Foster v. Maryland State Sav. and Loan Ass'n
| Decision Date | 12 June 1978 |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
Appeal from the United States District Court for the District of Columbia (D.C. Civil 76-73).
William A. Dobrovir, Washington, D. C., with whom Cornish F. Hitchcock, John F. Graybeal, Michael D. Fischer and Benny L. Kass, Washington, D. C., were on the brief, for appellants.
John P. Arness, Washington, D. C., with whom David J. Hensler and Wallace A. Christensen, Washington, D. C., were on the brief, for appellee.
Before LEVENTHAL, MacKINNON and WILKEY, Circuit Judges.
Opinion for the Court filed by Circuit Judge WILKEY.
This private antitrust action challenges, as a violation of Section 1 of the Sherman Act, 1 the practice followed by the defendant of requiring borrowers to pay an attorney's fee charge for services rendered to the defendant in connection with each loan. The defendant is a federally-insured mutual savings and loan association, engaged in the business of making loans on residential property. The defendant requires borrowers to pay the attorney's fee charge only if they employ counsel other than the law firm retained by the defendant, and waives the requirement where borrowers use the defendant's law firm for settlement. Plaintiffs are a class of those borrowers who paid the attorney's fee charge as a cost of their loans because they employed their own counsel for legal settlement services. 2
Plaintiffs contend that the defendant's loan practice constitutes a Per se illegal tie-in sale of legal services to the sale of credit, and an unlawful restraint of trade on the market for legal settlement services. At the close of plaintiffs' case, the District Court directed a verdict in favor of the defendant on the alleged antitrust violations. Plaintiffs now challenge the District Court's ruling on the ground that their evidence sufficiently made a case for the jury.
In determining whether a directed verdict is appropriate the governing principle is that a directed verdict is proper where, without weighing the credibility of the witnesses, there can be but one reasonable conclusion as to the verdict. 3 Under this principle the court is bound to view the evidence in the light most favorable to the plaintiffs, giving them the advantage of every fair and reasonable inference that the evidence may justify. 4 Examining the record in the light of this principle, we agree with the District Court that the evidence and permissible inferences therefrom conclusively demonstrate that no tying arrangement or unlawful restraint of trade is presented by the circumstances of this case. We accordingly affirm.
Before developing the antitrust law on tie-in sales, it is essential to have clearly in mind what services are involved here, and to whom. Of the $100 standard legal fee paid by the defendant lender to its selected counsel and charged as a cost of the loan to the borrower, $35 is for the preparation of a mortgage. Mortgages are the business of the lender; it has a definite interest in the validity of the security instrument and prudently should only accept an instrument prepared or approved by its own counsel. Sixty-five dollars is for examination of the title. In this matter both the lender and the borrower have an interest; a common interest yet in this metropolitan area, where the percentage of the value loaned on homes is substantial, the lender ordinarily will have the greater financial stake in the title, as he initially puts up more of the purchase money. While title insurance is customarily purchased by the borrower (it may be required by the lender), title insurance policies frequently carry exceptions, whose legal effect must be evaluated by both parties to the loan transaction.
The lender has the same right as the borrower to insist on its own counsel. The defendant lender here, after an unsatisfactory period of experience permitting the borrower to select his own counsel from a large group of highly rated lawyers (but not necessarily real estate specialists), whom the lender would then use as well, settled upon the practice of employing only one law firm to protect its interest in all these similar home loan transactions. State law and federal regulations allow the lender to charge the borrower for the legal work done for benefit of the lender as a necessary cost of the loan. Irrespective of which counsel is chosen by the borrower, the borrower will thus inevitably pay for the legal services provided to the lender.
The only practical question is whether the borrower will pay for his own separate legal counsel, as well as the lender's, where the interests of the two parties are congruent. Since the parties have identical interests in the validity of the title, and since any conflict between lender and borrower in regard to the mortgage instrument is mostly theoretical (the lender will not lend unless the mortgage is completely satisfactory to it, and probably will insist on using its own mortgage form), one lawyer can effectively and fairly serve both lender and borrower on all questions in which the lender is interested. The borrower-buyer, of course, needs counsel for other purposes concerning, E. g., his legal relation to the seller of the property.
This being the parties' situation in the usual home sale and purchase-mortgage transaction, beginning in 1971 the defendant lender adopted the policy of waiving the $100 fee it customarily paid its selected counsel and charged the borrower, if the borrower also employed this same law firm and paid the firm directly for all services rendered to the borrower (which services, as shown above, necessarily embraced the two areas title validity and the mortgage instrument of interest to the lender).
After this detailing of the fact situation, we turn to the law of tying arrangements. A tying arrangement has been defined as an "agreement by a party to sell one product but only on the condition that the buyer also purchases a different (or tied) product." 5 Such arrangements are presumptively unlawful under the antitrust laws, "whenever a party has sufficient economic power with respect to the tying product to appreciably restrain free competition in the market for the tied product and a 'not insubstantial' amount of interstate commerce is affected." 6 Before an unlawful tying arrangement may properly be found, however, it must be determined that "two separate products are in fact involved." 7
The record in this case clearly reveals that separate products were not involved in plaintiffs' "purchase" of the residential property loans. The loan review services performed by the selected law firm were provided to and paid for by the defendant as an additional means of insuring the security of its loans. 8 The attorney's fee charge collected by the defendant to pay for these services was not demonstrably excessive, and did not enable the defendant to secure a profit. 9 Pursuant to both federal regulation 10 and Maryland state law, 11 the defendant was authorized to charge its borrowers for these legal expenses. Under these circumstances, plaintiffs' payment of the attorney's fee charge to the defendant lender represented an incidental and inseparable part of their "purchase" of the loans, rather than the "purchase" of a tied product.
Forrest v. Capital Building & Loan Association 12 involved a practice identical in all material respects to the residential loan practice at issue in this case. The defendant savings and loan associations permitted their borrowers to employ an attorney of choice for legal settlement services, but required borrowers as a condition of a loan to pay the legal fees of attorneys selected by the defendants to examine titles, render title opinions, and prepare necessary security instruments. As in this case, the defendants were entitled under both federal and state law 13 to charge their borrowers for legal expenses. In a suit brought by individual attorneys, the District Court rejected the contention that the loan practice constituted a Per se illegal tie-in of legal services, and concluded instead that no two products were involved. 14
This conclusion, which was explicitly adopted by the Fifth Circuit in its per curiam affirmance of the District Court, 15 was premised on the finding equally applicable here that The legal services were provided to the defendants, rather than to the defendants' borrowers. As such, these services were "not 'for sale' to prospective borrowers," but were merely "incidental" to an "arrangement . . . sanctioned by both federal regulation and by state law." 16
Notwithstanding plaintiffs' protestations to the contrary, we find the analysis of the identical practice in Forrest persuasive. 17 As previously noted, 18 plaintiffs have not been restricted in the exercise of their right to counsel in this case. The defendant's decision to purchase legal services at a cost to plaintiffs was both legally authorized and motivated by the legitimate business concern of insuring the security of its loans. Incidental services purchased by the seller (lender) for legitimate business reasons cannot be viewed as a separate (or tied) product, merely because the buyer is charged for them. 19 This is particularly true with respect to legal settlement services, since they represent an indispensable method of consummating the loan transaction from both the borrower's and the lender's viewpoints. Plaintiffs' argument that such services...
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