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                                      Appellate Court                             Date: 2016.02.19 10:17:14
                                                                                  -06'00'




                 Chultem v. Ticor Title Insurance Co., 2015 IL App (1st) 140808



Appellate Court           DOLJIN CHULTEM, Individually and on Behalf of All Others
Caption                   Similarly Situated, Plaintiffs-Appellants and Cross-Appellees, v.
                          TICOR TITLE INSURANCE COMPANY, CHICAGO TITLE AND
                          TRUST COMPANY, and FIDELITY NATIONAL FINANCIAL,
                          INC.,     Defendants-Appellees     and    Cross-Appellants.–PAUL
                          COLELLA, Individually and on Behalf of All Others Similarly
                          Situated, Plaintiffs-Appellants and Cross-Appellees, v. CHICAGO
                          TITLE INSURANCE COMPANY and CHICAGO TITLE AND
                          TRUST COMPANY, Defendants-Appellees and Cross-Appellants.



District & No.            First District, Third Division
                          Docket Nos. 1-14-0808, 1-14-0820 cons.



Filed                     December 16, 2015
Rehearing denied          January 12, 2016



Decision Under            Appeal from the Circuit Court of Cook County, Nos. 06-CH-09488,
Review                    06-CH-09489; the Hon. Mary L. Mikva, Judge, presiding.



Judgment                  Affirmed.



Counsel on                Power Rogers & Smith, PC (Todd A. Smith and Joseph A. Power, Jr.,
Appeal                    of counsel), Korein Tiller LLC (Stephen M. Tillery, George A. Zelcs,
                          and John A. Libra, of counsel), and Myron M. Cherry & Associates,
                          LLC (Myron M. Cherry and Jacie Zolna, of counsel), all of Chicago,
                          for appellants.
                               Fidelity National Law Group (Scott C. Lascari, of counsel), Skadden,
                               Arps, Slate, Meagher & Flom (Edward M. Crane and Timothy M.
                               Frey, of counsel), and Jenner & Block LLP (Michael T. Brody and
                               Elin I. Park, of counsel), all of Chicago, and Hahn Loeser & Parks
                               LLP, of Cleveland, Ohio (Robert J. Fogarty, Erica L. Calderas, and
                               Dennis R. Rose, of counsel), for appellees.



     Panel                     PRESIDING JUSTICE MASON delivered the judgment of the court,
                               with opinion.
                               Justice Lavin concurred in the judgment and opinion.
                               Justice Pucinski dissented, with opinion.


                                                 OPINION

¶1         In this consolidated class action appeal, plaintiffs Doljin Chultem and Paul Colella,
       individually and on behalf of all others similarly situated, appeal the trial court’s ruling that
       defendants Ticor Title Insurance Company (Ticor), Chicago Title Insurance Company
       (Chicago Title), Chicago Title and Trust Company (CT&T) and Fidelity National Financial,
       Inc. (Fidelity), (collectively, the “title companies”) did not make illegal kickback payments
       by splitting a fee with attorneys for their referral of business to the title companies in
       violation of the Illinois Title Insurance Act (215 ILCS 155/1 (West 2002)) (Title Act)1 and
       the Illinois Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq.
       (West 2002)) (Consumer Fraud Act). Plaintiffs assert that payments made by the title
       companies to attorneys who also served as title agents (attorney agents) were unlawful
       because the title companies provided those attorneys with a pro forma title commitment that
       determined the insurability of a property’s title–a function they assert must be performed by
       the attorney agents to earn the fee paid by the title companies. Plaintiffs claim that because
       the attorney agents received the pro forma commitment, they did not perform “core title
       services” and the title company’s payment was unearned and, in reality, an illegal kickback.
       Because recent case law fails to support plaintiffs’ position, we affirm.

¶2                                         BACKGROUND
¶3                             A. RESPA and HUD Policy Statements
¶4         We begin by providing a brief overview of the pertinent statutory and regulatory
       framework to place in context the issues and arguments raised in this appeal. The Real Estate
       Settlement Procedures Act (12 U.S.C. § 2601 et seq. (2000)) (RESPA) is a federal statute
       establishing various requirements relating to the residential real estate settlement process.
       Weatherman v. Gary-Wheaton Bank of Fox Valley, N.A., 186 Ill. 2d 472, 481 (1999).
       Congress enacted RESPA to provide purchasers and sellers of real property with more

             1
            The Title Act incorporates the Real Estate Settlement Procedures Act (12 U.S.C. § 2607 (2000)).
       See 215 ILCS 155/21 (West 2002).

                                                    -2-
     detailed advance disclosure of the settlement costs associated with real estate closings. Id.
     Congress also sought to protect consumers “from unnecessarily high settlement charges
     caused by certain abusive practices that have developed in some areas of the country.” 12
     U.S.C. § 2601(a) (2000). More specifically, Congress sought to eliminate kickbacks or
     referral fees for title insurance business that contributed to increased costs of settlement
     services. 12 U.S.C. § 2601(b)(2) (2000).
¶5       Two sections of RESPA address these practices. RESPA section 2607(a) (12 U.S.C.
     § 2607(a) (2000)) prohibits kickbacks for referrals and states:
                  “No person shall give and no person shall accept any fee, kickback, or thing of
              value pursuant to any agreement or understanding, oral or otherwise, that business
              incident to or a part of a real estate settlement service involving a federally related
              mortgage loan shall be referred to any person.” Id.
     To establish a violation of section 2607(a), the following elements must be demonstrated:
     “(1) a payment or thing of value; (2) given and received pursuant to an agreement to refer
     settlement business; and (3) an actual referral.” Galiano v. Fidelity National Title Insurance
     Co., 684 F.3d 309, 314 (2d Cir. 2012).
¶6       RESPA section 2607(b) (12 U.S.C. § 2607(b) (2000)) prohibits unearned fee splitting and
     states in pertinent part:
                  “No person shall give and no person shall accept any portion, split, or percentage
              of any charge made or received for the rendering of a real estate settlement service in
              connection with a transaction involving a federally related mortgage loan other than
              for services actually performed.” Id.
     Section 2607(b) is violated where: (1) a person gives or accepts any portion, split or
     percentage of any charge; (2) the fee-split relates to the rendering of a real estate settlement
     service; and (3) the fee-split or payment is made “other than for services actually performed.”
     (Internal quotation marks omitted.) Sosa v. Chase Manhattan Mortgage Corp., 348 F.3d 979,
     983 (11th Cir. 2003). Simply stated, a party violates section 2607(b) where no services are
     performed in exchange for the fee charged to the consumer by a title company and later split
     with another party. Clements v. LSI Title Agency, Inc., 779 F.3d 1269, 1274 (11th Cir. 2015)
     (a plaintiff must plead that “ ‘no services were rendered in exchange for a settlement fee’ ”
     (quoting Friedman v. Market Street Mortgage Corp., 520 F.3d 1289, 1298 (11th Cir. 2008))).
¶7       As is apparent, each subsection addresses specific conduct not addressed by the other
     subsection, i.e., “[s]ubsection (a) prohibits certain kickbacks (those agreed to in exchange for
     referrals) and subsection (b) prohibits certain unearned fees (those paid from a part of the
     charge to the customer).” Freeman v. Quicken Loans, Inc., 566 U.S. ___, ___, 132 S. Ct.
     2034, 2043 (2012).
¶8       In enacting RESPA, Congress also included “safe harbor provision[s]” that exempt
     certain payments from the prohibition against kickbacks. Johnson v. Matrix Financial
     Services Corp., 354 Ill. App. 3d 684, 689 (2004). RESPA section 2607(c)(1)(B) provides that
     the payment of a fee “by a title company to its duly appointed agent for services actually
     performed in the issuance of a policy of title insurance” shall not be considered a prohibited
     payment. 12 U.S.C. § 2607(c)(1)(B) (2000). RESPA section 2607(c)(2) provides that the
     payment “to any person of a bona fide salary or compensation or other payment for goods or
     facilities actually furnished or for services actually performed” shall likewise not be


