              IN THE SUPREME COURT OF IOWA
                            No. 23 / 04-1139

                           Filed April 14, 2006


MARK STURM and LORI J. STURM,

      Appellants,

vs.

PEOPLES TRUST & SAVINGS BANK,

      Appellee.


      Appeal from the Iowa District Court for Carroll County, Joel E.

Swanson, Judge.



      Bank customers appeal from summary judgment against them in

their suit against bank based on alleged violations of federal statute and

common law. AFFIRMED.



      Benjamin T. Doran of Doran Anderson & Baltimore, P.L.C., Boone, for

appellants.



      Bernard L. Spaeth, Jr. of Whitfield & Eddy, P.L.C., Des Moines, for

appellee.
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LARSON, Justice.

      The plaintiffs, Mark and Lori J. Sturm, defaulted on loans they had

obtained from Peoples Trust & Savings Bank (Peoples), and Peoples

foreclosed. After the foreclosure, Sturms filed this suit, claiming the loan

papers had failed to comply with a federal statute, that Peoples negligently

misrepresented the rights and duties under the loan agreements, and that

they had suffered damages as a result. The district court sustained Peoples’

motion for summary judgment, and Sturms appealed. We affirm.

      I. Facts and Prior Proceedings.

      Sturms and Peoples had a long banking relationship, but only two

transactions are involved on this appeal. The first was a loan in July 1999

for $100,000 to build a cabin on Sturms’ acreage. Peoples, in order to loan

the money, required a first lien on the Sturms’ real estate, which was at

that time mortgaged to Farmers Savings Bank of Halbur (Farmers). Peoples

paid the balance due to Farmers of $54,237.28 to obtain a first-lien

position. In addition, $12,118.35 was deducted from the loan proceeds to

pay off a previous loan Sturms had with Peoples.        As a result of the

payments to Farmers and to Peoples on its existing loan, Sturms did not get

the full $100,000 for the construction of their cabin, as they had planned.
      The second transaction relates to what was actually a new loan taken

out by the Sturms in 2001 in the amount of $143,292.71.           The loan

required an initial payment of $4500 and monthly payments of $1359.39.

The Sturms claim that they were not aware that a new loan was being

created and that they believed three of the previous loans with Peoples were

merely being renewed.

      The gist of the Sturms’ suit against Peoples is that the loan papers

were deficient under federal statutes and common law. They argue that the

first of the bank’s “HUD-1” forms (which we explain later) was deficient
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because it failed to state on its face that the net amount of the loan would

be reduced by the payment to Farmers and to Peoples on its earlier loan.

They believe the second HUD-1 form was deficient because it indicated that

the three previous loans were merely being renewed.

      The factual support for Sturms’ claims are not at issue on appeal.

The sole issues are legal ones: (1) Do borrowers have a private cause of

action against a lending institution for violation of the federal lending

statute involved here, and (2) if statutory liability does not exist, may

Peoples be held liable under a theory of negligent misrepresentation?

      II. The Statutory Claim.

      The Sturms claim that Peoples failed to comply with 12 U.S.C.

§ 2603, which provides for the development and use of a standard form

called “HUD-1.” The statute requires that the form

      conspicuously and clearly itemize all charges imposed upon the
      borrower and all charges imposed upon the seller in connection
      with the settlement and shall indicate whether any title
      insurance premium included in such charges covers or insures
      the lender’s interest in the property, the borrower’s interest, or
      both.

