FYI: 9th Cir Holds "Chapter 20" Debtor May Void Mortgage In Chpt 13 After Obtaining Discharge in Chpt 7 Bankruptcy

The U.S. Court of Appeals for the Ninth Circuit, in a case of first impression, recently held that section 1328(f) of the Bankruptcy Abuse Prevention and Consumer Protection Act ("BAPCPA"), which bars so-called "Chapter 20" debtors from receiving a discharge at the conclusion of their Chapter 13 reorganization if they received a Chapter 7 discharge within four years of filing the petition for Chapter 13 relief, does not prevent a debtor from voiding a secured creditor's lien under section 506(d) of the Bankruptcy Code.

A copy of the opinion is available at:  http://cdn.ca9.uscourts.gov/datastore/opinions/2015/10/01/13-35354.pdf

In 2007, husband and wife debtors filed for bankruptcy protection under Chapter 7 of the Bankruptcy Code. They received a discharge of their unsecured debts in 2009. The next day after receiving the discharge, the debtors filed a second bankruptcy proceeding under Chapter 13 of the Code, seeking to restructure the debt on their primary residence.

There were two mortgages on the unit. The first mortgagee filed a proof of claim, to which the debtors objected on the basis that the mortgagee failed to attach a copy of the promissory note to its proof claim.

The mortgagee failed to respond to the debtors' objection to its proof of claim.  In November of 2009, the bankruptcy judge entered an order disallowing the claim.

In April of 2010, the debtors filed an adversary proceeding, seeking to void the first mortgagee's lien pursuant to section 506(d) of the Bankruptcy Code, which provides that "[t]o the extent that a lien secures a claim against the debtor that is not an allowed secured claim, such claim is void."

The bankruptcy court held a hearing the following month, at which it advised the first mortgagee that it needed to address the disallowance order. Despite this, almost 18 months passed before the first mortgagee filed a motion for reconsideration of the disallowance order. Finding no legal basis excusing the delay, the bankruptcy court denied the motion to reconsider the disallowance order.

The debtors moved for summary judgment in the adversary proceeding. The first mortgagee responded, arguing that it would be improper and unfair to void its lien due to a mere failure to respond, relying upon the Seventh Circuit's decision in In re Tarnow, 749, F.2d 464 (7th Cir. 1984), which held that because a secured creditor is not required to file a proof of claim at all and may rely on its lien for payment of the debt, voidance of the lien under section 506(d) is a "disproportionately severe sanction" for a late-filed claim.

After a hearing, the bankruptcy court ruled that despite the case law standing for the proposition that a secured creditor need not participate in a Chapter 13 case without imperiling its lien, the text of Bankruptcy Code section 506(d) provides that a lien securing a disallowed claim can be avoided.  he court distinguished Tarnow, reasoning that it involved a late-filed claim, while in the case at bar, the first mortgagee filed a timely claim, which was then disallowed. It then ordered that upon debtors' completing the Chapter 13 plan, the first mortgagee's deed of trust would be void and cancelled.

The Chapter 13 case proceeded to the plan confirmation stage, with the bankruptcy court ultimately approving the debtors' eleventh amended plan in April of 2012. The confirmed plan voided the first-position lien, but reinstated the second-position lien.

The first mortgagee appealed to the U.S. District Court for the Western District of Washington, which affirmed the bankruptcy court's orders, reasoning that it lacked jurisdiction over the disallowance order and the order denying reconsideration because the first mortgagee did not timely appeal those orders. The district court also denied the debtors' request for attorney's fees.

The first mortgagee then appealed the district court's order affirming the bankruptcy court's order permanently voiding its lien to the Ninth Circuit. The debtors cross-appealed the denial of their request for fees.

Several months after filing the appeal, the debtors completed their Chapter 13 plan. Before the closure of the case and consequent permanent voiding of the first mortgagees lien, the first mortgagee moved for an emergency stay of the bankruptcy court's order closing the case, which the Ninth Circuit granted pending the outcome of the appeal.

On appeal, the Ninth Circuit first addressed a question of first impression -- i.e., whether the bankruptcy court properly voided the first mortgagee's lien under section 506(d) of the Bankruptcy Code.