                                                -3-
       considered a prohibited payment. 12 U.S.C. § 2607(c)(2) (2000). The two safe harbor
       exemptions are not mutually exclusive. Howland v. First American Title Insurance Co., 672
       F.3d 525, 533 (7th Cir. 2012).
¶9         Until recently, the Department of Housing and Urban Development (HUD) was the
       administrative agency responsible for drafting regulations and rendering interpretations
       consistent with RESPA’s objectives.2 Cohen v. JP Morgan Chase & Co., 498 F.3d 111, 124
       (2d Cir. 2007). Following RESPA’s enactment, HUD promulgated regulations using
       language that mirrors RESPA’s provisions regarding the prohibition against kickbacks and
       unearned fees. The regulations provide that “any referral of a settlement service is not a
       compensable service, except as set forth in § 3500.14(g)(1).” 24 C.F.R. § 3500.14(b) (2001).
       Section 3500.14(g)(1) adopts RESPA’s “safe harbor” provisions in language identical to the
       statute. The regulation addressing fee splitting provides further elaboration and states that
       “[a] charge by a person for which no or nominal services are performed or for which
       duplicative fees are charged is an unearned fee and violates this section.” 24 C.F.R.
       § 3500.14(c) (2001). The regulations specify that for an attorney, who provides multiple
       services and is in a position to refer settlement service business, to receive “a payment for
       providing additional settlement services as part of a real estate transaction, such payment
       must be for services that are actual, necessary and distinct from the primary services
       provided by such person.” 24 C.F.R. § 3500.14(g)(3) (2001). To further clarify, the
       regulation provides the following example:
               “[F]or an attorney of the buyer or seller to receive compensation as a title agent, the
               attorney must perform core title agent services (for which liability arises) separate
               from attorney services, including the evaluation of the title search to determine the
               insurability of the title, the clearance of underwriting objections, the actual issuance
               of the policy or policies on behalf of the title insurance company, and, where
               customary, issuance of the title commitment, and the conducting of the title search
               and closing.” 24 C.F.R. § 3500.14(g)(3) (2001).
¶ 10       In 1996, HUD issued a statement of policy (RESPA Statement of Policy 1996-4, 61 Fed.
       Reg. 49398, 49399-400 (Sept. 19, 1996)) (Florida Policy Statement) 3 reflecting its
       interpretation of the safe harbor exceptions set forth in section 2607(c)(1)(B) and section
       2607(c)(2). Howland, 672 F.3d at 529. In HUD’s opinion, “a title agent does not qualify
       under the Section 8(c)(1)(B) safe harbor if the title insurance company performs any of the
       core title services itself,” including preparation of a preliminary or pro forma commitment.
       Id. at 529-30 (citing Florida Policy Statement, 61 Fed. Reg. at 49400). HUD further
       explained that an attorney agent may receive compensation for services performed under
       section 2607(c)(2) even though payment was prohibited under the first safe harbor provision
       on the basis that the attorney did not perform any “core title agent services.” (Internal
       quotation marks omitted.) Id. at 529. However, HUD cautioned that the payment must be

           2
             On July 21, 2011, the Bureau of Consumer Financial Protection took over HUD’s
       consumer-protection functions. Freeman, 566 U.S. at ___ n.4, 132 S. Ct. at 2039 n.4. In this opinion,
       we continue to refer to HUD as the responsible agency.
           3
             This policy statement is commonly referred to as the “Florida Policy Statement” because it
       specifically addressed the issues and practices involving title insurance companies and title insurance
       agents regarding their compliance with RESPA that HUD reviewed in Florida.

                                                      -4-
       “reasonably related to the value of the services performed” and less than the payment made
       to an attorney who performed all “core title services.” Id. at 530; see 24 C.F.R.
       § 3500.14(g)(2) (2001); Florida Policy Statement, 61 Fed. Reg. at 49400.
¶ 11       In 2001, HUD issued a statement of policy (RESPA Statement of Policy 2001-1, 66 Fed.
       Reg. 53052-01 (Oct. 18, 2001)) (2001-1 SOP) detailing its position regarding the payment of
       yield spread premiums by lenders to mortgage brokers. In the 2001-1 SOP, HUD reiterated
       that its guidance and regulations have uniformly interpreted section 8b–codified at 12 U.S.C.
       § 2607(b)–as prohibiting all unearned fees. 2001-1 SOP, 66 Fed. Reg. at 53057. HUD
       explained that section 8(b) “prohibits any person from giving or accepting any fees other than
       payments for goods and facilities provided or services actually performed.” Id. at 53053.
       HUD also explained that a single service provider incurs liability “under Section 8(b) when it
       charges a fee that exceeds the reasonable value of goods, facilities, or services provided.” Id.
       at 53059. The policy statement considered a prohibited unearned fee to include a service
       provider charging “the consumer a fee where no, nominal, or duplicative work is done, or the
       fee is in excess of the reasonable value of goods or facilities provided or the services actually
       performed.” Id.
¶ 12       Interpretation of section 2607(b) next significantly evolved following the United States
       Supreme Court’s decision in Freeman, 566 U.S. at ___, 132 S. Ct. at 2034. In Freeman, the
       Court addressed whether a charge for settlement services must be divided between two or
       more persons to be considered a prohibited fee splitting payment under section 2607(b). Id. at
       ___, 132 S. Ct. at 2037. The Freeman Court identified the dispute between the parties as to
       whether section 2607(b) “prohibits the collection of an unearned charge by a single
       settlement-service provider–what we might call an undivided unearned fee–or whether it
       covers only transactions in which a provider shares a part of a settlement-service charge with
       one or more other persons who did nothing to earn that part.” Id. at ___, 132 S. Ct. at 2039.
       The court concluded that section 2607(b) does not apply where a settlement-service provider
       retains the fee charged to the customer in its entirety, i.e., where there is no dividing or
       splitting of the fee with another party. Id. at ___, 132 S. Ct. at 2041. Thus, no violation of
       section 2607(b) occurred and the court affirmed summary judgment in favor of the
       settlement-service provider. Id. at ___, 132 S. Ct. at 2044. We further discuss below
       Freeman’s application to the issue presented in this appeal.

¶ 13                                      B. Procedural History
¶ 14       This case commenced when Chultem and Colella each filed a complaint, individually and
       on behalf of all others similarly situated, against the title companies claiming that the title
       companies made unlawful payments to the attorney agents because the attorney agents did
       not perform “core title agent services” in addition to the services the attorneys rendered to
       their clients in a real estate transaction. The Colella proposed class included transactions
       where individuals purchased title insurance from Chicago Title during the period from
       January 1, 2001, to September 1, 2005, and Chicago Title paid attorney agents their full
       compensation. The Chultem proposed class included transactions where individuals
       purchased title insurance from Ticor during the period from February 1, 2000, to September
       30, 2005, and Ticor paid the attorney agents in full after sending the attorney agents a
       preliminary title exam (A-Exam) that was not changed in any way by the attorney agents.


