IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 94-30343

STATE OF LOUISIANA,

Plaintiff-Appellant,

v.

LITTON MORTGAGE COMPANY, Class Representative, and all other similarly situated mortgage servicing companies,

Defendant,

BISYS LOAN SERVICES, INC., Class Representative, and all other similarly situated mortgage servicing companies fka Litton Mortgage Servicing Center, Inc., ET AL.,

Defendants-Appellees.

Appeal from the United States District Court for the Eastern District of Louisiana

(March 30, 1995)

Before VAN GRAAFEILAND*, JOLLY AND WIENER, Circuit Judges.

PER CURIAM:

Plaintiff-Appellant, the State of Louisiana ("the State")

appeals two district court orders, one granting the Defendants-

Appellees' Litton Mortgage Company, Inc. - now BISYS Loan Services,

* Circuit Judge, United States Court of Appeals for the Second Circuit, sitting by designation. Inc. - ("Litton/BISYS") and Magnolia Federal Bank for Savings

("Magnolia") (collectively "Defendants") motions to dismiss the

State's complaint for failure to state a claim, and the other

denying the State's subsequent motion for leave to amend its

complaint. The State asserts that the court erred in (1)

dismissing its complaint on the ground that Section 10 of the Real

Estate Settlement and Procedures Act ("RESPA"),

(a), does not imply a right of private action, and (2) denying

its motion to amend on alternative grounds: that the dismissal of

the State's complaint constituted a dismissal of the State's entire

action, and that the circumstances underlying the State's motion to

amend - particularly the State's effort to resurrect an abandoned

claim - did not justify allowing yet another amendment.

We agree with the district court's legal ruling that Section

10 of RESPA does not imply a private cause of action. It follows

that the court did not err in dismissing the State's complaint for

failure to state a claim under RESPA. With respect to the State's

motion for leave to amend, we conclude that the court erred in

denying the motion on the ground that the dismissal of the State's

complaint constituted a dismissal of the entire action. We are

satisfied, however, that this error is harmless by virtue of the

fact that the court also addressed the merits of the State's motion

to amend and did not abuse its discretion in denying that motion.

We therefore affirm the court's order to that effect.

2 I

FACTS AND PROCEEDINGS

In November 1993 the State filed an action on behalf of

Louisiana homeowners against Litton/BISYS and other similarly

situated mortgage companies, asserting claims under Section 10 of

the RESPA,1 the Racketeering Influenced and Corrupt Organizations

Act ("RICO"), the Louisiana Unfair Trade Practices and Consumer

Protection Act ("UTP"), and state antitrust laws. The State's

action stemmed from the mortgage companies' alleged practice of

requiring homeowners to deposit funds in mortgage escrow accounts

in amounts that exceed the amount permitted by federal law or by

the homeowners' mortgage contracts. Due to the number of common

claims against numerous mortgage servicers, the State in its

initial complaint sought to certify a class with Litton/BISYS named

as class representative. Prior to an answer being filed, the State

amended its original complaint to include federal antitrust claims.

After a preliminary court conference the State amended its

complaint a second time, asserting only the RESPA and UTP claims

against the defendants individually. Litton/BISYS and Magnolia

filed motions to dismiss the complaint. The court granted these

motions, concluding that Section 10 of RESPA does not provide a

private right of action and declining to exercise supplemental

jurisdiction over the remaining state UTP claim.

Following the court's dismissal but before final judgment was

1 See

(a) (1994) (limiting amount of advance deposit in escrow account that lender may require in connection with federally related mortgage loan).

3 entered, the State filed two motions for leave to amend its

complaint, - for the third and fourth times - asking to reassert

the RICO claim, reinstate the RESPA and state law claims, and add

additional defendants. The court denied these motions to amend,

reasoning that, as the earlier order of the court had dismissed the

State's entire action there was nothing left for the State to

amend. The court also concluded that the State's attempt to

reassert the abandoned RICO claim, when viewed in conjunction with

other circumstances surrounding the case, was indicative at worst

of possible bad faith or dilatory motive, or at best, of inartful

pleading, thus providing the court with substantial reasons for

denying the motions on the merits.

II

ANALYSIS

A. STANDARD OF REVIEW

We review de novo a dismissal of a compliant for failure to

state a claim.2 And, although we review a district court's denial

of a motion to amend for abuse of discretion,3 we review de novo

that portion of a district court's denial of the motion to amend

that rests on a question of law: here, whether the court's order

2 Fernandez-Montes v. Allied Pilots Ass'n,

(5th Cir. 1993); FDIC v. Ernst & Young,

(5th Cir. 1992) (citing Barrientos v. Reliance Standard Life Ins. Co.,

(5th Cir. 1990), cert. denied,

1991)). 3 Whitaker v. City of Houston, Tex.,

(5th Cir. 1992) (citing Gregory v. Mitchell,

(5th Cir. 1981)); Avatar Exploration, Inc. v. Chevron, U.S.A., Inc.,

(5th Cir. 1991).

