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Plaintiff-Appellant,
v.
Defendants-Appellees.
__________________________________________________________________
American Title Insurance Company (“FATIC”, and with FAC, “First American”)
Independent Land Title Agents (“NAILTA”) for leave to file a brief, amicus
curiae.1
1
First American notes that NAILTA’s motion for leave to file an amicus brief is
untimely. Under FED.R.APP.P. 29(e), an amicus curiae must file its brief and
motion “no later than seven days after the principal brief of the party being
supported is filed.” Plaintiff-appellant filed her opening brief on March 2, 2009
(cont’d)
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individuals affiliated with less than two dozen title insurance agencies and one title
Pennsylvania) and two mid-Western states (Ohio and Wisconsin)—a minute, and
protect the independence of the title insurance industry,” but neither its proposed
brief nor its website4 lists anything at all that it has done in the three months since
(Dkt. 6828406). Thus, any amicus brief in support thereof was due by March 11,
2009. FED.R.APP.P. 26(a)(2). NAILTA filed its brief and motion on March 12,
2009, however (Dkt. 6843450).
2
www.corporations.state.pa.us/corp (visited March 23, 2009).
3
NAILTA’s membership list appears as an Addendum to its proposed brief. To
put NAILTA’s size in context: The American Land Title Association, founded in
1907, has 3,000 members, including title agents, abstracters, and title insurance
companies, ranging from small, one-county operations, to large national title
insurers. www.alta.org (visited March 23, 2009).
4
www.nailta.org (visited March 23, 2009).
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the fact that its website tells new members that they will have the right to withdraw
their membership applications once they later read the Code of Ethics,
Trade associations presenting themselves as amici curiae are often met with
skepticism.
Nati’l Org. for Women, Inc. v. Scheidler, 223 F.3d 615, 617 (7th Cir. 2000). But
association with high aspirations but scant membership and no track record
An entity seeking amicus status before this Court has a threshold obligation
motion and the proposed brief. NAILTA did not do so. See In re Grand Jury
Witness, 695 F.2d 359, 363 n.7 (9th Cir. 1982) (“The court also received a motion
from one Ralph L. Rogers, seeking leave to file an amicus brief. The motion failed
5
www.nailta.org (visited March 23, 2009).
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to identify Rogers or his interest in the case and was therefore denied.
FED.R.APP.P. 29.”).
presented as though they were fact, but tethered to neither any evidence of record
title insurance industry has “impacted the quality of the product and service being
provided by the title insurance underwriters” (NAILTA Proposed Br. 4). In its
conclusion, NAILTA goes even further, bemoaning the “damage and harm to the
title insurance consumers who were denied a meaningful choice between the
NAILTA’s baseless assertions are neither relevant to this case nor supported by
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insurance policy was deficient in any way (E.R. 94-95 ¶ 5). She does not claim
that the title search was inadequate or incomplete, or that there are any clouds on
her title that were missed, or that any adverse claims have been made (Id.). She
does not claim that a different title insurer would have employed—in NAILTA’s
title search was properly done, and that there is absolutely nothing wrong with the
Q. [A]s far as the work that Tower City did and the policy that it
provided to you back in October of 2006, did you have any
complaints about any of that?
A. No.
Because there is absolutely no issue in this case about the quality of the title
policy that Edwards received, NAILTA is “crying wolf” and has failed to show
that its arguments about “standards” for title searches or title policies are “relevant
added). See also SUP.CT.R. 37.1 (“An amicus curiae brief that brings to the
attention of the Court relevant matter not already brought to its attention by the
parties may be of considerable help to the Court. An amicus curiae brief that does
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not serve this purpose burdens the Court, and its filing is not favored.”) (emphasis
added).
Edwards might have received a title search or title policy with higher standards had
a different title insurer been used is utterly baseless. NAILTA cites nothing (such
quality of their title searches and title policies, but it is in their economic interest to
do so. See Joyce Palomar, TITLE INSURANCE LAW § 1:15 (“[A] title insurance
fully). Once the policy issues (like the policy First American issued covering
Edwards’ property), the underwriting process is superseded and irrelevant. See id.