                                                   -5-
¶ 15       According to the complaints, which were amended multiple times, the putative class
       members purchased, sold or mortgaged real property and paid for a title insurance policy
       from the title companies to protect the purchasers against any defect or irregularity in the
       property’s title. A portion of the premium paid for the policy was then shared by the title
       company with an attorney agent in exchange for allegedly performing title services. The title
       companies typically paid an attorney agent 70% to 80%, and at all times more than 50%, of
       the premium collected for the title insurance policy. Plaintiffs claimed the title companies’
       payments to the attorney agents were unlawful because the attorney agents did not perform
       any “core title services”4 if the title companies sent the attorney agents a title insurance
       commitment, i.e., either a Preliminary Commitment provided by Chicago Title to the Colella
       class members or an A-Exam provided by Ticor to the Chultem class members. Plaintiffs
       argued that those documents examined the real property’s title and determined the
       insurability of the property–a function that should be performed by the attorney agent to
       justify the payment received from the title companies. Plaintiffs alleged that the title
       companies disguised prohibited kickbacks for the referral of business by implementing a
       program where the attorney agents would receive payments from the title companies–a
       portion that was collected from consumers–under the guise of providing “core title agent
       services.” The attorney agents received compensation from both the title companies–for
       services as a title agent–and their clients–for services as an attorney. Based on these common
       allegations, Chultem and Colella sought class certification.
¶ 16       In response, the title companies asserted that the payments were not unlawful because
       attorney agents were required to perform core title agent services, which they in fact
       performed, and plaintiffs received value from the title insurance issued as a direct result of
       the attorney agents’ services. The title companies also asserted that no statute supports and
       no case law adopts plaintiffs’ position that sending a Preliminary Commitment or A-Exam to
       an attorney agent automatically renders payments by the title companies to attorney agents
       violative of RESPA.
¶ 17       The parties continued to litigate their positions until the trial court ultimately denied
       plaintiffs’ amended second motion for class certification. Plaintiffs filed a petition for leave
       to appeal pursuant to Illinois Supreme Court Rule 306(a)(8) (eff. Feb. 16, 2011) regarding
       the denial of class certification along with a motion to consolidate, which a different division
       of this court allowed. On April 15, 2010, we issued an opinion reversing the trial court’s
       order denying class certification and remanded with instructions to certify the class. Chultem
       v. Ticor Title Insurance Co., 401 Ill. App. 3d 226, 238 (2010). In reaching that conclusion,
       this court considered only the predominance element under section 2-801 of the Illinois Code
       of Civil Procedure (735 ILCS 5/2-801 (West 2006)), which requires “that common questions
       predominate over any questions involving only individual members.” Chultem, 401 Ill. App.
       3d at 235. We stated that a transaction-by-transaction review to determine whether an
       attorney agent provided “ ‘core title services’ ” or actually performed services was not
       necessary if the title companies sent the attorney agents “ ‘pro forma commitments’ ”

           4
            Plaintiffs defined “core title services” as: “evaluation of the title search to determine the
       insurability of the title, the clearance of underwriting objections, the actual issuance of the policy or
       policies on behalf of the title insurance company, and, where customary, issuance of the title
       commitment, and the conducting of the title search and closing.”

                                                       -6-
       because the title companies would have unlawfully paid the attorney agents the full amount
       of compensation for unearned “ ‘core title services.’ ” Id. Accordingly, we identified two
       questions for the trial court to address on remand: (1) “whether the defendants were sending
       their attorney agents pro forma commitments” and (2) “whether the defendants lawfully can
       pay their attorney agents full contract compensation after sending them pro forma
       commitments.” Id. at 237. This court reasoned that those determinations were questions
       common to all class members and would establish a right to recovery in other class members.
       Id. at 236-37.
¶ 18        Following remand, the trial court certified the class, and both parties filed motions for
       partial summary judgment addressing the two questions identified by this court. The trial
       court granted the plaintiffs’ motion regarding the second question finding that the title
       companies were prohibited from paying attorney agents in full after sending a pro forma title
       commitment as that term was defined by the Florida Policy Statement.
¶ 19        The trial court denied both summary judgment motions on the issue of whether the
       Preliminary Commitments and A-Exams were pro forma commitments and set the case for a
       bench trial to address that issue. The trial court identified the underlying issue at trial as
       “whether there were actual, necessary and distinct services remaining after the title
       companies sent an A-Exam or a Preliminary Commitment to their attorney agents.” The
       following pertinent testimony was adduced during trial.
¶ 20        The attorney agents in the underlying Colella and Chultem real estate transactions
       testified regarding services they performed. Richard Cohn served as the attorney agent for
       Chicago Title in the Colella transaction and also represented the property’s sellers. Jay
       Orlowski served as the attorney agent for Ticor in the Chultem transaction and likewise
       represented the property’s sellers.
¶ 21        Generally, an attorney agent performs the following services: (1) orders a title search
       package; (2) identifies liens or encumbrances recorded against the title; (3) ensures the
       clearing of liens recorded against the title; (4) verifies the individual selling the property held
       title to the property; (5) recommends the waiver of exceptions to title; (6) attends closings;
       and (7) maintains records of the transaction. Basically, an attorney agent ensures that
       exceptions to title are cleared so that good title is transferred during the real estate
       transaction, i.e., obtains a release or payoff of a mortgage recorded on the property and
       ensures the payoff letter matches the lien. An attorney agent also communicates with the
       lender throughout the process to incorporate any changes to the loan amount or identity of
       the lender and to identify the information that should be included on the endorsements to the
       title policy. An attorney agent’s role in clearing underwriting objections and recommending
       the waiver of exceptions to title results in the issuance of a title insurance policy. An attorney
       agent is exposed to liability for the exceptions he or she deems should be waived. Unlike an
       attorney agent, a seller’s attorney does not provide comparable clearing and waiver services.
       As an attorney in an approved attorney agent program, the attorney agent must comply with
       guidelines established by the title companies to ensure the attorney agent does not waive
       exceptions without proper clearance.
¶ 22        Regarding the Colella transaction, Cohn knew before receiving the title search package
       from Chicago Title that he would have to clear liens recorded on the property’s title, and he
       received payoff letters before obtaining the search package. Cohn reviewed the search
       package and identified exceptions that needed to be disclosed on the title commitment. Based

                                                    -7-
       on his review, Cohn concluded that there were no judgments against either party that would
       need to be cleared before issuance of the title policy. Cohn also compared the mortgages
       listed in the search package with the payoff letters that he had already investigated before
       receiving the package. Cohn likewise compared the tax information listed in the search
       package with the information Cohn had previously obtained. Cohn instructed Chicago Title
       to change the owner’s name from “Thome” as reflected in the search package to “Thomas”
       as reflected in the payoff letters and the sales contract (although Chicago Title never made
       the change) and indicated that Chicago municipal taxes must be paid and the condominium
       association must provide a payoff letter regarding assessments–all of which were required to
       determine final insurability. Cohn also attended the closing where he determined what
       exceptions to title should be waived.
¶ 23        Regarding the Chultem transaction, Orlowski stated that after receiving the search
       package, he: (1) cleared the identified exceptions noted in the A-Exam; (2) verified the
       property’s legal description and property identification number; (3) determined whether the
       search package was complete; (4) attended the closing; and (5) determined what exceptions
       should be waived to get the final policy issued. Orlowski acknowledged that he did not
       identify the misspelling of the sellers’ names during his review of the search package.
¶ 24        Plaintiffs offered expert testimony regarding the services provided by attorney agents.
       According to Jerrold Hobfoll, an attorney agent is expected to examine the raw data included
       in a search package, determine insurability and complete an exam summary providing the
       title company with the information necessary to prepare the title commitment. Hobfoll
       acknowledged that attorney agents must waive exceptions at closing, which was a core title
       service under RESPA, and a seller’s attorney would not provide that service. Hobfoll
       believed that an attorney agent who does not perform core title services under section
       8(c)(1)(b) may still be paid for services actually performed under section 8(c)(2) provided
       that the payment is reasonably commensurate with the reduced work load or responsibilities
       assumed by the attorney agent. Hobfoll agreed that an attorney agent provided some services
       before and after a search package was received from the title company and that the attorney
       agent should be compensated for those services, which ranged, in his opinion, from 20% to
       50% of the full amount of the attorney agent’s fee. Hobfoll also agreed that an attorney who
       was not an attorney agent would not assume responsibility or liability for the title
       examination function. Hobfoll conceded that Cohen’s search of tax information would be an
       actual service provided to the title company, albeit a minimal one.
¶ 25        Consistent with Hobfoll’s testimony, plaintiffs’ expert Grant Mitchell stated that an
       attorney agent may be paid for actual work performed under section 8(c)(2), even for work
       not considered core title services. Mitchell opined that an attorney agent who received a
       pro forma commitment may be paid for any actual service performed, but may not be paid
       the full contract amount as an attorney agent.
¶ 26        Plaintiffs’ expert Michael Rooney disputed the claim that the determination of
       insurability was an ongoing process completed upon the issuance of a title insurance policy.
       But he agreed that throughout the class period, the attorney agents issued or caused the
       issuance of title polices, which was a core title service, and that a nonattorney agent
       representing a seller would not issue a title commitment. Rooney acknowledged that attorney
       agents must perform the function of clearing liens and judgments and exercise their authority
       to waive or cause the waiver of exceptions at the closing. Rooney stated that unlike attorney

