MEMORANDUM OPINION AND ORDER
In this putative class action arising from a title insurer’s alleged failure to discount premiums charged for reissue title insurance policies and its alleged sharing of premiums with title agents, the court must decide whether the title insurer is entitled to summary judgment dismissing claims brought under § 8(b) of the Real Estate Settlement Procedures Act (“RESPA”), 12 U.S.C. § 2607(b), and under Texas law. For the reasons that follow, the court dismisses plaintiffs’ claims under RESPA § 8(b) and for unjust enrichment, and it otherwise denies the title insurer’s summary judgment motions.
I
Plaintiffs Ceaser Hancock (“Hancock”) and Emma Benavides (“Benavides”) bring this putative class action against defendant Chicago Title Insurance Company (“Chicago Title”). Their claims center on Chicago Title’s alleged failure to discount premiums charged for reissue title insurance policies and its alleged sharing of the premiums with title agents. Plaintiffs allege claims for violations of RESPA § 8(b), and they assert state-law claims for unjust enrichment, money had and received, and breach of implied contract.
Hancock and Benavides, each of whom purchased a reissue title insurance policy,
The Texas Department of Insurance (“TDI”) sets the premium rates that title insurance companies can charge. The rates for original issue title insurance policies are called the “Basie Rates.” TDI has also adopted mandatory rates for reissue title insurance policies, and these rates are calculated by using the Basic Rate less the “reissue discount.” The reissue discount ranges from 40% to 15%, with the rate decreasing as time elapses from the date of the mortgagee policy insuring the prior mortgage. The discount rate is 40% for policies reissued within two years of the date of the mortgagee policy insuring the prior mortgage, and it is 35% for policies reissued within three years.
Hancock refinanced his home in March 2007, purchasing a reissue title insurance policy from Chicago Title. Although the reissue policy was issued within three years of the date of the mortgagee policy insuring the prior mortgage, Hancock alleges that Chicago Title did not give him the 35% discount required by Texas law. He asserts that Chicago Title split the resulting illegal profits with its title agent. Benavides refinanced her home in May 2007, and purchased a reissue title insurance policy from Chicago Title. The policy was issued within two years of the date of the mortgagee policy insuring her prior mortgage, thus she was entitled to a 40% discount under Texas law. Benavides alleges that Chicago Title failed to give her the discount, and that it instead split the premium with its title agent. Hancock and Benavides sue Chicago Title under RESPA and Texas law.
Hancock filed suit in August 2007. Chicago Title moved to dismiss under Fed. R.Civ.P. 12(b)(6), and the court denied the motion.
Hancock v. Chi. Title Ins. Co.,
II
Chicago Title moves for summary judgment dismissing plaintiffs’ RESPA claims, contending that plaintiffs have not adduced evidence that supports a finding that it violated RESPA § 8(b). Plaintiffs allege that Chicago Title charged more than Texas law allows for title insurance and then split the excessive charges with its title agents. Chicago Title maintains that, because both it and its title agents actually performed services in connection with issuing the title insurance policies, plaintiffs’ allegations constitute mere overcharge claims that are not actionable under RES-PA § 8(b).
Preliminarily, the court notes that the issue presented by Chicago Title’s summary judgment motions is distinct from the ones that the court addressed in
Hancock I.
In
Hancock I
the court concluded under the Rule 12(b)(6) standard that Hancock had stated a claim under RESPA § 8(b) because he had adequately pleaded that Chicago Title had given a portion of a charge to its title agent for a settlement service that the title agent did not perform.
Hancock I,
But at the summary judgment stage, Chicago Title is not confined to the allegations of plaintiffs’ complaints. And it is undisputed that both Chicago Title and its title agents actually performed the services for which they charged plaintiffs. Chicago Title underwrote and assumed the risk of the title insurance policies, and the title agents evaluated the title searches to determine insurability, cleared title requirements, issued the title commitments, and issued the final title insurance policies. Plaintiffs do not dispute that Chicago Title and its title agents performed these services. Nor do plaintiffs contest that these are the services for which they paid premiums.
Plaintiffs allege that, because they were not given the reissue discount and were charged more than what Texas law allows, neither Chicago Title nor its title agents performed services
for the part of the charges that exceeds the allowable rate.
Specifically, Hancock asserts that he paid $1,061.35 for his title insurance policy and was not given a reissue discount of $333.20, to which he was entitled under Texas law.
4
Hancock reasons that no ser
Whether the alleged fact scenario can trigger liability under RESPA § 8(b) is a legal issue. Because it is undisputed that Chicago Title and its title agents actually performed the services for which they charged plaintiffs, there are no material fact issues that prevent the court from addressing the legal issue presented by the motions for summary judgment. The specific issue the court must now decide is whether charging more for title insurance than state law allows, when the charge is split between a title insurer and title agent who each performed services in connection with the issuance of the title insurance, violates RESPA § 8(b).
