speed cameras within the meaning of TR § 21-809(j),
and that, in any event, TR § 21-809(j) applied only to Montgomery County, not the other
local governments. See Baker, 427 Md. at 696, 50 A.3d at 1115. The trial court also
concluded that, even if ACS operated the speed cameras, TR § 21-809(j) did not contain a
private right of action to support the plaintiffs’ tort claims. See Baker, 427 Md. at 696, 50
A.3d at 1115. The trial court further concluded that the plaintiffs had waived their ability
to file a complaint when they voluntarily paid the penalties; accordingly, the trial court
granted summary judgment in the local governments’ favor. See id. at 696, 50 A.3d at
1115. The plaintiffs appealed; the Court of Special Appeals affirmed; and this Court
granted certiorari. See id. at 696, 50 A.3d at 1115.
We affirmed, holding in relevant part that TR § 21-809(j) did “not provide an
express or implied private cause of action in tort” for two reasons: (1) TR § 21-809(j) “is a
general welfare statute that does not benefit a particular class of persons, let alone” the
- 15 -
plaintiffs; and (2) TR § 21-809(j) “provides a remedy in the District Court for challenging
speed monitoring system citations.” Baker, 427 Md. at 697, 50 A.3d at 1115. We
explained that these two reasons, “combined with the lack of supporting legislative history
endorsing an implied private right of action, establish[ed] that [TR] § 21-809(j) does not
create a private cause of action.” Baker, 427 Md. at 697-98, 50 A.3d at 1115. In so
concluding, we applied the three factors set forth in Cort. See Baker, 427 Md. at 711-15,
50 A.3d at 1123-26. As to whether the plaintiffs were members of a class for whose benefit
TR § 21-809(j) was enacted, we determined that TR § 21-809(j) was “framed as a
prohibitive command and d[id] not confer rights on a class of persons” and did not
“unmistakably focus on a particular class of persons who benefit from it.” Baker, 427 Md.
at 711-12, 50 A.3d at 1123-24 (citation, footnote, and internal quotation marks omitted).
Moreover, TR § 21-809(j)’s legislative history “fail[ed] to reveal an intent to benefit a
particular class of persons.” Baker, 427 Md. at 712, 50 A.3d at 1124. We stated that, even
if the General Assembly had intended TR § 21-809(j) “to benefit recipients of citations,
issued according to speed monitoring systems established pursuant to the statutory scheme,
whether it intended also that [TR] § 21-809(j) create an implied private cause of action
[was] a separate issue.” Baker, 427 Md. at 712, 50 A.3d at 1124.
As to TR § 21-809’s purpose, we concluded that TR § 21-809(j) “create[d] rules
and procedures for Montgomery County (and perhaps its municipalities) to operate a speed
monitoring system” and established “a remedy for challenging a speed monitoring system
citation.” Baker, 427 Md. at 713, 50 A.3d at 1124. TR § 21-809(j) did not expressly
provide a private right of action, and instead set forth provisions under which citation
- 16 -
recipients could challenge the citation on the basis that the local government had violated
TR § 21-809(j). See Baker, 427 Md. at 713, 50 A.3d at 1124-25. Finally, as to TR § 21-
809’s legislative history, we determined that the legislative history failed to reveal any
intent on the General Assembly’s part to create an implied private right of action. See
Baker, 427 Md. at 714, 50 A.3d at 1125. We concluded by explaining:
[T]he lack of discernible legislative intent to create an implied cause of action
in the plain language and structure of the statute, its legislative history, or
some other legitimate and reliable source cements the conclusion that the
[General Assembly], in enacting [TR] § 21-809, did not contemplate an
implied private cause of action. Our conclusion is reinforced by the
assumption that legislative bodies know how to “salt the mine” for the
enablement of implied private causes of action.
Baker, 427 Md. at 714-15, 50 A.3d at 1126 (citations omitted).
More recently, in Scull, 435 Md. at 115, 76 A.3d at 1187, we held that there was no
implied private right of action under the Maryland Health Maintenance Organization
(“HMO”) Act, Md. Code Ann., Health-Gen. (“HG”) §§ 19-701 to 19-735, where an HMO
member has been billed by a health care provider for a covered service. In particular, HG
§ 19-710(p) of the HMO Act prohibited a health care provider from billing an HMO
member for amounts beyond those that were provided in the HMO’s plan, a practice
commonly known as “balance billing,” providing: “A health care provider or any
representative of a health care provider may not collect or attempt to collect from any
subscriber or enrollee any money [that is] owed to the health care provider by a[n HMO
that has been] issued a certificate of authority to operate in this State.” Scull, 435 Md. at
119-20, 76 A.3d at 1190. In Scull, id. at 115, 76 A.3d at 1187-88, the plaintiff, an HMO
member, visited Groover, Christie & Merritt, P.C. (“GCM”) for a knee x-ray, and nearly a
- 17 -
year later, GCM sent the plaintiff a bill for $121 for the x-ray. The plaintiff sued GCM,
alleging that the bill from GCM was “an illegal attempt to ‘balance bill’ an HMO member
in violation of State law.” Id. at 116-17, 76 A.3d at 1188. In the first count of the
complaint, the plaintiff sought judicial recognition of an implied private right of action
under HG § 19-710(p). See Scull, 435 Md. at 117, 76 A.3d at 1188. GCM filed a motion
to dismiss the complaint, which the trial court granted; the plaintiff filed an amended
complaint, and the trial court dismissed the amended complaint with prejudice. See id. at
117, 76 A.3d at 1188-89. The plaintiff appealed; the Court of Special Appeals affirmed;
and this Court granted certiorari. See id. at 118, 76 A.3d at 1189.
We held, in pertinent part, “that there is not an implied private right of action under
the HMO [Act].” Id. at 118, 76 A.3d at 1189. We began our analysis by observing that
the HMO Act did not provide an express private right of action for an HMO member who
was allegedly harmed by a violation of the prohibition against balance billing; thus, we
turned to whether there was an implied private right of action. See id. at 121, 76 A.3d at
1191. We then applied and analyzed the three factors set forth in Cort in the context of the
HMO Act. See Scull, 435 Md. at 122-24, 76 A.3d at 1191-92. As to whether the plaintiff
was a member of the class for whose benefit HG § 19-710(p) was enacted, we stated that,
on its face, HG § 19-710(p) “strongly suggest[ed] an intent to protect a specific class of
persons, namely enrollees and subscribers of HMOs, from the practice of balance billing.”
Scull, 435 Md. at 122, 76 A.3d at 1191. Thus, as an HMO member, the plaintiff was a
member of the class that was intended to be protected by HG § 19-710(p). Scull, 435 Md.
at 122, 76 A.3d at 1191.