After analyzing the statutory text, the Court concluded that "[t]he most straightforward reading of the text suggests that if a creditor's claim has not been 'allowed' in the bankruptcy proceeding, then 'such lien is void.'"  In so ruling, the Ninth Circuit noted that Congress, by enacting section 506(d), made clear that its "manifest purpose is to nullify a creditor's legal rights in a debtor's property if the creditor's claim is 'not allowed,' or disallowed."

The Court reasoned that the Supreme Court's decision in Dewsnup v. Timm, 502 U.S. 410 (1992), which held that a Chapter 7 debtor could not void an under-secured lien because the claim had been fully "allowed" under section 502, supported its interpretation of section 506(d).

The Ninth Circuit noted that "Dewsnup's holding clarifies that § 506(d)'s voidance mechanism turns on claim allowance," and that "section 506(d) does not void liens on the basis of whether they are secured under section 506(a), but on the basis of whether the underlying claim is allowed or disallowed."  The Court concluded that  because the first mortgagee's "claim was disallowed, § 506(d) leaves [it] with 'a claim against the debtor that is not an allowed secured claim,' and therefore its lien is void."

The Court then considered the novel "Chapter 20" question of whether the lien would be resurrected upon completion of the Chapter 13 plan or was permanently voided.

The Court pointed out that in 2005, Congress enacted BAPCPA in part "to correct perceived abuses of the bankruptcy  system … [and] provide greater protections for creditors … [including] reforms 'prohibiting abusive serial filings and extending the period between successive discharges." One of these new provisions is § 1328(f), which prohibits the bankruptcy court from granting a discharge of the debts included in a Chapter 13 plan "if the debtor has received a discharge in a case filed under chapter 7, 11, or 12 … during the 4-year period preceding the date of the order for relief …."

The Court noted that whether debtors who are ineligible for a discharge under § 1328(f) of BAPCPA can permanently void a lien has divided courts within the Ninth Circuit, and that the two other courts of appeals and three bankruptcy appellate panels that have addressed the question have all concluded that so-called "Chapter 20 debtors may void liens irrespective of their eligibility for a discharge."

The Court rejected, as resting upon a "fatal flaw," the first mortgagee's argument that because the debtors were ineligible for a discharge under § 1328(f), their case must either be converted to a Chapter 7 liquidation or dismissed "for cause," both of which would resurrect the lien that was voided under § 506(d).

The fatal flaw was that the language relied upon by the borrowers and lower courts in the Ninth Circuit's earlier decision in In re Leavitt, 171 F.3d 1219 (9th Cir. 1999), that a Chapter 13 case could end only through a "discharge pursuant § 1328, conversion to a Chapter 7 case pursuant to § 1307(c) or dismissal of a Chapter 13 case 'for cause' under § 1307(c)" was dictum. The Court explained that "Leavitt imposed no 'rule' that a Chapter 13 case must end in conversion, dismissal, or discharge, and the Bankruptcy Code is devoid of any such requirement."

By way of example, the Ninth Circuit pointed out that the Bankruptcy Code "contemplates closure of a case pursuant to § 350(a), which provides that '[a]fter an estate is fully administered and the court has discharged the trustee, the court shall close the case.' With closure, no conversion, dismissal, or discharge is necessary."

The Court reasoned that "[f]undamentally, a discharge is neither effective nor necessary to void a lien or otherwise impair a creditor's state-law right of foreclosure" because a discharge only enjoins a creditor from collecting a debt personally against the debtor and does not affect an otherwise valid, pre-petition lien. It follows logically that there is no reason to make the Bankruptcy Code's in rem modification or voidance provisions contingent upon a debtor's eligibility for a discharge, when discharges do not affect in rem rights."

Thus, the Ninth Circuit joined the Fourth and Eleventh Circuits "in concluding that Chapter 20 debtors may permanently void liens upon the successful completion of their confirmed Chapter 13 plan irrespective of their eligibility to obtain a discharge…" holding that the debtors' "ineligibility for a discharge does not prohibit them from permanently voiding [the first mortgagee's] lien."

