Full opinion text
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTIONS TO DISMISS (Docket Nos. 57, 59-61) EDWARD M. CHEN, District Judge. Plaintiffs Stanley D. Cannon and Patricia R. Cannon have filed suit against Wells Fargo Bank, N.A.; Assurant, Inc.; and the Federal National Mortgage Association (“Fannie Mae”). In essence, Plaintiffs challenge certain practices related to Wells Fargo’s forced purchase of flood insurance for borrowers whose loans are owned by Fannie Mae and serviced by Wells Fargo. The insurance is purchased from Assurant’s subsidiaries, American Security Insurance Company and Standard Guaranty Insurance Company (collectively, “ASIC”). Currently pending before the Court are various 12(b)(6) motions filed by each of the defendants. I. FACTUAL & PROCEDURAL BACKGROUND The instant case concerns what Plaintiffs call “force-placed flood insurance” and what Defendants call “lender-placed flood insurance.” Flood insurance is a kind of property insurance. A person who borrows money to finance the purchase of residential property may be required by the lender to obtain acceptable flood insurance on the real property securing the loan. When a borrower does not maintain the insurance, then the lender steps in to purchase the insurance for the borrower. The lender typically has the right to do this under the mortgage contract. In the instant case, Plaintiffs challenge certain force-placed flood insurance practices engaged in by Wells Fargo, acting as a servicer on behalf of the loan owner Fannie Mae. Plaintiffs allege as follows in their first amended complaint (“FAC”). Plaintiffs are residents of Florida. See FAC ¶ 15. In September 2005, Plaintiffs obtained a mortgage in the amount of $128,000 from Amerisave Mortgage Corporation. See FAC ¶27. Their mortgage was subsequently purchased by Fannie Mae. See FAC ¶¶ 25, 27. Fannie Mae is a federally chartered company. See FAC ¶ 18. It “buys and owns mortgages originated by other lenders.” FAC ¶ 25. “To service its vast portfolio of loans, Fannie Mae hires servicing agents to service its loans pursuant to the contract terms contained with the loans.” FAC ¶ 25. For Plaintiffs’ loan, Fannie Mae hired Wells Fargo as the servicing agent. See FAC ¶ 26. Plaintiffs’ mortgage was a Fannie Mae form mortgage. See FAC ¶ 29. One of the terms of the mortgage concerns property insurance. It provides in relevant part as follows: 5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire ... and any other hazards, including, but not limited to, earthquakes and floods, for which Lender requires insurance. The insurance shall be maintained in the amounts ... and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan.... If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower’s expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. FAC, Ex. A (Mortgage § 5). Because Plaintiffs’ home was located in a Special Flood Hazard Area, as defined by federal regulations, they were required to obtain flood insurance. See FAC ¶ 31. At the time they entered into the mortgage, Plaintiffs signed a notice regarding a special flood hazard area (“NSFH”). See FAC ¶ 31. The notice specified that, The community in which the property securing the loan is located participates in the National Flood Insurance Program (NFIP). Federal law will not allow us to make you the loan that you have applied for if you do not purchase flood insurance. The flood insurance must be maintained for the life of the loan. If you fail to purchase or renew flood insurance on the property, Federal law authorizes and requires us to purchase the flood insurance for you at your expense. At a minimum, flood insurance purchased must cover the lesser of: 1. the outstanding principal balance of the loan; or 2. the maximum amount of coverage allowed for the type of property under the NFIP. Docket No. 58 (Wells Fargo’s RJN, Ex. I) (notice); see also FAC ¶ 31; Docket No. 70 (Opp’n at 7) (stating no objection to request for judicial notice of the NSFH). Plaintiffs obtained sufficient flood insurance coverage to close their mortgage in 2005. See FAC ¶ 32. However, in April 2006—two months after Wells Fargo became the servicer for Plaintiffs’ mortgage — Wells Fargo increased the amount of flood insurance that Plaintiffs were required to maintain. See FAC ¶ 34. In May 2006, Wells Fargo notified Plaintiffs that it had force-purchased additional flood insurance on behalf of Plaintiffs because there was deficient coverage. Wells Fargo purchased the insurance from ASIC, ie., one of Assurant’s subsidiaries. See FAC ¶ 38. Subsequently, Plaintiffs purchased additional flood insurance from a different insurance company to avoid paying the high premiums charged by ASIC. See FAC ¶ 39. In Aprii/May 2008, Plaintiffs were again subjected to force-placed flood insurance by Wells Fargo. The insurance policy was once again with ASIC. See FAC ¶¶ 39-40. At this time, Plaintiffs’ private flood insurance policy combined with the force-placed insurance policy provided a total of at least $238,100 in flood insurance coverage. See FAC ¶ 41. The amount Plaintiffs owed Fannie Mae was significantly lower — more than $100,000 lower. See FAC ¶ 41. According to Plaintiffs, the force-placed insurance to which they were subjected is improper for at least three reasons. First, Wells Fargo or an affiliated entity receives a kickback from ASIC for the force-placed insurance (ie., a percentage of the premiums). Although Wells Fargo' claims these are commissions earned for finding and placing the insurance, Wells Fargo does not in fact provide any such service because it has a set agreement with Assurant and/or ASIC in which it agrees to buy every force-placed insurance policy from ASIC. See FAC ¶¶ 3-5. Second, Wells Fargo requires all borrowers to maintain flood insurance equal to the “replacement cost value” of the borrower’s property, even if that value exceeds the principal balance on the loan. But the purpose of force-placed insurance is only to protect the lender’s interest in the property, and therefore a borrower should not be force-placed into insurance exceeding the outstanding principal balance. See FAC ¶ 7. Finally, ‘Wells [Fargo] force-places retroactive insurance policies covering periods of time in the past where coverage had lapsed. This is done despite the fact that there are no claims during the lapsed period and the homeowner has since secured standard insurance.” FAC ¶ 59. In short, Plaintiffs claim that Wells Fargo engages in improper backdating. Based on, inter alia, the above allegations, Plaintiffs assert the following claims, both on their own behalf and on behalf of a nationwide class and a California-wide subclass: (1) breach of contract, including the implied covenant of good faith and fair dealing (against Fannie Mae and Wells Fargo only); (2) unjust enrichment (against Wells Fargo and Assurant only); (3) conversion (against Wells Fargo only); (4) breach of fiduciary duty (against Fannie Mae and Wells Fargo only); (5) violation of the Truth in Lending Act (“TILA”), 15 U.S.C. § 1601 et seq. (against Fannie Mae and Wells Fargo only); (6) violation of California Business & Professions Code § 17200 (against all Defendants); (7) violation of the Real Estate Settlement Procedures Act, 12 U.S.C. § 2601 (against all Defendants); and (8) equitable relief (against all Defendants). The eighth claim, however, may be disregarded because, as Plaintiffs concede in their papers, equitable relief is not a claim for relief but rather only a remedy. See, e.g., Docket No. 70 (Opp’n at 22) (stating that Plaintiffs “mistakenly listed ‘Equitable Relief as a cause of action”; agreeing with Defendants that “equitable relief is not a separate cause of action, but is, instead, a remedy”). II. DISCUSSION A. Legal Standard Under Federal Rule of Civil Procedure 12(b)(6), a party may move to dismiss based on the failure to state a claim upon which relief may be granted. See Fed.R.Civ.P. 12(b)(6). A motion to dismiss based on Rule 12(b)(6) challenges the legal sufficiency of the claims alleged. See Parks Sch. of Bus. v. Symington, 51 F.3d 1480, 1484 (9th Cir.1995). In considering such a motion, a court must take all allegations of material fact as true and construe them in the light most favorable to the nonmoving party, although “conclusory allegations of law and unwarranted inferences are insufficient to avoid a Rule 12(b)(6) dismissal.” Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir.2009). While “a complaint need not contain detailed factual allegations ... it must plead ‘enough facts to state a claim to relief that is plausible on its face.’ ” Id. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009); see also Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than sheer possibility that a defendant acted unlawfully.” Iqbal, 129 S.Ct. at 1949. B. Overarching Arguments Before examining whether Plaintiffs have adequately pled allegations in support of each of the claims asserted in the complaint, the Court addresses first some overarching arguments that are made in Defendants’ various motions. More specifically, there are overarching arguments regarding (1) Defendants and (2) the claims. 1. Overarching Arguments Regarding Defendants As to Defendants, there are two overarching arguments made: (1) that Assurant is not a proper defendant in the litigation and (2) that Fannie Mae cannot be held liable for Wells Fargo’s acts. (There are no overarching arguments made vis-avis Wells Fargo as a defendant.) a. Assurant In its motion, Assurant argues that Plaintiffs lack standing to sue it because it engaged in no alleged wrongdoing itself— rather, its subsidiary (i.e., ASIC) did. See Docket No. 59 (Mot. at 24-25). In their opposition, Plaintiffs state that they have no evidence to refute Assurant’s claims that “it does not write insurance policies, control the business of ASIC, intermingle its affairs with those of ASIC, or participate in any way in ASIC’s insurance business.” Docket No. 67 (Opp’n at 7). Plaintiffs ask, however, that the Court grant them “limited discovery to identify the correct parties and to amend their complaint to name the correct parties.” Docket No. 67 (Opp’n at 7). In its reply, Assurant appears to object to this proposal but only because Plaintiffs “already know which Assurant subsidiary underwriter as involved,” i.e., ASIC. See Docket No. 80 (Reply at 15). Because Plaintiffs have effectively admitted that they do not have — at least at this point — a good faith basis for suing Assurant, the Court grants the motion to dismiss all claims asserted against Assurant without prejudice. Moreover, the Court hereby gives Plaintiffs leave to amend to add ASIC to this lawsuit in lieu of Assurant. Finally, the Court notes that it shall give Plaintiffs some leeway in