- 18 -
Nonetheless, despite the plaintiff’s being a member of the class that was intended
to be protected by HG § 19-710(p), we concluded that the legislative intent and statutory
scheme or purpose militated against implying a private right of action. Scull, 435 Md. at
122-24, 76 A.3d at 1191-93. As to legislative intent to create or deny a remedy, we
reiterated that there was nothing expressly in HG § 19-710(p) concerning a private right of
action for a violation of the prohibition against balance billing; and, we further concluded
that “nothing in the text of the balance billing prohibition in HG § 19-710(p) suggest[ed]
that the [General Assembly] believed that it was creating a new cause of action on behalf
of HMO subscribers against health care providers—as opposed to creating a structure to
foster HMO plans.” Scull, 435 Md. at 122, 76 A.3d at 1191-92. We also observed that
HG § 19-710(p)’s legislative history was “devoid of any mention of an intent to create a
private cause of action on behalf of patients against health care providers”; i.e., the
legislative history was silent on the matter. Scull, 435 Md. at 122-23, 76 A.3d at 1192
(footnote omitted). Finally, as to the statutory scheme and legislative purpose, we
explained:
[T]he statutory scheme largely concerns the structure and operation of
[HMO]s, not the billing practices of health care providers. In that sense, the
statute is intended to confer a general benefit on the public at large by
providing a foundation for a particular form of health care coverage. The
[HMO] Act is primarily focused on the operation and regulation of an HMO
and its relationship with the providers that serve its members. Notably, the
explicit private cause of action that does appear in the [HMO] Act is on
behalf of a health care provider against an HMO that fails to carry out the
HMO’s obligations under the [HMO] Act. While the prohibition against
balance billing of HMO members is an important part of the overall scheme,
the [HMO] Act provides for its enforcement through “hold harmless”
contract provisions required by [the HMO Act]. And there is already in place
a cause of action for a patient to obtain relief for violations of unlawful billing
- 19 -
practices[, namely, under the Maryland Consumer Protection Act.]
Id. at 123-24, 76 A.3d at 1192 (citations omitted). Accordingly, we held “that an HMO
member does not have an implied private right of action under the HMO [Act] with respect
to a violation of the balance billing prohibition.” Id. at 124, 76 A.3d at 1192 (footnote
omitted).
Analysis
Returning to the instant case, we hold that RP § 14-127 does not provide an express
or implied private right of action. As stated above, RP § 14-127(c)(1) prohibits “[a] person
who has a connection with the settlement of real estate transactions involving land in the
State” from “pay[ing] to or receiv[ing] from another any consideration to solicit, obtain,
retain, or arrange real estate settlement business.” Nothing within RP § 14-127 generally,
or RP § 14-127(c)(1) specifically, expressly provides a private right of action for anyone
who is allegedly harmed by a violation of RP § 14-127(c)(1). Thus, the key question in
this case—indeed, the question that the federal court certified to this Court—is whether RP
§ 14-127 contains an implied private right of action. We hold that it does not, as neither
RP § 14-127’s plain language, legislative history, nor legislative purpose demonstrates any
intent on the General Assembly’s part to create a private right of action.
Class
As to whether Appellants are members of the class for whose benefit RP § 14-127
was enacted, RP § 14-127(c)(1) provides that “[a] person who has a connection with the
settlement of real estate transactions involving land in the State may not pay to or receive
from another any consideration to solicit, obtain, retain, or arrange real estate settlement
- 20 -
business.” On its face, RP § 14-127(c)(1) does not specifically identify a class for whose
benefit it was enacted. Nonetheless, there is a group who could receive the benefit of RP
§ 14-127—consumers of residential and commercial settlement services.16 In other words,
RP § 14-127(c)(1) could inure to the benefit of consumers or members of the public who
use residential and commercial settlement services because the prohibition in RP § 14-
127(c)(1) could theoretically keep costs down by eliminating hidden costs and excess fees
that may be associated with the solicitation, obtainment, or arrangement of real estate
settlement business. As consumers of settlement services, Appellants are members of a
class that would conceivably benefit from RP § 14-127, although there is no evidence that
RP § 14-127 was designed specifically to protect consumers of settlement services.
Our conclusion that RP § 14-127(c)(1) inures to the benefit of consumers of
residential and commercial settlement services is consistent with an opinion from the
Maryland Attorney General concerning whether RP § 14-127’s predecessor, Md. Code
Ann., Art. 27 (“Art. 27”), § 465A, had been preempted by the revised Regulation X of the
16
For two reasons, we identify the class as including consumers of both residential
and commercial settlement services, and not just consumers of residential settlement
services, such as Appellants. First, RP § 14-127(c)(1) does not limit the prohibition against
paying or receiving “any consideration to solicit, obtain, retain, or arrange real estate
settlement business” to residential real estate settlement business. Instead, RP § 14-
127(c)(1) refers broadly to “real estate transactions” and “real estate settlement business”
without specifying only residential real estate transactions and residential real estate
settlement business. Second, in contrast to RP § 14-127(c)(1), RP § 14-127(d) applies only
to “residential real estate transactions[,]” which RP § 14-127(a)(4) defines as “a transaction
involving a federally related mortgage loan as defined in 12 U.S.C. § 2602 and 12 C.F.R.
§ 1024.2.” In other words, had the General Assembly intended the prohibition in RP § 14-
127(c)(1) to apply only to residential real estate transactions, it would have said so, as
evidenced by RP § 14-127(d); however, the General Assembly did not limit RP § 14-
127(c)(1) in such a manner.
- 21 -
United States Department of Housing and Urban Development. In the opinion, the
Maryland Attorney General stated:
Although we are not aware of any legislative history bearing on the purpose
of [Art. 27, § 465A], it is evidently intended to prevent a real estate broker,
for example, from having a financial incentive to steer a purchaser of real
property to a particular provider of settlement services. Presumably, the
General Assembly perceived that the purchaser would be better served
if advice about settlement services was free of such bias.
78 Md. Op. Atty. Gen. 86, 86-87 (1993), available at https://www.oag.state.md.us/Opinio
ns/1993/78oag86.pdf [https://perma.cc/DA5N-7KEN] (emphasis added). Stated
otherwise, the Maryland Attorney General also found no specific class of individuals
intended to be protected by RP § 14-127, but opined that purchasers—i.e., consumers—of
settlement services would receive the benefit of RP § 14-127 by receiving settlement
services free of bias.
Nevertheless, we reiterate that RP § 14-127 does not expressly provide a right to a
particular class of persons. For example, the prohibition in RP § 14-127(c)(1) is not
phrased along the lines of “all consumers of settlement services have the right to have
kickback-free settlement services.” Cf. Baker, 427 Md. at 711, 50 A.3d at 1123 (“[T]he
Supreme Court listed several statutory schemes that conferred a right on a class of persons
and created an implied private cause of action: ‘All citizens of the United States shall have
the same right . . . as is enjoyed by white citizens thereof,’ ‘no person shall be denied the
right to vote,’ and ‘employees shall have the right to organize and bargain collectively.’”
