from the United States Court of Federal Claims in No.
1:15-cv-00248-EGB, Senior Judge Eric G. Bruggink.
B. Holstad, Holstad and Knaak, St. Paul, MN, argued for
Tantum, Commercial Litigation Branch, Civil Division, United
States Department of Justice, Washington, DC, argued for
defendant-appellee. Also represented by Benjamin C. Mizer,
Robert E. Kirschman, Jr., Steven J. Gillingham; Gabriel
Lopez, Nicole A. Allard, Office of Counsel, Region VIII,
United States Department of Housing and Urban Development,
Newman, Dyk, and Taranto, Circuit Judges.
NEWMAN, CIRCUIT JUDGE.
Title Agency, Inc. (NWTA) appeals from the decision of the
United States Court of Federal Claims, granting summary
judgment in favor of the United States. The Court of
Federal Claims concluded that the contracts whereby NWTA
provides closing services for homes owned by the Department
of Housing and Urban Development (HUD) unambiguously preclude
NWTA from charging additional closing fees. We
affirm the judgment.
through the Federal Housing Administration (FHA), administers
the Single Family Mortgage Insurance Program. In that
capacity, HUD insures approved lenders against the risk of
loss on loans for the purchase of single-family homes. In the
event that the borrower of an FHA-insured home loan defaults,
the home is foreclosed and is conveyed to HUD by the lender
in exchange for payment by HUD of the insured amount. HUD
engages contractors to perform the necessary closing
activities when HUD resells these properties. NWTA, a title
agency and settlement service provider, is such a contractor.
2010, NWTA and HUD entered into three nearly identical
two-year contracts pursuant to which NWTA would provide
closing services, in three states, for single family
properties owned by HUD. The contracts differed as to the
estimated number of services expected under the contracts and
the price for each service, but the contracts were otherwise
identical. The first contract, designated C-DEN-02376, was
executed on February 11, 2010 for properties in Wisconsin.
The second, C-DEN-02375 executed on April 12, 2010, applies
to Minnesota properties. Contract C-DEN-02363, executed on
April 28, 2010, applies to Missouri properties. Paragraph
B.4.1 of the three contracts included:
As total compensation for all services performed under this
contract, the contractor will be paid according to the
Contract Line Item Number (CLIN) prices listed below for
closings conducted. The unit price per closing specified
herein shall be inclusive of all costs, including, but not
limited to: the cost of all labor; supervision; fringe
benefits, travel, subcontracts, other direct costs, overhead;
general and administrative costs; profit/fee; the completion
of all documents necessary to close the transaction as well
as the cost to complete all financing documents when
requested by the buyer or lender to complete the loan portion
of the transaction; the cost of phones, postage, postage
pre-paid envelopes; shipping (including closed files to
storage), delivery costs, courier costs, express mail,
faxing, scanning, document reproduction [which includes forms
HUD-9546 (Homeowner Satisfaction Survey) and HUD 9547 (Real
Estate Broker Satisfaction Survey)]; notary fees,
transportation, wire transfer fees, recording fees, annual
reconciliation costs, title search costs (see paragraph
4.2.2); ACA documents (see paragraph 220.127.116.11), any and all
licenses, insurance, certificates or permits as stated in
Section C, Paragraph 4.1.2; and all office requirements
unless otherwise specifically identified in this contract.
Id. (emphasis original). Paragraph B.4.2 was
directed to closing costs:
Except as explicitly allowed in Paragraph C.18.104.22.168
below, the purchaser, lender, and/or seller shall not
pay any additional costs for closing services, including an
additional lender fee.
Id. (emphasis original). Paragraph C.4.3, entitled
"Closing Activities, " provided that
"HUD's buyers may at all times be assisted by their
own advisors and attorneys and may choose their own closing
agent to represent their interests in the transaction."
Paragraph C.22.214.171.124.2 permitted homebuyers to purchase
optional title insurance, either from NWTA or "any firm
offering such insurance."
provided closing services under the contracts until 2012 and
offered and sold title insurance to home-buyers. HUD allowed
NWTA to charge homebuyers for title insurance in all three
states and for associated title searches in Minnesota and
Wisconsin. HUD disallowed NWTA charges for additional title