The Court next turned to whether the voiding of the first mortgagee's lien violated the bank's right to due process. The first mortgagee argued that Federal Rule of Bankruptcy Procedure 7001(2) "requires actions determining the 'validity, priority, or extent of a lien' to be brought in an adversary proceeding, which imposes certain notice requirements on plaintiffs." Although the debtors did file an adversary proceeding and moved for summary judgment seeking to void the first mortgagee's lien, the first mortgagee argued that the lien was actually voided by the earlier disallowance order. In addition, the debtors never mentioned that they intended to void the lien in their 2009 objection to the first mortgagee's proof of claim.

The Court rejected both arguments, relying upon the Supreme Court's decision in United Student Aid Funds, Inc. v. Espinosa, 559 U.S. 260 (2010), which held that a student loan creditor's due process rights were not violated because it received actual notice of the debtor's proposed Chapter 13 plan, which provided for repayment of the principal but discharge of the accrued interest, and the creditor filed a proof of claim reflecting both, but failed to object to the proposed plan's discharge of interest or the debtor's failure to bring an adversary proceeding to determine the debt's dischargeability.

The Ninth Circuit reasoned that under Espinosa, once the first mortgagee received notice of the debtors' objection to its proof of claim, "it was deemed to have notice that its claim might be affected and it ignored the ensuing proceedings to its peril." The district court's ruling that the bankruptcy court afforded the first mortgagee due process was affirmed.

Finally, the Court addressed whether the bankruptcy court erred in ruling that debtors' Chapter 13 petition was filed in good faith. It began by explaining that "[a] Chapter 13 petition may be dismissed "for cause," pursuant to § 1307(c) of the Bankruptcy Code, if it was filed in bad faith."

Citing its decision in Leavitt, which set out 4 factors that a bankruptcy court must consider as part of the "totality of the circumstances" in determining whether a debtor acted in good faith, the Court rejected the first mortgagee's argument that the Chapter 13 petition was filed in bad faith because it was filed while the earlier Chapter 7 case was still technically open in order to stop the state court foreclosure action.

Although the Ninth Circuit had previously held that successive filings did not constitute bad faith per se, it had never addressed whether simultaneous filings should be treated differently.

Rejecting the per se rule adopted by the Seventh Circuit, the Court agreed with the Eleventh Circuit's more flexible "fact-sensitive good faith inquiry" test in In re Saylors, 869 F.2d 1434 (11th Cir. 1989),which "concluded that a per se rule against filing a Chapter 13 proceeding while a Chapter 7 case remained open (although the discharge had been issued) 'would conflict with the purpose of Congress in adopting and designing chapter 13 plans.'" The Court reasoned that "[b]ecause nothing in the Bankruptcy Code prohibits debtors from seeking the benefits of Chapter 13 reorganization in the wake of a Chapter 7 discharge, we see no reason to force debtors to wait until the Chapter 7 case has administratively closed before filing for relief under Chapter 13."

The Ninth Circuit concluded that "the bankruptcy court did not err in finding that the petition and plan were filed in good faith."

The bankruptcy court's order voiding the lien, the order confirming the plan and the order implementing the plan were affirmed.

As to the debtors' cross-appeal on the issue of attorney's fees, the Court held that "the district court lacked jurisdiction to determine whether the [debtors] were entitled to attorneys' fees because this issue was not addressed, in the first instance, by the bankruptcy court," vacated the district court's denial of fees and instructed the district court to remand the matter to the bankruptcy court to determine whether the debtors were entitled to attorney's fees.

Eric Tsai
Maurice Wutscher LLP 
Stevenson Place

71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654

Fax: (866) 581-9302

Mobile: (714) 600-6000

Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon

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FYI: 9th Cir Reverses Dismissal of "Unlicensed Foreclosure Trustee" Putative Class Action, Holds CAFA's "Local Controversy" Exception Applied

The U.S. Court of Appeals for the Ninth Circuit recently reversed the dismissal of a class action that was removed to federal court under the federal Class Action Fairness Act (CAFA).  In so ruling, the Court held that the case fit the narrow "local controversy exception" to CAFA's grant of federal court jurisdiction.

A copy of the opinion is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/06/18/13-15185.pdf

The trial court found it had jurisdiction over a class removed from state court under CAFA.  Then, the trial court dismissed the suit for failure to state a claim.  However, the Appellate Court focused its analysis on the jurisdictional question alone and reversed on that basis alone. 