conducting discovery vis-a-vis ASIC to determine whether Assurant or another affiliated entity may also have been involved. If discovery reveals a basis for Assurant’s liability, Plaintiffs can seek leave to amend. The Court emphasizes, however, that it is not authorizing Plaintiffs to conduct broad-ranging discovery on this specific issue. Rather, Plaintiffs shall have leave to conduct reasonable, narrowly tailored discovery on this matter. b. Fannie Mae As for Fannie Mae, the basic issue is whether it can be held liable for the alleged wrongdoing of Wells Fargo. In its motion, Fannie Mae makes two arguments: (1) that Plaintiffs have failed to plead any facts establishing an agency relationship between Wells Fargo and Fannie Mae, see Docket No. 61 (Mot. at 9) (arguing that “Plaintiffs allege only the ultimate conclusion ... without pleading the specific elements [of agency]”); and (2) that, even if Wells Fargo were Fannie Mae’s agent, the Merrill doctrine protects Fannie Mae from liability for the unauthorized acts of its agents. See Docket No. 61 (Mot. at 10-14). For purposes of this opinion, the Court assumes that Plaintiffs have adequately pled facts supporting an agency relationship between Wells Fargo and Fannie Mae given the contractual relationship wherein Wells Fargo services the loan for Fannie Mae. The question thus is whether the Merrill doctrine applies. The Merrill doctrine comes from a decades-old Supreme Court decision, Federal Crop Insurance Corp. v. Merrill, 332 U.S. 380, 68 S.Ct. 1, 92 L.Ed. 10 (1947). In Merrill, the Supreme Court addressed whether a wholly government-owned enterprise — the Federal Crop Insurance Corp. (“FCIC”) — could be held liable for a mistake made by one of its agents. The FCIC was created by statute to insure producers of wheat against crop losses due to unavoidable causes, including drought. The respondents applied for insurance with a local agent of the FCIC. They informed the agent that they were planting 460 acres of spring wheat and that on 400 of these acres they were reseeding on winter wheat acreage. The [agent] advised respondents that the entire crop was insurable, and recommended to the [FCIC’s] Denver Branch Office acceptance of the application. (The formal application itself did not disclose that any part of the insured crop was reseeded.) On May 28, 1945, the [FCIC] accepted the application. Id. at 382, 68 S.Ct. 1. Subsequently, most of the respondents’ crop was destroyed as a result of a drought. After the FCIC discovered that the destroyed acreage had been reseeded, it refused to pay the loss. See id. In deciding whether the FCIC could be held liable, the Supreme Court began by noting that [w]hatever the form in which the Government functions, anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority. The scope of this authority may be explicitly defined by Congress or be limited by delegated legislation, properly exercised through the rule-making power. And this is so even though, as here, the agent himself may have been unaware of the limitations upon his authority. Id. at 383, 68 S.Ct. 1 (emphasis added). The Court then noted that, [i]f the Federal Crop Insurance Act had by explicit language prohibited the insurance of spring wheat which is reseeded on winter wheat acreage, the ignorance of such a restriction, either by the respondents or the [FCIC’s] agent, would be immaterial and recovery could not be had against the [FCIC] for loss of such reseeded wheat. Id. at 384, 68 S.Ct. 1. The same analysis would apply to federal regulations: “[T]he Wheat Crop Insurance Regulations were binding on all who sought to come within the Federal Crop Insurance Act, regardless of actual knowledge of what is in the Regulations or of the hardship resulting from innocent ignorance.” Id. at 385, 68 S.Ct. 1. Because there was in fact a regulation that precluded recovery for the loss of the reseeded wheat, the respondents were essentially out of luck. See id. at 385-86, 68 S.Ct. 1. In their papers, Plaintiffs essentially argue that Merrill should be narrowly construed — i.e., that the FCIC was held not liable only because the respondents had constructive notice through the regulations that they were barred from getting recovery for the loss of the reseeded wheat, in spite of what the FCIC’s agent said. See Docket No. 69 (Opp’n at 6). While Plaintiffs’ position is not an unreasonable one given the underlying facts in Merrill, courts have not construed Merrill so restrictively. Instead, courts have focused n the broad statement in Merrill that “anyone entering into an arrangement with the Government takes the risk of having accurately ascertained that he who purports to act for the Government stays within the bounds of his authority.” Merrill, 332 U.S. at 383, 68 S.Ct. 1 (emphasis added). Based on this language, most courts — including the Ninth Circuit — have held that a federal government entity cannot be held responsible for the unauthorized acts of an agent. Accordingly, an agent must have actual authority to act, as opposed to just apparent or ostensible authority, before a government entity may be held liable as the principal. See Phaneuf v. Republic of Indon., 106 F.3d 302, 308 (9th Cir.1997) (stating that, “[wjhen dealing with a purported agent of the United States, the third party bears the risk that the agent is acting outside the scope of the agent’s authority); Thomas v. INS, 