4 constituted a dismissal of the State's entire action or merely

dismissal of specific complaints.

B. SECTION 10 OF RESPA

The State challenges the order dismissing its complaint based

on the court's conclusion that Section 10 of RESPA does not imply

a private cause of action. Relying on the Cort v. Ash4 standard

for determining whether a private right of action may be inferred

from a particular statute, the State insists that Section 10

clearly does imply a private cause of action.5

Applying Cort's four-part test to Section 10, the State

reasons that (1) the plaintiff is a member of the class for whose

special benefit the statute was enacted; (2) as § 2609(a) does not

provide any other remedy, the provision would be superfluous and

ineffective without a private cause of action; (3) an implied right

of private action is consistent with the purposes of the

legislative scheme; and (4) even though injured borrowers could

4

(1975) 5 See

(establishing four-part test for determining whether private right of action is implicit in particular statute). The four-part test developed in Cort is as follows: First, is the plaintiff "one of the class for whose especial benefit the statute was enacted," that is, does the statute create a federal right in favor of the plaintiff? Second, is there any indication of legislative intent, explicit or implicit, either to create such a remedy or to deny one? Third, is it consistent with the underlying purposes of the legislative scheme to imply such a remedy for the plaintiff? And finally, is the cause of action one traditionally relegated to state law, in an area basically the concern of the States, so that it would be inappropriate to infer a cause of action based solely on federal law?

(citations omitted).

5 seek relief under state law, the likelihood of inconsistent results

is high. The State glosses over subsequent cases in which the

Supreme Court departed from Cort to conclude that the weightiest

factor in determining whether a statute implies a private right of

action is whether Congress intended to create one.6 Moreover, the

State apparently overlooks the fact that the absence of legislative

history regarding Congress' intent to create a private right of

action generally augurs against implying a private cause of action.

The circuits are split on this precise issue.7 After

considering the opposing position of Vega v. First Federal Savings

& Loan Association of Detroit,8 we find most persuasive the Seventh

Circuit's well-reasoned opinion in Allison v. Liberty Savings.9 In

reaching its conclusion that Section 10 of RESPA does not create a

private right of action, the Allison court acknowledged the Cort

test, yet recognized that the central inquiry for determining

6 See e.g., Transamerica Mortgage Advisors, Inc. v. Lewis,

(1979) (reiterating that, although prior opinions of Court place considerable emphasis on desirability of implying private right of action in order to effectuate purposes of statute, ultimate question is whether Congress intended to create private remedy); Touche Ross & Co. v. Redington,

, 568 575 (1979) (noting that Court's task is limited solely to determining whether Congress intended to create a private right of action).

7 See Allison v. Liberty Sav.,

(7th Cir. 1982) (holding that no implied private cause of action exists under Section 10 of RESPA); contra Vega v. First Federal Sav. & Loan Ass'n of Detroit,

, 925 n.8 (6th Cir. 1980) (concluding that Congress intended to create private remedy for violation of RESPA). 8

(6th Cir. 1980). 9

(7th Cir. 1982).

6 whether a statute creates a private cause of action is whether

Congress intended to create a private remedy.10 Observing that

Congress explicitly provided federal private remedies in other

sections of the Act but not in Section 10, and that there was no

legislative history on the issue, the Allison court concluded that

when "analysis of the statute itself weighs against implication of

a private cause of action and the legislative history is silent, we

must conclude that Congress did not intend to create a private

remedy."11 The court stopped its analysis at that point, noting

that "once we have concluded that Congress did not intend to create

a private remedy, our inquiry is at an end."12 In addition to

the reasoning of Allison, we are persuaded further by the fact that

when Congress did amend Section 10 - which occurred after Allison -

it added penalties for violations of a different provision of that

section but not for violations of the provision limiting escrow

deposit accounts.13 We also note in passing that four district

courts sitting in three additional circuits have adhered to Allison

when concluding or observing that Section 10 of RESPA does not

10

at 1088 (citing Transamerica Mortgage Advisors, Inc.,

-16 and Touche Ross & Co.,

).

11

at 1089 (citing Touche Ross & Co.,

). 12

(citing Transamerica Mortgage Advisors, Inc.,

). 13 See

(b)-(d) (1994) (1990 amendments to Section 10: adding penalties for violation of subsection § 2609(c) (escrow account statements), but not penalties for violations of subsection § 2609(a) (limits on advance deposits)).

