Mary Alston, individually v. Countrywide Financial Corporation

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PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 08-4334
MARY ALSTON, individually and on behalf of all others
similarly situated; KEVIN COLLIER, individually and on behalf
of all others similarly situated; BRAD AUGUNAS, individually
and on behalf of all others similarly situated
v.
COUNTRYWIDE FINANCIAL CORPORATION;
COUNTRYWIDE HOME LOANS, INC.;
BALBOA REINSURANCE COMPANY
MARY ALSTON; KEVIN COLLIER; BRAD AUGUNAS,
Appellants
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
(D.C. Civil No. 07-cv-03508)
District Judge: Honorable James T. Giles
Argued: September 22, 2009
Before: BARRY, FISHER and JORDAN, Circuit Judges
(Opinion Filed: October 28, 2009)

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Edward W. Ciolko, Esq., (Argued)
Joseph H. Meltzer, Esq.
Donna S. Moffa, Esq.
Terence S. Ziegler, Esq.
Barroway, Topaz, Kessler, Meltzer & Check
280 King of Prussia Road
Radnor, PA 19087
Eric G. Calhoun, Esq.
Travis & Calhoun
1000 Providence Towers East
5001 Spring Valley Road
Dallas, TX 75244
Counsel for Appellants
Christine N. Kohl, Esq. (Argued)
Michael J. Singer, Esq.
United States Department of Justice, Civil Division
Room 7511
950 Pennsylvania Avenue, N.W.
Washington, DC 20530
Counsel for USA-Intervenor
David L. Permut, Esq. (Argued)
Thomas Hefferon, Esq.
Sallie F. Pullman, Esq.
Goodwin Procter
901 New York Avenue, N.W.
Suite 900 East
Washington, DC 20001
Martin C. Bryce, Jr., Esq.
Ballard, Spahr, Andrews & Ingersoll
1735 Market Street
51 Floorst
Philadelphia, PA 19103
Counsel for Appellees

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The then-corporate parent of both Countrywide Home1
Loans and Balboa Reinsurance Co., Countrywide Financial Corp.,
was also named as a defendant in this action. Countrywide
Financial Corp. was purchased by Bank of America in 2008 and,
on April 27, 2009, Countrywide Home Loans became Bank of
America Home Loans.
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OPINION OF THE COURT
BARRY, Circuit Judge
This putative class action was brought by homebuyers who
sought to recover statutory treble damages pursuant to section
8(d)(2) of the Real Estate Settlement Procedures Act of 1974
(“RESPA”), codified at 12 U.S.C. § 2607(d)(2). Plaintiffs alleged
that their private mortgage insurance premiums were channeled
into an unlawful “captive reinsurance arrangement”—essentially,
a kickback scheme—operated by their mortgage lender,
Countrywide Home Loans (“Countrywide”), and its affiliated
reinsurer, Balboa Reinsurance Co. (“Balboa”), in violation of
RESPA section 8(a) and section 8(b), 12 U.S.C. § 2607(a)-(b). 1
The thrust of their complaint was that, in enacting and amending
section 8, Congress bestowed upon the consumer the right to a real
estate settlement free from unlawful kickbacks and unearned fees,
and Countrywide’s invasion of that statutory right, even without a
resultant overcharge, was an injury-in-fact for purposes of Article
III standing. The District Court disagreed and dismissed the
complaint without prejudice for lack of jurisdiction. We have
jurisdiction over plaintiffs’ appeal under 28 U.S.C. § 1291.
What is before us for decision turns on a question of
statutory interpretation—does or does not the plain language of
RESPA section 8 indicate that Congress created a private right of
action without requiring an overcharge allegation? We conclude
that it does. Accordingly, we will reverse the Order of the District
Court.

