             Case: 14-12781    Date Filed: 04/07/2015   Page: 1 of 5


                                                           [DO NOT PUBLISH]

              IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT
                        __________________________

                               No. 14-12781
                           Non-Argument Calendar
                        __________________________

                       D.C. Docket 1:13-cv-02427-RWS

ROBERT A. WESOLOWSKI, et al.,

                                                           Plaintiffs-Appellants,

                                     versus

TITLE SOURCE, INC., et al.,

                                                           Defendants-Appellees.


                        __________________________

                  Appeal from the United States District Court
                     for the Northern District of Georgia
                       __________________________

                                (April 7, 2015)

Before HULL, JORDAN, and ROSENBAUM, Circuit Judges.

PER CURIAM:

     The main issue in this appeal is whether an individual or an entity “actually

performs services” within the meaning of the Real Estate Settlement Procedures
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Act, 12 U.S.C. § 2607(b), if the provision of such services is illegal under state

law.

       Between 2011 and 2013, Robert and Connie Wesolowski refinanced their

property three times through Quicken Loans. For all three closings, Quicken

Loans contracted with Title Source, a vendor management company, to perform

settlement services, including conducting the title search, reviewing the title

examination, preparing the settlement statement, and recording the deeds. Title

Source hired Cook & James to schedule the closing and to retain attorneys to

witness the execution of the closing documents. The Wesolowskis paid $500 in

settlement fees for each closing.

       Subsequently, the Wesolowskis filed a putative class action against Title

Source, Michelle Ruff (in-house counsel for Title Source), and Cook & James,

alleging that they split fees for unearned services in violation of §2607(b) of

RESPA.     Specifically, the Wesolowskis alleged that (1) because Georgia law

requires that settlement services be provided only by Georgia-licensed attorneys,

the services performed by Title Source were illegal, and could not constitute

“services actually performed” under RESPA, as a matter of law; (2) Cook &

James violated RESPA by providing only nominal services, i.e., retaining attorney-

witnesses; and (3) Ms. Ruff performed no services at all. The Wesolowskis also

raised various claims under state law.

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       The defendants moved to dismiss the complaint for failure to state a claim

under RESPA. They argued that, because each of them had performed services in

relation to the Wesolowskis’ closings, there could be no violation of RESPA, even

if the provision of such services was illegal under Georgia law. The district court

granted the motion to dismiss and declined to exercise supplemental jurisdiction

over the Wesolowskis’ remaining state law claims. Based on our recent holding in

Clements v. LSI Title Agency, Inc., No. 14-11636, 2015 WL 857964 (11th Cir.

Mar. 2, 2015), we affirm the dismissal as to two defendants but reverse and remand

as to a third.

       We review de novo a district court’s ruling on a Rule 12(b)(6) motion to

dismiss for failure to state a claim. See Hill v. White, 321 F.3d 1334, 1335 (11th

Cir. 2003). We view the complaint in the light most favorable to the plaintiffs, and

accept all of the well-pled factual allegations as true. See Am. United Life Ins. Co.

v. Martinez, 480F.3d 1043, 1057 (11th Cir. 2007). To survive a motion to dismiss

a plaintiff must provide “more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do[.]” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007).

       To plead a violation of § 2607(b) of RESPA, a plaintiff must allege that a

defendant received fees in exchange for providing “‘no, nominal, or duplicative

work.’” Heimmermann v. First Union Mortg. Corp., 305 F.3d 1257, 1263 n.8

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(11th Cir. 2002). “Where the fee is for services actually rendered, there is no §

2607(b) violation.” Id. This is so even where the services provided violated state

law. See Clements, No. 14-11636, 2015 WL 8757964, at *4. We held in Clements

that arranging for the procurement of a closing attorney is itself a service. Id.

Based on this precedent, Title Source and Cook & James clearly performed

services within the meaning of RESPA, see Compl. ¶¶ 34, 36, and thus the district

court properly dismissed the claims against them.

      With regards to the allegation that Ms. Ruff did not perform any services

related to the closing, see Compl. ¶ 76, we come to a different conclusion.

Although we recognize that under certain circumstances a court may consider

documents that are attached to a motion to dismiss without converting that motion

into a motion for summary judgment, see Day v. Taylor, 400 F.3d 1272, 1276

(11th Cir. 2005), that principle does not apply here. The defendants submitted

closing documents to show that Ms. Ruff served, and did work, as the settlement

agent during the Wesolowskis’ transactions. Those documents, however, are not

undisputed, as the incorporated by reference doctrine requires. See id. (a “court

may consider a document attached to a motion to dismiss . . . if the attached

document is (1) central to the plaintiff's claim and (2) undisputed”). Indeed, the

Wesolowskis did not concede the closing documents’ authenticity in the district

court and the allegations in the complaint directly contradicted the content of those

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documents. We have held that it is improper to permit defendants to simply

“attach [documents] referenced in a . . . complaint to their motions to dismiss and

ask courts to consider the contents of those [documents when] they contradict[] the

allegations of [a] complaint.” Saunders v. Duke, 766 F.3d 1262, 1270 (11th Cir.

2014). Accordingly, we must accept the Wesolowskis’ allegations as true for

purposes of the motion to dismiss, and we conclude that they sufficiently stated a

claim against Ms. Ruff (who allegedly did no work at all).

      For the foregoing reasons, we affirm the dismissal of the claims against Title

Source and Cook & James, reverse the dismissal of the claims against Ms. Ruff,

and remand to the district court for further proceedings consistent with this

opinion.

      AFFIRMED in part, REVERSED in part, and REMANDED.




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