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Anona Duffy, et al v. Lawyers Title Insurance Co

July 2, 2012


The opinion of the court was delivered by: Stengel, J.


This action was brought against Lawyers Title Insurance Co. for Fraud and violation of Pennsylvania's Unfair Trade Practices and Consumer Protection Law ("UTPCPL") as the result of a "mortgage rescue scam." Following oral argument, I denied the motion to dismiss pending the resolution of the issue of whether Plaintiffs qualify as "purchasers" under the UTPCPL. The Defendant filed a motion to certify this issue for interlocutory appeal as a question of law, which for the reasons discussed below, I will deny the motion.


In their Amended Complaint, plaintiffs allege they are victims of a series of foreclosure rescue scams, described as "equity skimming scams." (Amend. Compl. at ¶ 4). Plaintiffs claim that defendant, Lawyers Title Insurance Co., (hereinafter "Fidelity"),*fn1 is also the principal, insurer and underwriter of First County Abstract ("First County"),*fn2 and that these and other parties conspired to steal the equity in Plaintiffs' properties. (Amend. Compl. at ¶¶ 12-15, 17, 36). Specifically, Jeffrey Bennett and Steve Doherty functioned as title agents and as principals of Bennett & Doherty, P.C., a firm acting as an alter ego of and trading as First County.*fn3 (Amend. Compl. at ¶¶ 17, 25). Essentially, each plaintiff was in the midst of a foreclosure action commenced by their respective lenders when the equity scams took place.*fn4 (Amend. Compl. at ¶ 12, 29-31).

The Equity Skimming Scam

Plaintiffs allege that they were contacted by someone who told them that they could save their home from foreclosure by refinancing under a third party's name. (Amend. Compl. at ¶ 30). The third party was a "straw party" with good credit to act as the purchaser of the Plaintiffs' residences. Settlement for each transaction was scheduled with Bennett and Doherty, P.C. (Amend. Compl. at ¶ 51, 155, 165). Preceding settlement, First County, through Bennett, issued a preliminary HUD-1, settlement sheet, which set forth costs and showed a "cash-to-seller" payment illustrating the amount of equity in each home. (Amend. Compl. at ¶ 184). This prompted the release of the settlement funds to Bennett and Doherty. (Amend. Compl. at ¶ 168).

After the funds were released, First County, through Bennett, issued a phony final HUD-1, which reduced the proceeds paid to plaintiffs to zero. (Amend. Compl. at ¶¶ 37, 185, 195). Lawyers Title Insurance, now Fidelity, issued title insurance through its agents, which insured the lien on the new mortgage. (Amend. Compl. at ¶ 38, 171). The proceeds of the new mortgage were then used to pay off the old mortgage and to satisfy other "obligations." (Amend. Compl. at ¶ 35). However, many of these obligations were phony, and the payments were diverted to third parties involved in the fraudulent scheme. (Amend. Compl. at ¶ 36).


The parties disagree as to whether plaintiffs purchased a good or service from defendant. The issue presented in this case is whether a person whose home's equity was allegedly used by one entity to purchase title insurance from a third party makes that person a "purchaser" under the UTPCPL. The "general purpose of the UTPCPL is to protect the public from fraud and unfair deceptive business practices." Burke v. Yingling, 666 A.2d 288, 291 (Pa. Super. Ct. 1995). Courts have generally taken a broad approach to what constitutes a sale or a purchaser under the act.*fn5 See e.g., Christopher v. First Mut. Corp., 2008 U.S. Dist. LEXIS 32781 (E.D. Pa. Apr. 21 2008). The UTPCPL does not define "purchaser," but the statute unambiguously permits only persons who have purchased or leased goods or services to sue. Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992).

28 U.S.C. § 1292(b) sets forth the standard for granting an interlocutory appeal:When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order.

Before a non-final order is certified for interlocutory appeal to the courts of appeals, the district court must determine whether: 1) the order involves a controlling question of law; 2) a substantial ground for difference of opinion exists regarding the correctness of the decision; and 3) an immediate appeal may materially advance the ultimate termination of the litigation.*fn6 Alexander v. Washington Mutual, Inc., Civil Action No. 07-4426, 2008 U.S. Dist. LEXIS 61256, 2008 WL 3285845, at * 2, (E.D. Pa. August 4, 2008). Section 1292 (b) should be "sparingly" applied, see Milbert v. Bison Laboratories, Inc., 260 F.2d 431, 433 (3d Cir. 1958), and the decision to grant certification is within the court's discretion, even if all three criteria are met. Bachowski v. Usery, 545 F.2d 363, 368 (3d Cir. 1976); Knipe v. SmithKline Beecham, 583 F. Supp. 2d 553, 599 (E.D. Pa. 2008).

A controlling question of law is one in which either (1) an incorrect disposition would constitute reversible error if presented on final appeal, or, (2) the question is "serious to the conduct of the litigation either practically or legally." In re Chocolate Confectionary Antitrust Litigation, 607 F.Supp.2d 701, 705 (M.D.Pa. 2009) (quoting Katz v. Carte Blanche Corporation, 496 F.2d 747, 755 (3d Cir. 1974)). "When determining whether an issue presents a controlling question of law, the emphasis is on whether a different resolution of the issue would eliminate the need for trial." Alexander v. Washington Mutual, 2008 U.S. Dist. LEXIS 61256, 2008 WL 3285845, at *3. The Katz court reasoned that among the practical concerns to be considered are saving the time of the district court and minimizing the expense to the litigants. Katz, 496 F.2d at 755.

"Substantial grounds for difference of opinion exist where there is genuine doubt or conflicting precedent as to the correct legal standard." Hall v. Wyeth, Inc., Civil Action No. 10-738, 2010 U.S. Dist. LEXIS 128168, 2010 WL 4925258, at *2 (E.D.Pa. December 2, 2010)(citing Bradburn Parent Teacher Store, Inc. v. 3M, Civ. A. No. 02-7676, 2005 U.S. Dist. LEXIS 15815, 2005 WL 1819969, at *4 (E.D.Pa. August 2, 2005)). The absence of controlling law on a particular issue can also constitute "substantial grounds." Chase Manhattan Bank v. Iridium Africa Corp., 324 F. Supp. 2d 540, 545 (D. Del. 2004). Finally, a § 1292(b) certification "materially advances the ultimate termination of the litigation" where the interlocutory appeal eliminates: "(1) the need for trial; (2) complex issues that would complicate the trial; or (3) issues that would make discovery more costly or burdensome." Litgo New Jersey, Inc. v. Martin, 2011 U.S. Dist. LEXIS 31869, 2011 WL 1134676 at *3 (D.N.J. 2011).

Defendants claim that the absence of case law on the issue of who is the "purchaser" of title insurance under the UTPCPL has created an "unjust environment." They argue that all three criteria for appeal are satisfied. The issue involves a controlling question of law because unless Plaintiffs can establish purchaser status the entire case must be dismissed for lack of standing. Defendants also argue that there is substantial ground for difference of opinion because there is an absence of controlling case law. Finally, they contend that the resolution of the issue in ...

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