35 F.3d 1332, 1338 (9th Cir.1994) (noting that “[ejstoppel and apparent authority normally will not substitute for actual authority to bind the United States government”). Notably, the Merrill doctrine has been applied to both contract and tort-based claims. See, e.g., Paslowski v. Standard Mortg. Corp., 129 F.Supp.2d 793, 804-05 (W.D.Pa.2000) (applying Merrill doctrine to claims for breach of contract and violation of state consumer protection law). None of the authority cited by Plaintiffs detracts from the authority cited above. See Docket No. 69 (Opp’n at 7). For example, in United States v. Georgia-Pacific Co., 421 F.2d 92 (9th Cir.1970), the Ninth Circuit did note that there was constructive notice in Merrill-, however, it never held that constructive notice is a requirement under the Merrill doctrine. See id. at 100. Furthermore, the court indicated in its opinion that there should not be liability for the government where the acts of its representatives are unauthorized or outside the scope of their authority. See id. at 100-01. Accordingly, the Court rejects Plaintiffs’ narrow reading of Merrill and agrees instead with Defendants’ interpretation of the doctrine. The question thus becomes whether Fannie Mae authorized the specific force-placed insurance practices employed by Wells Fargo — or rather, in the context of this 12(b)(6) motion, whether Plaintiffs have alleged such authorization. Plaintiffs have not. Plaintiffs have simply alleged that Fannie Mae hired Wells Fargo to service their loan, see FAC ¶ 26; they have not, e.g., alleged that Fannie Mae authorized Wells Fargo’s kickback scheme, the excessive coverage, or the backdating. To the extent Plaintiffs suggest in their papers that Fannie Mae has not presented any evidence that it precluded Wells Fargo the alleged wrongful conduct, see Docket No. 69 (Opp’n at 7), that misses the point. It is Plaintiffs’ burden under Merrill to make allegations that Fannie Mae authorized Wells Fargo’s acts. Accordingly, the Court dismisses all claims against Fannie Mae based on the Merrill doctrine. At this juncture, the dismissal shall be without prejudice. Plaintiffs have leave to amend only if they can allege in good faith that Fannie Mae authorized Wells Fargo’s conduct. c. Summary For the foregoing reasons, the Court dismisses the claims against Assurant and Wells Fargo without prejudice. 2. Overarching Arguments Regarding Claims As discussed above, Plaintiffs offer three theories as to why the force-placed insurance to which they were subjected is improper: (1) Wells Fargo or an affiliated entity receives a kickback from ASIC for the force-placed insurance (i.e., a percentage of the premiums); (2) Wells Fargo requires all borrowers to maintain flood insurance equal to the “replacement cost value” of the borrower’s property instead of just the outstanding principal balance (which would be sufficient to protect the lender’s interest); and (3) ‘Wells [Fargo] force-places retroactive insurance policies covering periods of time in the past where coverage had lapsed” even where “there are no claims during the lapsed period and the homeowner has since secured standard insurance.” FAC ¶ 59. In its papers, Wells Fargo makes overarching arguments as to the first two theories, but not the third. a. Kickback Theory As to the first theory — i.e., the kickback theory — Wells Fargo argues that it is barred by the filed-rate doctrine and/or the primary jurisdiction doctrine. i. Filedr-Rate Doctrine “The filed rate doctrine bars suits against regulated utilities grounded on the allegation that the rates charged by the utility are unreasonable. Simply stated, the doctrine holds that any ‘filed rate’ — that is, one approved by the governing regulatory agency — is per se reasonable and unassailable in judicial proceedings brought by ratepayers.” Wegoland Ltd. v. NYNEX Corp., 27 F.3d 17, 18 (2d Cir.1994). The doctrine “does not preclude recovery of amounts paid in excess of the filed rate, but it completely forecloses any claim that a payment of the filed rate is excessive.” Webb v. Chase Manhattan Mortg. Corp., No. 2:05-cv-0548, 2008 WL 2230696, at *21, 2008 U.S. Dist. LEXIS 42559, at *58 (S.D.Ohio May 28, 2008). Federal courts have recognized that the filed-rate doctrine acts to bar state causes of action and further applies to cases concerning state rates. See, e.g., Wegoland, 27 F.3d at 20; Taffet v. Southern Co., 967 F.2d 1483, 1490 (11th Cir.1992). Federal courts have also held that “the filed rate doctrine applies to the insurance industry.” Schilke v. Wachovia Mortg., FSB, 820 F.Supp.2d 825, 835 (N.D.Ill.2011). In the instant case, Wells Fargo argues that the kickback theory is barred by the filed-rate doctrine because, at bottom, Plaintiffs are arguing that the cost of the flood insurance is unreasonable or excessive because it includes a kickback (as opposed to a true earned commission). In support of this position, Wells Fargo relies in particular on two district court cases where the courts concluded that the kickback allegations by the plaintiffs did not preclude application of the filed-rate doctrine. In Morales v. Attorneys’ Title Insurance Fund, Inc., 983 F.Supp. 1418 (S.D.Fla.1997), the plaintiffs sued various title insurance companies for a violation of RESPA based on an alleged kickback. The court held that the filed-rate doctrine applied because allowing the