                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                      F I L E D
                                                                      June 11, 2003
                               In the
                                                                Charles R. Fulbruge III
              United States Court of Appeals                            Clerk
                       for the Fifth Circuit
                           _______________

                             m 02-60539
                           _______________

     ANNA D. SNOW; TERESA J. HALEY; RONALD DUFF; SABRINA DUFF;
RICKY WILLIAMS; ANGELA WILLIAMS, AND ALL OTHERS SIMILARLY SITUATED,

                                             Plaintiffs-Appellants,

                               VERSUS

             FIRST AMERICAN TITLE INSURANCE COMPANY,

                                             Defendant-Appellee.

         ****************************************************
                            _______________

                             m 02-60627
                           _______________

  ANDREA CHENAULT; JOANNA SMITH; PAMELA EDWARDS; FRANKIE JUDD;
     DEBBIE L. WILSON; KENNETH W. WILSON; CELESTINE TURNER;
         GUY E. WATTS, JR.; JANIE G. WATTS; LISA TIMMONS,
               AND ALL OTHERS SIMILARLY SITUATED,

                                             Plaintiffs-Appellants,

                               VERSUS

            MISSISSIPPI VALLEY TITLE INSURANCE COMPANY;
          OLD REPUBLIC NATIONAL TITLE INSURANCE COMPANY,

                                             Defendants-Appellees.
                                      _________________________

                             Appeals from the United States District Court
                               for the Northern District of Mississippi


                                      _________________________




Before SMITH, DENNIS, and CLEMENT,                         annual bonuses to agents who collect certain
  Circuit Judges.                                          high amounts of premiums. Mississippi Valley
                                                           Title Insurance Company and Old Republic
JERRY E. SMITH, Circuit Judge:                             National Title Insurance Company pay most of
                                                           their agents sixty percent of the premiums they
   In these cases consolidated for appeal,                 collect, but agents with certain high volumes
plaintiffs sued for alleged violations of the Real         receive seventy percent of their collections.
Estate Settlement Procedures Act (“RESPA”),
12 U.S.C. § 2601 et seq., in connection with                  Plaintiffs allege that these compensation
their purchase of title insurance. The district            plans violate RESPA’s anti-kickback and fee-
court in each case ruled that RESPA’s one-                 splitting provisions, 12 U.S.C. § 2607(a)-(b).
year statute of limitations bars recovery.                 They sued more than one year after their real
Agreeing with that conclusion, we affirm.                  estate closings. Defendants argued that
                                                           RESPA’s one-year statute of limitations, 12
                        I.                                 U.S.C. § 2614, therefore barred the suits. The
   Plaintiffs are putative classes of real estate          district courts agreed and entered judgment for
purchasers.1 Defendants are title insurance                defendants.
companies. Plaintiffs bought title insurance
from agents working for the defendant compa-                                     II.
nies. Plaintiffs paid for the insurance at their              These appeals have different procedural
real estate closings.                                      postures. The Snow court entered a judgment
                                                           of dismissal under FED. R. CIV. P. 12(b)(6); the
    Though defendants have different compen-               Chenault court entered summary judgment
sation plans, plaintiffs allege that these plans           under FED. R. CIV. P. 56(c). When reviewing
have a common effect: The agents receive ad-               a dismissal, we take the well-pleaded facts in
ditional compensation for generating high vol-             the complaint as true. Kane Enters. v. Mac-
umes of title insurance sales for defendants.              Gregor (U.S.A.) Inc., 322 F.3d 371, 374 (5th
First American Title Insurance Company pays                Cir. 2003). When reviewing a summary judg-
                                                           ment, though, we look to whether the plaintiff
                                                           adduced specific evidence creating a genuine
   1
     Neither district court certified a class before       issue of material fact. Chaplin v. Nations-
entering judgment, so plaintiffs appear in their           Credit Corp., 307 F.3d 368, 371-72 (5th Cir.
individual capacities.

