                             UNPUBLISHED

                    UNITED STATES COURT OF APPEALS
                        FOR THE FOURTH CIRCUIT


                             No. 09-2301


JOHN C. BENNISON,

                Plaintiff - Appellant,

           v.

WESTERN SURETY COMPANY,

                Defendant - Appellee.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.     Leonie M. Brinkema,
District Judge. (1:09-cv-00891-LMB-IDD)


Argued:   October 26, 2010              Decided:   December 23, 2010


Before TRAXLER, Chief Judge,        GREGORY,   Circuit   Judge,   and
HAMILTON, Senior Circuit Judge.


Affirmed by unpublished per curiam opinion.


ARGUED: Burton Jay Rubin, BURTON JAY RUBIN, ATTORNEY AT LAW,
Burke, Virginia, for Appellant.     Gregory T. Lawrence, CONTI,
FENN & LAWRENCE, LLC, Baltimore, Maryland, for Appellee.      ON
BRIEF: Anthony M. Conti, CONTI, FENN & LAWRENCE, LLC, Baltimore,
Maryland, for Appellee.


Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:

     John Bennison (Bennison) brought this declaratory judgment

action against Western Surety Company (Western Surety) seeking a

declaration that Western Surety was liable under a surety bond

(the Surety Bond) it issued to Jaehyung Kim, Esquire, of the Law

Office of Jaehyung Kim, LLC d/b/a First Title & Escrow (First

Title).     The district court granted Western Surety’s motion to

dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil

Procedure, and Bennison appeals.        We affirm.

     This case has its genesis from a real estate transaction

involving     the   purchase   of   a   home   at   7214   Poplar   Street,

Annandale, Virginia (the Poplar Street Property).             To purchase

the home, the purchasers obtained financing from two sources.

First, the purchasers borrowed $600,000 from Burke and Herbert

Bank & Trust Company (Burke and Herbert).            Next, the purchasers

secured $120,000 in financing (the Loan) from G.W. Investments,

Inc. (G.W. Investments).       G.W. Investments’ lien on the Poplar

Street Property was subordinate to Burke and Herbert’s lien. 1

     The settlement agent for the transaction was First Title,

who also acted as an agent for Chicago Title Insurance Company


     1
       Bennison was an “individual investor who placed funds with
. . . G.W. Investments” for the purpose of obtaining an interest
in the Loan.   (J.A. 6).   By assignment, Bennison acquired from
G.W. Investments all of its rights under the Loan.



                                    - 2 -
(Chicago    Title).      On   October    6,   2006,   G.W.   Investments     sent

closing instructions for the Loan to First Title via facsimile.

As part of its closing instructions, G.W. Investments directed

First Title to secure a commitment for title insurance on not

only the Poplar Street Property, but also on another property

owned by the purchasers, namely, a home located at 10957 Adare

Drive, Fairfax, Virginia (the Adare Drive Property).

     On October 9, 2006, First Title faxed to G.W. Investments a

standard    commitment     for   title    insurance     (the    Chicago     Title

Commitment).       The   Chicago   Title      Commitment     provided     that   a

standard title insurance policy was to be issued covering the

property described in “Exhibit A.”               (J.A. 52).       The Chicago

Title Commitment contained two Exhibit As, one identified the

Poplar Street Property, the other identified the Adare Drive

Property.

     On October 12, 2006, the purchasers closed on the Poplar

Street Property.      At the closing, G.W. Investments released the

$120,000,    the   Poplar     Street     Property     was    transferred,     and

Chicago Title was paid $338 for title insurance pursuant to the

Chicago Title Commitment. 2




     2
       The Loan was secured by a blanket deed of trust on both
the Poplar Street Property and the Adare Drive Property.



                                    - 3 -
     On November 28, 2006, Chicago Title issued a standard title

insurance policy to G.W. Investments.                    Unlike the Chicago Title

Commitment, the standard title insurance policy issued to G.W.

Investments did not include the Adare Drive Property.

     In or about July 2007, the purchasers defaulted on all of

their mortgages on both the Poplar Street Property and the Adare

Drive Property.           Both the Poplar Street Property and the Adare

Drive Property were sold at foreclosure in or about February

2008.      Partly     because      of    a    prior     lien   on    the    Adare   Drive

Property, no surplus was available to pay the balance due on the

Loan.

     On    October     6,    2008,      Bennison      filed    a    complaint      against

Chicago    Title     in     the    United      States    District         Court   for   the

Eastern    District        of     Virginia.        In     this      lawsuit,      Bennison

represented that title insurance was obtained on the both the

Poplar Street Property and the Adare Drive Property.                              Bennison

settled    his   lawsuit        against       Chicago    Title      for    approximately

$37,000.