plaintiffs recovery “would result in discrimination against other purchasers of title insurance in Florida who have paid, and will pay, the promulgated rate.” Id. at 1428. The court acknowledged that the case was a class action but stated that this fact “ ‘in no way affects the important concerns of agency authority, justiciability, and institutional competence,’ ” i.e., the other reasons animating the filed-rate doctrine. See id. In Schilke v. Wachovia Mortgage, FSB, 758 F.Supp.2d 549 (N.D.Ill.2010), the plaintiff sued, inter alia, a flood insurance company based on alleged kickbacks, asserting claims for, e.g., fraud and unjust enrichment. The court took into account the plaintiffs assertion that the kickbacks are illegal under state law. However, the court noted, “even if [p]laintiff is correct, that does not affect the applicability of the filed rate doctrine” because “[t]he ‘[application of the filed rate doctrine in any particular case is not determined by the culpability of the defendant’s conduct or the possibility of inequitable results.’ ” Id. at 562 (quoting Marcus v. AT & T Corp., 138 F.3d 46, 58 (2d Cir.1998)). In addition to the Morales and Schilke cases, there is other authority that lends support to Defendants’ position, including appellate authority. See, e.g., McCray v. Fid. Nat’l Title Ins. Co., 682 F.3d 229, 241 n. 11 (3d Cir.2012) (in case where plaintiffs asserted that title insurance companies violated federal antitrust law, taking note of plaintiffs’ claim that title insurers’ filings with regulatory agency included “hidden costs based on ‘kickbacks and other inducements unrelated to the business of insurance’ however, still finding the filed-rate doctrine applicable because “it is well established that ‘there is no fraud exception to the filed rate doctrine,’ ” and so “the fact that [appellees allegedly hid expenses and engaged in other fraudulent conduct does not make the doctrine inapplicable”); In re Title Ins. Antitrust Cases, 702 F.Supp.2d 840, 845 (N.D.Ohio 2010) (in case where plaintiffs asserted that title insurers conspired to fix prices for title insurance in violation of, inter alia, federal antitrust law, taking note of plaintiffs’ allegations that inflated rates included “unlawful kickbacks and other charges unrelated to title insurance or the services provided in connection with title insurance”; however, still finding filed-rate doctrine applicable); In re Pennsylvania Title Ins. Antitrust Litig., 648 F.Supp.2d 663, 679 (E.D.Pa.2009) (in case where plaintiffs asserted that title insurance companies conspired to fix rates in violation of antitrust law, taking note of plaintiffs’ allegation that title insurers had inflated title insurance rates by including kickbacks; however, still finding filed-rate doctrine applicable). In spite of the above authority, the Court is not convinced that the filed-rate doctrine is applicable. As Plaintiffs note, there are two cases where a court specifically rejected application of the filed-rate doctrine — in particular, to a bank. First, in Abels v. JPMorgan Chase Bank, N.A., 678 F.Supp.2d 1273 (S.D.Fla.2009), the court held that it would not apply the filed-rate doctrine, in part because the plaintiff had sued a bank and not an insurance company. The court noted: Plaintiffs argue that Defendant is a bank, not an insurance company, and therefore the filed rate doctrine does not apply to it. Indeed, the purpose of the filed rate doctrine is to “ ‘(1) preserve the regulating agency’s authority to determine the reasonableness of rates; and (2) insure that the regulated entities charge only those rates that the agency has approved.’ ” Therefore, Plaintiffs argue, because the bank is not subject to the extensive administrative oversight that insurance companies are, applying the filed rate doctrine in this instance would not serve either purpose. The Court finds that Plaintiffs have the better argument. Plaintiffs are not complaining that they were charged an excessive insurance rate, they are complaining that the defendant bank acted unlawfully when it chose this particular insurance company and this particular rate. Indeed, the Supreme Court “has emphasized the limited scope of the filed rate doctrine to preclude damage claims only where there are validly filed rates.” Accordingly, the filed rate doctrine does not bar Plaintiffs’ case. Abels, 678 F.Supp.2d at 1277. Second, in Kunzelmann v. Wells Fargo Bank, N.A., No. 9:11-cv-81373-DMM, 2012 WL 2003337 (S.D.Fla. June 4, 2012), the court took note of the Abels decision and then stated that it, too, was not applying the fíled-rate doctrine because the plaintiff was “not challenging the rates filed by Defendants’ insurers. Rather, Plaintiff challenges the manner in which Defendants select insurers, the manipulation of the force-placed insurance process, and the impermissible kickbacks that were included in the premiums.” Kunzelmann, 2012 WL 2003337, at *3. The Court finds the reasoning of these cases—Kunzelmann in particular—persuasive. Wells Fargo protests that Abels and Kunzelmann should be disregarded because the filed-rate doctrine “cannot turn on [the] distinction [between bank and insurer]” — if a rate is reasonable, then it is reasonable for the buyer as well as the seller. Rate approval would serve no purpose if insurers could not sell insurance at the approved rates because no buyer could lawfully