Bloom v. Martin, s. 94-16495

• Citation: 77 F.3d 318
• Decision Date: 22 February 1996
• Docket Number: 95-15294,Nos. 94-16495,s. 94-16495
• Parties: , 96 Cal. Daily Op. Serv. 1152, 96 Daily Journal D.A.R. 1971 Jonathan A. BLOOM; Susan Bloom; Mary Stern; Robert S. Finn, Plaintiffs-Appellants, v. Ray M. MARTIN; Robert L. Hunt, II; Coast Federal Bank, Coast Savings Financial, Inc.; Coast Federal Services Corp.; Countrywide Credit Industries, Inc.; Countrywide Funding Corp.; Citicorp, a corporation; Citibank Federal Savings Bank, a corporation, Defendants-Appellees. Jane GRONER; Lewis Teichman; Linda Teichman; Gary Tucker, Debra Gray, Plaintiffs-Appellants, v. The BANK OF AMERICA NT & SA; North American Mortgage Company; Norwest Mortgage Inc., Medallion Mortgage Company, Defendants-Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 318

77 F.3d 318

64 USLW 2595, 96 Cal. Daily Op. Serv. 1152,

96 Daily Journal D.A.R. 1971

Jonathan A. BLOOM; Susan Bloom; Mary Stern; Robert S.

Finn, Plaintiffs-Appellants, v. Ray M. MARTIN; Robert L. Hunt, II; Coast Federal Bank,

Coast Savings Financial, Inc.; Coast Federal Services

Corp.; Countrywide Credit Industries, Inc.; Countrywide

Funding Corp.; Citicorp, a corporation; Citibank Federal

Savings Bank, a corporation, Defendants-Appellees.

Jane GRONER; Lewis Teichman; Linda Teichman; Gary Tucker, Debra Gray, Plaintiffs-Appellants, v. The BANK OF AMERICA NT & SA; North American Mortgage

Company; Norwest Mortgage Inc., Medallion

Mortgage Company, Defendants-Appellees.

Nos. 94-16495, 95-15294.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 6, 1995.

Decided Feb. 22, 1996.

Michael Mendelson, Wayne Lewis Lesser, and Kurt B. Kroger, San Francisco, California, for plaintiffs-appellants.

Matthew L. Larrrabee, A. Mari Mazour, Heller Ehrman White & McAuliffe, San Francisco, California, for defendants-appellees Ray M. Martin, Robert L. Hunt II, Coast Federal Bank F.S.B., Coast Savings Financial, Inc., Coast Fed Services Corp., Countrywide Credit Industries, Inc., and Countrywide Funding Corp.

Gregory Scott Spencer, San Francisco, California, for defendant-appellee Bank of America NT & SA.

Michael J. Agoglia, Kathleen V. Fisher, James F. McCabe, Morrison & Foerster, San Francisco, California, for defendant-appellee Citicorp and Citibank Federal Savings Bank.

Peter W. McGaw, Carroll Burdick & McDonough, Walnut Creek, California, and Steven S. Shupe, Special Litigation Counsel, North American Mortgage Company, Santa Rosa, California, for defendant-appellee North American Mortgage Company.

Michael Steiner, Severson & Werson, San Francisco, California, for defendant-appellee Norwest, Mortgage, Inc.

Tom Murphy, Berliner Cohen, San Jose, California, for defendant-appellee Medallion Mortgage Company.

Appeal from the United States District Court Northern District of California.

Before: PREGERSON, BRUNETTI, and T.G. NELSON, Circuit Judges.

BRUNETTI, Circuit Judge:

The plaintiffs in Bloom and Groner ("appellants") brought class actions claiming that mortgage lenders and others violated 12 U.S.C. §§ 2603 and 2607 of the Real Estate Settlement Procedures Act of 1974 ("RESPA") as well as state law by failing to disclose the assessment of demand and reconveyance fees. The district court dismissed both complaints, concluding that RESPA does not apply to demand and reconveyance fees, that 12 U.S.C. § 2603 does not imply a private right of action, that 12 U.S.C. § 2607 does not apply to these fees because they are not split with a third party, and that both federal claims were barred by the statute of limitations. Having dismissed the federal claims, the district court declined to exercise jurisdiction over the state claims. Because we conclude that RESPA does not apply to demand and reconveyance fees, we do not address the alternative grounds for dismissal.