     While the case against Chicago Title was pending, Bennison

made a claim on the Surety Bond issued by Western Surety to

First Title.       The Surety Bond provided that it was null and void

if First Title acted in full compliance with the laws of the

Commonwealth     of    Virginia         and    rules,    regulations,        and    orders

prescribed by the Virginia State Bar pertaining to settlement

                                          - 4 -
agents.      Western Surety denied the claim, and Bennison brought

this declaratory judgment action in the United States District

Court     for      the     Eastern      District          of        Virginia.          In    direct

contradiction         to     his     position        in   the       Chicago     Title        action,

Bennison alleged that no commitment for title insurance, and,

therefore, no title insurance was obtained on the Adare Drive

Property.

       In Virginia, a real estate settlement agent is required to

purchase a surety bond.                Va. Code. Ann. § 55-525.20(B)(3).                           All

funds deposited with the settlement agent must be handled in a

fiduciary       capacity,        and    such      funds     must       be     applied       only    in

accordance      with       the     terms     of     the    individual         instructions          or

agreements      under        which     the   funds        were      accepted.          Id.    §    55-

525.24(A)(2).          Bennison alleged in the district court that First

Title     violated         §     55-525.24(A)(2)               by     not     disbursing           the

settlement funds in accordance with the closing instructions.

According       to    Bennison,        First      Title     did       not     comply    with       the

closing instructions because it failed to secure a commitment

for title insurance on the Adare Drive Property.

       Western        Surety       moved     for      dismissal          of     the     complaint

pursuant      to      Rule     12(b)(6)        of     the      Federal        Rules     of     Civil

Procedure.           The district court held a hearing on the motion,

and,    at   the      conclusion        of     the    hearing,         the     district       court

granted      the     motion.         According        to       the    district        court,       the

                                              - 5 -
“commitment . . . is clear on its face that Chicago Title was

going    to    provide     title   [insurance]        for     the   two    properties.”

(J.A. 128).       Bennison noted a timely appeal.

       On appeal, Bennison argues that the district court erred

when it granted Western Surety’s motion to dismiss.                           Bennison

alleges       that    he   pled    sufficient       facts     to    demonstrate     that

Western Surety was liable under the Surety Bond because First

Title did not disperse the settlement funds in accordance with

G.W.    Investment’s       closing     instructions.            More      specifically,

Bennison alleges that First Title never obtained a commitment

for    title     insurance    on     the    Adare     Drive    Property      in    direct

contravention to such instructions.

       The parties agree that Western Surety is only liable under

the Surety Bond if First Title disbursed the settlement funds in

contravention to G.W. Investment’s closing instructions.                           Here,

the    closing       instructions,    among    other       things,     directed     First

Title to secure a commitment for title insurance on not only the

Poplar Street Property, but also on the Adare Drive Property.

First     Title      did   just    that.           First    Title    faxed    to    G.W.

Investments the Chicago Title Commitment, which provided that a

standard title insurance policy was to be issued covering the

property described in “Exhibit A.”                     (J.A. 52).          The Chicago

Title Commitment contains two Exhibit As, one identifying the

Poplar Street Property, the other identifying the Adare Drive

                                           - 6 -
Property.     As the district court noted, the listing of both of

these   properties   in    the     Exhibit       As   secured    a   commitment    for

title insurance on both of these properties.

     Bennison argues that First Title disbursed the settlement

funds    in     contravention         to         G.W.    Investment’s          closing

instructions,    because:     (1)    the     Exhibit     A     covering   the    Adare

Drive Property was “extraneous” to the Chicago Title Commitment,

Appellant’s Reply Br. at 4, and (2) the deposition testimony of

an   employee   of   First       Title     taken      during    Bennison’s      action

against Chicago Title demonstrates that no commitment for title

insurance was obtained on the Adare Drive Property.                       Neither of

these arguments has merit.               The Exhibit A covering the Adare

Drive   Property     was     not    extraneous          to     the   Chicago    Title

Commitment--it was part of it, as evidenced by the facts that

the Exhibit As were sent in First Title’s facsimile to G.W.

Investments and that the two Exhibits As followed sequentially

in the facsimile.      With regard to the deposition testimony, at

most, the First Title employee was not sure whether a commitment

for title insurance was obtained on the Adare Drive Property.

Such vague and inconclusive testimony is of no help to Bennison.

Accordingly, the judgment of the district court is affirmed.



                                                                             AFFIRMED



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