purchase the insurance at that rate. Thus, a claim that a bank acted unlawfully in buying insurance at the approved rate is just as direct an assault on Florida’s regulation of insurance rates as a claim that the insurer acted wrongfully in charging that rate. Docket No. 60 (Mot. at 16-17). But while the court in Abels did focus in part on the distinction between a bank and an insuranee company, the court in Kunzelmann did not. The point made by the Kunzelmann court was that, where a plaintiff is not challenging a rate as excessive, but rather the manipulation of the rate, the filed-rate doctrine does not apply. This reasoning is persuasive. For example, if insurance were available from a number of carriers at different rates — all subject to fíled-rates — the fíled-rate doctrine would not protect a loan servicer who chooses a carrier and a policy with a rate higher than others simply to receive a kickback not available from other carriers. A claim of manipulation could lie irrespective of the fact that the rate charged by the carrier is protected under the fíled-rate doctrine. Accordingly, the Court rejects Wells Fargo’s argument that the fíled-rate doctrine is a bar to the kickback claims asserted against it. ii. Primary Jurisdiction Doctrine Wells Fargo argues that, even if the Court is not inclined to apply the filed-rate doctrine, then the primary jurisdiction doctrine should still be applied. More specifically, Wells Fargo argues that the Court should invoke the doctrine to — at the very least — stay the case so that Plaintiffs can first present their kickback-based claims to the Florida Office of Insurance Regulation (“OIR”). See Docket No. 77 (Reply at 4). Plaintiffs have not specifically addressed the primary jurisdiction doctrine in their papers. The primary jurisdiction doctrine is one recognized by both federal courts and state courts, including those in Florida and California. Under federal law, “[t]he primary jurisdiction doctrine allows courts to stay proceedings or to dismiss a complaint without prejudice pending the resolution of an issue within the special competence of an administrative agency.” Clark v. Time Warner Cable, 523 F.3d 1110, 1114 (9th Cir.2008). The same is basically true under Florida and California law. See Flo-Sun, Inc. v. Kirk, 783 So.2d 1029, 1036-37 (Fla.2001) (stating that “[t]he doctrine of primary jurisdiction dictates that when a party seeks to invoke the original jurisdiction of a trial court by asserting an issue which is beyond the ordinary experience of judges and juries, but within an adminis trative agency’s special competence, the court should refrain from exercising its jurisdiction over that issue until such time as the issue has been ruled upon by the agency”); Jonathan Neil & Assoc., Inc. v. Jones, 33 Cal.4th 917, 931-32, 16 Cal. Rptr.3d 849, 94 P.3d 1055 (2004) (noting that primary jurisdiction “applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views”) (internal quotation marks omitted). Under federal law, however, the primary jurisdiction doctrine focuses on referral of a federal claim to an administrative agency. See Clark, 523 F.3d at 1115 (noting that the primary jurisdiction doctrine generally focuses on whether there is “ ‘(1) M need to resolve an issue that (2) has been placed by Congress within the jurisdiction of an administrative body having regulatory authority (3) pursuant to a statute that subjects an industry or activity to a comprehensive regulatory authority that (4) requires expertise or uniformity in administration’ ”) (emphasis added). Furthermore, under federal law, “[p]rimary jurisdiction usually involves referral to a federal agency,” although there appear to be some exceptions — e.g., a federal court may refer a case to a state agency where the state agency “is exercising in effect delegated federal power.” Illinois Bell Tel. Co. v. Global NAPs Ill., Inc., 551 F.3d 587, 595 (7th Cir.2008); see also Western Radio Servs. Co. v. Qwest Corp., 530 F.3d 1186, 1200 (9th Cir.2008) (stating that, “while we might under other circumstances be hesitant to require that a party bring its claim to a state agency before raising a federal private right of action in district court, [47 U.S.C.] §§ 251 and 252 give the PUC a uniquely prominent role”). The federal primary jurisdiction doctrine does not apply to the instant case. While Plaintiffs have alleged two federal claims — a violation of TILA and a violation of RESPA — Wells Fargo is not asking for a referral of those claims to a federal agency. And there is nothing to indicate that the Florida OIR has been delegated any federal power. Nor does the primary jurisdiction doctrine as a bar for the state law claims. For much of the same reasons why the Court declines to apply the filed-rate doctrine to Wells Fargo, the Court refuses to apply the primary jurisdiction doctrine. Notably, in Abels, the district court rejected the bank’s assertion of the primary jurisdiction doctrine because [t]he [Florida] OIR only regulates insurance companies, and Florida Statute [§ ] 627.371 [which creates a detailed process for challenging an insurance rate] only applies when a person challenges a rate issued by an insurer. [In contrast], Defendant, a financial institution, is regulated by the Florida Office of Financial Regulation (OFR). Indeed, section 655.946 specifically allows a bank to purchase “force-placed” insurance. However, unlike