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I. Background
A. Statutory Background
The focus of our attention in this appeal is RESPA section
8 and, thus, we begin by setting forth its various subsections.
Section 8(a) prohibits “any fee, kickback, or thing of value
pursuant to any agreement or understanding, oral or otherwise, 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.” 12 U.S.C. § 2607(a). Section 8(b) prohibits unearned
fees: “No person shall give and no person shall accept any portion,
split, or percentage of any charge made or received for the
rendering of a real estate settlement service . . . other than for
services actually performed.” Id. § 2607(b). Section 8(c) is a safe
harbor provision for certain activities otherwise prohibited by
section 8(a) and section 8(b), including the provision of “bona fide
. . . payment[s] . . . for services actually performed.” Id. §
2607(c)(2).
Congress charged the Department of Housing and Urban
Development (“HUD”) with the administration and enforcement of
RESPA. Id. §§ 2607(d)(4), 2617. To that end, HUD can “prescribe
such rules and regulations” and “make such interpretations . . . as
may be necessary to achieve the purposes of [the Act].” Id. §
2617(a). HUD’s regulations—compiled in the somewhat
mysteriously titled “Regulation X”—are set forth at 24 C.F.R. pt.
3500.
RESPA section 8 has a penalties subsection, section 8(d),
that both prescribes criminal penalties for section 8 violations, 12
U.S.C. § 2607(d)(1), and authorizes HUD, state attorneys general,
and insurance commissioners to bring civil actions for injunctive
relief. Id. § 2607(d)(4). Congress also authorized private actions
against a person who violates section 8. As amended in 1983,
section 8(d)(2) provides that “[a]ny person or persons who violate
the prohibition or limitations of this section shall be jointly and
severally liable to the person or persons charged for the settlement
service involved in the violation in an amount equal to three times
the amount of any charge paid for such settlement service.” Id. §

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It is beyond dispute that the provision of mortgage2
insurance is a “settlement service” within the meaning of 12 U.S.C.
§ 2602(3) (RESPA’s definition subsection). See 24 C.F.R. §
3500.2(b); Patton v. Triad Guar. Ins. Corp., 277 F.3d 1294, 1298-
1300 (11th Cir. 2002).
Countrywide generally requires borrowers who do not put3
twenty percent down when buying a home to purchase PMI from
one of seven (now six) PMI providers. The borrower pays the PMI
premiums, even though the mortgage lender is the beneficiary of
the policy, and generally has no opportunity to comparison-shop
for PMI lenders. Instead, the PMI provider is selected by the
lender, here on a rotating basis among the seven providers, all of
whom had allegedly agreed with Countrywide to reinsure with
Balboa.
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2607(d)(2). It is this subsection of section 8 that is the primary
focus of our attention and the one we are called upon to construe.
B. Facts
Plaintiffs obtained home mortgages from Countrywide in
2005 and 2006. Because each plaintiff made a down payment of
less than twenty percent, Countrywide required that he or she
obtain private mortgage insurance (“PMI”). Plaintiffs alleged that2
Countrywide referred them to mortgage insurers that would
“reinsure” their PMI policies with Balboa, a Countrywide affiliate,
pursuant to a “captive reinsurance arrangement.” 3
Under a “captive reinsurance arrangement,” according to
plaintiffs, the lender’s affiliate typically provides reinsurance to an
unrelated primary mortgage insurer. That insurer and the lender-
affiliated reinsurer enter into an agreement under which the former
pays the latter a portion of the borrower’s insurance premiums; in
return, the reinsurer assumes a portion of the primary insurer’s risk.
Reinsurance agreements generally fall into one of two categories.
In a “quota share” agreement, the reinsurer bears a set percentage
of all insured losses. In an “excess loss” agreement, the type of
agreement at issue here, the primary insurer pays, and is solely

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At oral argument before the District Court, counsel for4
Countrywide described the typical “band” of reinsurance as
between four percent and fourteen percent of a book of insurance
business. In other words, if the defaults in a book of business total
less than four percent, no reinsurance payment is triggered.
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responsible for, claims arising out of a given book of business up
to a predetermined amount, after which the reinsurer is obligated
to reimburse the primary insurer’s claims up to another
predetermined amount. Above that band of reinsurance, the4
primary insurer is solely responsible for additional losses.
Plaintiffs alleged that Balboa did not assume risk
commensurate with the amount of premiums it received from
plaintiffs’ primary mortgage insurers. According to the complaint,
Balboa has collected over $892 million in reinsurance premiums
since 1999 and has paid nothing in claims. Plaintiffs thus
contended that the reinsurance premiums paid to Balboa,
Countrywide’s affiliate, were kickbacks to Countrywide by the
primary insurer, in return for Countrywide’s referral of PMI
business to the primary insurer, thereby violating RESPA’s anti-
kickback provision, section 8(a). Plaintiffs also alleged that, under
this scheme, Countrywide accepted a portion of the PMI premiums
but provided no services in return—it offered only “sham”
reinsurance coverage, in violation of section 8(b). As a result of
this scheme, plaintiffs contended, they were overcharged for
mortgage insurance. They maintained, however, that even if such
practices did not result in overcharges—the same assumption we
will make in resolving this appeal—they were nonetheless entitled
to kickback-free settlements and, thus, the statutory damages set
forth at section 8(d)(2). These arrangements, they argue, harm
consumers, and harmed them, even in the absence of overcharges,
by:
(1) keeping premiums for PMI artificially inflated
because a percentage of borrowers’ premiums are
not actually being paid to cover actual risk, but are
simply funding illegal kickbacks to lenders such as
Countrywide; (2) decreasing (or, in fact, eliminating)