                                                 -8-
       agents, a seller’s attorney incurs no liability associated with the clearing of exceptions to title.
       Rooney also acknowledged that after an attorney agent received a search package, an
       attorney agent must still perform services to determine insurability, i.e., whether the
       mortgage to be insured was valid and enforceable and whether the deed would effectively
       transfer title to the purchaser.
¶ 27       Following trial, the parties filed posttrial briefs. The title companies also moved to
       decertify the class, which the trial court denied. The trial court issued a written order finding
       that “actual, necessary and distinct services” still remained for attorney agents to perform
       relating to the issuance of a title insurance policy even where they received a title exam or
       preliminary commitment that met most of the requirements of a pro forma commitment
       under the Florida Policy Statement. The trial court rejected plaintiffs’ assertion that the
       attorney agents must perform all of the core title services to avoid violating section 2607 and
       that, under Freeman, it was irrelevant whether an attorney agent was overpaid for their
       services when performing less than all core title services. Accordingly, the trial court ruled
       that the title companies’ payments to attorney agents under their attorney agent programs did
       not violate RESPA’s prohibition against either kickbacks for referral fees or fee splitting
       because the evidence offered at trial established that attorney agents provided title services
       independent of the services provided as counsel for the seller. Thus, the court entered
       judgment in favor of the title companies because plaintiffs could not demonstrate a RESPA
       violation, which necessarily precluded a finding of a violation of the Title Act and Consumer
       Fraud Act. Plaintiffs timely appealed.
¶ 28       The title companies filed a cross-appeal contending that if the judgment in their favor is
       reversed, we should consider whether the trial court erred in refusing to decertify the class.

¶ 29                                            ANALYSIS
¶ 30        On appeal, plaintiffs claim that the trial court erred in entering judgment in favor of the
       title companies on the basis that sections 2607(a) and (b) were not violated where an attorney
       agent performed any service in connection with the issuance of a title insurance policy in
       exchange for a portion of the payment received by the title company from consumers in a
       real estate transaction. Plaintiffs claim that the payments made to the attorney agents were
       illegal because they did not earn their compensation. We disagree.
¶ 31        We will not reverse a trial court’s judgment entered following a bench trial unless the
       judgment was against the manifest weight of the evidence. Chicago’s Pizza, Inc. v.
       Chicago’s Pizza Franchise Ltd. USA, 384 Ill. App. 3d 849, 859 (2008); see also Corral v.
       Mervis Industries, Inc., 217 Ill. 2d 144, 154 (2005) (trial court’s findings of fact will not be
       reversed unless the findings are against the manifest weight of the evidence). A judgment is
       against the manifest weight of the evidence “only when an opposite conclusion is apparent or
       when the findings appear to be unreasonable, arbitrary, or not based on the evidence.”
       Eychaner v. Gross, 202 Ill. 2d 228, 252 (2002). We review a court’s interpretation of RESPA
       de novo. Freeman v. Quicken Loans, Inc., 626 F.3d 799, 801 (5th Cir. 2010), aff’d, 566 U.S.
       ___, 132 S. Ct. 2034 (2012); see also Solon v. Midwest Medical Records Ass’n, 236 Ill. 2d
       433, 439 (2010) (issues involving statutory construction are questions of law subject to de
       novo review).
¶ 32        Plaintiffs suggest that the only standard of review applicable to the issues on appeal is
       de novo because their appeal presents solely questions of law. In essence, plaintiffs contend

                                                    -9-
       that the trial court erred in denying their motion for summary judgment on the issue of
       whether the Preliminary Commitments and A-Exams provided to attorney agents constituted
       pro forma commitments, which under plaintiffs’ theory would preclude the attorney agents
       from collecting their full fee. But while we agree that we review the trial court’s
       interpretation of RESPA de novo, the court’s findings regarding the nature of the attorney
       agent programs, i.e., whether they were “make-work” programs, as plaintiffs contended, or
       whether they instead required the attorney agents to actually perform services in exchange
       for a fee, are entitled to deference under the manifest weight standard.
¶ 33        We first consider the application of Freeman’s rationale to this case. Because RESPA is a
       federal statute, pronouncements of the United States Supreme Court are controlling with
       respect to the statute’s interpretation. State Bank of Cherry v. CGB Enterprises, Inc., 2013 IL
       113836, ¶ 33. Plaintiffs correctly note that Freeman addressed section 2607(b) (whether the
       prohibition against fee-splitting requires sharing a fee between two parties) and did not
       separately analyze section 2607(a) (kickbacks) and that this case involves claimed violations
       of both subsections. We find this distinction is irrelevant because Freeman’s reasoning
       relating to 2607(b) is readily applicable to section 2607(a). Moreover, the record establishes
       that the title companies and the attorney agents split the fee collected from consumers
       relating to the purchase of a title insurance policy, which is the precise context the court
       analyzed in Freeman. Furthermore, we consider Freeman dispositive because it indisputably
       considered the section 2607(b) “other than for services actually performed” statutory
       language. Both safe harbor provisions use an abridged version of that phrase, but importantly
       incorporate the same “services actually performed” language. Unless a contrary intent by
       Congress is clearly evident, “use of the same words or phrases in different sections of statute
       should be given a consistent meaning.” Clardy v. Rapistan Division of Lear Siegler, Inc., 254
       Ill. App. 3d 1066, 1070 (1993). It is well settled that statutory “provisions should be read in
       concert and harmonized.” Hartney Fuel Oil Co. v. Hamer, 2013 IL 115130, ¶ 25. As
       recognized by Freeman, subsection (b) is a neighboring provision to subsection (a).
       Freeman, 566 U.S. at ___, 132 S. Ct. at 2038. Thus, both subsections must be read in
       harmony and consistently. Accordingly, Freeman’s reasoning applies here.
¶ 34        In Freeman, the court stated that “a settlement-service provider who gives a portion of a
       charge to another person who has not rendered any services in return would violate
       § 2607(b), even if an express referral arrangement does not exist or cannot be shown.”
       (Emphasis added.) Id. at ___, 132 S. Ct. at 2043. Conversely, Freeman recognized that “a
       service provider could avoid [RESPA] liability by providing just a dollar’s worth of services
       in exchange for [a] $1,000 fee” because RESPA is not a price control statute and is not
       concerned with the “value, amount or quality of services” rendered. Id. at ___, 132 S. Ct. at
       2044. The court reasoned that if Congress had intended for RESPA to be a price control
       provision, there would have been no need for Congress to direct HUD to provide, five years
       after RESPA’s enactment, recommendations to Congress regarding whether price controls
       should be enacted. Id. at ___, 132 S. Ct. at 2039 (citing 12 U.S.C. § 2612(a) (1976)).
¶ 35        From this, the only reasonable interpretation of section 2607(b) is that it prohibits
       fee-splitting with a party where no services are provided in return for the fee, which is
       consistent with RESPA’s underlying purpose of preventing the abusive practice of paying a
       party merely for the referral of business. See Martinez v. Wells Fargo Home Mortgage, Inc.,
       598 F.3d 549, 553 (9th Cir. 2009) (section 2607(b) “prohibits only the practice of giving or


