The infamous marketing arrangement run by Genuine Title, LLC, a now-defunct title company from Maryland, has ended up where we all expected: in a certified class action. All the lender defendants except one settled the lawsuits against them. The lone holdout, West Town Bank & Trust, ignored a few critical defenses and learned its lesson the hard way.
As I have written before, Genuine Title ran into legal trouble several years ago based on its giving of cash and marketing materials to mortgage lenders, which then referred business to Genuine Title. West Town was one of those lenders, and it purportedly referred 400 transactions to Genuine Title and received kickbacks in return. That conduct allegedly violated Section 8(a) of the Real Estate Settlement Procedures Act (RESPA). Regulators eventually came down on Genuine Title, which then went bankrupt. Like day follows night, class-action lawyers picked up on the issue and sued on behalf of willing clients.
Last week, a federal judge in Maryland, in the case of Fangman v. Genuine Title, had little difficulty granting the plaintiffs’ motion for class certification. The lender did not raise at least two defenses that have proven successful in other RESPA cases. First, some defendants have avoided class certification by pointing out that RESPA allows a plaintiff to recover her attorney fees, giving lawyers an incentive to take meritorious RESPA cases. According to that argument, no certification of a class is needed because each potential class member has enough individual incentive to sue on her own. Second, Section 6 of RESPA (relating to mortgage servicing) specifically allows for class actions. That situation leads to the argument that, because no other part of RESPA speaks of class actions, Congress must have decided that that was the only situation in which that sort of relief should be available–at least for RESPA.
Would the judge in Fangman have come to a different conclusion if these defenses has been asserted? Probably not. Nonetheless, the issues would have been squarely presented for the relevant appellate court, the United States Court of Appeals for the Fourth Circuit. That tribunal is one of the more conservative in the country and may have been more sympathetic to those sorts of arguments. If nothing else, the arguments certainly would not have hurt West Town’s chances.