III
A
Congress enacted RESPA “to protect consumers from unnecessarily high settlement charges and abusive mortgage practices.”
Moreno v. Summit Mortgage Corp.,
The scope and application of § 8(b) have been widely debated. Although courts have not been uniform in their application of § 8(b), they agree that RESPA is not a price-control statute.
6
They also agree that § 8(b) does not impose liability for mere overcharges.
See, e.g., Friedman v. Market St. Mortgage Corp.,
B
Chicago Title contends that, because it and its title agents performed actual services for the fees they received, RESPA § 8(b) cannot impose liability. It argues that, no matter how plaintiffs attempt to portray the facts, all they have alleged is an overcharge, which is not actionable under § 8(b).
Plaintiffs attempt to distinguish this lawsuit from a simple overcharge case in two ways. First, they maintain that, as a matter of state law, Chicago Title could not have performed any services justifying the portion of the fees that should have been discounted. Second, they contend that their claims are distinguishable because Chicago Title split the fees with its title agents.
1
Plaintiffs contend that no services were provided for the portion of the premium that exceeded the rate set by Texas law. To distinguish their case from an overcharge claim, plaintiffs urge the court to interpret the excess portion as a separate charge from the premium permitted by law. For example, using the $1,061.35 premium that Hancock paid, plaintiffs characterize the $333.20 that should have been deducted as a reissue discount and the $728.15 that Hancock should have been charged as separate charges.
Plaintiffs maintain that their theory does not require that a single charge be parsed into multiple components. Presumably, they reason that Texas law has effectively done so. But this begs the question whether state law can transform an alleged overcharge into an unearned fee that violates RESPA. The court holds that it cannot. Although under Texas rate rules the excess portion of the premium can be precisely calculated, it does not follow that the excess portion is a charge made or received “other than for services actually performed.” 12 U.S.C. § 2607(b);
see also Mims v. Stewart Title Guar. Co.,
Adopting plaintiffs’ theory would effectively turn § 8(b) into a price-control provision, which courts have consistently held it is not. See supra n. 6. Moreover, application of § 8(b) would vary depending on each state’s title insurance regulations. Not all states set the rates that title insurers can charge for title insurance as does Texas. There is no indication that Congress intended § 8(b) to provide a federal remedy for violations of some of the states’ price control regulations. See
Hazewood,
2
The fact that Chicago Title split the excessive premiums with its title agents does not of itself convert the overcharges into violations of RESPA. Section 8(b) only proscribes giving and receiving a split of a charge when the split is being given or received “other than for services actually performed.” 12 U.S.C. § 2607(b);
see also
§ 2607(c) (providing that § 8 does not prohibit “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”). Thus the
Plaintiffs’ contention that the split in this case constitutes a violation of § 8(b) relies on the parsing that the court has already rejected. They reason that, because the premium itself included an excessive portion, a component of the title agent’s split was also excessive. Plaintiffs do not allege that Chicago Title gave all of the reissue discount amount to its title agent, or even that it gave a distinct part of the discount to its title agent. They merely assert that Chicago Title and its title agent split the entire premium, which included the reissue discount. But plaintiffs have proffered no evidence suggesting that the title agents’ splits were not given and received solely for the services they performed, or that the splits were in the nature of kickbacks or referral fees. Because it is undisputed that both Chicago Title and its agents actually performed services relating to the issuance of plaintiffs’ title insurance policies, these allegations do not establish violations of RESPA. The only conclusion that the evidence allows is that Chicago Title received its components of the premium payments and that the title agents received their portions for services that they actually performed.
3
Plaintiffs urge the court to defer to a 2001 policy statement issued by the U.S. Department of Housing and Urban Development (“HUD”). See RESPA Statement of Policy 2001-1, 66 Fed. Reg. 53052 (Oct. 18, 2001) (“Policy Statement”). They posit that HUD construes § 8(b) to impose liability in this case. In its much-debated, and oft-rejected, policy statement, HUD interprets § 8(b)’s proscription of unearned fees to apply where:
(1) Two or more persons split a fee for settlement services, any portion of which is unearned; or (2) one settlement service provider marks-up the cost of the services performed or goods provided by another settlement service provider without providing additional actual, necessary, and distinct services, goods, or facilities to justify the additional charge; or (3) one service provider charges 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. at 53059. Plaintiffs explicitly rely on the first numbered provision: where persons split a settlement service fee, “any portion of which is unearned.” Id.