                                                 - 10 -
       accepting money where no service whatsoever is performed in exchange for that money”);
       Hazewood v. Foundation Financial Group, LLC, 551 F.3d 1223, 1226 (11th Cir. 2008) (a
       section 2607(b) violation requires that no services were provided in return for the settlement
       fee). Consequently, adopting Freeman’s rationale, the relevant inquiry is whether any service
       was performed by the attorney agent in return for the fee paid by the title company so that the
       compensation paid to the attorney agent was not unearned or merely a kickback.
¶ 36        Here, the title companies offered evidence supporting a finding that the attorney agents
       performed actual title settlement services. The record reveals that after attorney agents
       received a search package and contemporaneously with or shortly thereafter an A-Exam or
       Preliminary Commitment, attorney agents still performed services, some of which included:
       (1) clearing any cloud to the real property’s title, i.e., any liens; (2) providing instructions on
       what to include on title commitments; (3) recommending the waiver of exceptions to title; (4)
       making changes to the A-Exam or Preliminary Commitment; and (5) attending closings. The
       record further reveals that a nonattorney agent does not perform the same clearing and waiver
       services at closing nor is he or she exposed to potential liability associated with the waiver of
       exceptions. Importantly, the clearing and waiver of exceptions are necessary functions to
       determine final insurability. Moreover, plaintiffs do not contend that attorney agents under
       the programs provided no services in exchange for their compensation.
¶ 37        Based on the evidence in the record and in light of the reasoning set forth in Freeman, we
       cannot conclude the trial court’s finding that the attorney agent programs satisfied the
       minimum threshold of requiring an attorney agent to perform actual services relating to the
       issuance of a title insurance policy was against the manifest weight of the evidence. See Lane
       v. Residential Funding Corp., 323 F.3d 739, 744 (9th Cir. 2003) (noting that section 2607
       prohibits payments that are for the referral of business and nothing else (quoting Schuetz v.
       Banc One Mortgage Corp., 292 F.3d 1004, 1013 (9th Cir. 2002))). Consequently, the title
       companies’ payments to attorney agents were not merely kickbacks for the referral of
       business or unearned fees because the attorney agents performed services to earn the fees. As
       Freeman tells us, RESPA is not concerned with whether the attorney agents were paid too
       much for their actual services, but asks only whether actual services were rendered. Thus, the
       title companies’ payments were not unlawful under section 2607.
¶ 38        Plaintiffs also assert that the trial court erred in declining to assess the reasonableness of
       the fee paid to attorney agents in comparison to the amount of services provided relating to
       the issuance of a title insurance policy. Plaintiffs claim that attorney agents were prohibited
       from receiving full payment for their services when they only performed a portion of the
       contracted-for services under the program because they were provided a pro forma
       commitment, which eliminated the need for attorney agents to perform many “core title agent
       services.”
¶ 39        We again turn to Freeman, which holds that the reasonableness of the amount paid to a
       party for services provided is irrelevant to establish a violation of section 2607(b). Freeman,
       566 U.S. at ___, 132 S. Ct. at 2039. Freeman reiterated that RESPA does not address
       overcharges for services. Id. at ___, 132 S. Ct. at 2040. Here, though not framed as a claim
       that the attorney agents were paid excessive fees, the plaintiffs’ claim resonates as an
       “overpaid” claim because they assert that attorney agents were “overpaid” if they received
       the full contract payment amount even though they did not provide all of the services that the
       payment amount was for, e.g., they received 100% of their fee for only performing 20% of

                                                   - 11 -
       the work. But under Freeman, a payment to a party cannot be divided between an earned and
       unearned portion. Id. at ___, 132 S. Ct. at 2010. Thus, Freeman is dispositive and directly
       refutes plaintiffs’ claim.
¶ 40        Ultimately, the relevant consideration under section 2607 is whether a title company paid
       a fee to another party who did nothing to earn that fee. Freeman instructs that we must
       analyze whether the fee paid by the title company was earned by an attorney agent in that the
       attorney agent in fact rendered services in exchange for the fee, but the reasonableness of the
       amount of the fee is irrelevant.5 Here, as stated, the attorney agents performed services to
       earn the payments made by the title companies, and we need not consider the reasonableness
       of the amount paid to the attorney agent under Freeman. Moreover, plaintiffs’ position that a
       title company is prohibited from paying attorney agents their full contract amount when they
       did not provide all required “core title services” essentially advocates for a per se violation of
       RESPA–a position found to be inconsistent with HUD’s general resistance to per se kickback
       rules.6 Howland, 672 F.3d at 534. Particularly persuasive is the Seventh Circuit Court of
       Appeals’ decision in Howland (id. at 535) (a decision issued less than three months before
       Freeman) in which the court expressly stated “we do not read the [Florida Policy Statement]
       to suggest a per se rule that a title agent who does not qualify under the Section 8(c)(1)(B)
       safe harbor may not be paid a full contractual title examination fee under Section 8(c)(2).” Id.
       at 534. The Howland court ultimately held that RESPA kickback claims premised on
       unreasonably high compensation for services actually performed were inherently unsuitable
       for class action treatment. Id. at 535.
¶ 41        We are also not persuaded by plaintiffs’ position that the Florida Policy Statement should
       be given deference pursuant to Chevron U.S.A. Inc. v. Natural Resources Defense Council,
       Inc., 467 U.S. 837, 842 (1984), which established a two-part test for judicial review of an
       agency’s construction of a statute which it administers. Under the Chevron test, a court must
       first determine whether Congress has directly addressed the precise question at issue. Id. If
       Congress’ intent is clear, the inquiry ends and the court and the agency must give effect “to
       the unambiguously expressed intent of Congress.” Id. at 842-43. If Congress has not directly
       addressed the specific issue or the statute is ambiguous, then the court must determine
       whether the agency’s interpretation of the ambiguous provision is based on a permissible
       construction of the statute. Id. at 843. The agency’s interpretation of a statutory scheme it is
       entrusted to administer is given considerable weight, unless it is arbitrary, capricious, or
       manifestly contrary to the statute. Id. at 844.
¶ 42        We note that Freeman declined to resolve the issue of whether the later 2001-1 SOP
       warranted Chevron deference, which illustrates that judicial deference to a HUD statement of
       position is not always warranted. Freeman, 566 U.S. at ___, 132 S. Ct. at 2040. The 2001-1

           5
             As Freeman noted, federal courts have consistently recognized that section 2607(b) “does not
       reach unreasonably high fees.” Freeman, 566 U.S. at ___, 132 S. Ct. at 2040 (citing Kruse v. Wells
       Fargo Home Mortgage, Inc., 383 F.3d 49, 56 (2d Cir. 2004), Santiago v. GMAC Mortgage Group, Inc.,
       417 F.3d 384, 387 (3d Cir. 2005), and Friedman v. Market Street Mortgage Corp., 520 F.3d 1289, 1297
       (11th Cir. 2008)).
           6
             Plaintiffs pled in their complaint that the title companies’ performance of “core title services”
       “necessarily renders all payments to attorney agents through these programs mere kickbacks in
       violation of Illinois and federal law.”