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competition and choice among PMI providers which
completely dis-incentivizes them from trying to earn
more business through legitimate means such as
price or product improvement; and (3) mak[ing] true
disclosure of settlement-related costs or potential
conflicts of interest difficult or obfuscation of the
same easier.
(Appellants’ Br. at 13-14.)
Plaintiffs, we note, had yet another reason for pleading a
violation of section 8 without alleging a resultant overcharge. In
Pennsylvania, PMI providers are required to file their rates with the
Pennsylvania Insurance Department (“PID”). See 40 Pa. Stat. Ann.
§ 710-5(a). Once a rate is approved by the PID, the providers
cannot charge premiums that vary from that rate. Plaintiffs do not
dispute that they paid rates for mortgage insurance that were filed
with and approved by the PID. Accordingly, and viewed narrowly,
whether or not a portion of their PMI premiums were repackaged
as kickbacks to Countrywide, plaintiffs paid the same premiums
they would have paid had their policies not been reinsured.
C. Procedural History
Countrywide moved to dismiss the complaint, arguing, inter
alia, that plaintiffs’ monthly PMI premiums were filed with the
PID and, therefore, per se reasonable under the filed rate doctrine.
Indeed, said Countrywide, the very reason plaintiffs could not
allege an overcharge was because, as Pennsylvania residents, their
PMI rates had been approved by the state. Absent an overcharge
allegation, Countrywide argued, plaintiffs lacked standing to file
suit under RESPA section 8, and lacked as well the requisite
injury-in-fact to establish Article III standing. Countrywide also
claimed that dismissal was warranted under RESPA’s safe harbor
provision, section 8(c), which excepts charges for settlement
services, otherwise violative of section 8(a) or section 8(b), that are
reasonably related to the value of goods or services provided. 12
U.S.C. § 2607(c)(2).
The District Court granted Countrywide’s motion to dismiss.

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It first noted that, because “[p]laintiffs paid the only legal rate they
could have paid for mortgage insurance in Pennsylvania,” and
those rates were “per se reasonable,” plaintiffs lacked standing to
allege that they paid an artificially inflated PMI rate. (A. 9.) Next,
having considered whether plaintiffs nevertheless had standing to
sue for statutory damages under RESPA without alleging PMI
premium overcharges, the Court concluded that section 8(d)(2)
“[c]learly . . . entitles persons who paid for any settlement service
in violation of RESPA to receive damages equal to three times the
amount of any charge paid for settlement services in violation of
the statute.” (A. 11.)
The District Court, however, went further. Because “the
purpose of RESPA is to protect individuals from ‘unnecessarily
high settlement charges,’” it declined to “construe RESPA’s
damages provision as authorizing Plaintiffs to sue for damages,”
where they have not been “overcharged.” (A. 11 (quoting 12
U.S.C. § 2601(a).)) Relying, in part, on the holding in Carter v.
Welles-Bowen Realty, Inc. (“Carter I”), 493 F. Supp. 2d 921 (N.D.
Ohio 2007), the Court held that plaintiffs did not satisfy the injury-
in-fact requirement for Article III standing and, accordingly,
dismissed the complaint “without prejudice for lack of
jurisdiction.” (A. 11-12.) During the pendency of this appeal, the
Carter I opinion relied upon by the Court was reversed by the
Court of Appeals for the Sixth Circuit. See In re Carter II (“Carter
II”), 553 F.3d 979 (6th Cir. 2009) (concluding that an “allegation
that [a settlement service provider] violated section 8 is an injury-
in-fact, meets the requirements of Article III, and is sufficient to
survive a . . . motion to dismiss.” Id. at 989).
II. Standard of Review
Whether the order of the District Court is more
appropriately viewed as having dismissed the complaint for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1), or for failure
to state a claim pursuant to Rule 12(b)(6), our standard of review
is the same: we accept as true plaintiffs’ material allegations, and
construe the complaint in the light most favorable to them. See
Ballentine v. United States, 486 F.3d 806, 810 (3d Cir. 2007)
(setting forth standards of review for both Rule 12(b)(1) and