On its face, provision (1) applies to the traditional kickback arrangement, in which a person gives or receives a portion of a split other than for services actually performed. It is not obvious, however, that it would apply where two persons divide a fee for which they both performed actual services. For plaintiffs’ allegations to fall under provision (1), it would be necessary for the court to parse the premium Chicago Title charged plaintiffs into an “earned” portion coinciding with the amount Chicago Title should have charged under the Texas rate rules and an “unearned” portion coinciding with the amount of the reissue discount. In other words, an overcharge would have to be interpreted as an “unearned fee” that violates § 8(b). Although it is not evident from the face of provision (1), other portions of the policy statement, including provision (3), make
Courts are not obligated to defer automatically to an agency’s construction of a statute. The process for determining whether to give deference to HUD’s interpretation of § 8(b) is outlined in
Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc.,
The circuit courts have consistently refused to defer to HUD’s position that RE SPA § 8(b) applies to overcharges, holding that it is at odds with the unambiguous text of § 8(b).
See, e.g., Friedman,
4
Although plaintiffs do not rely on or discuss
O’Sullivan v. Countrywide Home Loans, Inc.,
O’Sullivan involved a class certification appeal. Id. at 735. The plaintiffs alleged that a mortgage broker violated RESPA § 8(a)-(b) by accepting kickbacks from law firms. Id. The law firms prepared certain closing documents for the mortgage broker. Id. at 736. At closing, plaintiffs paid the law firms for preparing the documents, and the firms then reimbursed part of the fee to the mortgage broker. Id. Although the plaintiffs conceded that the broker performed some services in connection with the document preparation, they argued that the reimbursements were really kickbacks because they did not represent the reasonable value of the services. Id. at 741. The broker countered that the reimbursement was permissible under § 8(c)(2), which permits “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.” 12 U.S.C. § 2607(c)(2).
In determining whether class certification was proper, the Fifth Circuit considered 24 C.F.R. § 3500.14(g)(2), the HUD regulation concerning the RESPA § 8(c) exception, which prescribes a reasonable relationship test for discerning kickbacks. Under 3500.14(g)(2), “[i]f the payment of a thing of value bears no reasonable relationship to the market value of the goods or services provided, then the excess is not for services or goods actually performed or provided.” 24 C.F.R. § 3500.14(g)(2). It also provides that “[tjhese facts may be used as evidence of a violation of section 8 and may serve as a basis for a RESPA investigation.”
Id.
The Fifth Circuit deferred to the HUD regulation “insofar as it provides a mechanism for detecting kickbacks where the § 8(c) exception is invoked.”
O’Sullivan,
Although this court acknowledges that the Fifth Circuit deferred to HUD in
5
Plaintiffs briefly contend that recent opinions of this court support the viability of their RESPA claims. Several cases with similar claims have been brought in this court.
See Hamilton v. First Am. Title Co.,
The decisions that are apposite to this case hold that § 8(b) does not impose liability.
See, e.g., Arthur v. Ticor Title Ins. Co. of Fla.,
The issue before this Court is whether an excessive fee, split between service providers who each performed some work in connection with the service for which the fee was charged, constitutes a violation of RE SPA. On this issue the statute is clear and unambiguous. So long as some work is performed by the recipient of the fee, or any portion thereof, RESPA Section 8(b) does not impose liability.
Kingsberry,
This court is not alone in concluding that RESPA § 8(b) is inapplicable in circumstances such as those on which plaintiffs rely in this case.
6
The court declines to conclude that RESPA § 8(b) is violated when a title insurer charges a premium in excess of a state’s rate rules and then gives a portion of the premium to its title agent for services the title agent actually performed. Chicago Title is therefore entitled to summary judgment dismissing plaintiffs’ RES-PA claims.
IV
Chicago Title also moves for summary judgment dismissing plaintiffs’ state-law claims for money had and received, unjust enrichment, and breach of implied contract.
Plaintiffs’ state-law claims all rest on the same predicate. They maintain that they qualified for a reissue discount for lender title insurance when they refinanced their homes, and that Chicago Title failed, as mandated by Texas law, to discount the premiums. Plaintiffs assert that Chicago Title is liable for money had and received because it holds money in the nature of a debt that in equity belongs to plaintiffs; for unjust enrichment because it wrongfully secured a benefit from plaintiffs; and for breach of implied contract because it breached an implied term that it would
Chicago Title seeks summary judgment on several grounds. It contends as to all three claims that violations of the Texas Title Insurance Act, Tex. Ins. Code Ann. 2501.001 et seq. (Vernon 2009) (“TTIA”), do not give rise to private causes of action, and that the court lacks subject matter jurisdiction over the state-law claims because the TDI has exclusive jurisdiction, or, alternatively, that the court should defer to the TDI under the primary jurisdiction doctrine. Chicago Title also challenges the three state-law claims individually.