The putative class consisted of Nevada borrowers who took out loans against Nevada real property.  Later, those borrowers defaulted, and the six defendants initiated non-judicial foreclosures.  The borrowers alleged the defendants engaged in illegal debt collection activity in connection with those foreclosures. 

More specifically, the borrowers alleged the defendants engaged in "claim collection" without being licensed as supposedly required by Nevada Revised Statutes (NRS) Section 649.  The borrowers argued that Nevada law requires foreclosure trustees to be licensed, and that the defendants' failure to register as "collection agencies" (as defined in NRS Section 649.020), constituted a deceptive trade practice.  The borrowers also alleged that the defendants engaged in unjust enrichment, trespass, quiet title, and elder abuse.

Of the six defendants, only one company was domiciled in Nevada.  The borrowers alleged that company engaged in fifteen to twenty percent of the total debt collection activities in the suit.  The borrowers estimated the damages recoverable from that defendant were between $5,000,000 and $8,000,000.  The borrowers also sought equitable relief against that company.

Before turning to the Appellate Court's analysis, a discussion of is necessary.

To meet CAFA's relevant jurisdictional requirements, a case must meet a three-part test.  First, the class must consist of 100 or more members.  Second, the aggregate amount in controversy must exceed $5,000,000. Third, any class member must be a citizen of a state different from any defendant.  This case met those requirements. 

However, as you may recall, there is also a "local controversy exception" in CAFA.

Under CAFA's "local controversy" exception, a federal court must decline to exercise CAFA jurisdiction if: (1) more than two-thirds of the members of the class are citizens of the state where the action was filed; (2) a defendant against whom "significant relief" is sought and whose alleged conduct "forms a significant basis for the claims asserted" is a citizen of the state where the action was originally filed; and (3)  the "principal injuries" complained of occurred in the state where the action was filed.

With this framework in mind, the Ninth Circuit began its analysis by deciding which allegations it could consider, because the trial court had rejected the plaintiffs' request to amend their complaint prior to dismissing the suit for failure to state a claim. 

First, the Court decided, without significant discussion, that the trial court abused its discretion by not allowing the plaintiffs leave to amend.  Then, the Court held that it could consider facts in the proposed second amended complaint to determine the jurisdictional analysis.

The Ninth Circuit recognized that viewing the proposed second amended complaint was against the general principle that jurisdiction is determined at the time of removal.  The Court's rationale for doing so was that, unlike in a standard case, a post-removal amendment could actually supplement jurisdictional facts relevant to the CAFA analysis that the plaintiffs would otherwise not include in their initial complaint.  As the complaint's allegations control the "significant relief" analysis in the "local controversy exception" above, the Ninth Circuit found that the class should have had a chance to elaborate on those allegations.

Next, the Court began its analysis of the "local controversy exception" by analysis of the first requirement — i.e., that two-thirds of the putative class were from the state the action was filed — finding this requirement was met. 

Then, it turned to whether the Nevada company's conduct formed a "significant basis" of the class claims, and whether the class sought "significant relief" against the Nevada company. 

Ultimately, the Ninth Circuit adopted a comparative approach to determine if the Nevada company's conduct was a "significant basis" for the class claims.  The Court focused on how much of the conduct at issue was attributable to the Nevada company, as opposed to the other defendants.  In doing so, the Court found the Nevada company's conduct formed the required "significant basis."  The Court emphasized that the Nevada company was just one of six defendants, and had engaged in fifteen to twenty percent of the alleged illegal conduct.

In deciding whether the class demanded "significant relief," the Court did not focus on the comparative relief sought against the Nevada company versus the other defendants.  Rather, the Ninth Circuit simplified its approach and looked only to how much the plaintiffs alleged they should recover from the Nevada company. The Court found that the relief sought — between $5,000,000 and $8,000,000 and equitable relief — was significant. 

The Court did not discuss the third factor (the place of the injury) in detail.  Given that the foreclosed homes and the borrowers were in Nevada, there was little question that the injury occurred in Nevada. 