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12(b)(6) dismissals).
III. Discussion
The overriding question before us is whether Congress
intended to create a private right of action for a consumer who
alleges a violation of RESPA section 8 in connection with his or
her settlement, even if that violation does not result in a traditional,
monetary injury in the form of an overcharge for settlement
services. The resolution of that question requires interpretation of
the relevant provisions of RESPA, most particularly section 8.
Countrywide does not seriously dispute that, if we answer that
question in the affirmative, plaintiffs—and we will continue to call
them “plaintiffs” on appeal—will have alleged an injury-in-fact
sufficient for purposes of Article III standing. We thus turn to the
parties’ statutory interpretation arguments before addressing any
lingering concerns over Article III standing. See Sierra Club v.
Morton, 405 U.S. 727, 732 (1972) (“[T]he inquiry as to standing
must begin with a determination of whether the statute in question
authorizes review at the behest of the plaintiff.”). We will also
briefly address Countrywide’s argument under the filed rate
doctrine.
A. Statutory Interpretation
We begin, as we must, by examining the plain language of
the statute. “The role of the courts in interpreting a statute is to
give effect to Congress’s intent. . . . Because it is presumed that
Congress expresses its intent through the ordinary meaning of its
language, every exercise of statutory interpretation begins with an
examination of the plain language of the statute.” United States v.
Diallo, 575 F.3d 252, 256 (3d Cir. 2009) (quoting Rosenberg v. XM
Ventures, 274 F.3d 137, 141 (3d Cir. 2001)); see also Lamie v.
United States Tr., 540 U.S. 526, 534 (2004) (“[W]hen the statute’s
language is plain, the sole function of the courts—at least where
the disposition required by the test is not absurd—is to enforce it

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Countrywide devotes some attention to the question of5
whether Congress intended to create personal rights enforceable by
the private right of action located at section 8(d)(2). It contends
that, because section 8(a) and section 8(b) are worded as
prohibitions on the person regulated, rather than as entitlements for
the person protected, Congress did not intend, by those provisions,
to create personal rights capable of redress via section 8(d)(2). But
the cases o n w hich C ountryw ide relies for this
argument—Gonzaga Univ. v. Doe, 536 U.S. 273 (2002);
Wisniewski v. Rodale, Inc., 510 F.3d 294 (3d Cir. 2007); Three
Rivers Ctr. for Indep. Living, Inc. v. Hous. Auth. of Pittsburgh, 382
F.3d 412 (3d Cir. 2004)—concern whether Congress intended to
confer personal rights where it did not provide an express private
right of action, and thus that right of action must be implied. That
is simply not the case here, where, Congress explicitly provided
that a violator of section 8 “shall be . . . liable to the person . . .
charged for the settlement service involved in the violation.” 12
U.S.C. § 2607(d)(2). As the United States argues in reply, “it
would be difficult to craft wording that more explicitly establishes
a consumer’s ‘personal right’ to bring suit for a section 8
violation.” (Intervenor’s Reply Br. at 5.)
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according to its terms.”). 5
The plain language of RESPA section 8 does not require
plaintiffs to allege an overcharge. The best indication of
Congress’s intent in this regard is the method it prescribed for the
calculation of statutory damages in section 8(d)(2). Section 8(a)
and section 8(b) proscribe specific types of abusive kickback and
referral activities. See id. § 2607(a)-(b). Section 8(d)(2), in turn,
creates a private right of action for a consumer whereby a
defendant is liable for violations of section 8(a) and section 8(b) to
the “person or persons charged for the settlement service involved
in the violation in an amount equal to three times the amount of any
charge paid for such settlement service.” See id. § 2607(d)(2)
(emphasis added). Critically, none of these provisions contains the
word “overcharge” or otherwise implies that the plaintiff must
allege that he or she paid more than he or she otherwise would have

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Use of the term “overcharge” in this and other cases6
interpreting section 8(d)(2) is different from its use in RESPA
cases addressing different questions. In Santiago v. GMAC
Mortgage Group, Inc., 417 F.3d 384 (3d Cir. 2005), for example,
we used the term “overcharge” as distinguished from a “markup”:
an “overcharge” is shorthand for an “unreasonable” charge for a
settlement service rendered by the mortgage lender itself, whereas
a “markup” is a charge by a lender for a settlement service
provided by a third party, which the lender increased without
providing additional service. See id. at 386. Here, plaintiffs allege
the payment of traditional, unearned referral fees from the third
party PMI provider—i.e., pass-along reinsurance premiums without
a corresponding transfer of risk—and, thus, the claims are more
akin to the “markups” described in Santiago.
Several courts, in resolving the overcharge-versus-markup
question, have held that a section 8(b) claim, but not a section 8(a)
claim, requires an allegation that plaintiffs paid more for a
settlement service than they would have absent the alleged
wrongdoing. See, e.g., Boulware v. Crossland Mortgage Corp., 291
F.3d 261, 266 (4th Cir. 2002). At this juncture, we need not
consider this question, although we note that, as a practical matter,
a violation of section 8(b) will likely always involve an overcharge.
For instance, suppose a mortgage lender charges a homebuyer
$1000 for a title search that actually costs $500. The lender then
splits the $500 overcharge with the title search provider. Since that
$500, no matter how it was split between lender and searcher, was
not for services actually performed, the homebuyer would be
entitled to damages. Under section 8(d)(2), those damages would
be $3000 (3 x $1000 for the title search). But there would be no
split if the lender simply charged the homebuyer $500 for the title
search service, because there would be no markup. However, the
title search provider might kick $100 back to the lender in
exchange for future business, and that would violate section 8(a),
even if there was no overcharge paid by the homebuyer. This is
consistent with at least one court’s view of section 8(b) as a
catchall companion to section 8(a) which “attempts to close any
loopholes by prohibiting any person from giving or accepting any
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paid. See id. § 2607(a), (b), (d)(2). Instead, damages are fixed at6