V
Chicago Title first contends that violations of the TTIA and the regulatory rules promulgated under it do not create private causes of action. Specifically, it argues that there is no private cause of action under the TTIA for charging a premium rate different from the one fixed by the Commissioner of the TDI (“Commissioner”). See id. § 2703.151 (prohibiting charging a premium rate different from the rate fixed by the Commissioner). Plaintiffs respond that they are not attempting to assert a private cause of action under the TTIA, but are only asserting the established common law claims of money had and received, unjust enrichment, and breach of implied contract.
The court rejected a previous version of Chicago Title’s argument in
Hancock I,
in which it refused to dismiss Hancock’s state-law claims.
See Hancock I,
Hancock has not attempted to assert a cause of action under the TTIA, but only alleges causes of action for money had and received, unjust enrichment, and violations of RESPA. Chicago Title cites no authority for the proposition that the mere absence of a cause of action under the TTIA would itself foreclose these other claims.
Id.
at *19. Decisions by other judges of this court have reached the same conclusion, refusing to dismiss nearly identical common law claims.
16
See Villafranca,
No. 3:08-CV-0118-K, slip op. at 1;
Mims,
Chicago Title relies heavily on
Stewart Title Guaranty Co. v. Becker,
Chicago Title argues that plaintiffs’ claims are common law in name only and are entirely premised on, and inextricably linked to, violations of the TTIA. It is true that plaintiffs’ state-law claims, along with their RESPA claims, rely on the premium rate rules promulgated by the Commissioner, but it does not follow that this precludes the claims as a matter of law. The state-law claims are recognized common law theories of liability, and plaintiffs have pleaded a factual basis for each. As the court recognized in Hancock I, the absence of a statutory cause of action under the TTIA does not automatically preclude all common law claims that implicate the TTIA. There must be some other bar to the court’s hearing plaintiffs’ state-law claims, such as a grant of exclusive jurisdiction to the TDI.
The cases Chicago Title cites to support the premise that plaintiffs cannot assert common law claims implicating the TTIA’s rules are not inconsistent with the court’s conclusion. In
Texas Mutual Insurance Co. v. Eckerd Corp.,
Similarly, in
Serna v. H.E. Butt Grocery Co.,
In
Texas Medical Ass’n v. Aetna Life Insurance Co.,
Chicago Title cites title insurance cases decided by other federal district courts, but they rely on aspects of their respective states’ administrative schemes that do not apply to the TTIA. In
Hazewood
the court dismissed common law claims for declaratory judgment, unjust enrichment, and price discrimination, relying on a provision of the Alabama Title Insurance Act that provided: “This chapter shall be enforceable only by the commissioner and does not create any private cause of action or other private legal recourse.” Ala.Code 1975 § 27 — 25—9(b);
Hazewood,
Thus none of the cases Chicago Title cites demonstrates that the absence of a statutory cause of action for a violation of the TTIA would itself preclude plaintiffs’ state-law claims.
VI
Chicago Title argues that the court lacks subject matter jurisdiction over the state-law claims because the TDI has exclusive jurisdiction, 18 and that plaintiffs did not exhaust their administrative remedies.
A
Under Texas law, which controls here, it is presumed that district courts have the authority to resolve disputes unless the state constitution or another law confers exclusive jurisdiction on another court or an administrative agency.
See In re Sw. Bell Tel. Co., L.P.,
B
The Texas Legislature has mandated that the TDI regulate the business of
Title 11 of the Insurance Code, known as the TTIA, specifically governs the business of title insurance in Texas. The stated purpose of the TTIA “is to completely regulate the business of title insurance on real property ... including the direct issuance of policies and the reinsurance of any assumed risks, to ... protect consumers and purchasers of title insurance policies [and] provide adequate and reasonable rates of return for title insurance companies and title insurance agents.”
Id.
§ 2501.002(a). And “[i]t is the express legislative intent that [the TTIA] accomplish [this] purpose.”
Id.
§ 2501.002(b). As part of the regulation of title insurance, the TTIA provides that, with the exception of premiums for reinsurance between title insurance companies, “the commissioner shall fix and promulgate the premium rates to be charged ... for title insurance policies,” and that “a premium may not be charged for a title insurance policy ... at a rate different from the rate fixed and promulgated by the commissioner.”
Id.
§ 2703.151. The Commissioner has set forth the premium rate structure in Section III of the Basic Manual of Rules, Rates and Forms for the Writing of Title Insurance in the State of Texas (the “Basic Manual”).
See
D. Dec. 10,
In enforcing the TTIA, the Commissioner audits title insurers.
See
D. Dec. 10,
If a title insurer is aggrieved by an action of the Commissioner, it “may file an appeal of the commissioner’s action in a district court in Travis County.”
