636 F.3d 699 (5th Cir. 2011), 10-10136, Benavides v. Chicago Title Ins. Co.

Docket Nº:10-10136
Citation:636 F.3d 699
Opinion Judge:PRADO, Circuit Judge:
Party Name:Emma BENAVIDES, individually and on behalf of all others similarly situated, Plaintiff-Appellant, v. CHICAGO TITLE INSURANCE CO., Defendant-Appellee.
Attorney:Eric Graham Calhoun, Travis, Calhoun & Conlon, P.C., Dallas, TX, for Benavides. Robert Jerome Fogarty, Derek E. Diaz, Hahn, Loeser & Parks, L.L.P., Cleveland, OH, Lance Vernon Clack, Keith R. Verges, Figari & Davenport, L.L.P., Dallas, TX, for Chicago Title Ins. Co.
Judge Panel:Before WIENER, PRADO, and OWEN, Circuit Judges.
Case Date:March 23, 2011
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
FREE EXCERPT

Page 699

636 F.3d 699 (5th Cir. 2011)

Emma BENAVIDES, individually and on behalf of all others similarly situated, Plaintiff-Appellant,

v.

CHICAGO TITLE INSURANCE CO., Defendant-Appellee.

No. 10-10136

United States Court of Appeals, Fifth Circuit.

March 23, 2011

Eric Graham Calhoun, Travis, Calhoun & Conlon, P.C., Dallas, TX, for Benavides.

Robert Jerome Fogarty, Derek E. Diaz, Hahn, Loeser & Parks, L.L.P., Cleveland, OH, Lance Vernon Clack, Keith R. Verges, Figari & Davenport, L.L.P., Dallas, TX, for Chicago Title Ins. Co.

Page 700

Appeal from the United States District Court for the Northern District of Texas.

Before WIENER, PRADO, and OWEN, Circuit Judges.

PRADO, Circuit Judge:

Emma Benavides appeals the district court's denial of her motion for class certification. Benavides sued Chicago Title Insurance Co. (" Chicago Title" ) on behalf of a purported class for refusing to give her a title insurance premium discount mandated by Texas law. The district court denied class certification on the ground that Benavides had not shown that common questions would predominate as required for a class seeking certification under Federal Rule of Civil Procedure 23(b)(3). Benavides appeals, arguing that Mims v. Stewart Title Guaranty Co., 590 F.3d 298 (5th Cir.2009), controls. Because Mims does not control and because the district court properly addressed Mims, we affirm the district court.

I. FACTUAL AND PROCEDURAL BACKGROUND

Benavides filed a Complaint in district court on August 22, 2007, against Chicago Title, alleging that she and others similarly situated were denied a mandatory title insurance discount when she purchased a title insurance policy from Chicago Title. Specifically, Texas Insurance Code Rate Rule 8 (" R-8" ) entitles a mortgage borrower to a discount on a title insurance policy issued on a loan to fully take-up, renew, extend, or satisfy an old mortgage when the new loan is issued within seven years of the initial mortgage and the initial mortgage was also covered by a title insurance policy. THE BASIC MANUAL OF RULES, RATES AND FORMS FOR THE WRITING OF TITLE INSURANCE IN THE STATE OF TEXAS § 3 Rate Rule 8 (available at www. tdi.state.tx.us/title/titlem3b.html # R-8). Benavides alleges she was entitled to a discount of $370.40 after she refinanced her mortgage within two years after taking out the initial mortgage loan. Benavides alleged violations of the Real Estate Settlement Procedures Act (" RESPA" ), 12 U.S.C. § 2607(b), and state-law causes of action for unjust enrichment, money had and received, and breach of implied contract. The RESPA and unjust enrichment causes of action were previously dismissed by the district court on summary judgment.

As the district court noted in its order denying class certification, there is often no definitive way for a title insurer to determine, based on the documents available to it, whether or not a prior mortgage was covered by title insurance such that the new title insurance policy would qualify for the reissue...

To continue reading

FREE SIGN UP