(Citation and brackets omitted) (ellipsis in original)). Rather, RP § 14-127(c)(1) contains
a general prohibition—namely, that persons connected “with the settlement of real estate
- 22 -
transactions involving land in the State may not pay to or receive from another any
consideration to solicit, obtain, retain, or arrange real estate settlement business.” And, RP
§ 14-127(c)(1) appears to confer only, as a result of the prohibition, a generalized benefit
that inures to consumers of settlement services. See Baker, 427 Md. at 710-11, 50 A.3d at
1123 (“If a statute’s language provides a right to a particular class of persons, there is a
strong inference that the [General Assembly] intended the statute to carry an implied cause
of action. Conversely, that inference becomes attenuated when the statute is framed as a
general prohibition or a command to a governmental entity or other group or confers a
generalized benefit.” (Citations and internal quotation marks omitted)). Significantly, RP
§ 14-127 does not mention, let alone identify, consumers or the public in general as a class
who benefits from the provisions of the statute.
In any event, as we stated in Baker, 427 Md.at 708-09, 50 A.3d at 1122, “[a] private
cause of action in favor of a particular plaintiff or class of plaintiffs does not exist simply
because a claim is framed that a statute was violated and a plaintiff or class of plaintiffs
was harmed by it.” (Citation omitted). Rather, the question of whether a private right of
action exists is a matter of statutory construction. See id. at 709, 50 A.3d at 1122. As such,
although Appellants are in a class of individuals who arguably receive the benefit of RP §
14-127, we still must examine RP § 14-127’s plain language, legislative history, and
legislative scheme/purpose to determine whether the General Assembly intended to create
a private right of action under RP § 14-127. See Baker, 427 Md. at 710, 50 A.3d at 1123
(“Courts discern legislative intent whether a private cause of action was intended by
analyzing the language of the statute to identify its purpose and intended beneficiaries,
- 23 -
reviewing the statute’s legislative history, and determining whether the statute provides
otherwise an express remedy.” (Citations omitted)); see also Scull, 435 Md. at 122-24, 76
A.3d at 1191-92 (Although concluding that the plaintiff was a member of the class for
whose benefit the statute at issue was enacted, we also analyzed legislative intent and
purpose before concluding that no implied private right of action existed.).
Legislative History/Intent
As to whether there is any indication of legislative intent, either explicit or implicit,
to create or deny a private right of action, we conclude that RP § 14-127’s legislative
history fails to reveal any intent on the General Assembly’s part to create a private right of
action, either expressly or impliedly. As stated above, nothing in RP § 14-127’s plain
language expressly provides a private right of action for anyone allegedly harmed by a
violation of the prohibition in RP § 14-127(c)(1). Thus, we look to RP § 14-127’s
legislative history to determine whether an implied private right of action exists.
RP § 14-127’s predecessor, Art. 27, § 465A, was enacted in 1967; on June 1, 1967,
Article 27, § 465A became effective. See 1967 Md. Laws 1662-63 (Vol. II, Ch. 756, H.B.
1075); 78 Md. Op. Atty. Gen. at 86 (“This prohibition was enacted as Chapter 756 of the
Laws of Maryland 1967 in essentially” the same form as it existed in 1993.). The purpose
for enacting Art. 27, § 465A was stated as follows:
AN ACT to add new Section 465-A to Article 27 of the Annotated Code of
Maryland (1957 Edition), titled “Crimes and Punishments,” subtitle “Real
Estate Settlements,” to follow immediately after Section 465 thereof,
prohibiting the payment by any person, firm, or corporation to any other
person, firm, or corporation connected with the settlement of a real estate
transaction affecting land situated and lying in this State, of any fee or other
consideration to obtain any real estate settlement or real estate settlement
- 24 -
business prohibiting the receipt of any such fee or thing of value for such
purpose; CREATING CERTAIN EXCEPTIONS FROM THIS ACT and
providing penalties for violation of such provisions.
1967 Md. Laws 1662 (Vol. II, Ch. 756, H.B. 1075) (capitalization in original).
Although not part of Art. 27, § 465A’s legislative history, a series of newspaper
articles published in 1967 and 1968 provides some context to the circumstances leading up
to Art. 27, § 465A’s enactment. Apparently, a real estate settlement and title insurance
scandal occurred in Montgomery County and Prince George’s County “in which more than
70 home owners face[d] the possibility of double mortgages against their property as a
result of misuse of settlement funds by title lawyers.” Bart Barnes, Md. Bar Now Asks for
Rapid Revision of Title Escrow Laws, The Washington Post, Times Herald, Mar. 9, 1967,
at C2. In response, then-State Insurance Commissioner Norman Polovoy proposed a three-
bill package that “would make title insurance companies financially liable for any misuse
of funds changing hands in real estate settlements, outlaw kickbacks from lawyers to
brokers steering business their way[,] and require lawyers to explain to home buyers the
difference between mortgage title insurance, protecting only the lender, and home owners
title insurance.” Id.; see also Staff Writer, Escrow Bills Advance at Annapolis, The
Washington Post, Times Herald, Mar. 17, 1967, at B1. The House Banking and Insurance
Committee endorsed all three bills. See Sandy Royner, Polovoy Bill Gains in Part, The
Sun, Mar. 16, 1967, at C12; Staff Writer, supra, at B1. Thereafter, House Bill 1075,
outlawing kickbacks, was enacted as Art. 27, § 465A. See 1967 Md. Laws 1662-63 (Vol.
II, Ch. 756, H.B. 1075). An article dated February 1, 1968 noted, however, that “a stronger
measure that failed to pass in the 1967 General Assembly” would be reintroduced, namely,
- 25 -
a “bill [that] would hold title insurance companies liable for defalcations by their ‘approved
attorneys.’” Peter A. Jay, Proposed Realty-Closing Controls Hit, The Washington Post,
Times Herald, Feb. 1, 1968, at B5.17
A “Report of the Committee to Study the Problem of Delayed Disbursements of
Real Estate Settlements,” included in the Report of the 72nd Annual Meeting of the
Maryland State Bar Association (1967 Md. State Bar Ass’n Transaction Report, at 211-
13), provided a fuller report on the three bills, stating:
As a result of defalcations by various attorneys handling real estate
settlements in which buyers and sellers of real property in Montgomery and
Prince George’s Counties lost well over $1,000,000, a large number of bills
were introduced in the 1967 Session of the General Assembly dealing with
various aspects of the problem. The State Insurance Commissioner . . .
prepared for introduction three bills known as House Bills 1073, 1074, and
1075. . . . The three bills, which came to be known as the “Polovoy Package”,
would attempt to solve the problem in the following manner:
H.B. 1073 provided that[,] whenever a title insurance company shall
issue a policy of insurance insuring the title to such property for the benefit
of any mortgagee, the title company or the title attorney shall, prior to the
disbursement of the settlement funds, notify the mortgagor of his right to
purchase insurance insuring title to the property for his benefit and of the cost
of such insurance. Substantially similar proposed legislation was included
in H.B. 41[.]