7 imply a private right of action.14 We are comfortable in deciding

for this circuit that there is no private right of action under

Section 10 of RESPA.

C. THE STATE'S MOTION TO AMEND

The State urges us to hold that the district court erred in

denying the State's motion for leave to amend on the ground that

the earlier dismissal terminated State's entire action, not merely

the RESPA and UTP complaints. The State contends that, as the

order granting the Defendants' motions to dismiss gave no

indication that the court intended to dismiss the State's entire

action, the order dismissed only the complaint; thus, it was proper

for the State to seek leave to amend its complaint.15

We stated in Whitaker v. City of Houston16 that, unless a

district court order states expressly or by clear indication

14 See Campbell v. Machias Sav. Bank,

(D.Me. 1994) (agreeing with Seventh Circuit; finding no implied private right of action under § 2609); Michels v. Resolution Trust Corp., Civ. No. 4-93-1167,

, at *3 (D.Minn. April 13, 1994) (concluding that Allison decision was correct; dismissing plaintiff's claim for violation of RESPA § 10); Bloom v. Martin, 865 F.Supp 1377, 1384-85 (N.D.Cal. 1994) (citing Allison - and criticizing Vega's unsupported contrary conclusion - to support its holding that, as § 2609 does not create a private remedy, neither does the RESPA § 2603); Bergkamp v. New York Guardian Mortgagee Corp.,

(D.Mont. 1987) (concluding that no private remedy was intended under Section 10 of RESPA).

15 See e.g., Whitaker v. City of Houston, Tex.,

(5th Cir. 1992) (holding that if district court order does not expressly or by clear implication dismiss entire action, order dismisses complaint only and plaintiff may amend pursuant to Rule 15(a)). See FED. R. CIV. P. 15(a) (establishing in part that party may amend pleading by leave of court and that leave shall be freely given when justice so requires). 16

(5th Cir. 1992).

8 reflects the court's intention to dismiss an entire action, the

order dismisses only the complaint and a plaintiff may seek leave

of court to amend.17 Here, the dismissal order stated only that

"[i]T IS ORDERED that Defendant BISYS Loan Services, Inc.'s March

18, 1994 Motion to Dismiss, argued before this Court on April 6,

1994 is hereby GRANTED." A literal reading of this order reflects

that the court intended to grant the Litton/BISYS motion, which in

turn literally was a motion to dismiss the State's second amended

complaint. The docket sheet supports this literal reading in that

it records the dismissal order as granting BISYS' motion to

"dismiss the State's second amended complaint."

Finding that the court order dismissing the State's complaint

neither expressed nor indicated clearly that the court intended to

dismiss the State's entire action, we are constrained by the

teaching of Whitaker to conclude that the district court erred in

denying the State's motion for leave to amend on this procedural

basis. Our conclusion is bolstered by the additional facts that

(1) the dismissal order neither invited the State to amend its

complaint nor indicated that an amendment was not possible, (2) a

final Rule 58 judgment was not filed until almost two months later,

and (3) the court - after saying that there was nothing left for

the State to amend - went on to address the merits of the motion.18

17 Whitaker,

. 18 See e.g.,

(noting that if court intended to dismiss entire action it surely would not have considered subsequent motion to amend because there would have been nothing left to amend and plaintiff's only options would have been motion for reconsideration or appeal).

9 We are equally convinced, though, that the district court's

error in denying the State's motion to amend based on that

procedural basis is nullified by the court's proper denial of the

same motion on its merits. The State challenges this "substantive

denial," arguing that the court abused it discretion in denying the

motion to amend because the State had abandoned the same RICO claim

that it was seeking to reassert in the amended complaint. We are

again unpersuaded by the State's argument; rather, we are satisfied

that the court did not abuse its discretion in denying the State's

motion on such grounds.

Rule 15(a) "evinces a bias in favor of granting leave [to

amend]," when justice so requires.19 A decision to grant leave is

within the discretion of the court, although if the court "lacks a

'substantial reason' to deny leave, its discretion 'is not broad

enough to permit denial.'"20 In exercising its discretion a court

may consider such factors as "'undue delay, bad faith or dilatory

motive on the part of the movant, repeated failure to cure

deficiencies by amendments previously allowed, undue prejudice to

the opposing party by virtue of allowance of the amendment, [and]

futility of amendment.'"21

When it denied the State's motion to amend, the district court

19 Chitimacha Tribe of Louisiana v. Harry L. Laws Co. Inc.,

(5th Cir. 1982), cert. denied,

(1983)). 20 Jamieson By and Through Jamieson v. Shaw,

(5th Cir. 1985) (quoting Conley v. Gibson,

(1957)). 21 Whitaker,

(quoting Foman v. Davis,

(1962).