                                                     - 12 -
       SOP opined that a service provider faces liability under 2607(b) by not only collecting an
       entirely unearned fee, but also by charging a fee that “ ‘exceeds the reasonable value of
       goods, facilities, or services provided.’ ” Id. at ___, 132 S. Ct. at 2039 (quoting 66 Fed. Reg.
       53059 (2001)). Freeman found that any consideration regarding the “value” of the services
       provided set forth in 2001-1 SOP resulted in price regulation and that was a palpable
       overreach going “ ‘beyond the meaning that the statute can bear.’ ” Id. at ___, 132 S. Ct. at
       2040 (quoting MCI Telecommunications Corp. v. American Telephone & Telegraph Co., 512
       U.S. 218, 229 (1994)).
¶ 43       Plaintiffs continued to maintain during oral argument that the Florida Policy Statement
       and corresponding regulations must be given deference and Freeman is inapplicable because
       it addressed a different policy statement. Plaintiffs attempt to distinguish Freeman mainly on
       the basis that a different policy statement was considered, but a close analysis of the policy
       statements–2001-01 SOP and Florida Policy Statement–reveals that the principles in both are
       consistent. Both HUD interpretations pronounced HUD’s position that RESPA was violated
       where another party received a payment that was not reasonably commensurate with the
       services provided, i.e., the interpretations require an analysis of the reasonableness of the fees
       in comparison to the services provided. Compare Florida Policy Statement, 61 Fed. Reg. at
       49400 (“agent may receive payment for services actually performed pursuant to section
       8(c)(2), so long as the payment is reasonably commensurate with the reduced level of
       responsibilities assumed by the agent”), with 2001-1 SOP, 66 Fed. Reg. at 53059 (prohibiting
       a fee “in excess of the reasonable value of goods or facilities provided or the services actually
       performed”). Freeman expressly found this approach to be “manifestly inconsistent with the
       statute HUD purported to construe” and Congress’ intent. Freeman, 566 U.S. at ___, 132 S.
       Ct. at 2039. Consequently, Freeman’s rationale precludes affording any deference to the
       Florida Policy Statement.
¶ 44       Likewise, we believe HUD’s regulations regarding the prohibition against kickbacks and
       unearned fees (24 C.F.R. § 3500.14 (2001)) may be read in harmony with Freeman to the
       extent that they both require an analysis to identify the services the attorney agents provided
       under the programs. Freeman’s reasoning that a party earns the fee paid by a settlement
       service provider when any service is performed does not contradict the guidance provided in
       the regulations. But the regulation is now at odds with Freeman because the regulation, much
       like the Florida Policy Statement, requires a comparison of the services performed by the
       attorney agents in comparison to the fee paid by the title companies to ensure the amount
       paid bears a “reasonable relationship to the market value of the goods or services provided”
       (24 C.F.R. 3500.14(g)(2) (2001)) where such a consideration is not relevant under Freeman.
       Notably, the regulation provided HUD with the authority to investigate whether settlement
       fees were the product of a kickback or an unearned fee split, but it does not vest HUD with
       the authority to regulate the reasonableness of fees charged. Id. Because Freeman is clear
       that RESPA is not a price control statute, the regulation’s interpretation of section 2607 to the
       extent that it requires an analysis of the “value” of the services rendered by attorney agents is
       no longer authoritative and warrants no deference.
¶ 45       Similarly, section 21 of the Title Act (215 ILCS 155/21(a)(5) (West 2002)) does not
       provide a basis for giving deference to the Florida Policy Statement over Freeman. Section
       21 generally permits the suspension, revocation or refusal to grant a certificate of authority,
       registration or license or the imposition of a fine for violating the Act where a payment was


                                                   - 13 -
       made in “violation of any State or federal law or regulations or opinion letters issued under
       the federal Real Estate Settlement Procedures Act of 1974.” Id. But section 21 does not
       expressly include HUD statements of policy. Moreover, a claim under the Title Act must be
       premised on a finding that RESPA (section 2607) was violated, which was not the case here.
       See 215 ILCS 155/21 (West 2002) (incorporating RESPA). Under Freeman’s rationale,
       payments to attorney agents are not prohibited where actual services were provided relating
       to the issuance of a title insurance policy. Thus, nothing in section 21 requires a departure
       from Freeman’s holding and rationale or deference to the Florida Policy Statement.
¶ 46        Finally, we find plaintiffs’ reliance on this court’s prior decision on the issue of class
       certification as a basis to reverse the trial court’s judgment misplaced. Notably, plaintiffs do
       not dispute that the attorney agents performed actual services relating to the issuance of a
       title insurance policy. But plaintiffs assert that evaluating whether an attorney agent
       performed actual work is irrelevant because this court instructed the trial court only to
       determine whether attorney agents received a pro forma commitment as defined by the
       Florida Policy Statement. Plaintiffs claim that the relevant inquiry on remand was not
       whether the attorney agents performed any work and the trial court was only directed to
       determine whether the A-Exam and Preliminary Commitment were pro forma commitments.
¶ 47        Importantly, this court’s prior decision was limited to whether the class should be
       certified under section 2-801 of the Code of Civil Procedure (735 ILCS 5/2-801 (West
       2006)). Chultem, 401 Ill. App. 3d at 235. This court determined that the questions of whether
       pro forma commitments were given to attorney agents and if it was illegal to pay the full
       contract rate when pro forma commitments were provided (rendering the safe harbor
       provisions of sections 8(c)(1)(B) and 8(c)(2) inapplicable) were questions common to the
       class that predominated over any individual questions eliminating the need for a
       transaction-by-transaction analysis. Id. at 236. Although it is true that we deemed it necessary
       to determine whether the attorney agents received pro forma commitments, the context of
       that determination was limited to identifying whether there was an issue common to the class
       that predominated over individual issues. This court expressly declined to address the merits
       of the underlying actions and limited our analysis to examining the “propriety of class
       certification.” Id. at 237. More importantly, this court’s decision was issued before Freeman,
       which as noted, supports the proposition that the actual work performed by attorney agents
       under the programs is a relevant consideration under section 2607 because, if any services
       were performed, the attorney agents were not paid an unearned fee for the referral of title
       insurance business.
¶ 48        We are also not persuaded by plaintiffs’ claim that the law of the case precludes an
       analysis of the work performed by attorney agents under the program on the basis that this
       court previously resolved the issue. In our prior decision, we stated that “[t]he allegations in
       plaintiffs’ complaint, taken as true for purposes of determining class certification, are that
       Ticor’s A-exam and CTI’s preliminary commitment are ‘pro forma commitments’ and, as
       such, any attorney agent would not be providing ‘core title services’ for the payments to
       come within the section 8(c)(1)(B) exemption.” (Emphasis added.) Id. at 235. Thus, this
       court assumed the allegations to be true for purposes of deciding the procedural matter of
       whether the class should be certified. See Howland, 672 F.3d at 534 n.3 (“Chultem merely
       assumed (without evidence) that the plaintiffs could prove that a payment of the full contract
       rate would violate RESPA.”). Again, the context of our prior decision was to determine the


                                                  - 14 -
       limited issue of whether litigation should proceed as a class action–an issue distinct from
       resolving any claim on its merits.
¶ 49        Our decision in Aguilar v. Safeway Insurance Co., 221 Ill. App. 3d 1095 (1991), is
       dispositive. In Aguilar, our prior decision on appeal reversed a section 2-615 dismissal of a
       complaint (Ill. Rev. Stat. 1989, ch. 110, ¶ 2-615), finding that the complaint stated a cause of
       action and remanding with directions that the complaint be reinstated. Aguilar, 221 Ill. App.
       3d at 1099. The plaintiffs in their second appeal claimed that our first decision precluded the
       defendants on remand from raising affirmative defenses because doing so was contrary to
       this court’s prior ruling. Id. at 1098. Plaintiffs asserted that the trial court’s only function was
       to reach a determination of damages to be assessed against each defendant. Id. at 1100. But
       this court’s mandate did not direct that on remand the proceedings should be limited to proof
       of damages; the trial court was merely directed to reinstate the complaint. Id. at 1099. In the
       second appeal, we rejected the plaintiffs’ claim and held that the prior appeal “did not purport
       to enter judgment, and beyond directing the reinstatement of plaintiffs’ complaint, the court
       did not limit further proceedings in any way. The filing of an answer and affirmative
       defenses is fully consistent with the mandate of this court to reinstate the complaint and
       proceed with the litigation.” Id. at 1101.
¶ 50        Similarly here, our prior decision directed the trial court to certify the class and continue
       litigation. See Chultem, 401 Ill. App. 3d at 238 (“As plaintiffs have met all the requirements
       of section 2-801, including the predominance requirement, we reverse and remand with
       instructions the circuit court certify these cases as class actions.”). Contrary to plaintiffs’
       positions, nothing in our prior decision purported to: (1) determine the title companies’
       liability; (2) find that plaintiffs had established a violation of RESPA; or (3) limit the issue on
       remand to only address damages. The only direction to the trial court was to certify the
       class–which the trial court followed on remand.
¶ 51        Plaintiffs’ prior appeal was limited to reviewing a procedural issue, i.e., whether they met
       the statutory requirements for class certification. See Avery v. State Farm Mutual Automobile
       Insurance Co., 216 Ill. 2d 100, 236 (2005) (reiterating that “ ‘[a] class action is a potent
       procedural vehicle’ ” (quoting Steinberg v. Chicago Medical School, 69 Ill. 2d 320, 334-35
       (1977))); Weiss v. Waterhouse Securities, Inc., 208 Ill. 2d 439, 449-50 (2004) (“a class action
       complaint should be dismissed at the pleading stage if the complaint fails to meet the
       statutory requirements for class certification” (internal quotation marks omitted)). Because
       this court did not address matters concerning the merits of plaintiffs’ substantive claims, the
       law of the case doctrine is inapplicable here and the trial court properly considered the merits
       of plaintiffs’ class action complaint on remand. See Aguilar, 221 Ill. App. 3d at 1101
       (“ ‘Although questions of law actually decided in a previous appeal are binding, matters
       concerning the merits of a controversy which were not decided by the appellate court do not
       become the law of the case.’ ” (quoting Huber v. Seaton, 186 Ill. App. 3d 503, 505 (1989),
       citing Zokoych v. Spalding, 84 Ill. App. 3d 661, 667 (1980))).
¶ 52        Likewise, we are not persuaded by plaintiffs’ claim that the trial court’s judgment cannot
       be reconciled with its prior summary judgment ruling. In both rulings, the trial court
       determined that the relevant inquiry was whether an attorney agent provided actual,
       necessary and distinct services. The trial court’s ruling after trial was based on resolution of
       that issue after consideration of the evidence. But even if there was an inconsistency between
       the order denying summary judgment and the court’s ruling after trial, it would not warrant