H.B. 1074 would have, in effect, placed an “absolute and unqualified
liability” as to the proper disbursement of settlement funds upon a title
company [that] issued a binder or policy insuring title to the property for the
17
Before this Court, Appellees moved to strike two newspaper articles from The Sun
that were included in the appendix to Appellants’ reply brief, as well as all references to
the newspaper articles contained in Appellants’ reply brief, on the ground that the
newspaper articles are not part of the record. We deny the motion to strike. Even if the
newspaper articles were not included in the record, in reviewing RP § 14-127’s legislative
history, this Court would have undoubtedly uncovered the newspaper articles, which
provide useful context concerning the circumstances surrounding the enactment of Art. 27,
§ 465A, RP § 14-127’s predecessor.
- 26 -
benefit of any party to the settlement. To accomplish this, the title insurance
company would be conclusively presumed to have constituted and
designated its so-called approved attorney as its agent for the closing of the
transaction and the presumption and liability so imposed by statute would
extend for the benefit of all parties to the settlement.
H.B. 1075, the “Anti-Kick Back Bill[,]” would have amended Article
27 of the Code[,] making it a criminal offense to pay or receive anything of
value for the purpose of soliciting, obtaining, retaining[,] or arranging any
real estate settlement or real estate settlement business.
...
H.B. 41 was enacted by the General Assembly and has been signed
by the Governor. This Bill, for practical purposes, accomplishes the same
result as H.B. 1073.
H.B. 1075 was enacted by the General Assembly and has been signed
by the Governor.
H.B. 1074 failed of enactment and was referred to the Legislative
Council for further study.
Thus, as originally enacted, Art. 27, § 465A, criminalizing kickbacks, provided, in
its entirety:
No person, firm, or corporation having any connection whatsoever with the
settlement of real estate transactions involving land situated and lying in this
State shall, for the purpose of soliciting, obtaining, retaining, or arranging
any real estate settlement or real estate settlement business, pay to or receive
from, any other person, firm, or corporation any fee, compensation, gift
(except promotional or advertising materials for general distribution), thing
of value, rebate, or other consideration, including loans and advancements of
commissions or deposit monies. Any person, firm, or corporation violating
the terms of this section, shall be guilty of a misdemeanor and upon
conviction shall be subject to a fine not to exceed One Thousand Dollars
($1,000.00) or to imprisonment for not more than six (6) months or both.
Every violation of this section shall constitute a separate offense and shall be
punishable as such. Nothing herein contained shall be construed as
preventing the payment of commissions to agents who have been duly
licensed as such by the State Insurance Department. Nothing herein shall
prohibit the referral of any such business from one attorney to another
attorney, or prohibit any professional fee arrangement between attorneys in
such cases.
- 27 -
1967 Md. Laws 1662-63 (Vol. II, Ch. 756, H.B. 1075) (italics and some capitalization
omitted). Art. 27, § 465A remained largely unchanged until 2002.
In 2002, pursuant to House Bill 11, as part of the Code Revision that created the
Criminal Law Article, Art. 27, § 465A was recodified as RP § 14-127. See 2002 Md. Laws
197, 202, 1089-90 (Vol. I–II, Ch. 26, H.B. 11). Specifically, House Bill 11 was enacted
for the purpose of, among other things, “adding a new article to the Annotated Code of
Maryland, to be designated and known as the ‘Criminal Law Article’, to revise, restate,
and recodify the laws of the State relating to criminal law; [and] revising, restating, and
recodifying certain provisions relating to . . . real estate settlements[.]” 2002 Md. Laws
197 (Vol. I, Ch. 26, H.B. 11). At that time, RP § 14-127 was divided into subsections,
including RP § 14-127(c) (now RP § 14-127(c)(1)), which provided then, as it does now,
that “[a] person who has a connection with the settlement of real estate transactions
involving land in the State may not pay to or receive from another any consideration to
solicit, obtain, retain, or arrange real estate settlement business.” 2002 Md. Laws 1090
(Vol. II, Ch. 26, H.B. 11). The Revisor’s Note stated that “subsections (a)(3) and (b)
through (e)” of RP § 14-127 were “new language derived without substantive change from
former Art. 27, § 465A.” 2002 Md. Laws 1090 (Vol. II, Ch. 26, H.B. 11). Two other notes
in the Revisor’s Note pertained to RP § 14-127(c): (1) that “the former references to a
‘firm’ and ‘corporation’ [we]re deleted in light of the definition of ‘person’ in [RP] § 1-
101(bb)”; and (2) “the former reference to land ‘situated and lying’ in the State [wa]s
deleted as included in the comprehensive reference to ‘land in the State’.” 2002 Md. Laws
- 28 -
1090 (Vol. II, Ch. 26, H.B. 11).
House Bill 11’s Fiscal Note explained the purpose of House Bill 11 as follows:
This Code Revision bill revises, restates, and recodifies the laws of the State
relating to criminal law. The new article is a nonsubstantive revision of
statutes that relate to substantive crimes in the State of Maryland. It derives
primarily from Article 27 – Crimes and Punishments, and includes related
provisions from the Agriculture, Commercial Law, and Family Law Articles,
and others.
In the “Fiscal Summary” portion of House Bill 11’s Fiscal Note, it was noted that House
Bill 11 simply “recodifie[d] specified existing laws without substantive change.” In the
“Analysis” portion of House Bill 11’s Fiscal Note, it was noted that “House Bill 11 also
revise[d] in several other articles a number of provisions relating to criminal law,
regulatory, and enforcement matters originally codified in Article 27. These other articles
include[d] . . . [the] Real Property Article[.]”
In 2010, RP § 14-127 was amended through Senate Bill 1019 and House Bill 1471.
At that time, among other things, certain definitions were added to RP § 14-127(a); RP §
14-127(c) became RP § 14-127(c)(1); and RP § 14-127(c)(2) and (d) were added. See 2010
Md. Laws 2417-19 (Vol. III, Ch. 373, S.B. 1019); 2010 Md. Laws 2419-21 (Vol. III, Ch.
374, H.B. 1471). The stated purpose of the amendments was to “requir[e] a certain person
who offers settlement services in connection with residential real estate transactions
involving land in the State to comply with certain federal disclosure requirements; alter[]
a certain provision relating to the payment of a commission to a certain person; repeal[] a
certain definition; defin[e] certain terms; and generally relat[e] to real estate settlements.”
