Alabama Federal Court Holds Title Agent Not Liable for Alleged Kickback Scheme

The United States District Court for the Northern District of Alabama recently dismissed a putative class action complaint alleging that a title agent was involved in a kickback scheme with an affiliated entity.  See White v. JRHBW Realty, Inc., 2015 WL 5470245 (N.D. Ala. Sept. 16, 2015).  In the case, the consumer alleged two violations of the Real Estate Settlement Procedures Act (“RESPA”).  See 12 USC 2607.   First, he alleged that RealtySouth, a real estate company,  paid illegal compensation to brokers for steering business to TitleSouth.  Second, he alleged that because RealtySouth and TitleSouth were affiliated entities, they were required to provide consumers with the specific disclosures about their relationship and that the disclosures provided were insufficient.  RealtySouth had previously been dismissed from the litigation due to an arbitration clause in its contract with the consumer.  TitleSouth filed a motion to dismiss, arguing that the complaint did not allege that TitleSouth was involved in the kickbacks and that there is no independent cause of action under RESPA for the failure to give proper disclosures.  More specifically, it argued that the disclosure requirement was only offered as a safe harbor for affiliated entities that otherwise would have violated RESPA’s kickback provisions and that the plaintiff’s allegations of faulty disclosures failed with the kickback claim.  The court granted the motion to dismiss, first holding that the plaintiff had only made allegations about RealtySouth’s kickbacks.  Because the complaint did not allege a “thing of value” either given or received by TitleSouth, there was no RESPA violation for alleged kickbacks.  Additionally, though the court found that other federal courts were split as to whether an affiliated entity’s failure to provide consumers with proper disclosures constitutes a separate cause of action, it found that the split did not matter because the disclosures issued by the entities in this case only suffered from “technical deviations” and thus were compliant the statute.  Notably, RealtySouth and TitleSouth had previously entered into a Consent Order with the Consumer Financial Protection Bureau (“CFPB”) for alleged violations from these same disclosures.  The decision has been appealed to the Eleventh Circuit.

For a copy of the decision, please contact Michael O’Donnell at modonnell@riker.com.