(logo) Attorneys' Title Guaranty Fund Inc.

Casenotes

Indiana
Closings

Chicago Title Insurance Co v Gresh, 888 NE2d 779 (Ind Ct App 2008).

Facts:Chicago Title Insurance Co. (Chicago Title) is a title insurance company whose standard practice was to estimate recording fees and mortgage release fees and list those amounts on closing statements, rather than provide the actual recording costs. This was because actual recording fees are not known until after closing. The actual recording fees often varied from the estimated charges, in part because the title company did not always record the mortgage releases for the mortgages being paid off — the lender sometimes recorded them instead.

William and Juanita Gresh (the Greshes) were sellers at a closing that Chicago Title conducted. At the closing, the Greshes paid Chicago Title a recording fee of $40 for recording the mortgage and $15 for recording each of the two mortgage releases. The actual recording fee for the mortgage was $37, and Chicago Title did not handle the releases of either mortgage, instead the bank recorded the releases. Thus, Chicago Title overcharged the Greshes by $33.

The Greshes filed suit against Chicago Title for unjust enrichment, statutory conversion, and violations of the Deceptive Consumer Sales Act. Following William Gresh's death, Juanita Gresh moved for class certification. The trial court heard Gresh's motion and granted class certification. Chicago Title appealed.

Holding:Reversed and Remanded. The court held that the trial court applied an improper standard for determining that common questions predominated. The court relied heavily on a federal district court case that involved similar closing procedures, but different claims. In that case the court found that because each individual claim could turn on various agreements and contracts outside of the HUD-1 statement, each case could raise unique questions and defenses.

The court in this case found similar reasons for reversing the trial court's ruling. The court relied on various facts for finding invidual questions predominate common ones. These factors include the following: (1) a large number of closing agents were used; (2) a large number of unique documents were used in these closings; (3) communications between closing agents and clients would differ in each case; and (4) fees vary from county to county. Each one of these factors could affect Chicago Title's liability. In short, each plaintiff's case would depend on proving a unique set of facts.



© ATG|Casenotes/Bulletin 0904_v2n4

[Last update: 4-9-09]