§§ 1:15, 5:1. If there is an adverse claim based on facts that should have been, but
were not, learned through a title search, it is the title insurer that will bear not only
the costs of litigation but also the cost of clearing the title. See id. § 5:3 (title
insurer will bear loss or damage to insured caused by defects in title); id. §§ 10:1-
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To support its claim that there has been a decline in quality of title searches,
NAILTA asserts that some title insurance underwriters require only a “current
owner” search rather than a full title search that would disclose defects in title or
liens that predate the current owner’s acquisition of the property. (NAILTA
In Ohio, where Edwards purchased her home, the Rate Manual of the Ohio
Title Insurance Rating Bureau (“OTIRB”), which files uniform rates on behalf of
all title insurers in Ohio in accordance with Ohio law, OHIO REV. CODE § 3935.04,
authorizes title insurers to offer discounted “reissue” or “refinance” rates if: the
home was sold within the last ten years; an “Owner’s Policy” was purchased at that
time; and the owner-applicant meets other requirements including presenting the
prior insurance policy. OTIRB, Schedule of Rates for Title Insurance in the State
of Ohio, PR-4 (pp. 3.2-3.3), PR-9 (p. 3.6), and PR-10 (pp. 3.6-3.7) (effective
December 1, 2008) (“OTIRB Rate Manual”).6 The reason for this requirement is
self-evident: If a thorough title search was done and a title policy issued when the
home was last sold the title company can rely upon that prior search, and need only
6
The current version of the OTIRB Rate Manual is available at
http://www.stgoh.com/download/772/bulletins/OTIRB_Manual_OHPC_12587869
9.pdf (visited March 23, 2009). The version of the OTIRB Rate Manual in effect
at the time of Edwards’ purchase of title insurance will appear in First American’s
supplemental excerpts of record on appeal. (Decl. of Samuel Halkias, Ex. A (Dkt.
31)).
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update that search by reviewing possible defects in title that arose since the last
title policy was issued. The use of a “current owner” search in Ohio is not, as
NAILTA contends, a device that title insurers concocted to cut corners, but a
The OTIRB Rate Manual recognizes that if a full title search—going back to the
“root” of the title—was done when the current owner purchased his or her home a
few years ago, all that need be done is to update that search.
Commissioner of Labor & Industry, 694 F.2d 203, 204 (9th Cir. 1982) (per
law.
If, in fact, there had been a decline in the quality of the service provided by
title insurers, one would expect to see burgeoning claims made against title
NAILTA’s brief asserts that there are essentially two kinds of title insurance
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that only “independent” agencies can properly do their job.7 NAILTA thus asserts
that once a title insurer acquires any interest in what had been an independent title
title insurance industry. Here again, NAILTA turns the role of an amicus curiae
upside down.
7
NAILTA completely omits discussion of title insurance underwriters’ direct
operations that issue title insurance policies. See Joyce Palomar, TITLE INSURANCE
LAW § 2:2 & n.1.
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Instead of providing special information not otherwise available to the court that
Some title agencies, both those that are independently-owned and those in
agents for only one title insurer. Other title agencies, again including both those
insurer, serve as agents for more than one title insurer. Some title insurers also sell
title insurer or purchases a policy from a title insurer’s direct operation, the home
buyer typically thereby selects that title insurer. It is usually a simple matter for a
home buyer to learn whether a title agency represents only one, or represents more
than one, title insurer. The mere fact that a title agency—whether independently-
owned or not—has an exclusive relationship with one title company does not mean
that a consumer is not receiving the highest quality service. Likewise, a customer
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one of its members.8 Mr. Proctor is a real estate attorney and title agent, whose
law office adjoins his title office in Chadds Ford, Pennsylvania. His title agency,
Industrial Valley Abstract Company, offers title insurance for only one title
W. Happ, who is both counsel of record in this Court for NAILTA and a member
of NAILTA, is both a real estate attorney and a land title agent, conducting both
practices out of the same office in Medina, Ohio.10 As a title agent, Mr. Happ
offers title insurance from only one title insurer, General Title and Trust Company
(“General Title”).11
When a home purchaser goes to Mr. Proctor’s title agency for title insurance
or settlement services, Mr. Proctor, as a title agent, does not “exercise [his]
8
(NAILTA Proposed Br. 18); www.cplaw1.com (visited March 24, 2009).
9
www.cplaw1.com (visited March 24, 2009); www.ivacland.com (visited March
23, 2009).
10
(NAILTA Proposed Br. i, 17);
http://www.ohioinsurance.gov/Agents/AgentLocator/Default.aspx (visited March
24, 2009).