This section is part of the “Real Estate Settlement Procedures Act” or

RESPA. The bank does not concede that it violated § 2603, but argues that,

even if it had violated it, the Sturms have no cause of action.
      The Sturms acknowledge that § 2603 does not expressly create a

private cause of action for a violation.    However, they argue that it is

“inconsistent to impose requirements on a lender, yet protect it [from]

liability to a borrower for violations of those requirements.” While they

acknowledge that the weight of authority suggests that a private cause of

action cannot be implied from 12 U.S.C. § 2603, they believe this court

should reach a different result.
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       Only one case cited by Sturms found an implied cause of action

under RESPA. That case is Vega v. First Federal Savings & Loan Association,

622 F.2d 918 (6th Cir. 1980).              However, the “holding” in that case is

relegated to a footnote:

       As a threshold matter, we must determine whether [RESPA]
       creates a private cause of action for violations of 12 U.S.C s
       2609 and 12 U.S.C. s 2610. While the Act does not expressly
       provide for such causes of action, we believe, based on the
       legislative history, that Congress intended to create a private
       remedy for violations of the Act. 1

Vega, 622 F.2d at 925 n.8. Apparently, all other reported federal cases have

found no implied cause of action. See Collins v. FMHA-USDA, 105 F.3d

1366, 1368 (11th Cir. 1997) (finding no private cause of action under 12

U.S.C. § 2604 (requiring that information booklets and good-faith estimate

of charges for specific settlement services be provided)); Louisiana v. Litton

Mortgage Co., 50 F.3d 1298, 1301-02 (5th Cir. 1995) (finding no private

right of action under 12 U.S.C. § 2609) (limitation on advance deposit

requirements); Allison v. Liberty Sav., 695 F.2d 1086, 1089 (7th Cir. 1982)

(finding no private right of action under 12 U.S.C. § 2609); Bloom v. Martin,

865 F. Supp. 1377, 1385 (N.D. Cal. 1994) (finding no private cause of action

under 12 U.S.C. § 2603), aff’d on other grounds, 77 F.3d 318, 320-21 (9th

Cir. 1996); Campbell v. Machias Sav. Bank, 865 F. Supp. 26, 31 (D. Me.

1994) (finding no implied cause of action under 12 U.S.C. § 2609);

Bergkamp v. N.Y. Guardian Mortgagee Corp., 667 F. Supp. 719, 723 (D.

Mont. 1987) (finding no private cause of action under 12 U.S.C. § 2609).

       Apparently, the only eighth circuit decision discussing the issue is

DeBoer v. Mellon Mortgage Co., 64 F.3d 1171, 1177 (8th Cir. 1995). DeBoer


       1The court in Vega did not elaborate on the “legislative history” it found to support a
private cause of action. In fact, as the court observed in Allison v. Liberty Savings, 695 F.2d
1086, 1089 (7th Cir. 1982), “[t]he parties’ briefs, the district court’s opinion and our own
research disclose no legislative history on the issue of private remedies under § 10.”
                                      5

recognized the split in authorities, but it expressed doubt as to whether an

implied cause of action exists under RESPA. In assessing the merits of a

class-action settlement in that case, the court said:

      Counseling strongly in favor of the settlement is the fact that
      the plaintiffs did not have a very strong case—they may not
      have even had a legitimate federal cause of action.

DeBoer, 64 F.3d at 1177.          Based on the state of the law in other

jurisdictions, the court concluded “there was a strong unlikelihood of

success” by the plaintiffs. Id.

      In determining whether a private cause of action was created by

implication, many courts have relied on the four-part test of Cort v. Ash,

422 U.S. 66, 78, 95 S. Ct. 2080, 2088, 45 L. Ed. 2d 26, 36-37 (1975).

Under that case, a court should inquire whether (1) the statute was created

for the plaintiff’s special benefit, (2) there is any indication of legislative

intent to create a private remedy, (3) a private remedy would be consistent

with the legislative purpose, and (4) the area is so traditionally relegated to

the states that it would be inappropriate to infer a cause of action based

solely upon federal law.
      In further refining the test, the Supreme Court has held that, because
the ultimate question is one of legislative intent, the determinative factor is

