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TINA L. BOULWARE, on behalf of herself and all others similarly situated v. CROSSLAND MORTGAGE CORPORATION.

MEMORANDUM OPINION

FREDERIC N. SMALKIN, United States District Judge

This is a purported class action, in which the defendant is charged only with one count alleging a violation of Section 8(b) of the Real Estate Settlement Procedures Act (RESPA), 12 U.S.C. § 2607 (b), for overcharging the plaintiffs for credit reports. There is no allegation that any of the alleged overcharges were split with, or kicked back to, any entity. The defendant has moved to dismiss, the motion has been adequately briefed, and no oral argument is needed. Local Rule 105.6, D. Md.

The motion to dismiss will be granted, class certification will be denied, and this case will be dismissed for failure to state a claim upon which relief can be granted, Fed.R.Civ.P. 12(b)(6). Although there is at least one case standing for the proposition that a claim is stated by the allegations put forth by the plaintiffs here, see McCulloch v. Great Western Bank, U.S. Dist. LEXIS 8226 (W.D. Wash. 1998), the plain words of the statute, as interpreted by the only Circuit authority that has looked into the issue, support the proposition that the statute is only violated where there is a charge for a real estate settlement service that is split or kicked back, not simply where there has been an overcharge for a real estate settlement service. Echevarria v. Chicago Title Trust Co., 256 F.3d 623, 625-30 (7th Cir. 2001). In the Echevarria case, the Seventh Circuit, following its decision in Durr v. Intercounty Title Co., 14 F.3d 1183 (7th Cir. 1993), cert. denied, 573 U.S. 811 (1994), refused to adopt administrative agency constructions of RESPA Section 8(b) that broadened the reach of the statute beyond its plain language. This Court, likewise, refuses to adopt a construction of the statute, whether condoned by administrative agency utterances or not, that goes beyond the plain language of the statute, and it will follow the Seventh Circuit.

Therefore, an Order will be entered separately, granting the defendant's motion to dismiss, and dismissing this case for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6).

ORDER

For the reasons stated in the foregoing Memorandum Opinion, it is, this 2nd day of October, 2001, by the Court, ORDERED:

1. That plaintiffs' motion for class certification BE, and it hereby IS, DENIED;
2. That defendant's motion to dismiss BE, and it hereby IS, GRANTED;
3. That this case BE, and it hereby IS, DISMISSED, for failure to state a claim upon which relief can be granted. Fed.R.Civ.P. 12(b)(6); and
4. That the Clerk of Court mail copies hereof to counsel for the parties.

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BOULWARE v. CROSSLAND MORTGAGE CORPORATION
(Oct 2, 2001)