2010 Md. Laws 2417 (Vol. III, Ch. 373, S.B. 1019); 2010 Md. Laws 2419 (Vol. III, Ch.
- 29 -
374, H.B. 1471). Senate Bill 1019’s and House Bill 1471’s Fiscal and Policy Notes
explained that the purpose of the bills was as follows:
Th[ese] bill[s] establish[] that a person who participates in an “affiliated
business arrangement” as defined under the federal Real Estate Settlement
Procedures Act (RESPA) is not a violation of a State law that otherwise
prohibits affiliates from participating in a real estate settlement (1) solely
because that person participates in an affiliated business arrangement; and
(2) as long as that person complies with existing RESPA disclosure
requirements. A person who does not comply is guilty, under existing
penalty provisions, of a misdemeanor and subject to maximum penalties of
six months imprisonment and/or a fine of $1,000.
When RP § 14-127 was amended in 2010, it was the first time that RP § 14-127 included
specific references and citations to RESPA, in RP § 14-127(a)(4), (c)(2), and (d). See 2010
Md. Laws 2418-19 (Vol. III, Ch. 373, S.B. 1019); 2010 Md. Laws 2420-21 (Vol. III, Ch.
374, H.B. 1471).
RP § 14-127 was most recently amended this year. Specifically, the references to
the Code of Federal Regulations in RP § 14-127(a)(4), (c)(2), and (d) were updated; the
amendment became effective upon its enactment, and was approved by the Governor on
March 14, 2016. See 2016 Md. Laws ___ (Vol. __, Ch. 8, S.B. 506).
Upon consideration of the above-described circumstances, we conclude that RP §
14-127’s legislative history fails to demonstrate that an implied private right of action
exists. The legislative history of RP § 14-127’s prohibition against persons connected
“with the settlement of real estate transactions involving land in the State . . . pay[ing] to
or receiv[ing] from another any consideration to solicit, obtain, retain, or arrange real estate
settlement business” is completely devoid of any mention whatsoever of an intent to create
a private right of action on behalf of consumers of settlement services. There is simply
- 30 -
nothing in RP § 14-127’s legislative history from which we can glean any intent on the
General Assembly’s part to create an implied private right of action. In other words, RP §
14-127’s legislative history is silent as to any intent to create an implied private right of
action. “[W]here the plain language of a provision weighs against implication of a private
remedy, silence within the legislative history as to a private cause of action reinforces the
decision not to find such a right implicitly.” Baker, 427 Md. at 714, 50 A.3d at 1125
(citation and internal quotation marks omitted); see also Scull, 435 Md. at 123, 76 A.3d at
1192 (“While legislative silence is not conclusive, this certainly weighs against finding a
private right of action.” (Citation and footnote omitted)).
Indeed, in reviewing RP § 14-127’s legislative history, we observe that the only
indication that the General Assembly even considered creating a private right of action was
in connection with House Bill 1074, which was introduced as part of the Polovoy Package
along with House Bill 1075 (which became Art. 27, § 465A, RP § 14-127’s predecessor).
Significantly, House Bill 1075 was intended to prohibit and criminalize kickbacks in real
estate settlements, and the General Assembly was silent as to any intent to create a private
right of action on behalf of consumers of settlement services who were allegedly harmed
by a violation of the new prohibition against kickbacks. See 1967 Md. Laws 1662-63 (Vol.
II, Ch. 756, H.B. 1075). By contrast, House Bill 1074 “would [have] ma[d]e title insurance
companies financially liable for any misuse of funds changing hands in real estate
settlements[,]” Barnes, supra, at C2, or, stated otherwise, “would [have] h[e]ld title
insurance companies liable for defalcations by their ‘approved attorneys[,]’” Jay, supra, at
B5. Plainly put, a review of RP § 14-127’s legislative history and the articles providing
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context for enactment of the prohibition against kickbacks in real estate settlements clearly
shows that the General Assembly considered creating a private right of action only with
respect to House Bill 1074, which was separate and distinct from House Bill 1075. The
circumstance that the General Assembly considered creating a private right of action to
hold title insurance companies financially liable for misuse of settlement funds, but
apparently did not consider the same with respect to the prohibition against kickbacks,
further bolsters our determination that RP § 14-127’s legislative history is devoid of
anything from which we can conclude that the General Assembly intended to create a
private right of action.18
Legislative Scheme/Purpose
Finally, we examine whether an implied private right of action would be consistent
with the underlying purposes of the legislative scheme. As an initial matter, we observe
18
Additionally, we note that, in 2010, when the General Assembly amended RP §
14-127 to provide specific references and citations to RESPA, it failed to include or
otherwise incorporate a private right of action into RP § 14-127, even though RESPA
contains an express private right of action. See 12 U.S.C. § 2607(d)(5) (“In any private
action brought pursuant to this subsection, the court may award to the prevailing party the
court costs of the action together with reasonable attorneys fees.” (Emphasis added)). We
have stated, on many occasions, that “[t]he General Assembly is presumed to have had,
and acted with respect to, full knowledge and information as to prior and existing law and
legislation on the subject of the statute and the policy of the prior law.” Breslin v. Powell,
421 Md. 266, 289, 26 A.3d 878, 892 (citation and internal quotation marks omitted). To
be sure, in amending RP § 14-127 in 2010, the General Assembly did not expressly state
that it was rejecting a civil remedy. Nonetheless, that the General Assembly was aware
that RESPA provides a private right of action for those who are harmed by violations of its
provisions, and yet chose not to amend RP § 14-127 to similarly provide a private right of
action for violations of RP § 14-127(c)(1), lends additional support to the determination
that the General Assembly did not intend to create a private right of action under RP § 14-
127.
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that RP § 14-127 is not part of a larger statutory scheme concerning, for example, real
estate settlement services in general; rather, it is currently a part of the “Miscellaneous
Rules” title in the Real Property Article. Before it became RP § 14-127, the statute was in
the “Crimes and Punishments” article of the Code of Maryland. Nonetheless, despite not
necessarily being one statute in a larger statutory scheme, it is evident from RP § 14-127’s
plain language and legislative history that its purpose is to criminalize kickbacks in relation
to settlement services, not to protect a certain class of individuals or to create a private right
of action on behalf of a specific class of individuals.
Importantly, RP § 14-127’s predecessor, Art. 27, § 465A, was enacted and added to
Article 27 of the Code of Maryland, entitled “Crimes and Punishments,” for the express
purpose of prohibiting kickbacks in connection to settlement services. See 1967 Md. Laws
1662 (Vol. II, Ch. 756, H.B. 1075). And, as enacted, Art. 27, § 465A “provid[ed] penalties
for violation of such provisions[,]” by making a violation of the prohibition against
kickbacks a misdemeanor punishable by a fine not exceeding $1,000, imprisonment for not
more than six months, or both. 1967 Md. Laws 1662 (Vol. II, Ch. 756, H.B. 1075). Stated
otherwise, RP § 14-127’s predecessor’s placement in a criminal law article is not consistent
with the intent to create a private right of action, but rather supports the conclusion that RP
§ 14-127’s purpose is—and has always been—to criminalize behavior related to settlement
kickbacks. Thus, as originally enacted, it is clear that Art. 27, § 465A’s purpose was
criminal in nature in that it created a new crime and set forth the possible punishments for
conviction of that crime.