Accordingly, the Ninth Circuit reversed the dismissal, with instructions to remand the case to Nevada state court.

One judge dissented because the judge believed the Court should have considered only the allegations that existed at the time of removal.

Eric Tsai
Maurice Wutscher LLP
Stevenson Place

71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654

Fax: (866) 581-9302

Mobile: (714) 600-6000

Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon

CALIFORNIA   |   FLORIDA   |   ILLINOIS   |   INDIANA   |   MASSACHUSETTS   |   NEW JERSEY   |   NEW YORK   |   OHIO   |   PENNSYLVANIA   |   TEXAS   |   WASHINGTON, D. C.

FYI: 9th Cir Reverses Denial of Class Cert in RESPA Section 8 Action, Declines Deference to CFPB Amicus

The U.S. Court of Appeals for the Ninth Circuit recently held that the district court abused its discretion in denying a plaintiff's motion to certify a class of home buyers alleging that a scheme involving a title insurer buying minority interests in title agencies in exchange for referral of future title insurance business violated the federal Real Estate Settlement Procedures act ("RESPA"), affirming in part, vacating in part and remanding for further proceedings.

In so ruling, the Court held that the Consumer Financial Protection Bureau's ("CFPB") position in its amicus brief was not entitled to Chevron deference, because the CFPB was interpreting RESPA's statutory language, rather than the language of its own rule, and was not doing so as part of its formal rule-making authority, and, in addition, because the statute was not ambiguous.   

A copy of the opinion is available at: http://cdn.ca9.uscourts.gov/datastore/opinions/2015/08/24/13-55542.pdf

A title insurer alleged conducted business by buying minority ownership interests title insurance agencies in return for the exclusive referral of future title insurance business to the insurer.  The lead plaintiff sued, alleging that the arrangement between the title insurer and its "captive title agencies" violated RESPA's "anti-kickback provision, 12 U.S.C. § 2607.

The plaintiff moved to certify a class of home buyers referred by the 180 title agencies that the insurer partially owned to the insurer.  The he district court denied the motion for class certification, instead ordering discovery in order to determine whether a smaller class should be certified.

After limited discovery, the plaintiff moved to certify the smaller class, which the district court also denied.

The Ninth Circuit reversed, holding that there existed a single, common fact question:  whether the alleged arrangement violated RESPA.  It also remanded with directions that nationwide discovery be conducted in order to allow the plaintiff another opportunity at certification of a nationwide class.

The plaintiff moved to certify a nationwide class of all home buyers who closed a federally insured mortgage with 38 title agencies that sold a minority ownership interest to the title insurer, and agreed to refer future title business to the insurer.

The district court again denied the motion, this time because "common issues did not predominate over individual issues for the nationwide class."  Specifically, the district court held that:  (a) an individual inquiry was required to determine whether the insurer "overpaid for its ownership interest in each title agency;" (b) commonality did not exist on the issues of "reliance and causation for referrals;" and (c) "transaction-specific inquiries as a result of the different types of title agencies will not require common proof related to [the title insurer's] liability. The plaintiff again appealed.

On appeal, the Ninth Circuit began its analysis applying the abuse of discretion standard of review to whether the district court correctly applied Federal Rule of Civil Procedure 23, and the de novo standard to the "underlying legal questions … [with] any error of law on which a certification order rests [being] deemed a per se abuse of discretion."

The Ninth Circuit recited that the party seeking class certification bears the burden of establishing that the proposed class satisfies "all requirements in Rule 23(a) [numerosity, commonality, typicality and adequacy of representation] and at least one of the requirements in Rule 23(b)" [here, subsection (b)(3), which requires that a class action is superior to other methods of litigation and] "that questions of law or fact common to class members predominate over any question affecting only individual members."

The Court then discussed the legislative history of RESPA, noting that one of its main purposes is to protect consumers from unnecessary closing costs caused by abusive practices such as kickbacks and referral fees. It then looked to the text of § 2607, which prohibits the giving of anything of value as part of an agreement "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."

The Court explained that subsection 2607(c)(2) provides a "statutory safe harbor" that exempts payments made in return for a referral if the payment was "for goods or facilities actually furnished or for services actually performed."

