In early January, the Third Circuit Court of Appeals affirmed summary judgment of a putative class action dispute regarding private mortgage insurance and captive reinsurance of the same by M&T. We previously blogged about this case on November 20, 2013, February 4, 2014, and March 17, 2015. The putative class action alleged violations of the Real Estate Settlement Procedures Act – specifically, that M&T violated RESPA’s anti-kickback and fee-splitting provisions. However, the district court entered summary judgment on the grounds that the claims were time-barred, and the Third Circuit affirmed this finding.
Under RESPA, claims are subject to a one-year limitations period. The Third Circuit has previously held that the statute of limitations in RESPA is not jurisdictional and is subject to equitable tolling. The putative class plaintiffs argued for the application of equitable tolling on the grounds of fraudulent concealment. After discovery, the district court found that the putative class plaintiffs failed to show reasonable diligence. The Third Circuit affirmed, finding that where the mortgage documentation included a disclosure and allowed borrowers to opt out of captive reinsurance, the putative class was given notice that this could have happened and should reasonably have begun investigating at that time. During depositions, the putative class plaintiffs confirmed that they were aware of the possibility of captive reinsurance, but none of them investigated it until they were contacted by a law firm years later. Cunningham v. M&T Bank Corp., Case No. 15-1412 (3d Cir. Jan. 12, 2016).