10 made three observations. First, it noted that the State proposed

to resurrect its abandoned RICO claim.22 The court essentially

determined that, as the substance of these "new" RICO allegations

that the State proposed to raise were conceptually identical to

those contained in the original complaint, the State's attempt to

resurrect the abandoned claim justified the court's decision to

deny the motion.

The State complains that the court erred in basing its denial

solely on "abandonment." The State argues that, because a

plaintiff is permitted to reassert an abandoned claim in a

subsequent amended complaint, the State's attempt to resurrect the

RICO claim was not indicative of bad faith or dilatory motive and

thus does not justify the court's denial. The State contends that

we rejected "abandonment" as a basis for denying a motion to amend

in Watkins v. Lujan,23 when we held that a plaintiff could reassert

a cause of action that was raised in an original complaint but

abandoned in a subsequent complaint.24

22 See e.g., Boelens v. Redman Homes, Inc.,

(5th Cir. 1985) ("[A]an amended complaint ordinarily supersedes the original and renders it of no legal effect, unless the amended complaint specifically refers to or adopts the earlier pleading.") (citing Wilson v. First Houston Inv. Corp.,

(Former 5th Cir. 1978), vacated on other grounds,

(1979)).

23

(5th Cir. 1991) 24 See

(concluding that plaintiff did not waive right to reassert original Title VII claim in second amended complaint despite fact that plaintiff had replaced Title VII claim in favor of § 1981 claim in first amended complaint).

11 Despite the State's effort to analogize its situation to

Watkins, we perceive a distinguishing difference between the

Watkins circumstances and those before us today. Watkins involved

a pro se plaintiff seeking to reassert an abandoned Title VII

discrimination claim, the operative facts of which were the same as

those of her § 1981 discrimination claim. In addition, the

principal focus in Watkins was on whether the Title VII cause of

action related back to the original pleading under Rule 15(c),

thereby overcoming the Title VII thirty-day limitation period that

would otherwise bar the plaintiff's cause of action. We were

persuaded in Watkins that the plaintiff's second amended complaint

did relate back to the date of the original filing because both

causes of action were based on the same facts and allegations of

discrimination.25 We reasoned therefore that, even though the

plaintiff had replaced her original Title VII claim with a § 1981

claim, her so doing did not constitute an absolute waiver of her

right to reassert the Title VII claim because at all times the

operative facts on which her cause of action was based remained the

same.26 We concluded that this reasoning was "even more compelling

in light of [the plaintiff's] pro se status and the liberality

accorded the pleadings of such parties."27

Second, after observing that the State had abandoned its RICO

claim, the district court noted that the State had already amended

25 Id. 26 Id. 27 Id.

12 its complaint twice, and that the proposed amended complaints

represented the fourth and fifth complaints in that court. Third,

the court observed that the proposed amendments failed to raise any

new claims or factual allegations. We, too, note that not only was

the State attempting to reassert the same RICO claim that it had

abandoned - which purportedly was dropped after the initial court

conference during which the court expounded on the futility of the

claim - but the State was also seeking to reassert the same RESPA

and state law claims that the court had unconditionally dismissed

approximately two weeks prior to the State's motion.

Having thus determined that these three factors were

"indicative of possible bad faith and dilatory motive at the worst,

and weak attempts at artful pleading at best," the district court

concluded that it had substantial reason to deny the State's

motion. We agree. Given the circumstances underlying the State's

motion to amend, we are convinced that the district court did not

abuse its discretion in denying the motion. We affirm, therefore,

the district court's order denying the State's motion for leave to

amend its complaint, based on the merits.

III

CONCLUSION

The State urges us to hold that Section 10 of RESPA implies a

private right of action, and on that basis to reverse the order of

the district court dismissing the State's second amended complaint.

We hold, however, that Congress did not intend to create a private

right of action under Section 10 of RESPA. Consequently, the

13 district court committed no error in dismissing the State's

complaint asserting the RESPA claims.

With respect to the dismissal of the State's subsequent motion

to amend its complaint, we conclude that the court did err in

holding that the order dismissing the State's complaint constituted

a dismissal of its entire action. This error was harmless,

however, in light of the court's correct analysis of the State's

motion on the merits. As we find no abuse of discretion in the

denial of the State's motion based on substantive grounds, we

affirm the district court order to that effect.

AFFIRMED.

14