Id.
§ 2551.354(a). The action is then reviewed under the substantial evidence rule.
See
The TTIA neither explicitly provides nor explicitly prohibits a private cause of action for damages caused by a violation of the TTIA or the rules promulgated thereunder. It does authorize, however, private actions by persons who have been damaged by enumerated unfair methods of competition or unfair or deceptive acts or practices. Id. § 541.151; see also id. § 2551.001(c) (providing that Chapter 541 applies to title insurers). The TTIA also authorizes class actions by individuals damaged by an enumerated deceptive trade practice. See id. § 541.251. Plaintiffs do not bring a claim under Chapter 541 and do not allege an enumerated unfair or deceptive act or practice.
C
Chicago Title briefly argues that the Texas Legislature enacted as part of the TTIA an express indication of exclusive jurisdiction. It relies on § 2501.002, which provides:
The purpose of this title is to completely regulate the business of title insurance on real property ... including the direct issuance of policies and the reinsurance of any assumed risks, to ... protect consumers and purchasers of title insurance policies [and] provide adequate and reasonable rates of return for title insurance companies and title insurance agents.
Id. § 2501.002(a). Section 2501.002 also states that “[i]t is the express legislative intent that [the TTIA] accomplish [this] purpose.” Id. § 2501.002(b).
Neither this section nor any other part of the TTIA contains an express legislative indication that the TDI or the Commissioner has exclusive jurisdiction over plaintiffs’ state-law claims. Stating that the purpose of the TTIA is to “completely regulate” the business of title insurance is not the same as granting the TDI “exclusive jurisdiction” over the instant disputes. Notably, the section does not mention the TDI’s jurisdiction at all, much less the matter of exclusive jurisdiction.
Cf. In re Entergy Corp.,
Moreover, were the court to agree with Chicago Title, claims brought under the remedial scheme established by the TTIA would be assertable in a court, if assertable at all, only in a district court in Travis
D
Legislative intent to grant exclusive jurisdiction over a dispute can also be demonstrated by a “pervasive regulatory scheme.”
See Thomas,
Although the TTIA is intentionally comprehensive in its regulation of the title insurance business, the scheme lacks the following critical element that prevents the court from concluding that the Commissioner has exclusive jurisdiction in this case: an administrative procedure through which consumers, like plaintiffs, can dispute the rates they have been charged by title insurers. When an administrative body has exclusive jurisdiction over a dispute, a party must exhaust its administrative remedies before seeking judicial review. The TTIA, however, provides no administrative procedure through which plaintiffs could pursue their claims or seek remedies.
The TTIA mandates that the Commissioner set the premium rates to be charged for title insurance, and it prohibits title insurers from straying from the fixed rates. Tex. Ins. Code Ann. § 2703.151. If a title insurer charges a premium rate other than the rate set by the Commissioner, it forfeits the right to engage in business in Texas. Id. § 2551.351(a). If the Commissioner determines that a title insurer has violated the TTIA, the Commissioner notifies the insurer that it has 30 days to comply with the title, and if it does not comply, the Commissioner must revoke the insurer’s certifícate of authority. Id. § 2551.353. The Insurance Code also authorizes the Commissioner to impose other sanctions, including awarding restitution, for violations of the Code. Id. § 82.052. If a title insurer is aggrieved by an action of the Commissioner, it may appeal the action by seeking judicial review in a district court in Travis County. Id. § 2551.354(a). The TTIA thus focuses on regulating and sanctioning title insurers; it does not address the resolution of consumer disputes.
Chicago Title points to the Commissioner’s practice of auditing title insurers as evidence of a pervasive regulatory scheme. It is undisputed that the Commissioner is charged with enforcing the TTIA’s rules and does so through audits and occasional sanctions.
See
D. Dec. 10,
The absence of such an administrative procedure becomes particularly conspicuous when the court examines the regulatory schemes that Texas courts have found to create exclusive jurisdiction. In
In re Southwestern Bell Telephone Co.
the Supreme Court of Texas held that the Public Utility Regulatory Act (“PURA”) was intended to serve as a pervasive regulatory scheme, so that the PUC had exclusive jurisdiction over the plaintiffs’ billing dispute.
In re Sw. Bell,
A Texas Court of Appeals recently held that the Texas Tax Code “is a classic example of a pervasive regulatory scheme, evidencing a legislative intent to vest the appraisal review boards with exclusive jurisdiction” over tax appraisal disputes.
Appraisal Review Bd. of Harris County Appraisal Dist. v. O’Connor & Assocs.,
The Texas Workers’ Compensation Act has also been held to constitute a pervasive regulatory scheme demonstrating the Legislature’s intent to grant the Workers’ Compensation Commission exclusive jurisdiction over medical fee disputes.