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part of a fee unless services were actually performed.” Sosa v.
Chase Manhattan Mortgage Corp., 348 F.3d 979, 981 (11th Cir.
2003).
See, e.g., Carter I, 493 F. Supp. 2d at 927, rev’d, Carter II,7
553 F.3d 979; Mullinax v. Radian Guar., Inc., 311 F. Supp. 2d 474,
482-86 (M.D.N.C. 2004); Moore v. Radian Group, Inc., 233 F.
Supp. 2d 819, 824-25 (E.D. Tex. 2002); Morales v. Attorneys’ Title
Ins. Fund, Inc., 983 F. Supp. 1418, 1427-28 (S.D. Fla. 1997); Durr
v. Intercounty Title Co., 826 F. Supp. 259, 260 (N.D. Ill. 1993),
aff’d, 14 F.3d 1183, 1188 (7th Cir. 1994). Neither the district court
nor the Seventh Circuit in Durr analyzed section 8(d)(2), and,
instead, assumed, without explanation, that damages under section
8(d)(2) were limited to three times the overcharge. See 826 F.
Supp. at 260; 14 F.3d at 1188.
See, e.g., Edwards v. First Am. Corp., 517 F. Supp. 2d8
1199, 1203 (C.D. Cal. 2007); Pettrey v. Enter. Title Agency, 241
F.R.D. 268, 277 (N.D. Ohio 2006); Robinson v. Fountainhead Title
Group Corp., 447 F. Supp. 2d 478, 488-89 (D. Md. 2006); Kahrer
v. Ameriquest Mortgage Co., 418 F. Supp. 2d 748, 753 (W.D. Pa.
2006); Pedraza v. United Guar. Corp., 114 F. Supp. 2d 1347, 1351
(S.D. Ga. 2000).
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three times the total charge paid by the consumer in exchange for
a settlement service, and not merely any overcharge. We agree
with plaintiffs and the United States, intervening on plaintiffs’
behalf, that the provision of statutory damages based on the entire
payment, not on an overcharge, is a certain indication that Congress
did not intend to require an overcharge to recover under section 8
of RESPA.
Despite the seemingly obvious meaning of section 8(d)(2),
there is a split of district court authority. One line of cases holds
that section 8(d)(2) provides treble damages based on the amount
of the overcharge paid for such settlement service (i.e., traditional
compensatory damages). Another line of cases agrees with the7
reading we give section 8(d)(2)—that Congress pegged damages
as three times the total payment for an “infected” service, not just
any resultant overcharge. As one district court put it, “It is plain8

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We summarily dispose of Countrywide’s argument that the9
statutory safe harbor of section 8(c), 12 U.S.C. § 2607(c), saves it
from a finding of a right of action without an overcharge.
Essentially, section 8(c) provides specific examples of the types of
payments and fees for services that are actually performed and not
prohibited by section 8(a) and section 8(b), i.e. legitimate business
is exempted from the strictures of section 8. The entire premise of
plaintiffs’ complaint is that the captive reinsurance arrangement is
not a legitimate business arrangement—that Balboa’s provision of
reinsurance coverage is nothing but a sham and Countrywide
collected payment without providing a corresponding service (even
if the PMI rates paid by plaintiffs are per se reasonable filed rates).
Whether it is or is not a legitimate business arrangement—and,
thus, whether it is exempted by section 8(c)—is a fundamental
merits question that has no bearing whatsoever on what is before
us.
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from the grammar of the statute that the phrase ‘involved in the
violation’ modifies the immediately preceding term ‘service’ to
mean that RESPA-violating defendants are liable for damages only
with respect to the specific services that were provided in connect
[sic] with the violation of the statute.” Berger v. Prop. I.D. Corp.,
No. 05-5373, *5 (C.D. Cal. Aug. 17, 2005). It found the statute
“not reasonably susceptible” to the construction given in the Carter
I line of cases because those cases “either fail to address the
unambiguous text and grammar of the statute, unreasonably
deconstruct the text to render its grammar irrelevant, or otherwise
read absent words into its provisions. Id. at *6.
In sum, it is clear to us that the plain, unambiguous language
of section 8(d)(2) indicates that damages are based on the
settlement service amount with no requirement that there have been
an overcharge. We thus agree with the conclusion of the Sixth9
Circuit in Carter II that the “ordinary definition of ‘any’ indicates
that charges are neither restricted to a particular type of charge
(such as an overcharge) nor limited to a specific part.” 553 F.3d at
986 (citing definition from Webster’s Dictionary). In addition, the
Sixth Circuit noted that “the phrase ‘such settlement services’