                                                       2
2002).                                                   plans.2

   These differences do not affect our review,              The statute of limitations for private
because plaintiffs and defendants in both cases          plaintiffs suing for an alleged violation of
agree on the relevant facts and dispute only the         § 2607 is one year. 12 U.S.C. § 2614. The
meaning of certain statutory language in                 parties disagree over what triggers this one-
§ 2614. We therefore accept the undisputed               year statute of limitations. Section 2614 states
facts and review the question of statutory in-           that the limitations period runs “from the date
terpretation de novo. United States v. Phipps,           of the occurrence of the violation.”
319 F.3d 177, 183 (5th Cir. 2003).                       Defendants argue that “the violation” (if any)
                                                         occurred at the closing when the agents earned
                         III.                            the allegedly prohibited credit toward future
   Congress enacted RESPA “to ensure that                payment under defendants’ compensation
real estate consumers ‘are provided with great-          plans. Thus, defendants conclude that § 2614
er and more timely information on the nature             bars these suits because plaintiffs sued more
and costs of the settlement process and are              than one year after their closings.
protected from unnecessarily high settlement
charges caused by certain abusive practices.’”              Plaintiffs acknowledge that a violation (if
O’Sullivan v. Countrywide Home Loans, Inc.,              any) occurred at the closing and therefore that
319 F.3d 732, 738 (5th Cir. 2003) (quoting 12            they could have sued immediately thereafter.
U.S.C. § 2601(a)). To this end, RESPA                    Yet, plaintiffs counter that the closing is not
prohibits any person from giving or accepting            the only event that triggers the one-year
“any fee, kickback, or thing of value pursuant           period. They argue that limitations began to
to any agreement or understanding . . . that             run anew when defendants paid the credit that
business incident to or a part of a real estate          the agents had earned at the closing. Thus,
service . . . shall be referred to any person,” 12       plaintiffs conclude that § 2614 does not bar
U.S.C. § 2607(a), and from accepting any                 their suits, because they sued less than one
unearned fee in relation to a settlement service,        year after defendants tendered the additional
12 U.S.C. § 2607(b).                                     income to the agents.

    “[T]he term ‘thing of value’ includes any               We agree with defendants’ interpretation:
payment, advance, funds, loan, service, or oth-          The phrase “the date of the occurrence of the
er consideration.” 12 U.S.C. § 2602(2). The              violation” refers to the closing, i.e., when the
RESPA regulations elaborate this statutory de-           plaintiffs paid for the insurance, because that is
finition to include “credits representing monies         when the agents earned the allegedly
that may be paid at a future date.” 24 C.F.R.            prohibited “thing of value.”3 We interpret
§ 3500.14(d). The parties agree that de-
fendants gave, and their agents received, a
“thing of value” when plaintiffs paid for the               2
                                                             Defendants, of course, contest that this “thing
title insurance at their closings, because the           of value” violated the statute, but we need not
agents thereby earned a credit toward future             address that question.
payment under defendants’ compensation
                                                            3
                                                                We use “closing” interchangeably with the
                                                                                    (continued...)