See Tex. Mut. Ins.,
Unlike these regulatory schemes that Texas courts have held create exclusive jurisdiction, the TTIA provides no procedures through which plaintiffs can seek resolution of this rate dispute. If the Texas Legislature intended the Commissioner to have exclusive jurisdiction over a dispute between a consumer and a title insurer concerning the premium the consumer was charged, as Chicago Title argues, it should be expected that the TTIA would speak to this in some indubitable way. The court concludes that the TTIA does not grant the TDI exclusive jurisdiction over plaintiffs’ dispute. The TTIA does not contain an express indication of exclusive jurisdiction, and there is nothing in the regulatory scheme indicating that the Legislature intended for the TDI to have sole authority to make the initial determination in the dispute. Thus the court has subject matter jurisdiction over the state-law claims.
E
Chicago Title argues that, even if the court has subject matter jurisdiction over the state-law claims, it should refrain from exercising it under the primary jurisdiction doctrine.
“The judicially-created primary jurisdiction doctrine operates to allocate power between courts and agencies when
both
have authority to make initial determinations in a dispute.”
Subaru of Am.,
The court holds that the primary jurisdiction doctrine does not support deferring to the TDI in this case. First, as a practical matter, there is no administrative procedure through which plaintiffs could seek an initial determination from the TDI concerning the excessiveness of the premium rates they were charged.
See supra
VI(D) (discussing absence of administrative procedure for resolution of plaintiffs’
VII
The court now turns to the grounds on which Chicago Title relies to seek summary judgment dismissing plaintiffs’ state-law claims on the merits.
Chicago Title argues that Texas law does not afford an independent cause of action for unjust enrichment. It contends that unjust enrichment is a theory of liability that a plaintiff can pursue through several equitable causes of action, including money had and received, but not as a separate and distinct claim. This court, along with others in the Fifth Circuit, has previously agreed with this characterization of Texas law.
Redwood Resort Props., LLC v. Holmes Co.,
It is true, as plaintiffs point out, that the Supreme Court of Texas and other courts still occasionally refer to an “unjust enrichment claim.”
See, e.g., Elledge v. Friberg-Cooper Water Supply Corp.,
Although the [Supreme Court of Texas] in HECI refers to “the cause of action” of unjust enrichment, it also refers to unjust enrichment as a “remedy,” “basis for recovery” and speaks of a “cause of action based on” unjust enrichment. We do not see these statements as recognition of unjust enrichment as an independent cause of action, but simply as a reiteration of the well established principle that a suit for restitution may be raised against a party based on the theory of unjust enrichment.
Mowbray,
In the present case, plaintiffs’ claims for unjust enrichment and money had and received essentially seek restitution of the reissue discount, and both are based on the equitable principle of preventing unjust enrichment. Because Texas law does not afford an independent cause of action for unjust enrichment, plaintiffs cannot simultaneously maintain both of these claims. The court therefore grants summary judgment dismissing plaintiffs’ unjust enrichment claims.
VIII
Chicago Title seeks dismissal of plaintiffs’ breach of implied contract claims. Its arguments focus on the express contract between itself and plaintiffs’ lenders. Plaintiffs allege, however, that they personally entered into implied contracts with Chicago Title under which it was obliged to charge them a lawful premium. The court finds that a reasonable jury could find that plaintiffs and Chicago Title entered into implied contracts. 21 Thus plaintiffs’ breach of implied contract claims survive Chicago Title’s summary judgment motion.
IX
Chicago Title also moves for summary judgment on the ground that Hancock’s claims fail for reasons particular to his factual allegations. 22
A
The factual allegation underpinning all of Hancock’s claims — both the state-law claims and the federal RESPA claim — is that Chicago Title charged him an excessive premium by failing to give him the reissue discount mandated by Texas law. Chicago Title argues that Hancock was not charged an excessive title insurance premium, and that all of his claims should accordingly be dismissed. It posits that no genuine issue of material fact remains as to whether Hancock was overcharged. Chicago Title also raises several affirma
B
Because Chicago Title does not have the burden at trial on Hancock’s claims, it can meet its summary judgment obligation by pointing the court to the absence of evidence to support the claims.
See Celotex Corp. v. Catrett,
But Hancock has met his burden. The original HUD-1, signed by Hancock on March 9, 2007, indicates that he was overcharged for his title insurance policy. And on September 20, 2007, after this litigation had commenced, Hancock received a letter from Susan Scott (“Scott”), an employee of Chicago Title’s title agent. The letter, on Chicago Title’s letterhead, reads:
After a recent audit of our file, we found you were due a refund from a calculation error in your premium amount. Attached is a revised HUD for your signature and an envelope, postage prepaid for your use in returning this to our office. Attached is our check in the amount of $333.55.