11
http://www.ohioinsurance.gov/Agents/AgentLocator/Default.aspx (visited
March 24, 2009). Some of the other NAILTA members are with title agencies that
represent more than one title insurer. For example, James Squeo, a NAILTA
member in Dublin, Ohio, is an agent for both FATIC and General Title.
http://www.ohioinsurance.gov/Agents/AgentLocator/Default.aspx (visited March
24, 2009).
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independent judgment as to which title insurance underwriter [is] best suited for a
particular real estate transaction.” (NAILTA Proposed Br. 10). Instead, Mr.
title insurer which Mr. Proctor’s agency represents. In fact, if a home buyer goes
to Mr. Proctor for legal services relating to the home purchase, the client will likely
be referred to Mr. Proctor’s title agency (which will offer a policy only from
Similarly, when a home purchaser goes to Mr. Happ’s title agency, Mr.
Happ will provide title insurance underwritten by General Title, not because Mr.
General Title is best suited for that particular transaction, but because that is the
This does not mean that Mr. Proctor or Mr. Happ (or First American, for that
matter) is doing anything wrong. A home buyer who goes to a title agency that
12
www.cplaw1.com (visited March 23, 2009). The Real Estate Settlement
Procedures Act of 1974, 12 U.S.C. § 2601 et seq. (“RESPA”) specifically
recognizes that attorneys and law firms may establish a “separate corporate title
insurance agency … as an adjunct to his or its law practice.” 12 U.S.C.
§ 2607(c)(5).
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represents only one title insurer no more expects that title agency to offer policies
underwritten by several title insurers than a car buyer who goes to a Chevrolet
What ensures that the home purchaser (or lender) gets an appropriate title
policy is the professionalism and service of the title agent and the title insurer, and
one title insurer; also, many underwriters sell title insurance policies directly: that
does not violate the law, and does not prevent the title insurance purchaser from
NAILTA’s proposed brief sheds no light on the two issues presented on this
caused by her referral by Tower City Title Agency, LLC to FATIC, that would
give her Article III and RESPA standing, and (b) whether the District Court abused
On the standing issue, as noted above, NAILTA offers nothing to support its
conclusory assertion that title insurance purchasers are harmed when a title agency
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acts as agent for only one title insurer, and therefore refers home purchasers to that
insurer, or to identify any harm cognizable under Article III or its jurisprudence.
process”—not a legal issue, Nat’l Org. for Women, Inc. v. Scheidler, 223 F.3d at
617, and fails to address the requirements of Rule 23 at all. NAILTA does not
purport to address any of the questions that bear upon class certification, such as
the need for individualized proof and whether a class action would offer a superior
means of adjudication.
Most telling, NAILTA’s proposed brief is utterly silent on the fact that all of
the supposed evils that NAILTA sees in the title industry can properly and
not extend to private actions (let alone class actions) by persons, such as Edwards,
Title Co., 14 F.3d 1183 (7th Cir. 1994); Moore v. Radian Group, Inc., 233
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F.Supp.2d 819 (E.D. Tex. 2002), aff’d without opinion, 69 F.App’x 659 (5th Cir.
2003); Mullinax v. Radian Guar. Inc., 311 F.Supp.2d 474, 486 (M.D.N.C. 2004);
Morales v. Attorneys’ Title Ins. Fund, Inc., 983 F.Supp. 1418, 1427 (S.D. Fla.
1997).
CONCLUSION
amicus curiae brief should be granted. The Seventh Circuit, relying on a decision
Ryan v. Commodity Futures Trading Comm’n, 125 F.3d 1062, 1063 (7th Cir.
1997), citing Miller-Wohl Co. v. Comm’r, 694 F.2d 203. Other Circuits have been
more receptive to amicus curiae briefs. E.g., Neonatology Assocs., P.A. v. C.I.R.,
But even under the most lenient standard for permitting amicus curiae
briefs, NAILTA’s proposed brief, which misrepresents the organization itself and
offers baseless assertions in lieu of facts, inaccurate descriptions of the law in lieu
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advocacy in lieu of legal analysis, does not merit leave. First American
respectfully requests that NAILTA’s motion for leave to file a brief amicus curiae
be denied.
Respectfully submitted,
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CERTIFICATE OF SERVICE
The First American Corporation and First American Title Insurance Company,
Title Agents For Leave to File Brief Amicus Curiae was served on March 24, 2009
on counsel of record via operation of this Court’s CM/ECF system and on the
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