The Court then addressed whether an individual inquiry was required for each transaction in light of the safe harbor in subsection 2607(c)(2) and the version of Regulation X in place at the relevant time, 24 C.F.R. 3500.14(g)(2).

The Consumer Financial Protection Bureau ("CFPB"),which now enforces RESPA, filed an amicus brief interpreting RESPA and Regulation X, arguing that the safe harbor does not apply to the transactions at issue because the title insurer did not pay for goods, facilities, or services, but for equity interests in the title agencies.

The Court first had to determine how much deference to give the CFPB's argument.  It reasoned that, because the CFPB was interpreting RESPA's statutory language, rather than the language of its own rule, and was not doing so as part of its formal rule-making authority, and, in addition, because the statute was not ambiguous, the CFPB was not entitled to any deference under the U.S. Supreme Court's decision in Chevron, U.S.A., Inc. v. Nat'l Res. Def. Council, Inc. 

Nonetheless, the Court agreed with the CFPB's interpretation, which it found was consistent with RESPA's language. 

The Ninth Circuit reasoned that, although neither RESPA nor Regulation X define "goods," "facilities," or "services," their meanings are plain, citing Webster's and the American Heritage dictionaries in support.  The Court then concluded that "[t]he ownership interests purchased by [the title insurer] are equity shares, not goods, services, or facilities," because the purchase of ownership interests are not goods, services, or facilities,

Accordingly, the Ninth Circuit held that the safe harbor under 12 U.S.C. 2607(c)(2) did not apply at all, and the district court erred by relying on the safe harbor provision to determine whether to certify the class.

The Court then turned to "whether individual inquiries are required because of § 2607(a)." It disagreed with the district court because the cases relied upon interpreted the safe harbor provision of subsection 2607(c)(2), which the Court held did not apply to the purchase transactions at issue because "no services were provided by the title agencies to [the title insurer]."

The Court held that "the district court abused its discretion in denying class certification based on an erroneous interpretation of § 2607(a) … and that cases alleging illegal kickbacks in violation of § 2607(a) are not necessarily unfit for class adjudication."

However, the Ninth Circuit's work was not finished, because it still had to decide whether there existed "individual issues here that could predominate over common issues such that class action certification is inappropriate" under Rule 23(b)(3).  The Court held that the answer was "no."

The Ninth Circuit held that RESPA does not require the plaintiff "to pinpoint how much money [the title insurer] paid for the referral agreement as opposed to the equity interest." Instead, the plaintiff "can state a claim under RESPA [§ 2607(a)] by alleging that [the title insurer] paid a lump sum of money to each captive title agency (the thing of value), and — in exchange for that money — each title agency agreed to refer [the title insurer] future insurance (business agreement)."  The Court reasoned that both RESPA and its implementing regulation define "thing of value" broadly, and the transfer of money need not be only in return for a kickback, but can also be in return for future insurance business, as in case at bar.

The Court stressed that its conclusion is consistent with contract law, under which there exists a "presumption that when parties enter into a contract, each and every term and condition is in consideration of all the others, unless otherwise stated."  The Ninth Circuit noted that, even though the contracts at issue were silent on how much the title insurer paid for referrals of future business, "the law does not require every term of the contract to have a separately stated consideration," and the "undivided monetary consideration paid by [the title insurer] must be treated in law as consideration for both the equity interests and referrals."

According to the Ninth Circuit, because the plaintiff only needed to prove "the existence of an exchange involving a referral agreement, … [s]uch proof does not require inquiry into individual facts across all thirty-eight captive title agencies."

The Court then considered whether "commonality" existed under Rule 23(a)(2), i.e., "whether the proposed class members share a common question of law or fact, the answer to which 'will resolve an issue that is central to the validity of each one of the [class members'] claims.'"  The Ninth Circuit concluded that a common question of fact existed:  whether [the title insurer's] pattern of conduct in entering into similar transaction with the title agencies violates RESPA."

The Court then ruled that "the district court erred in concluding that the common issue does not predominate over individual issues for the proposed class members" vacating the district court's denial of class certification in part as to the transactions that were presented for approval to the title insurer's board of directors.