                                                    - 15 -
       reversal because an order denying summary judgment is an interlocutory order and nothing
       precluded the trial court from modifying or vacating that interlocutory order before final
       judgment. See Hernandez v. Pritikin, 2012 IL 113054, ¶ 42 (“[T]his court has repeatedly held
       that the circuit court has the inherent power to modify or vacate an interlocutory order
       granting summary judgment any time before final judgment.”). In any event, plaintiffs’ claim
       that they were somehow prejudiced by the claimed inconsistency is belied by the fact that
       following class counsel’s complaint on this point, the trial court offered plaintiffs the
       opportunity to submit any additional evidence they felt was necessary–an offer which was
       declined. Under these circumstances, counsel cannot complain that they were misled about
       the issues to be resolved at trial.
¶ 53       In sum, applying Freeman’s rationale to the facts of this case, we conclude that plaintiffs
       failed to establish a violation of RESPA because the attorney agents provided services to earn
       their payment from the title companies. Freeman holds that the reasonableness of the amount
       paid to the attorney agents is irrelevant. Because Freeman now interprets section 2607, we
       are no longer at liberty to give deference to the Florida Policy Statement and the related
       regulations addressing the issues presented in this appeal, which are inconsistent with
       Freeman. Consequently, the trial court did not err in entering judgment in favor of the title
       companies. As such, we need not address the alternative grounds the title companies raise as
       a basis to affirm the trial court’s judgment, which include: (1) their good faith compliance
       with RESPA; (2) state regulators authorized attorney agents to participate in the programs;
       (3) plaintiffs suffered no actual damages; (4) plaintiffs failed to prove proximate cause; and
       (5) plaintiffs cannot demonstrate a need for injunctive relief.

¶ 54                                         Cross-Appeal
¶ 55       The title companies’ cross-appeal addresses whether the trial court erred in certifying the
       class and then refusing to decertify the class. The title companies assert that disposition of
       their cross-appeal is contingent on and must be decided only if we reverse the trial court’s
       ruling in their favor. Because we find no error in the trial court’s ruling in favor of the title
       companies, we need not address the title companies’ cross-appeal.

¶ 56                                         CONCLUSION
¶ 57       We affirm the trial court’s ruling that the title companies’ payments to attorney agents
       were not prohibited under section 2607 where attorney agents provided settlement services in
       return for the payment and the reasonableness of the monetary amount of those payments is
       irrelevant. Consequently, plaintiffs failed to establish a violation of the Title Act (215 ILCS
       155/1 (West 2002)) and Consumer Fraud Act (815 ILCS 505/1 (West 2002)), claims which
       are both premised on a violation of section 2607.

¶ 58      Affirmed.

¶ 59      JUSTICE PUCINSKI, dissenting.
¶ 60      With great respect to my colleagues and to the trial judge, I dissent.
¶ 61      When this case first came to the Appellate Court in Chultem v. Ticor Title Insurance Co.,
       401 Ill. App. 3d 226 (2010) (Chultem I), our colleagues remanded to the trial court to certify


                                                  - 16 -
       a class and stated: “if the plaintiffs are able to prove at trial Ticor’s A-exam and CTI’s
       preliminary commitments are ‘pro forma commitments’ and defendants cannot lawfully send
       their attorney agents pro forma commitments and pay them full compensation, they will
       prevail on their individual claims and will have established a right to recovery for all class
       members regardless of the services performed by said attorney agents.” Id. at 236. In
       Chultem I, our colleagues specifically found that the “trier of fact will not have to make a
       transaction-by-transaction review of whether the attorney agents performed core title services
       pursuant to the section 8(c)(1)(B) exemption.” (Emphasis omitted.) Id.
¶ 62        Yet, after agreeing that if, in fact, the title companies were sending pro forma
       commitments to their title agent/attorneys, the title companies could not legally pay them the
       full amount of their contract, the trial court then went on and did exactly what it should not
       have done, i.e., it held a trial on what the attorneys did and not on whether the documents
       sent met the definition of pro forma commitments.
¶ 63        Our colleagues in Chultem I based their decision on a reading of the Real Estate
       Settlement Procedures Act (RESPA) (12 U.S.C. § 2607 (2000)). They noted that “RESPA
       sections 8(a) and (b) prohibit persons from giving or receiving kickbacks for the referral of
       title insurance business and from giving or receiving a portion of any title insurance premium
       ‘other than for services actually performed.’ 12 U.S.C. §§ 2607 (a), (b) (2000).” Chultem I,
       401 Ill. App. 3d at 227.
¶ 64        In order to figure out what Congress meant by those sections, our colleagues gave
       Chevron deference to and relied on the regulations promulgated by HUD:
                “ ‘[F]or an attorney of the buyer or seller to receive compensation as a title agent, the
                attorney must perform core title agent services (for which liability arises) separate
                from attorney services, including the evaluation of the title search to determine the
                insurability of the title, the clearance of underwriting objections, the actual issues of
                the policy or policies on behalf of the title insurance company, and, where customary,
                issuance of the title commitment, and the conduction of the title search and closing.’ ”
                Id. at 228 (quoting 24 C.F.R. § 3500.14(g)(3) (2001)).
¶ 65        Our colleagues also relied on the RESPA Statement of Policy 1996-4, later issued in the
       Federal Register (61 Fed. Reg. 49398, 49400 (Sept. 19, 1996)):
                “[I]f the title insurance company provides its title insurance agent with a pro forma
                commitment, *** the tile insurance agent is not ‘actually performing’ these services.
                As such, the title insurance agent would not be providing ‘core title services’ for the
                payments to come within the section 8(c)(1)(B) exemption.” (Internal quotation
                marks omitted.) Chultem I, 401 Ill. App. 3d at 228.
¶ 66        Finally, our colleagues relied on the RESPA Statement of Policy 1996-4 (61 Fed. Reg.
       49399 (Sept. 19, 1996)), which defines “pro forma commitment” as:
                    “[A] document that contains a determination of the insurability of the title upon
                which a title insurance commitment or policy may be based and that contains
                essentially the information stated in Schedule A and B of a title insurance
                commitment (and may legally constitute a commitment when countersigned buy an
                authorized representative). A pro forma commitment is a document that contains
                determinations or conclusions that are the product of legal or underwriting judgment
                regarding the operation or effect of the various documents or instruments or how they