That Art. 27, § 465A was intended to be a criminal statute is confirmed by its
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addition as RP § 14-127 through House Bill 11 in 2002. Indeed, in 2002, as part of the
Code Revision that created the Criminal Law Article, Art. 27, § 465A was recodified as
RP § 14-127. See 2002 Md. Laws 197, 202, 1089-90 (Vol. I–II, Ch. 26, H.B. 11). House
Bill 11’s stated purpose was, among other things, to create the Criminal Law Article “to
revise, restate, and recodify the laws of the State relating to criminal law; [and to] revis[e],
restat[e], and recodify[] certain provisions relating to . . . real estate settlements[.]” 2002
Md. Laws 197 (Vol. I, Ch. 26, H.B. 11). House Bill 11’s Fiscal Note stated that “House
Bill 11 [] revise[d] in several other articles a number of provision relating to criminal law,
regulatory, and enforcement matters originally codified in Article 27. These other articles
include[d] . . . [the] Real Property Article[.]”
From RP § 14-127’s plain language and legislative history, we have no difficulty in
concluding that RP § 14-127’s purpose was criminal in nature, and not to create an implied
private right of action on behalf of a specified protected class of individuals. Moreover,
we note that, in addition to criminalizing kickbacks in connection with settlement services,
RP § 14-127 effectively prevents practices that could increase the costs of settlement and
limit competition among providers of settlement services; i.e., RP § 14-127 helps keep the
costs of settlement down and provides consumers with a wider choice of providers of
settlement services than would otherwise be available absent the prohibition against
kickbacks.
As a final matter, we point out that RP § 14-127 furnishes a penalty for violations
of RP § 14-127(c)(1) and (d). Specifically, RP § 14-127(e) provides: “A person who
violates [RP § 14-127] is guilty of a misdemeanor and on conviction is subject to
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imprisonment not exceeding 6 months or a fine not exceeding $1,000 or both.” And,
“[e]ach violation of [RP § 14-127] is a separate violation.” RP § 14-127(f). Thus, RP §
14-127 does not prohibit certain conduct without providing any penalty or means of
enforcement whatsoever; RP § 14-127 clearly provides a criminal penalty for violations.
Cf. Baker, 427 Md. at 713, 50 A.3d at 1125 (“An elemental canon of statutory construction
is [that,] where a statute expressly provides a particular remedy or remedies, a court must
be chary of reading others into it. Under [the statute at issue], citation recipients . . . may
(but are not obliged to) defend against receiving a citation on the basis that the local
government violated [the statute]. This militates against finding a separate, private cause
of action to enforce the statute.” (Citations, brackets, footnotes, and internal quotation
marks omitted)).
In sum, as we did in Baker, id. at 714-15, 50 A.3d at 1126, here, we conclude that
“the lack of discernible legislative intent to create an implied [right] of action in the plain
language and structure of [RP § 14-127], its legislative history, or some other legitimate
and reliable source cements the conclusion that the [General Assembly], in enacting [RP §
14-127], did not contemplate an implied private [right] of action.”
Enforceable Duty
Given that, as part of our analysis of whether RP § 14-127 contains a private right
of action, we conclude that Appellants are members of a group who receive a benefit from
RP § 14-127, we shall address whether there otherwise exists a duty under RP § 14-127
pursuant to which Appellants may maintain a tort claim. Stated differently, we consider
whether RP § 14-127 gives rise to an actionable duty that inures to the benefit of
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Appellants. We determine that there is no such enforceable duty arising under RP § 14-
127 and explain.
In Baker, 427 Md. at 711 & n.16, 50 A.3d at 1123 & n.16, we determined that,
because the statute at issue did “not confer rights on a class of persons[,]” the plaintiffs’
“alternative argument that their causes of action are based on common law tort duties” was
“foreclose[d,]” explaining:
A statute creates an enforceable duty when the plaintiff is a member of the
class of persons [whom] the statute was designed to protect and the injury
was of the type [that] the statute was designed to prevent. Furthermore, the
statute must set forth mandatory acts clearly for the protection of a particular
class of persons rather than the public as a whole.
In Gourdine [v. Crews, 405 Md. 722, 757, 955 A.2d 769, 790 (2008)],
the plaintiff argued that the following language in the federal Food, Drug,
and Cosmetic Act created an enforceable duty in the defendant drug
manufacturer: “The following acts and the causing thereof are prohibited: (a)
The introduction or delivery for introduction into interstate commerce of any
food, drug, device, or cosmetic that is adulterated or misbranded.” We
disagreed, noting that the statute was framed to protect the public in general.
In Muthukumarana [v. Montgomery Cnty., 370 Md. 447, 499-500, 805 A.2d
372, 403 (2002)], a Maryland statute required all counties to have an
operational 9-1-1 system to protect the safety and well-being of Marylanders.
The plaintiff posited that the statute placed on a 9-1-1 operator a duty of care
to an injured citizen utilizing that service. Again, we disagreed, stating that
statutory language requiring broad emergency services did not evince a
special benefit to a particular class of persons: “In our view, acting to protect
or assist a specific group of individuals, sufficient to create a special
relationship, involves more than general actions taken to serve members of
the public at large in need of emergency telephone services.”
The assertedly relevant portion of the present statute, like the statutes
in Gourdine and Muthukumarana, protects the public in general by
prohibiting certain contingency fees, without enumerating a particular class
of persons. Therefore, no actionable tort duty inures from [the statute] to the
benefit of [the plaintiffs].
(Some citations and internal quotation marks omitted).