                                                     3
§ 2614 in this way for four main reasons.                  limitations. The Secretary of Housing and
                                                           Urban Development, state attorneys general,
     First and most importantly, the statutory             and state insurance commissioners may sue
text and structure better support this reading.            within three years of any violation of RESPA.
In § 2614, Congress spoke of a single                      12 U.S.C. § 2614. Private plaintiffs, too, have
triggering violation, not multiple violations.             a three-year limitations period for suits
“Any action pursuant to . . . section . . . 2607           alleging a violation of § 2605. Id. Only for
. . . may be brought in [a court] . . . where the          private plaintiffs suing under §§ 2607 and
violation is alleged to have occurred, within              2608 did Congress impose a one-year
. . . 1 year in the case of a violation of section         limitations period. Id.
2607 . . . from the date of the occurrence of
the violation[.]” 12 U.S.C. § 2614 (emphasis                  By extending indefinitely the limitations pe-
added). Had Congress wanted the various                    riod for private plaintiffs suing under § 2607,
steps in a single transaction to trigger the stat-         plaintiffs’ interpretation would “create[ ] a
ute of limitations multiple times, it would have           limitations period that is longer than Congress
spoken of multiple “violations.”                           could have contemplated,” Klehr v. A.O.
                                                           Smith Corp., 521 U.S. 179, 187 (1997), for
   When creating the private right of action               such suits. The interpretation thus would ne-
for kickbacks and fee-splitting, Congress also             gate Congress’s decision to impose three dif-
spoke of a single “violation.” 12 U.S.C.                   ferent limitation periods in § 2614. We are
§ 2607(d)(2). As plaintiffs recognize, this use            obliged, however, to preserve these policy
of the term “violation” refers to the single in-           choices. See United Sav. Ass’n v. Timbers of
tegrated transaction, regardless how many                  Inwood Forest Assocs., Ltd., 484 U.S. 365,
steps it has. This undermines their own                    371 (1988).
argument, however, because the same term
should be given the same meaning throughout                   Furthermore, Congress directed RESPA
the statute. United States v. Ho, 311 F.3d                 toward the closing. The primary ill that
589, 606 (5th Cir. 2002).                                  § 2607 is designed to remedy is the potential
                                                           for “unnecessarily high settlement charges,”
   Plaintiffs’ interpretation also would upset             § 2601(a), caused by kickbacks, fee-splitting,
Congress’s policy choices regarding limitations            and other practices that suppress price
periods for RESPA actions. Section 2614                    competition for settlement services. This ill
actually contains three separate statutes of               occurs, if at all, when the plaintiff pays for the
                                                           service, typically at the closing. Plaintiffs
                                                           therefore could have sued at that moment, and
(...continued)
                                                           “the standard rule [is] that the limitations
date of plaintiffs’ payment for the title insurance,
                                                           period commences when the plaintiff has a
because they are identical in this case, as they are
in most real estate transactions. We recognize,
                                                           complete and present cause of action.” Bay
however, the possibility that purchasers could pay         Area Laundry & Dry Cleaning Pension Trust
for a settlement service subject to § 2607(a)-(b) at       Fund v. Ferbar Corp., 522 U.S. 192, 201
a time other than the closing, in which case “the
date of the occurrence of the violation” presumably
would be the date of payment, not the unrelated
closing.

                                                       4
(1997) (quotation marks omitted).4                                  Plaintiffs’ interpretation also would let the
                                                                statute of limitations regenerate itself like a
   Indeed, plaintiffs should be indifferent to                  phoenix from the ashes. Plaintiffs note that
whether defendants pay their agents in the                      some insurance companies, instead of cash
future, because it would not affect the price                   payments, might give their high-volume agents
plaintiffs paid for title insurance. This                       trips to events such as annually-occurring golf
statutory emphasis on the closing further                       tournaments. Suppose, however, that a
indicates that the limitations period begins to                 company rewarded its highest volume agents
run when the agents earned the allegedly                        with trips to the Olympics. In this situation,
prohibited credit at the closing.                               plaintiffs contend that the limitations period
                                                                would begin at the closing and expire a year
   Second, plaintiffs’ interpretation would cre-                later, only to be restarted years later when the
ate several absurd results, which we must                       agents travel to the Olympics and then to run
endeavor to avoid. United States v. Ret.                        for another year. Neither the statute nor the
Servs. Group, 302 F.3d 425, 435-36 (5th Cir.                    caselaw supports this unheard-of proposition.6
2002).        Most obviously, plaintiffs’
interpretation would allow them to recover                         In addition, under plaintiffs’ interpretation,
twice for a single violation in connection with                 like plaintiffs would face unalike limitations
a single settlement service, once for the                       periods. Suppose two persons buy title
violation at closing and again for the violation                insurance from the same agent on the same
at payment. Nothing in the statute authorizes                   day at the same price and subject to the same
this double recovery. To the contrary,                          compensation plan. For the first purchaser,
Congress already imposed treble damages for                     the agent remits the full premium to the
any kickback or fee-splitting violation. 12                     insurance company but is credited with a
U.S.C. § 2607(d)(2).5