the chapter 627, chapter 655 does not provide any type of administrative remedy. Furthermore, as noted above, Plaintiffs are not complaining of an excessive insurance rate, they are complaining that the defendant bank acted unlawfully when it chose this particular insurance company and this particular rate. For these reasons, the doctrine of primary agency jurisdiction does not bar this action. Abels, 678 F.Supp.2d at 1277-78. The Court thus rejects the primary jurisdiction doctrine as a bar to Plaintiffs’ kickback claims. b. Excessive Coverage Theory Wells Fargo challenges not only Plaintiffs’ kickback claims but also their excessive coverage claims — i.e., their claims that Wells Fargo engaged in wrongful conduct by requiring flood insurance coverage in an amount greater than the outstanding principal balance on the loan (i.e., the replacement cost value of the property). Under the National Flood Insurance Act (“NFIA”), see 42 U.S.C. § 4001, a loan secured by improved real property in a flood zone must be “covered for the term of the loan by flood insurance in an amount at least equal to the outstanding principal balance of the loan or the maximum limit of coverage made available under the Act with respect to the particular type of property, whichever is less.” Id. § 4012a(b)(1) (emphasis added); see also 24 C.F.R. § 203.16a(c) (providing that “[t]he flood insurance must be maintained during such time as the mortgage is insured in an amount at least equal to either the outstanding balance of the mortgage, less estimated land costs, or the maximum amount of the NFIP [National Flood Insurance Program] insurance available with respect to the property improvements, whichever is less”) (emphasis). In its papers, Wells Fargo notes that, as made clear by the language of § 4012a(b)(1), a lender may require flood insurance in an amount that exceeds the principal balance. “The words ‘at least equal to’ set a minimum requirement or floor, not a maximum amount or ceiling.” Docket No. 60 (Mot. at 6). Wells Fargo asserts that, because the mortgage gives it discretion as to the amount of flood insurance required, Plaintiffs’ excessive coverage theory (i.e., that Wells Fargo should not have required coverage in excess of the principal balance) cannot be maintained. The relevant provision in the mortgage (§ 5) is as follows: 5. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire ... and any other hazards, including, but not limited to, earthquakes and floods, for which Lender requires insurance. The insurance shall be maintained in the amounts ... and for the periods that Lender requires. What Lender requires pursuant to the preceding sentences can change during the term of the Loan.... If Borrower fails to maintain any of the coverages described above, Lender may obtain insurance coverage, at Lender’s option and Borrower’s expense. Lender is under no obligation to purchase any particular type or amount of coverage. Therefore, such coverage shall cover Lender, but might or might not protect Borrower, Borrower’s equity in the Property, or the contents of the Property, against any risk, hazard or liability and might provide greater or lesser coverage than was previously in effect. Borrower acknowledges that the cost of the insurance coverage so obtained might significantly exceed the cost of insurance that Borrower could have obtained. Any amounts disbursed by Lender under this Section 5 shall become additional debt of Borrower secured by this Security Instrument. These amounts shall bear interest at the Note rate from the date of disbursement and shall be payable, with such interest, upon notice from Lender to Borrower requesting payment. FAC, Ex. A (Mortgage § 5). Plaintiffs basically make two arguments in response. First, they argue that § 5 of the mortgage expressly provides that the coverage “shall cover Lender”—i.e., if the point is to protect the lender’s interest, then all that is necessary is coverage in the amount of the principal balance and nothing more (not, e.g., the replacement cost value). Second, Plaintiffs suggest that, at the very least, when the mortgage is considered in conjunction with the notice of special flood hazard area (“NSFH”), see Docket No. 58 (Wells Fargo’s RJN, Ex. I) (notice); see also FAC ¶ 31; Docket No. 70 (Opp’n at 7) (stating no objection to request for judicial notice of the NSFH), there is an ambiguity as to whether the lender had discretion to set coverage in an amount in excess of the principal balance. The notice at issue specified that, The community in which the property securing the loan is located participates in the National Flood Insurance Program (NFIP). Federal law will not allow us to make you the loan that you have applied for if you do not purchase flood insurance. The flood insurance must be maintained for the life of the loan. If you fail to purchase or renew flood insurance on the property, Federal law authorizes and requires us to purchase the flood insurance for you at your expense. • At a minimum, flood insurance purchased must cover the lesser of: 1. the outstanding principal balance of the loan; or 2. the maximum amount of coverage allowed for the type of property under the NFIP. Docket No. 58 (Wells Fargo’s RJN, Ex. I) (notice). Plaintiffs’ first argument has been rejected by at least one court — more specifically, by Judge Spero of this District. In