Thank you and if you have any questions, please contact our office.
D. July 23,
A revised HUD-1 and a check bearing the names of Chicago Title and its title agent were enclosed with the Scott letter. The revised HUD-1 indicates that the title insurance charge paid to Chicago Title was $727.80, which is $333.55 less than the $1,061.35 charge in the original HUD-1. Despite Chicago Title’s evidence to the contrary, 23 the original HUD-1 and the Scott letter provide sufficient evidence for a reasonable jury to conclude that Chicago Title overcharged Hancock.
C
To be entitled to summary judgment on its affirmative defenses, for which it will have the burden of proof at trial, Chicago Title “must establish ‘beyond peradventure all of the essential elements of the ... defense[s].’ ”
Bank One, Tex., N.A. v. Prudential Ins. Co. of Am.,
Chicago Title’s affirmative defenses all are based on the same premise: that, upon cashing the refund check enclosed in the Scott letter, Hancock accepted the revised HUD-1 and relinquished his claims. Chicago Title essentially casts the Scott letter as a settlement offer that Hancock accepted by cashing the check.
The pertinent facts contained in the summary judgment record are brief. Hancock filed this lawsuit on August 22, 2007. After receiving the Scott letter, which is quoted above, Hancock cashed the refund check on September 25, 2007. There is no evidence that Hancock signed or returned the revised HUD-1. On August 28, 2008 Hancock sent Scott a letter and a check payable to Chicago Title Insurance Company, FNAS Division, in the amount of $333.55. The letter stated:
By letter dated September 20, 2007, you sent me a check for $333.55. I did not understand what it was for at the time. It has come to my attention that Chicago Title Insurance Company has recently taken the position that the check was an effort to settle or dispose of my claims against Chicago Title in a pending lawsuit. I did not agree to settle or release any such claims. Accordingly, enclosed is a check # 6839 in the amount of $333.55, payable to Chicago Title Insurance Company, FNAS Division.
P. Oct. 30,
Chicago Title first contends that Hancock is contractually bound to the terms of the revised HUD-1 because the parties entered into a settlement agreement. It argues that the Scott letter, combined with the revised HUD-1 and the refund check, constituted an offer to settle Hancock’s claims against Chicago Title, and that Hancock accepted the settlement offer by cashing the check. The court need not address this assertion at length. Nothing in the Scott letter or the enclosed documents alludes to Hancock’s claims against Chicago Title or the present litigation, much less an intent on the behalf of Chicago Title to settle those claims. Moreover, the Senior Vice President of Chicago Title’s title agent, Michele W. Jorgensen (“Jorgensen”), stated in her declaration that the decision to send the reimbursement check was hers alone, and that it was sent “in an effort to maintain customer goodwill.” D. July 23,
Second, Chicago Title asserts that the doctrine of quasi-estoppel precludes Hancock from alleging that he was overcharged. “Quasi-estoppel precludes a party from asserting, to another’s disadvantage, a right inconsistent with a position previously taken.”
Lopez v. Munoz, Hockema & Reed, L.L.P.,
Third, Chicago Title posits that Hancock waived his claims by cashing the refund check. In Texas, “[w]aiver requires intent, either the ‘intentional relinquishment of a known right or intentional conduct inconsistent with claiming that right.’ ”
In re Gen. Elec. Capital Corp.,
Accordingly, Chicago Title is not entitled to summary judgment on any of its affirmative defenses relating to Hancock’s claims.
For the foregoing reasons, the court grants in part and denies in part Chicago Title’s July 23, 2008 motion for summary judgment, which seeks dismissal of Hancock’s claims. It grants summary judgment dismissing Hancock’s RESPA § 8(b) claim and his unjust enrichment claim. It denies summary judgment as to his claims for money had and received and breach of implied contract. Similarly, the court grants in part and denies in part Chicago Title’s December 10, 2008 motion for summary judgment seeking dismissal of Benavides’ claims. It grants summary judgment dismissing Benavides’ RESPA § 8(b) claim and her unjust enrichment claim. It denies summary judgment as to her claims for money had and received and breach of implied contract. The court denies Chicago Title’s December 5, 2008 motion for leave to file supplemental appendix in support of summary judgment reply nunc pro tunc. The court grants Chicago Title’s June 22, 2009 motion for leave to file notice of supplemental authority. See supra note 8.
SO ORDERED.
Notes
. The court recounts the evidence in a light favorable to plaintiffs as the summary judgment nonmovants and draws all reasonable inferences in their favor.