I

Mortgage lenders charge a demand fee for preparing a statement summarizing the outstanding loan balance in connection with the borrower's prepayment of the balance of a loan. Lenders charge a reconveyance fee when they reconvey the deed back to the borrower after the loan is repaid. Both fees are authorized under California law. Cal.Civil Code §§ 2941(e)(1), 2943(e)(6) (West 1993).

HUD-1 is a form provided to buyers and sellers disclosing the settlement charges that will be assessed to each. 24 C.F.R. § 3500.8(a) (1995). The "good faith estimate" is a summary provided to mortgage applicants of the costs they will incur or pay either at or before settlement. 24 C.F.R. 3500.7(c)(2).

Appellants argue that lenders violated RESPA by failing to disclose in either the HUD-1 or the good faith estimate that reconveyance and demand fees might or would be assessed in the future. The fees were disclosed in the deeds of trust which were signed at the closings.

II

We review de novo dismissals for failure to state a claim. Stone v. Travelers Corp., 58 F.3d 434, 436-37 (9th Cir.1995). RESPA requires mortgage lenders to disclose the costs associated with real estate closings. 12 U.S.C. § 2601 (1994). The statute was enacted to allow consumers to be better informed and avoid "unnecessarily high settlement charges caused by certain abusive practices...." Id. Appellants argue that the current assessment of reconveyance and demand fees violates sections Four and Eight of RESPA.

Section Four, 12 U.S.C. § 2603, mandates the development of a form disclosing:

all charges imposed upon the borrower and all charges imposed upon the seller in connection with the settlement ...

12 U.S.C. § 2603(a). Regulation X, 24 C.F.R. § 3500 et seq., sets out the HUD-1 Form which settlement agents must use "in every settlement involving a federally related mortgage loan in which there is a borrower and a seller." 24 C.F.R. § 3500.8(a) (1995). The seller's settlement costs are set forth in Section L of HUD-1 but neither reconveyance nor demand fees are specifically mentioned. 24 C.F.R. § 3500 app. A. Regulation X describes Section L as the charges that the seller may owe the broker, the settlement agent, and other parties. Id.

Regulation X also requires that lenders provide mortgage applicants with a "good faith estimate" of:

each charge which ... the borrower will normally pay or incur at or before settlement based upon common practice in the locality of the mortgaged property. Each such estimate must be made in good faith and bear a reasonable relationship to the charge a borrower is likely to be required to pay at settlement, and must be based upon experience in the locality of the mortgaged property.

24 C.F.R. 3500.7(c)(2).

Section Eight, 12 U.S.C. § 2607, prohibits fee-splitting in connection with settlement services except for services actually performed. It also prohibits giving or accepting anything of value in exchange for referrals except in certain circumstances including "controlled business arrangements." 12 U.S.C. § 2607(c). RESPA defines settlement services as any service provided in connection with a real estate settlement including but not limited to:

title searches, title examinations, the provision of title certificates, title insurance, services rendered by an attorney, the preparation of documents, property surveys, the rendering of credit reports or appraisals, pest and fungus inspections, services rendered by a real estate agent or broker, the organization of a federally related mortgage loan (including, but not limited to, the taking of loan applications, loan processing, and the underwriting and funding of loans), and the handling of the processing, and closing or settlement.

12 U.S.C. § 2602(3).

Appellants argue that RESPA and Regulation X require lenders to disclose through HUD-1 and the good faith estimate that demand and reconveyance fees may be assessed in the future. Relying on the above "pay or incur" language in Regulation X's good faith estimate requirement, § 3500.7, they argue that RESPA applies to fees not just paid but also those incurred at the time of settlement and assessed when repayment of the loan is complete.

The language of § 3500.7, however, does not support such an expansive view of the settlement process. The next sentence after the "incur" language limits the scope of this section of the regulation to "the charge a borrower is likely to be required to pay at settlement." 24 C.F.R. 3500.7(c)(2). That suggests the good faith estimate was not intended to apply to costs paid by property owners after the settlement at which they bought the property.

Nor are other sections of RESPA and Regulation X helpful to appellants. HUD-1 does not expressly refer to either reconveyance and demand fees, and Regulation X describes the seller's costs that must be...