created so we'd the homeowners would have a cut to expenses what as well as fees and also provide for full disclosure of expenses and feet that was important to consumers committed to a major purchase like this so you want to make sure that come into it the homeowner knows exactly what they're going to pay it and where they're going to pay it to and the third thing was to ensure that there were no kickbacks there no referral fees there's no payment for no was ordered surveys are doing many various things but one thing that the homeowner was unaware of was these hidden fees these kickbacks that were made by the title companies to the lawyer agents that looked in affording what the agents were doing the attorney agents of title companies were doing they had a program for when they were doing the same thing they were getting these undisclosed kickbacks basically seventy eighty percent of the money these issues in these cases each one that you'd have to say will this lawyer mr or laos for example or some other where he some people look at the paperwork didn't make any changes but use their expertise of the term whether it was properly  e some people made changes and i guess they would have been able to say that they actually performed the work and that they complied with reza and then there are people who didn't do anything and that he is nice saying there isn't a common nucle if you want to the second point for necessary work there would be a separate bill that would be like pro i'm paying you you know three hundred dollars extra for performing x y z that gets to the second aspect on the first aspect is the program that they were performing it was a program that that was pre arranged when they would be paid a set amount seventy to eighty percent let me know what you did whether you did something or whether you did nothing and if you look because if you look at the prong are they actually doing the work then you bill a problem we're talking about in our in this case they were sending documents that's basically saying that this is in trouble and if there are certain exceptions they don't form they lay it out for them the lawyer then it is back you get to the second point then you're paying them for what they actually did if they did something in addition to you know that there are things warner would naturally do in which they're getting paid remember that the salaries in purchasers of pin these wonders for these basically a cease and desist order so you want to right the trial judge got it wrong because the trial judge did an analysis of what the attorneys would did or did not do you're saying went too far that went too far should have said it that's presented to the court is whether or not your complaints meet the requirements of rule twenty three that's the only thing we have this hour and if you do then he's abused his discretion because my understanding is you're saying he got into the merits of the case we don't need to determine whether or not to prove your cake all we need to decide is whether or not your complaint pleads a classic comes with the requirements of rule twenty three that's only decide that's  all pursue cases you know you've got filing costs of a couple hundred dollars you've got it turns fees if you're going to have an attorney that deposition costs you have experts issue there's no way and that it even if it were true i'm sure the judge evans would not appreciate tens of thousands of individual cases to be filed so that that is not impractical that is impractical and if this class serve keisha's tonight all these people who were defrauded clearly defrauded are left without a remedy so i think the judge did abuses discretion what we were seeing in respect to the program he went to the individual cases which i think was wrong and i think a eighty trial by fire oh if these cases were to be filed individually would just it would be absurd in terms of the circuit court trying to absorb that i think by class certification we can work file by file outside the court and the workers can do that and resolve that themselves outside of court and this is appropriate case to concerned with right now that's correct but we could easily prove objective what the images are just look at what the program was what the percentage that was paid based on the premium and it was laid out it week we know what the damages are for each case  enjoy i i would just like to answer one question you raised about the standard of review because i think it's important when this case was argued at the end of the case judge when really said there was just one issue that he couldn't go along with that one matter of law and that really dealt with the issue of of the raw spot interpretation in part thirty five hundred the c f r interpretation of the guidelines which he  simply disagreed with and he said that interpretation which is that you cannot send a pro forma commitment to an attorney because once you do they can't as a matter of law perform or title agent services and the then said ok if they can't perform or title services by after they've received a a rare form of commitment then they've done other services well this if you look at this class definition it excludes that and the reason it excludes it is because this definition only includes those transactions where the attorney received their full contract amount not some partial payment and in that same part of russia interpretation  thirty five hundred there the hud interpret and said you cannot pay them the full contract amount so if they're doing something like letting their office be used for example their copy machine be use for the closing and their which is typical they have the agent would go out and do the closing at the attorney's office where the clients are mad they do that you can pay them eighty or ninety percent of the premium the same contract amount and i did that in the one nine hundred ninety six said you can't so the definition here excludes even those transactions and it's certainly of course excludes the numerous ones the defense is peppered their papers with with sr say they got a surveyor they did this because these people who hired them the buyers and sellers were already paying them if you look in the in the transactions here mr long lost five hundred dollars from from his client mr conan got three hundred fifty dollars from his client that's what they're getting paid for for doing those sort of non core title service related functions so the definition excludes all of it and all of this discussion about the attorneys did this or they look at that as abuse of discretion standard but the court found as a matter of law he made a determination which was inconsistent with our complaint so if you take our complaint and the allegations by the complaint his  substantive ruling on a question of wall that our interpretation was incorrect and i don't know feck the fully how that changes the analysis but i think that certainly for the court can look at that and see that that type of analysis can't be done of class certification stage it just simply cannot be done thank you very much well as the underlying political substantive law in other words and then the cruise case the second district they said when you're looking at it you don't just accept what the plaintiffs pled and say we're going to accept that no matter what you have to look at the facts and the law at least to get not true on the merits but to gain an understanding of what we're talking about here to see whether or not the common issues or the individual issues put down today that's what  flynn did and what judge flynn decided was that for him to rule or for him to certify the classes he would have to hold that whenever a whenever the preliminary commitment or a exam is sent out it doesn't matter as a matter of law whether there were services actually performs and he said that would be contrary to rest but where the statute says there is no kickback where there are services that work quote some of the rest  perform services actually perform the issuance of a policy of title insurance so let's talk about what the different statutes and regulations say the statute eight c one b talks about services actually performs the hu a title agent if the attorney performs square or title agent services and then you look at the illustration illustration for which is part of the hard regulations and what does that say that goes through a scenario where  a which is the