                                                                   5
                                                                    (...continued)
   4
     See also Clark v. Iowa City, 87 U.S. (20                   terpretation, why they could not recover twice for
Wall.) 583, 589 (1875) (“All statutes of limitations            the treble value of the single charge paid. They
begin to run when the right of action is                        also argue that Congress used the plural “pro-
complete[.]”).                                                  hibitions or limitations” to describe the violation
                                                                but used the singular “charge paid” to describe the
   5
      Plaintiffs attempt but fail to dispel the possi-          measure of liability. Yet, the phrase “prohibitions
bility of such double recovery. They emphasize                  or limitations” plainly refers to the multiple rules
§ 2607(d)(2), which states that “[a]ny person or                imposed by § 2607, not the number of violations
persons who violate the prohibitions or limitations             committed under the section.
of this section shall be . . . liable to the person . . .
                                                                   6
charged for the settlement service involved in the                    Cf. Reiter v. Cooper, 507 U.S. 258, 267
violation in an amount equal to three times the                 (1993) (“While it is theoretically possible for a
amount of any charge paid for such settlement                   statute to create a cause of action that accrues at
service.” They argue first that the measure of                  one time for the purpose of calculating when the
damages is the “charge paid,” and, because they                 statute of limitations begins to run, but at another
paid only one charge, there can only be one re-                 time for the purpose of bringing suit, we will not
covery. Yet, there is no reason, under their in-                infer such an odd result in the absence of any such
                                          (continued...)        indication in the statute.”).

                                                            5
future payment. For the second purchaser, the             periods.” Klehr, 521 U.S. at 187.
agent retains his share of the premium and
remits the remainder to the company. The first                Fourth, the caselaw, albeit limited, uniform-
purchaser enjoys an indefinitely extended                 ly supports defendants’ interpretation. No
limitations period, whereas the limitations               circuit has interpreted the phrase “the date of
clock begins to tick immediately for the second           the occurrence of the violation” in § 2614.
purchaser.                                                One district court, in a thorough opinion, has
                                                          held that “the violation occurs and the
   RESPA nowhere suggests that Congress                   limitations period begins once a borrower
intended such dissimilar treatment.            “If        overpays for a settlement service that is
Congress had intended the statute of                      subject to [§ 2607].” Mullinax, 199 F. Supp.
limitations to float in this way, it could have so        2d at 325. Several other courts have assumed
provided in explicit language.” Mullinax v.               in dictum that the violation occurs when a
Radian Guar. Inc., 199 F. Supp. 2d 311, 325               plaintiff pays for the settlement service.8
(M.D.N.C. 2002).                                          Plaintiffs, by contrast, cannot point to a case
                                                          that holds or even assumes that the limitations
   Third, we create a simple and workable rule            period can restart when the defendant pays an
for the application of § 2614 by interpreting             allegedly illegal kickback or fee.
the phrase “the date of the occurrence of the
violation” as the date of the closing, which is              AFFIRMED.
a definite and indisputable date known to
potential plaintiffs and defendants. The date
when defendants pay their agents, on the other
hand, is unknown to plaintiffs; it could occur
weeks, months, or even years after the closing.

    Plaintiffs’ interpretation thus would
generate confusion and uncertainty about the
timeliness of many RESPA claims. In practice,
it would encourage tardy plaintiffs to sue and
hope that discovery turns up a recent payment
that restarts the limitations period.7 This in-
terpretation “thereby conflicts with a basic
objectiveSSreposeSSthat underlies limitations


   7
     Plaintiffs have not raised, and we therefore
express no opinion on, the question whether § 2614
                                                             8
is subject to equitable tolling. Compare Hardin v.            See, e.g., Salois v. Dime Savs. Bank, 128 F.3d
City Title & Escrow Co., 797 F.2d 1037, 1039-41           20, 25 (1st Cir. 1997); Pedraza v. United Guar.
(D.C. Cir. 1986) (holding that § 2614 is not              Corp., 114 F. Supp. 2d 1347, 1349 (S.D. Ga.
subject to equitable tolling) with Mullinax, 199 F.       2000); Bloom v. Martin, 865 F. Supp. 1377, 1386
Supp. 2d at 326-28 (holding that § 2614 is subject        (N.D. Cal. 1994), aff’d, 77 F.3d 318 (9th Cir.
to equitable tolling).                                    1996).

                                                      6