The Ninth Circuit also disagreed with the district court that because, on some occasions, a third party such as a lender, mortgage broker or realtor had a hand in deciding which title insurer to use, their involvement required individual inquiries rendering class adjudication improper, reasoning that "[o]ther sources of referral do not defeat the predominant common question of fact, i.e., whether the title agencies have contractual obligations to refer their customers to [the title insurer]."

Finally, the Court addressed the district court's denial of class certification on the basis that "the different types of title agencies will require individual, case-by-case proof on [the title insurer's] liability."

The title insurer argued that "its transactions with twelve of the thirty-eight title agencies are affiliated business arrangements ('ABA') that are exempt from RESPA violations under § 2607(c)(4)."  

However, the Ninth Circuit rejected this argument as invalid as a matter of law because subsection 2607(c)(4) applies "when a person who partially owns a settlement service provider refers business to the service provider, and the owner receives nothing other than a return of the service provider's shares," but in the case at bar, the title insurer "— the partial owner of the title agencies — did not refer business to the title agencies."  Instead the title agencies referred business to the part-owner, the title insurer.  The Court concluded that no individual inquiries as to the "affiliated business arrangement" status of the twelve title agencies was needed because subsection 2607(c)(4) did not apply to these transactions as a matter of law.

The title insurer also argued that it was the majority owner of some of the title agencies and it "cannot refer business to itself," citing Freeman v. Quicken Loans, Inc., 132 S. Ct. 2034 (2012), a U.S. Supreme Court decision holding that "to establish a violation of § 2607(b), a plaintiff must demonstrate that a charge for settlement services was divided between at least two persons."

The Court disagreed, finding the cited decision inapplicable because:  (a) "[the title insurer] and its majority-owned title agencies are not the same person, but separate legal entities;" and, (b) "[n]o separate inquiries are necessary merely because [the title insurer] is the majority owner of certain captive title agencies."

The Court agreed, however, with the district court's conclusion that [the title insurer's] "transactions with the newly-formed title agencies do not raise common issues sufficient for class action adjudication," affirming the district court's denial of denial of certification as to this subclass because twelve of the thirty-eight title agencies did not exist when the title insurer decided to purchase ownership interests, but were formed jointly with third-party investors.

These particular arrangements presented a different set of facts from the alleged nationwide scheme involving the purchasing of ownership interests in return for future referral of title business.

Because the district court did not address "the remaining prerequisites of class certification, including whether a class action is a superior method of adjudication, whether [the lead plaintiff] and her counsel are adequate, and whether the putative class is ascertainable," the Court declined to do so in the first instance and remanded the case to the district court to do so.

The district court's denial of class certification was affirmed "as to the newly-formed title agencies," its denial of class certification was reversed and vacated in part as to the remaining title agencies, and the case remanded for further proceedings.

Eric Tsai
Maurice Wutscher LLP 
71 Stevenson Street, Suite 400
San Francisco, CA 94105
Direct: (415) 529-7654

Fax: (866) 581-9302

Mobile: (714) 600-6000

Email: etsai@MauriceWutscher.com

Admitted to practice law in California, Nevada and Oregon

FYI: ND Cal Rejects TCPA Claim, Holds "Human Intervention" Precluded ATDS

The U.S. District Court for the Northern District of California recently held that a web-based platform used to send text messages was not an automatic telephone dialing system ("ATDS") under the federal Telephone Consumer Protection Act ("TCPA"), 47 U.S.C. § 227, because it required "human intervention…in several stages of the process" for sending the text messages.

A copy of the opinion is available upon request.

The plaintiff customer, who was a patron of a Las Vegas gentlemen's club (the "Club") sued the Club and a third-party mobile marketing company (the "Marketing Company") for sending him an allegedly "unwanted" text message.  The Club had hired the Marketing Company to provide a web-based platform for sending promotion texts to its customers, including the plaintiff customer.  

Sending text messages through the web-based platform involved multiple steps.  First, one of the Club's employees would input phone numbers into the platform either by manually typing them in or cutting and pasting from an existing list.  Also, the Club's customers could add themselves to the platform by sending their own text message to the system.

Second, a Club employee would designate specific phone numbers to which a message would be sent.  The employee would then "click 'send' on the website…to transmit the message" to the Club's customers, including the Client.  The employee could either transmit the texts in real time or preschedule them to be sent at a later time.