attorney agent does such certain things and b the title insurance company does certain things and then it says the type essentially the truly agent has to do something substantive they've got to  one is can it be changed by attorney and the attorney look at and say wait a minute this is wrong or you made a mistake here can you do that first incident the answer the answer is yes but need to say one of the things that's important going on and that is what was sent  for doing any way for the purchaser shouldn't check me sure that everything is is intact and properly done properly the title is clear and everything else he's in his job anyway he could be and we just second why would he be entitled to then get another eight hundred thirty three dollars or whatever  in one of the cases for a two hundred fifty thousand dollars house why would he be entitled to that if he's doing his job for his client and who is his client in the situation has to pay many insurance company wanted and his client who's you represent typically is also the client for the forma commitments the the trainee agent is the one making the determination of the insurer billed if title for it to be a pro forma commitment you have to have the title company making the determination of insur ability of title making a valuation and then the attorney agent does nothing here but the title company does is it corrects the information it sends computer generated you from ation after doing searches a from the tax records no the records and then the attorney agent goes through and the trainee agent says i'm a look at those and see if there's an issue are they supposed to death for the seller not necessarily the reason is for the seller but your job is to make sure that the sale transaction goes through it's not to issue some sort of insurance policy just being the attorney for solar typically if you're an attorney for so you're not saying i'm guaranteeing there's no problem with title but that's what the attorney agent does when they're that i'm going to get paid and i'm going to get paid based on how the value that house right but your honor that that would then be a question of whether the fee is reasonably related to the work that was performed which has to be answered individually hold on just go with me we haven't gotten t hat point yet it's the system is set up so that i know is an attorney going in it doesn't make any difference how much work i'm going to put in my fees aren't tied the value that house correct you know i have to go back to the fee schedule or not i know it's there many hours you put in other words it's not our based but it is tied to you know going in and making an evaluation of the insurability of title the amount of the fee is not tied to what the  fee is tied to what the lawyer does it's not tied to the number of hours and if you want to compare it to the actual amount of work that was done you have to look at it individually actual services performed  a certain amount there's nothing wrong with that that's like zero instead of having an hourly fee in any case you have a flat fee and will vary in some cases you made your work more work in some cases you may do less work but the question under  a risk maybe you have something you know but if he's not if he's that the company is i mean i don't know that summers attorneys are saying you're thinking well if there's something wrong with this i'm going to wind up paying for it right i have to check i'm ok i do know i title package that sent to the attorney agents at a seventy eight to the affidavits from one attorney after another attorney h f another describing in detail the work that they performed so you have to look at it individually to see did they do the work now i want to i need to talk about the hud policy statement the florida statement because we talked about the statute itself which says work at performed and then the regulations which talks about core title agent services and what you have is then is the head policy statement and it's interesting what the hud policy statement says is if you have a pro forma commitment then the attorney agency actually perform the services  the quote from a commitment then you don't have the attorney agent performing services it does not say never does it say and therefore you don't need to look at all but the attorney agent did you don't need to look at whether they went out as the record it shows here and got information outside of what the company sent went to the tax records talk to the agent made changes which is relevant under the c t i class all the things that they did it never the hud policy statement florida never says that becomes irrelevant  whatever the attorney can do lots and lots of work it all becomes irrelevant never says that because if you did say that it would be inconsistent with the statute which talks about services actually performed and that's something you can't look at in a system wide basis you got to look at it individually because the statute doesn't say it's illegal to set up a system that allows for the possibility for this happening it says it's illegal to have a system to have a kickback where you have no service is actually performed and that's where in such quote in such a manner as to really rile the title insurance agent should be sure the commitment without having to examine title and determine insurability of title and of quote and the words they are rollo for potential for abuse we don't think it's a good we have the ins in the legal no insurance agency don't think it's a good idea to allow these things to happen to chase any of these things get sad because they allow for the possibility of an attorney agent not doing the work they're supposed to do that's different than a court of law coming in and saying is there a violation of respite here were services actually perform because while an agency can say we don't think it's a good idea to do this we think you should stop sending pr commitments and that's ok for an agency to do for court of law it's determining whether or not there was a kickback or whether or not services actually were performed that's something that has to be done in an individual basis that's what judge flynn found judge flynn rejected what he called the quote draconian interpretation of respa that all you have to do is look at what was sent and you can ignore everything that was done by the attorney agents and it's particularly egregious in the case of the  class clay with class because in the clay with class you can have something that sense from the title company from chicago title to the attorney agent and the attorney agent takes it and then makes all kinds of changes there's a lot of depends upon a finding as a matter of law that whatever the attorney did is irrelevant after a pro forma commitment a sense that even if these things fall face pro forma commitments which they don't because all the things outperform the commitments for the course to say weak therefore that's a common issue that predominates you have to say that all this all the evidence about what the individual agents the services they actually perform is  person find that and now we have not only judge flame but the northern district court and how one saying the same thing no court has ever said it's a violation of rest but just to send something without looking at all what they have but the attorney well they i think they have judy's both to whoever their client is the seller as well as some sort of judy chu as as an agent to the title company but because that is disclosed in this form that's for your business still typically it's the seller typically is the seller who is paying for the insurance but you could have it where the buyer buyers attorney says well i want to buy the title insurance but i believe typically such matters for purposes it just said i'm an agent for them and they get paid doesn't say the amount however you also but you the other thing you have is at best the earlier disclosure at the time of closing you have the more detailed disclosure things wrong with us of course and if they if the purpose of a percentage fee work to to send a client to somebody for business purposes and get a fee back as a percentage of the house they were paying in us the question that went to the heart of it your honor and that is because there's a we didn't raise this our challenge is not to the lawyers are challenges to the system but there's a there's a rag directly home point