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By contrast, in Blackburn Ltd. P’ship v. Paul, 438 Md. 100, 111-12, 90 A.3d 464,
470-71 (2014), we explained that, pursuant to the Statute or Ordinance Rule, a plaintiff
may demonstrate a prima facie case in negligence—a common law tort—by showing,
among other things, the violation of a statute or ordinance that was intended to protect a
particular class of people that includes the plaintiff. Specifically, in Blackburn, id. at 128,
90 A.3d at 480, we held that the defendants’ alleged violation of a Code of Maryland
Regulation (“COMAR”) pertaining to barriers surrounding public swimming pools, “if
proven, would demonstrate the breach of a duty from” the defendants to a three-year-old
child who “entered the pool [of his apartment complex] by slipping through [an] allegedly
defective gate”; that “[s]uch a duty, derived from statute, would apply irrespective of [the
child]’s legal status on the property when the incident occurred”; and that “[a] reasonable
trier of fact could find that such a duty existed, that [the defendant]s violated this duty, and
that such violation was the cause of [the child]’s injuries.” In Blackburn, id. at 110, 90
A.3d at 469-70, we acknowledged that the child was a trespasser, and that ordinarily a
property owner owes a very limited common law tort duty to trespassers. However, we
explained that “the Statute or Ordinance Rule” provided an exception to that limited duty,
and that the “Rule can apply irrespective of a property owner’s duty to trespassers under
the common law[.]” Id. at 111, 117, 90 A.3d at 470, 474. We explained that, under the
Statute or Ordinance Rule,
to make out a prima facie case in a negligence action, all that a plaintiff must
show is: (a) the violation of a statute or ordinance designed to protect a
specific class of persons [that] includes the plaintiff, and (b) that the violation
proximately caused the injury complained of. Proximate cause is established
by determining whether the plaintiff is within the class of persons sought to
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be protected, and the harm suffered is of a kind [that] the drafters intended
the statute to prevent. It is the existence of this cause and effect relationship
that makes the violation of a statute prima facie evidence of negligence.
Id. at 112, 90 A.3d at 471 (citation, internal quotation marks, and asterisks omitted).
Applying the Statute or Ordinance Rule, we held that “the COMAR regulations
incorporate[d] the Model Barrier Code, which [] identif[ied] a specific class—namely,
young children under the age of five years[,]” who were a “special class of young children
that COMAR most assuredly recognize[d] as beneficiaries of the pool owner’s duty.” Id.
at 125, 90 A.3d at 479. Under COMAR, the defendants “were required to provide a barrier
that did not allow passage of a sphere 4 inches in diameter, except when the entrance gate
was open.” Id. at 125, 90 A.3d at 479 (citation omitted). We explained that COMAR set
forth requirements for pool owners that were specifically meant to protect the class that
was identified in the Model Barrier Code—children under the age of five. See id. at 125,
90 A.3d at 479. We concluded that the child, who was three years old at the time of the
accident, “was clearly a member of this protected class.” Id. at 126, 90 A.3d at 479. The
holding in Blackburn gave rise to common law tort duty under the Statute or Ordinance
Rule. Blackburn did not purport to establish a test for whether a statute gives rise to a
private right of action for any and all actions that a plaintiff may seek to pursue.
In this case, we hold that there is no enforceable common law duty arising under RP
§ 14-127. Among the inquiries in determining whether there is an enforceable common
law duty under RP § 14-127 are whether Appellants are members of the class of persons
whom RP § 14-127 was designed to protect and whether the injury was the type that RP §
14-127 was designed to prevent. See Baker, 427 Md. at 711 n.16, 50 A.3d at 1123 n.16;
- 38 -
Blackburn, 438 Md. at 112, 90 A.3d at 471. The first inquiry is not satisfied in this case,
as there is a difference between being a member of a group who arguably receives a benefit
from a statute and being a member of a class whose injury the statute was designed to
protect. A review of RP § 14-127’s plain language, legislative history, and legislative
purpose does not reveal any indication on the General Assembly’s part to protect an
identifiable class of persons. As discussed above, although Appellants, as consumers of
settlements services, are members of a class who incidentally receive the benefit of RP §
14-127, at core, RP § 14-127 is a criminal statute that fails to mention, let alone identify
with any specificity, consumers of settlement services, the public in general, or some other
group of persons who are intended to be protected by RP § 14-127. Rather, RP § 14-
127(c)(1) simply contains a general prohibition that persons connected “with the settlement
of real estate transactions involving land in the State may not pay to or receive from another
any consideration to solicit, obtain, retain, or arrange real estate settlement business”; i.e.,
RP § 14-127(c)(1) contains only a prohibition, the by-product of which is a benefit that
inures to consumers of settlement services. And, RP § 14-127’s legislative history does
not reveal that RP § 14-127 was enacted to create a tort duty that applies to persons who
are connected with settlements.
Blackburn and the regulations at issue in Blackburn are readily distinguishable from
RP § 14-127 and the circumstances of this case. In Blackburn, id. at 103, 105, 126-27, 90
A.3d at 466, 467, 479, the plaintiff’s claim was grounded in the common law tort of
negligence, but, due to the child’s status as a trespasser and because a property owner owes
no affirmative duty of care to a trespasser, the plaintiff could not pursue such a claim; we
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held that, under the Statute or Ordinance Rule, the plaintiff could establish that: the child
was a member of a protected class, i.e., the class that COMAR was designed to protect; the
fence failed to meet the requirements of COMAR; and there was sufficient circumstantial
evidence of causation. Stated otherwise, Blackburn is a case in which this Court
specifically found the violation of an ordinance or statute could under certain
circumstances serve as evidence of negligence. Moreover, in Blackburn, id. at 125, 90
A.3d at 479, the regulatory history of the relevant COMAR provisions demonstrated that
they were specifically designed to protect a specific class of persons—namely, children
under the age of five—who could be harmed by pool barriers not complying with the
regulation. Thus, COMAR clearly created a duty that was specifically intended to protect
young children. See id. at 125, 90 A.3d at 479.
By contrast, here, Appellants do not bring a claim of negligence against Appellees;
as such, this is not a case where a violation of RP § 14-127 could serve as evidence of
Appellees’ negligence. First, as a practical matter, in the second amended complaint,
Appellants allege a knowing and deliberate illegal kickback scheme—i.e., knowing
violations of laws, including RP § 14-127—as opposed to negligence; thus, there is no
underlying issue of duty. Even if a violation of RP § 14-127 could theoretically serve as
evidence of Appellees’ negligence under Blackburn, such a conclusion is meaningless in
the context of this case, where Appellants have not alleged that Appellees were negligent
in the first instance, and where the nature of Appellants’ allegations would not support a
negligence claim. At oral argument, Appellants’ counsel acknowledged that the conduct
that was involved in this case was “intentional[,]” that Appellees could not “negligently
- 40 -
pay a kickback[,]” and that Appellants’ action was not a “negligence-based action[.]”
Equally significant is our determination that RP § 14-127 does not, and was not intended
or designed to, protect a specific class of persons. This determination is fatal to any
contention that RP § 14-127 creates an enforceable duty.19
Policy Considerations
Before concluding, we pause to address policy considerations raised by Appellants.
Specifically, Appellants contend that implying a private right of action, i.e., a civil remedy,
19
We are similarly unpersuaded by Appellants’ reliance on Horridge v. St. Mary’s
Cnty. Dep’t of Soc. Servs., 382 Md. 170, 854 A.2d 1232 (2004) for the contention that,
like the statutes at issue in Horridge, RP § 14-127 protects an identifiable class of persons.