As a result of this process, an allegedly unwanted text was sent to the plaintiff customer.

He sued the Marketing Company and the Club for a one count violation of the TCPA.  Essentially, he argued that the Club and Marketing Company violated the TCPA because the text message was sent using an ATDS.

Early in the case, the plaintiff customer accepted an offer of judgment from the Marketing Company and that defendant was dismissed.  Later, the Club moved for summary judgment.

As you may recall, under the TCPA, it is "unlawful for any person within the United States…(A) to make a call (other than a call made for emergency purposes or made with the prior express consent of the called party) using  [an ATDS]…(iii) to any telephone number assigned to a…cellular telephone service…or any service for which the called party is charged for the call."  47 U.S.C. § 227(b)(1). 

Furthermore, an ATDS is defined as "equipment which has the capacity---(A) to store or produce telephone numbers to be called using a random or sequential number generator; and (B) to dial such numbers."  Id. at § 227(a)(1).

The Club argued that the statutory definition of an ATDS was "clear and unambiguous" and that because of this the interpretation "begins and ends with the statutory text" above, without regard for any Federal Communications Commission ("FCC") interpretation. 

The Club also argued that, to be an ATDS, the "equipment must have the capacity to store or produce telephone numbers to be called using a random or sequential number generator." 

However, the Court held that because Congress had expressly conferred authority on the FCC to "issue interpretive rules pertaining the TCPA," any rules or regulations interpreting or expanding the definition of ATDS were to be applied to this case.

Additionally, the Court noted that the Hobbs Act, 28 U.S.C. § 2342(1) and the Federal Communications Act, 47 U.S.C. § 402(a), "operate together to restrict district courts from invalidating certain actions by the FCC."  In particular, the Hobbs Act "jurisdictionally divests district courts from ignoring FCC rules interpreting the TCPA." 

Accordingly, the Court held that the language of the TCPA alone was not dispositive of whether the web-based platform the Club used was an ATDS.

Turning to the FCC's definition of ATDS, the Court noted a number of FCC regulations that expanded the definition of ATDS beyond the plain statutory language in the TCPA.

The Court noted that, based upon a 2003 FCC ruling, in addition to automatic dialers, "predictive dialers" (i.e. systems that dial numbers from customer calling lists), also fall "within the meaning and statutory definition of…" ATDS.

The Court also noted that the FCC affirmed this expanded definition in 2008, and reaffirmed it again in 2012.  In particular, in 2012, the FCC stated that ATDS systems include systems that have the "capacity to store or produce and dial those numbers at random, in sequential order, or from a database of numbers."  27 FCC Rcd. 15391, 15392 n.5 (2012).

In addition, according to the FCC, this definition was not limited to "predictive dialers" but also included "web-based text messaging platforms."

Accordingly, the Court held that the fact that the Club's "system has the ability to send text message from preprogrammed lists, rather than randomly or sequentially, does not disqualify it as an ATDS."

Second, the Club argued that even if FCC regulations applied, the web-based platform used to send the text messages at issue was still not within the definition of an ATDS because it required "human intervention" to send message.

The Court agreed, holding that the web-based platform was not an ATDS because the text messages that it sent were the "result of human intervention."

As you may recall, in a 2008 ruling, reiterated in its ruling earlier this year, the FCC stated that the "defining characteristic of an autodialer is 'the capacity to dial numbers without human intervention.'"  23 FCC Rcd. At 566. 

The Court held that, therefore, the "capacity to dial numbers without human intervention is required for TCPA liability."

Applying these TCPA definitions to the Club's web-based platform, the Court held that it was not an ATDS. 

It held that "human intervention was involved in several stages of the process" prior to the client receiving the text messages.  This included, among other things, transferring the numbers into the database, determining when to send the message, and actually clicking "send" to transmit the message.

The Court held that the web-based platform did not have the capacity to send texts automatically without any human intervention.  Indeed, it could not send text messages without human intervention, and thus was not an ATDS.

Therefore, the Court held that the Club was not liable under the TCPA and granted summary judgment in favor of the Club.

Eric Tsai
Maurice Wutscher LLP 
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