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refers to the preceding phrase ‘settlement services involved in the
violation.’” Id. (citing 12 U.S.C. § 2607(d)(2)). As the United
States explains, a single real estate closing may involve several
different services, but the charge for each distinct service will not
necessarily violate section 8. On this reading, with which we
concur, a homebuyer is entitled to three times any charge paid, but
only for the service connected to the kickback or fee-split.
District courts have also disagreed as to effect, if any, of the
language of other provisions in RESPA on the interpretation of the
language of section 8(d)(2). For instance, section 9 prohibits a
property seller from requiring the buyer to purchase title insurance
from a particular title company. 12 U.S.C. § 2608(a). A section 9
violation results in damages “in an amount equal to three times all
charges made for such title insurance.” Id. § 2608(b) (emphasis
added). The Morales court, for example, comparing sections
8(d)(2) and 9 side-by-side, concluded that “where Congress
intended damages to be based on the entire amount of the
settlement charge . . . [it used] the words ‘all charges.’” 983 F.
Supp. at 1417. But by using the phrase “any charge” in section
8(d)(2) and “all charges made for such title insurance” in section
9(b), Congress did not distinguish between the portion of a charge
that is excessive and the entire charge. Rather, in section 9(b),
Congress recognized that there may be multiple charges for title
insurance, some paid by the buyer and some by the seller. The
measure of damages for a violation of section 9(a) is triple the
amount of “all” title insurance charges combined, not merely the
buyer’s or seller’s amount. Thus, RESPA section 9 has no bearing
whatsoever on our interpretation of section 8(d)(2).
It cannot seriously be contended that when Congress sought
to differentiate between all charges and a portion of those charges,
it did not know how to do so. In section 8(b), for example,
Congress differentiated between the overall charge for a settlement
service and “any portion, split, or percentage” thereof that is not for
services rendered. 12 U.S.C. § 2607(b). Moreover, Congress knew
how to limit recovery to actual, out-of-pocket damages. In RESPA
section 6, which governs the assignment, sale, or transfer of loan
servicing, Congress explicitly limited recovery to the consumer’s
“actual damages,” as well as “any additional damages, as the court

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The wording of § 2605(f)(1) is similar to that found in10
damages provisions of other consumer protection statutes that
authorize “actual damages.” See, e.g., Truth in Lending Act, 15
U.S.C. § 1640(a)(1); Fair and Accurate Credit Transactions Act, 15
U.S.C. § 1681n(a)(1)(A), (B); Fair Credit Reporting Act, 15 U.S.C.
§ 1681o(a)(1); Fair Debt Collection Practices Act, 15 U.S.C. §
1692k(a)(1).
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may allow, in the case of a pattern or practice of noncompliance.”
Id. § 2605(f)(1); see also id. § 2605(f)(2) (same distinction in class
actions).10
The District Court apparently understood the plain language
of section 8(d)(2): “[c]learly, the statute entitles persons who paid
for any settlement service in violation of RESPA to receive
damages equal to three times the amount of any charge paid for
settlement services in violation of the statute.” (A. 11.) But it did
not stop there, instead concluding that “the purpose of
RESPA”—“to protect individuals ‘from unnecessarily high
settlement charges’”—trumps the very explicit and the very plain
meaning of section 8(d)(2). (Id.) It then went on to locate an
implicit overcharge requirement in section 8(d)(2), and, in so
doing, read into the statute a requirement that it had just concluded
the statute did not contain, a result not reached by any court even
in the Carter I line of cases.
The District Court’s reliance on purpose after having
already discerned a contrary plain language meaning was error.
“‘If the intent of Congress is clear, that is the end of the matter; for
[we] . . . must give effect to the unambiguously expressed intent of
Congress.’” Santiago v. GMAC Mortgage Group, Inc., 417 F.3d
384, 386 (3d Cir. 2005) (quoting Chevron U.S.A., Inc. v. Natural
Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984)); see also
Cooper Indus., Inc. v. Aviall Servs., Inc., 543 U.S. 157, 167 (2004)
(“[I]t is ultimately the provisions of our laws rather than the
principal concerns of our legislators by which we are governed.”);
Rosenberg, 274 F.3d at 141 (“Where the statutory language is plain
and unambiguous, further inquiry is not required.”).