In Horridge, 382 Md. at 187, 854 A.2d at 1241, we held that the General Assembly, through
certain statutes of the Family Law Article of the Code of Maryland, “has created a duty
flowing to children specifically identified to [the Department of Social Services] as being
the subject of suspected abuse[.]” (Emphasis omitted). We further stated that there existed
a common law tort duty under the statutes, explaining, in pertinent part:
The legislative policy of preventing future harm to children already
reported to have been abused is so abundantly clear as to be beyond cavil,
and, given the statutory mandate to act and the general waiver of tort
immunity when State employees fail to act in a reasonable way and harm
ensues, we can see no great burden or consequence to regarding this existing
statutory duty as a civil one from which tort liability may arise. . . . The
[General Assembly] meant for [the Department of Social Services] and its
social workers to act immediately and aggressively when specific reports of
abuse or neglect are made, and the best way to assure that is done is to find
that they do have a special relationship with specific children identified in or,
upon reasonable effort, identifiable from, facially reliable reports of abuse or
neglect and, subject to the State Tort Claims Act, to make them liable if harm
occurs because they fail in their mandated duty.
Id. at 193, 854 A.2d at 1245 (emphasis omitted). Again, in contrast to Horridge, there is
no legislative policy or legislative history identifying consumers of settlements services as
a class of persons needing protection, such that we could conclude that RP § 14-127 creates
a common law tort duty owed to those consumers.
- 41 -
is a more effective and efficient remedy than a criminal penalty alone because implying a
private right of action “would provide an incentive for those subject to the statute’[s]
mandatory acts to conform to the statute in regard to each potential liability[-]inducing
event—i.e., in each and every real estate transaction.” Appellants argue that, absent a
private right of action, they and other consumers will lack “access to [S]tate court” and will
be forced to seek relief in the federal court, which they maintain is more expensive and less
accessible.
Appellees respond that whether a civil remedy is more effective and efficient is
irrelevant where the General Assembly neither expressly nor by implication intended to
create a private right of action. Appellees argue that whether or not an alleged victim can
seek redress in State court has no bearing in determining whether a statute provides a
private right of action. And, Appellees assert that, in any event, an alleged victim can bring
a RESPA claim in State court. We agree with Appellees in all respects and explain.
As discussed in detail above, whether a State statute contains an implied private
right of action turns on three specific inquiries concerning class, legislative intent, and
legislative purpose. See Scull, 435 Md. at 121-22, 76 A.3d at 1191. That an implied private
right of action allegedly would be a “better” remedy is simply not one of the considerations
that we take into account, and, thus, such a consideration is irrelevant for purposes of
determining whether a statute contains an implied private right of action. Indeed, we are
concerned only with whether there is any basis from which we could conclude that the
General Assembly, either expressly or impliedly, intended to create a private right of
action. See Baker, 427 Md. at 710, 50 A.3d at 1123 (“[T]he central inquiry remains
- 42 -
whether the legislative body intended to create, either expressly or by implication, a private
cause of action.” (Citation, brackets, and internal quotation marks omitted)). Here, there
is nothing from which we can glean any intent on the General Assembly’s part to create an
express or implied private right of action under RP § 14-127. Additionally, we note that it
is the General Assembly’s province to create private rights of action, as it is “legislative
bodies [that] know how to ‘salt the mine’ for the enablement of implied private causes of
action.” Baker, 427 Md. at 715, 50 A.3d at 1126 (citations omitted). In other words, such
policy considerations are best presented to the General Assembly, not this Court, and it
would be up to the General Assembly to create a private right of action if it so chooses.
As to lacking access to State court, we disagree with Appellants’ position. First,
whether an alleged victim is able to redress his or her harm in a State court is not a
consideration in determining whether a State statute contains an implied private right of
action. Second, under RESPA, an alleged victim is permitted to bring a claim for violation
of RESPA’s provisions in either State or federal court. See 12 U.S.C. § 2614 (“Any action
pursuant to the provisions of section 2605, 2607, or 2608 of this title may be brought in the
United States district court or in any other court of competent jurisdiction, for the district
in which the property involved is located, or where the violation is alleged to have
occurred[.]”); cf. R.A. Ponte Architects, Ltd. v. Investors’ Alert, Inc., 382 Md. 689, 691,
857 A.2d 1, 2 (2004) (This Court held that “a private cause of action for damages, under
the provisions of the federal Telephone Consumer Protection Act, for the receipt of
unsolicited commercial telephone facsimile messages . . . may be brought in courts of this
State.” (Citation omitted)). That a case filed in State court, in which a plaintiff claims a
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RESPA violation, subsequently can be removed to the federal court is of no consequence
to whether that plaintiff still has a remedy for alleged violations of RESPA. See 28 U.S.C.
§ 1446(a) (“A defendant . . . desiring to remove any civil action from a State court shall
file in the district court of the United States for the district and division within which such
action is pending a notice of removal . . . and containing a short and plain statement of the
grounds for removal[.]”).
As a final matter, we observe that our holding in this case—that RP § 14-127 does
not contain an express or implied private right of action—in no way deprives Appellants
of a remedy altogether. As discussed above, RP § 14-127(e) provides criminal penalties
for those who are convicted of violating RP § 14-127(c)(1)’s prohibition against kickbacks.
And, under RESPA, Appellants are specifically provided a private right of action for the
type of conduct prohibited under RP § 14-127. Specifically, 12 U.S.C. § 2607(a) prohibits
persons from giving or accepting “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.” And 12 U.S.C. § 2607(b) prohibits persons from giving or accepting “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.” 12 U.S.C. § 2607(d) provides both
criminal and civil penalties, stating, in relevant part:
(1) Any person or persons who violate the provisions of this section shall be
fined not more than $10,000 or imprisoned for not more than one year, or
both.
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(2) Any person or persons who violate the prohibitions or limitations of this
section shall be jointly and severally liable to the person or persons charged
for the settlement service involved in the violation in an amount equal to
three times the amount of any charge paid for such settlement service.
...
(5) In any private action brought pursuant to this subsection, the court may
award to the prevailing party the court costs of the action together with
reasonable attorneys fees.
Thus, nothing in our holding today deprives Appellants of their private right of action
against Appellees under RESPA.
Conclusion
In sum, we hold that RP § 14-127 does not contain an express or implied private
right of action, as neither RP § 14-127’s plain language, legislative history, nor legislative
purpose demonstrate any intent on the General Assembly’s part to create a private right of
action. Accordingly, we answer the certified question of law “no.”
CERTIFIED QUESTION OF LAW ANSWERED.
COSTS TO BE DIVIDED EQUALLY BETWEEN
THE PARTIES.
- 45 -
Fangman v. Genuine Title, LLC
Court: Court of Appeals of Maryland
Date filed: 2016-05-20
Citations: 447 Md. 681, 136 A.3d 772
Copy CitationsCombined Opinion