                                                   - 17 -
                affect the title, or what matters constitute defects in title, or how the defects can be
                removed, or instructions concerning what items to include and/or to exclude in any
                title commitment or policy to be issued on behalf of the underwriter.” (Internal
                quotation marks omitted.) Chultem I, 401 Ill. App. 3d at 228-29.
¶ 67       The Florida Policy of HUD with respect to RESPA kickbacks and pro forma
       commitments became federal regulations in l996. (The same regulations were later reissued
       by the Bureau of Consumer and Financial Protection.) Our colleagues in Chultem I relied on
       those federal regulations in assessing the issues in the original appeal. I believe this
       demonstrates that this court has already given Chevron deference to the regulations. And, in
       fact, the trial court did as well when it accepted the definition of pro forma commitments.
¶ 68       What the trial court did not do is compare Ticor A-exam and CTI’s preliminary
       commitments to the definition of pro forma commitments. This relatively simple document
       comparing exercise would have answered the question posed in Chultem I and resolved this
       case.
¶ 69       A pro forma commitment, taking one part at a time, is:
                     (1) a document that contains a determination of the insurability of the title upon
                which a title insurance commitment or policy may be based. CTI employees used
                underwriting judgment and made the preliminary decision about insurability by
                analyzing starter files to determine exceptions; whether to use the legal description of
                the previous policy; what exceptions and tax exceptions to raise; and if there were any
                liens, mortgages, or judgments which might affect the property that still needed to be
                released. Ticor employees did the data entry; got information about the property from
                their files; analyzed starter files to determine what exceptions to bring forward and
                what standard exceptions and tax exceptions to raise and if there were any mortgages,
                liens, or judgments affecting the property that still needed to be released. These
                activities determined the insurability of the title; and
                     (2) that contains essentially the information stated in Schedule A and B of the title
                insurance commitment. Both CTI and Ticor’s documents contained all the
                information essentially stated in Schedule A and B of the title insurance commitment;
                and
                     (3) may legally constitute a commitment when countersigned buy an authorized
                representative. Both CTI and Ticor actually issued the owner’s title policy and the
                loan title policy after the closing. The CTI policies and the Ticor policies did not rely
                on the title agent/attorney’s signature, since the title agent/attorneys had no unilateral
                authority to agree to any waivers; and
                     (4) a document that contains determinations of conclusions that are the product of
                legal or underwriting judgment regarding the operation of effect of the various
                documents or instruments or how they affect the title. Both CTI and Ticor preliminary
                commitments contained all of the conclusions and legal or underwriting judgment
                that would affect title. In fact, the CTI preliminary commitment was the only title
                commitment issued in the transaction and Ticor printed the title commitment three
                days before the title agent/attorney returned his A-Exam; or
                     (5) what matters constitute defects in title. This work was done in all cases by the
                employees of the title company; or


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                    (6) how the defects can be removed. This work was done in all cases by the
                employees of the title company; or
                    (7) instructions concerning what items to include and/or to exclude in any title
                commitment or policy to be issued on behalf of the underwriter. This work was all
                done by employees of the title company. (Definition of pro forma commitment see:
                RESPA Statement of Policy 1996-4, 61 Fed. Reg. 49399 (eff. Sept. 19, 1996).)
       See Chultem I, 401 Ill. App. 3d at 228-29 (quoting RESPA Statement of Policy 1996-4, 61
       Fed. Reg. 49399 (eff. Sept. 19, 1996)).
¶ 70        It is clear that the title agent/attorneys did not have the unilateral authority to waive
       anything, that their signatures were totally duplicative because the title company had already
       decided to issue the title commitment by providing the A-Exam and the preliminary
       commitment and the actual title policy was not finally issued until after the closing by the
       title company, not at the closing as my colleagues believe. That is because the bundle of
       papers put together at the closing were then sent to the title company by the client’s
       attorney–which would have been done by any attorney representing either the buyer or
       seller–and then the title company adds certain information–including the new bank and
       mortgage information–to its computer data system and issues the final owner’s and loan
       policies.
¶ 71        My colleagues argue against Chevron deference, apparently believing that Congress was
       crystal clear and unambiguous in its language and intent. Okay, let us test that theory.
¶ 72        If the language and intent are crystal clear then the words Congress used in RESPA: to
       protect consumers “from unnecessarily high settlement charges caused by certain abusive
       practices” (12 U.S.C. § 2601(a) (2012)) and the intent expressed in section 2601(b)(2), i.e.,
       “the elimination of kickbacks or referral fees that tend to increase unnecessarily the costs of
       certain settlement services” (12 U.S.C. § 2601(b)(2) (2012)) must defeat the defendant’s
       position that these shell games were permissible.
¶ 73        Congress wanted to stop any practice among title companies which gouged clients by
       adding unnecessary costs for title policies. Title companies were competing for business. So
       they developed several creative business models to get more referrals. One of these was by
       lining up attorneys as title agents who would make referrals of business. These were clearly
       the kickbacks for referrals that Congress wanted to stop. Now, Freeman tells us that RESPA
       is not a price fixing law, and so, overcharges are permitted. However, the intent of Congress
       to prevent unnecessary add-ons is something different. The two can be reconciled by looking
       at the language and what was actually happening. These title agent/attorneys were getting
       rewarded with kickbacks for their referrals–since they only referred title business to the
       respective title companies by getting no work contracts with the title companies. It was
       simply a windfall for the title attorney/agents. The add-ons to attorney agents are exactly the
       kinds of kickbacks for referrals that Congress intended to stop, specifically because the
       attorney agents were not necessary for the title company to do its work since the title
       company already did all the work and prepared the pro forma commitment. The money to the
       attorney was not an overcharge; it was an add-on for a totally superfluous, duplicative and
       unnecessary line item.
¶ 74        On the other hand, if the language and intent of Congress are less than clear, i.e.,
       ambiguous, then Chevron deference to the HUD regulations is permitted, and then the
       definition of pro forma commitments, which was adopted in Chultem I and the trial court,

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       and the language prohibiting payments to an attorney/agent who has received a pro forma
       commitment must be accepted and the majority’s analysis must still fail.
¶ 75        And, I note that the trial judge did in fact give deference to the regulations when she
       determined that the commitments being sent to the title agent/attorneys were not pro forma
       commitments, a determination she made, not by comparing the commitment documents the
       title companies sent to its title agent/attorneys with the definition of pro forma commitments,
       but by permitting the defendants to develop what work title agent/attorneys performed. As
       our colleagues in Chultem I correctly pointed out, if there were pro forma commitments
       being sent to the title agents/attorneys, then no further inquiry was necessary because by
       definition there was no additional title work to be done by the title agent/attorneys.
¶ 76        In fact, Congress was very specific that it left to HUD the job of writing the rules and
       regulations by authorizing HUD “to prescribe such rules and regulations, to make such
       interpretations, and to grant such reasonable exemptions for classes of transactions, as may
       be necessary to achieve the purposes of” RESPA. 12 U.S.C. § 2617(a) (2012).
¶ 77        My colleagues here rely on Freeman to dismiss the regulations. But Freeman answered
       an entirely different question–whether there could be a split of charges when only one entity
       or person is involved–and looked at an entirely different regulation (i.e., 66 Fed. Reg. 53057
       (Oct. 17, 2001)), in which HUD ruled that it was not limited to situations in where there were
       at least two persons splitting an unearned fee, that is in yield spread premiums. The Freeman
       court determined that, in fact, there has to be more than one person or entity splitting a fee for
       it to be split.
¶ 78        The question here is whether the title company may add on a fee for a title agent/attorney
       who receives a pro forma commitment. There are two entities and there is an extra add-on.
       We know that because the title companies billed the clients for title services at say $1,000,
       but only kept $200 to $500 of it. The extra went to the title agent/attorney as an add-on,
       disguised as a payment for services. (And, I note, it was not disclosed to the client.) But,
       round and round it goes: if the pro forma commitment left no title services to perform, then
       the title agent/attorney who received a pro forma commitment could not, by definition, be
       performing any title services. This is covered by 61 Fed. Reg. 49399 (Sept. 19, 1996).
¶ 79        These were plain and simple kickbacks for referrals, and no matter how you dress them
       up, they are still kickbacks; they are still wrong and the class can demonstrate violations of
       both the federal and Illinois laws.
¶ 80        These plaintiffs have appropriately narrowed the class. I would reverse and remand.




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