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We thus find it unnecessary and, indeed, inappropriate to11
consider sources of interpretation beyond the plain language, such
as statutory purpose and legislative history, as did the Sixth Circuit
(moving on to other authorities due to the “varying views of other
courts reviewing these provisions and the arguable ambiguity of the
‘any charges paid’ phrase”). Carter II, 553 F.3d at 986.
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We need look no further than the plain, unambiguous
language of section 8(d)(2) in resolving the overcharge question.
Because the intent of Congress is clear, that is, indeed, “the end of
the matter.11
B. Article III Standing
Even if we conclude that, in enacting section 8 of RESPA,
Congress vested consumers with the right to a kickback-free real
estate settlement, with or without a resultant monetary injury, we
must assure ourselves that plaintiffs have suffered an injury-in-fact
sufficient to support Article III standing. The parties do not see
that as much of a problem; indeed, aside from arguing that
Congress did not intend to confer standing through the provision
of a private right of action without an overcharge, Countrywide has
barely touched on a stand-alone Article III standing argument.
Article III standing exists only when the plaintiff has
suffered an injury-in-fact, i.e., “an invasion of a legally protected
interest” that is “concrete and particularized.” Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560 (1992). A “particularized” injury
“affect[s] the plaintiff in a personal and individual way.” Id. at 560
n.1. The injury must also be “actual or imminent, not conjectural
or hypothetical.” Id. at 560 (citation and internal quotation marks
omitted).
Certainly, the fact that plaintiffs’ injury is non-monetary is
not dispositive. A plaintiff need not demonstrate that he or she
suffered actual monetary damages, because “the actual or
threatened injury required by Art. III may exist solely by virtue of
statutes creating legal rights, the invasion of which creates
standing.” See Havens Realty Corp. v. Coleman, 455 U.S. 363, 373

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The United States compares RESPA to the Fair Debt12
Collection Practices Act (“FDCPA”), which authorizes both
“actual damage[s]” and “additional damages as the court may
allow, but not exceeding $1,000,” where a debt collector fails to
comply with the statute. 15 U.S.C. § 1692k(a)(1), (2)(A). In Robey
v. Shapiro, Marianos & Cejda, L.L.C., 434 F.3d 1208 (10th Cir.
2006), the court held that the award of “additional damages” is not
contingent on proof of “actual damages.” Id. at 1211-12. The
plaintiff in Robey “suffered a cognizable statutory injury” based
wholly on the invasion of the “legal right[]” to fair debt collection
treatment, whether or not it had a collectable debt. Id. at 1212; see
also Baker v. G.C. Servs. Corp., 677 F.2d 775, 777 (9th Cir. 1982)
(“[A] debtor has standing to complain of violations of the
[FDCPA], regardless of whether a valid debt exists.”). Similarly,
the provision of statutory treble damages in RESPA, based on the
total charges paid for the settlement service at issue, obviates an
actual damages requirement.
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(1982) (citations omitted); Linda R.S. v. Richard D., 410 U.S. 614,
617 n.3 (1973). The Sixth Circuit specifically compared plaintiffs’
right to sue to the plaintiffs in Havens, where a “tester” who
expected to receive false information regarding the availability of
homes for purchase, but who had no intention of buying a home,
was held to have standing to bring a suit under the Fair Housing
Act. 455 U.S. at 373-74; see Carter II, 553 F.3d at 989. “Just as a
violation of the rights of ‘testers’ to receive ‘truthful information’
supports standing, so does a violation of the right to receive
referrals untainted by conflicts of interest.” Carter II, 553 F.3d at
989 (citing Havens, 455 U.S. at 373-74). The case before us is not
one in which plaintiffs press “a ‘generalized grievance’ shared in
substantially equal measure by all or a large class of citizens.”
Warth v. Seldin, 422 U.S. 490, 499 (1975). RESPA only authorizes
suits by individuals who receive a loan accompanied by a kickback
or unlawful referral, which is plainly a particularized injury, and
the very injury pressed here. See Carter II, 553 F.3d at 989.12
C. The Filed Rate Doctrine
We briefly address one final issue. Countrywide argues