whether there is any indication of congressional intent to create a private

remedy. Transamerica Mortgage Advisors, Inc. v. Lewis, 444 U.S. 11, 15-16,

100 S. Ct. 242, 245, 62 L. Ed. 2d 146, 152 (1979). Further, the Court

stated in Alexander v. Sandoval, 532 U.S. 275, 286-87, 121 S. Ct. 1511,

1519-20, 149 L. Ed. 2d 517, 528 (2001),

      [l]ike substantive federal law itself, private rights of action to
      enforce federal law must be created by Congress. The judicial
      task is to interpret the statute Congress has passed to
      determine whether it displays an intent to create not just a
      private right but also a private remedy. Statutory intent on
      this latter point is determinative. Without it, a cause of action
                                      6
      does not exist and courts may not create one, no matter how
      desirable that might be as a policy matter, or how compatible
      with the statute.

(Citations omitted.)

       The legislative history of this statute does not support an

interpretation under which a private remedy is created. See S. Rep. No. 93-

866 (1974), H.R. Rep. No. 93-1526 (1974), H.R. Rep. No. 94-667 (1975),

H.R. Rep. No. 94-769 (1975). Rather, its limited purpose is as stated by

Congress:

       that consumers throughout the Nation [be] provided with
       greater and more timely information on the nature and the
       costs of the settlement process and [be] protected from
       unnecessarily high settlement charges caused by certain
       abusive practices . . . .

12 U.S.C. § 2601(a).

       According to the Supreme Court,

       the fact that a federal statute has been violated and some
       person harmed does not automatically give rise to a private
       cause of action in favor of that person.

Cannon v. Univ. of Chicago, 441 U.S. 677, 688, 99 S. Ct. 1946, 1953, 60

L. Ed. 2d 560, 570 (1979).

       In Sturms’ case, it is not likely that Congress merely overlooked
providing a private remedy under § 2603 because other provisions in

RESPA specifically state that a private remedy exists. For example, § 2605

provides for liability of a lender for violations of the loan and escrow

servicing provisions and § 2607 provides for penalties and private remedies

for violation of a kickback in unearned fee provisions.

       We reject Sturms’ claim that § 2603 provides a private cause of action

for its violation.
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      III. The Negligent Misrepresentation Claim.

      The Sturms pled a common-law claim for negligent misrepresentation

that, they contend, provided a basis for recovery independent of their

statutory claim under 12 U.S.C. § 2603. The district court dismissed that

claim as well as the statutory claim.

      We recognize claims for negligent misrepresentation as defined in

Restatement (Second) of Torts section 552. See Freeman v. Ernst & Young,

516 N.W.2d 835, 837 (Iowa 1994). Section 552 provides:

      One who, in the course of his business, profession, or
      employment, or in any other transaction in which he has a
      pecuniary interest, supplies false information for the guidance
      of others in their business transactions, is subject to liability
      for pecuniary loss caused to them by their justifiable reliance
      upon the information, if he fails to exercise reasonable care or
      competence in obtaining or communicating the information.

      Sturms, however, have a major obstacle to overcome in applying the

tort of negligent misrepresentation in this case because

      the tort does not apply when a defendant directly provides
      information to a plaintiff in the course of a transaction between
      the two parties, which information harms the plaintiff in the
      transaction with the defendant.

Sain v. Cedar Rapids Cmty. Sch. Dist., 626 N.W.2d 115, 126 (Iowa 2001).
Thus, the tort “predominately applies to situations where the information

supplied harmed the plaintiff in its relations with third parties.” Id. at 126.

      In Haupt v. Miller, 514 N.W.2d 905, 910 (Iowa 1994), we refused to

recognize a negligent misrepresentation claim against a bank officer in

connection with the negotiation of a loan guarantee.           We noted the

distinction between defendants in the business of supplying information, as

to which the tort principle may apply, and parties to an arms-length or

adversary transaction, as to which the claim does not apply. Here, the loan
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transactions   fall   within   the   latter   category,   and   the   negligent

misrepresentation principles of section 552 do not apply.

      AFFIRMED.