E.g., Owens v. Mercedes-Benz USA, LLC,
. Chicago Title filed without leave of court a supplemental appendix in support of its summary judgment motion. After the court issued an order holding that it would not consider the supplemental appendix, Chicago Title moved for leave. Because the evidence in the supplemental appendix does not affect today's decision, the court denies as moot Chicago Title's December 5, 2008 motion for leave to file supplemental appendix in support of summary judgment reply nunc pro tunc.
. In the final section of this memorandum opinion and order, the court considers Chicago Title's arguments pertaining specifically to the situation surrounding Hancock’s alleged overcharge. See infra IX.
. The court recognizes that $333.20 is not 35% of $1,061.35, but this is the amount of the reissue discount to which Hancock alleges he is entitled. The court therefore will use these figures in this memorandum opinion and order.
. These are the figures that Benavides uses in her summary judgment briefing. They vary from the figures she alleges in the second amended complaint, connection with the issuance of the title insurance, violates RESPA § 8(b).
. Although the Fifth Circuit has not directly addressed this issue, all the circuits that have decided this question have reached this conclusion. See, e.g.,
Friedman v. Market St. Mortgage Corp.,
. An overcharge is distinct from a ''mark-up,” which occurs “when the provider outsources the task of providing the service to a third-party vendor, pays the vendor a fee for the service, and then, without providing an additional service, charges homeowners seeking mortgages a higher fee for the settlement service than that which the provider paid to the third-party vendor.”
Kruse,
. In a June 22, 2009 motion for leave to file notice of supplemental authority, Chicago Title seeks leave to bring to the court's attention and argue the effect of a recent Fourth Circuit decision.
See Arthur v. Ticor Title Ins. Co. of Fla.,
. Plaintiffs contend that their arguments are supported by the Second Circuit's analysis in
Cohen v. JP Morgan Chase & Co.,
. Plaintiffs argue that these cases are inapposite because they do not explicitly address provision (1) of the policy statement, but instead focus on the title insurer’s overcharge. As the court has discussed, however, for plaintiffs' allegations to fall under provision (1), Chicago Title’s overcharge must be interpreted as an unearned fee.
. The Fifth Circuit explicitly stated that it was whether the HUD policy statements were entitled to
Chevron
deference.
O’Sullivan,
. The Fifth Circuit held that it was error to grant class certification because individual issues predominated. Id. at 742.
. In the context of RESPA, it is not uncommon for circuits to defer to some of HUD’s positions while simultaneously refusing to defer to others. For example, although HUD posits that § 8(b) prohibits both overcharges and markups, several circuits have deferred to HUD's markups position while refusing to apply § 8(b) to overcharges.
See, e.g., Santiago,
. The court addresses the
Hancock I
holding
supra
at § II. The court based its opinion on Hancock's allegation "that Chicago Title split the proceeds of a title reissue policy with its title agent, who performed no services."
Hancock I,
. The court acknowledges that
Mims
and
Hamilton,
relying on
O’Sullivan,
endorse the application of HUD's reasonable relationship test to the fees received by the title agents.
See Hamilton,
. Other district courts have also refused to dismiss common law claims where plaintiffs alleged that title insurers failed to give them a reissue discount mandated by state law.
See, e.g., Kingsbeny v. Chi. Title Co.,
. The entire TTIA was recodified in 2005. The changes were "intended as a recodification only, [with] no substantive change in law.” 2003 Tex. Gen. Laws 1274, § 27. As part of the 2005 recodification, Article 9.34 was renumbered as § 2704.001.
. The court refused to consider this argument in deciding Hancock's motion to dismiss because Chicago Title raised it for the first time in its reply brief.
See Hancock I,
. The TTIA provides that Chapter 82 of the Insurance Code applies to title insurers. Tex. Ins.Code Ann. § 2551.001(c) (Vernon 2009).
. "Although an intermediate appellate court decision is not controlling where the highest state court has not spoken on the subject, [the court] ordinarily defer[s] to the holdings of lower appellate courts in the absence of guidance from the highest court.”
Holden v. Connex-Metalna Mgmt. Consulting GmbH,
. When this court denies rather than grants summary judgment, it typically does not set out in detail the evidence that creates a genuine issue of material fact. See, e.g.,
Swicegood v. Med. Protective Co.,
. In its reply brief, Chicago Title argues in passing that Benavides' claims are now moot because its title agent sent her a refund, which constituted an unconditional tender. The court declines to consider this argument, because Chicago Title has raised it for the first time in its reply brief.
See, e.g., Weber v. Merritt Lynch Pierce Fenner & Smith, Inc.,
. This evidence includes two additional HUD-1 forms. One is unsigned by Hancock, and Hancock alleges that the other was altered. Hancock asserts that he was never presented with either of these additional HUD-1 forms.