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The only other case cited by Countrywide for this13
principle is Stevens v. Union Planters Corp., No. Civ. A. 00-CV-
1695, 2000 WL 33128256 (E.D. Pa. Aug. 22, 2000), where the
court dismissed RESPA claims alleging that hazard insurance
premiums were excessive and constituted unlawful compensation
in the form of kickbacks. Stevens is inapposite because the
plaintiffs in that case directly challenged the filed rate as
unreasonable.
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that, even if section 8(d)(2) is read to permit suits without an
overcharge allegation, plaintiffs’ claims are still barred by the filed
rate doctrine. The filed rate doctrine provides that a rate filed with
and approved by a governing regulatory agency is unassailable in
judicial proceedings brought by ratepayers. See Wegoland Ltd. v.
NYNEX Corp., 27 F.3d 17, 18 (2d Cir. 1994). “The classic
example of the preemptive power of the doctrine occurs when a
customer makes a claim for a rate that was not filed . . . —such
claims are barred.” AT&T Corp. v. JMC Telecom, LLC, 470 F.3d
525, 532 (3d Cir. 2006).
In Pennsylvania, it is “unlawful for any insurer to use a form
or rate disapproved under [the Property and Casualty Filing Reform
Act].” 40 Pa. Stat. Ann. § 710-9. The Pennsylvania Insurance
Department has broad authority to protect consumers from
excessive insurance rates through rate disapprovals, examinations,
and criminal prosecutions. Id. §§ 710-7, 710-9, 710-11, 710-18. In
addition, consumers challenging a mortgage insurance rate may
pursue administrative remedies. See 1 Pa. Code §§ 35.9-35.11.
Finally, the Insurance Commissioner, either sua sponte or
prompted by a consumer complaint, can hold hearings and
otherwise challenge rates being filed. Id. § 35.9. The doctrine has
been applied to actions brought under section 8 of RESPA.
Countrywide points us particularly to Morales, 983 F. Supp. at
1429 (dismissing RESPA “kickback” claim regarding title
insurance due to filed rate doctrine under Rule 12(b)(6)).13
Plaintiffs counter that the filed rate doctrine does not bar
their claims for two reasons. First, they point out that they
challenge the payment of kickbacks, not the rates they paid for

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PMI. As those kickbacks are not, of course, filed with
Pennsylvania, the doctrine does not apply. Second, they challenge
only the commission of conduct proscribed by statute, such that the
existence of a filed rate, or pecuniary harm, is irrelevant.
Aside from Morales, the district courts that have decided the
issue side with plaintiffs, as do we. In Kay v. Wells Fargo & Co.,
247 F.R.D. 572, 576 (N.D. Cal. 2007), for example, the court
observed that:
Statutes like RESPA are enacted to protect
consumers from unfair business practices by giving
consumers a private right of action against service
providers. Plaintiffs may not sue under the veil of
RESPA if they simply think that the price they paid
for their settlement services was unfair.
Alternatively, plaintiffs bringing a suit under RESPA
may allege a violation of fair business practices
through the use of illegal kickback payments. The
filed-rate doctrine bars suit from the former class of
plaintiffs and not the latter.
As in Alexander v. Washington Mutual, Inc., No. 08-8043, 2008
WL 2600323, at *3 (E.D. Pa. June 30, 2008) (district court case
held c.a.v. pending this case), “[p]laintiffs do not challenge directly
the reasonableness or fairness of any rate set by the Commonwealth
of Pennsylvania[, but r]ather, . . . claim that defendants’ captive
reinsurance arrangement constitutes an alleged kickback or fee-
splitting scheme in violation of RESPA.” Another district court
suggested four reasons why the doctrine did not apply to the
plaintiffs’ similar RESPA claims: (1) the measure of damages is
three times the price of PMI, no matter the price, so there is no
need to parse or second guess rates; (2) the purpose of RESPA is
to protect all consumers by attacking practices that are “harmful to
all consumers,” not just the named plaintiffs bringing the suit; (3)
Congress intended for RESPA to apply to mortgage insurance; and
(4) RESPA is remedial and should be construed broadly. See
Patton v. Triad Guar. Ins. Corp., No. CV100-132 (S.D. Ga. Oct.
10, 2002), at **8-14 (attached as “Exhibit E” to plaintiffs’ brief).
It goes without saying that if we were to find that the filed rate

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doctrine bars plaintiffs’ claims, we would effectively be excluding
PMI from the reach of RESPA, a result plainly unintended by
Congress.
It is absolutely clear that the filed rate doctrine simply does
not apply here. Plaintiffs challenge Countrywide’s allegedly
wrongful conduct, not the reasonableness or propriety of the rate
that triggered that conduct.
Conclusion
We will reverse the Order of the District Court.

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