McKenzie, Judge Spero agreed with Wells Fargo that a lender has an interest beyond the principal balance. As Defendants point out, if a flood destroys a home and insurance benefits are sufficient to repay only the loan, the lender is left without a performing loan, one that may have been gaining interest at a higher rate than possible under current market conditions. Lenders also incur loan origination costs arising from the premature payment of the loan. McKenzie v. Wells Fargo Home Mortg., Inc., 2012 WL 5372120, at *18, 2012 U.S. Dist. LEXIS 155480, at *58 (N.D.Cal. Oct. 30, 2012). The same rationale was endorsed by the dissenting judge in a recent First Circuit opinion. See Lass v. Bank of Am., 695 F.3d 129, 143 (1st Cir.2012) (Boudin, J., dissenting) (stating that, “[b]y virtue of its provision of the loan and the risks of nonpayment, the lender has an interest both in the loan amount and in the stream of interest payments; both give it ample reason to insist on insurance that goes beyond the balance of the loan and up to the replacement cost”). The Court agrees with Judge Spero and Judge Boudin that a lender’s interest is not limited to the outstanding principal. As for Plaintiffs’ second argument, however, they do have authority in support — in particular, Arnett v. Bank of America, N.A., 874 F.Supp.2d 1021 (D.Or.2012). In Arnett, the plaintiffs argued — as Plaintiffs do here — that the defendants breached the mortgage contract by requiring payment for additional and excessive flood insurance not required by the contract. See id. at 1030-31. In evaluating this argument, the Arnett court appears to have considered the same § 5 and NSFH. Bank of America argued that § 5 gave it the right to choose the amount of flood insurance on the property. As for the notice, Bank of America argued that it did not alter or conflict with the mortgage because “it ‘merely specifies] the “minimum” flood insurance required by the Lender[.]’ Thus, even when construing the [notice] as part of the [mortgage] contract, [Bank of America] ‘had the discretion to set their flood insurance coverage amount’ under the contract.” Id. at 1031. The Arnett court found that Bank of America’s interpretation of the mortgage and notice was plausible. However, it also endorsed a different interpretation as plausible. “Under this interpretation, Section five of the trust deed does not permit BOA discretion to set the amount of flood insurance that the borrower must maintain because the NSFH ‘fills in’ the trust deed’s open-ended discretionary terms.” Id. at 1032. The court explained as follows: First, [NSFH] provides that the [plaintiffs] must maintain flood insurance. Second, it fixes the amount of flood insurance that the [plaintiffs] must maintain: “At a minimum, flood insurance purchased must cover the lesser of’ the outstanding loan balance or the maximum amount of coverage provided by the NFIP. Finally, the NSFH provides that “[t]he flood insurance must be maintained for the life of the loan.” In this provision, the definite article “the,” which precedes “flood insurance,” signals that the flood insurance that must be “maintained for the life of the loan” is the same “flood insurance” described in the provision fixing the amount of insurance that the plaintiffs must maintain. In other words, the NSFH sets, or “fills in,” the amount of flood insurance that the lender requires for the life of the loan and that amount is not subject to change, except as expressly provided for in the NSFH. Id. at 1032. In response to the bank’s contention that this alternative interpretation failed to account for the phrase, “[a]t a minimum,” the court reasoned: According to BOA, the phrase “[a]t a minimum” means the NSFH merely identifies the minimum amount of coverage that the lender may require. As noted above, this is a plausible interpretation. It is also plausible, however, that the phrase “[a]t a minimum” does not mean that the amount of coverage specified in the NSFH is the minimum that the lender may require. Instead, “at a minimum” could mean that the amount of coverage specified in the NSFH is not the maximum that the borrower may purchase. In other words, it is also a plausible interpretation that the NSFH firmly fixes the amount of coverage that the lender requires but does not prohibit the borrower from obtaining additional coverage if that is what the borrower wants to do. This alternative interpretation also makes financial sense: the lender’s financial interest in the property is equal to the amount of the outstanding loan, but the borrower’s interest may be the entire replacement value of the property. Id. at 1032 (emphasis in original). The Court is not persuaded by the reasoning of Arnett. First, as Judge Spero noted in McKenzie, a lender plausibly has a financial interest beyond the amount of the principal balance. Second, as noted above, the Arnett court emphasized the fact that the NSFH included the statement “[t]he flood insurance must be maintained for the life of the loan.” According to the Arnett court, “the definite article ‘the,’ which precedes ‘flood insurance,’ signals that the flood insurance that must be ‘maintained for the life of the loan’ is the same ‘flood insurance’ described in the provision fixing the amount of insurance that the plaintiffs must maintain.” Id. at 1032. But this grammatical interpretation is problematic. When the notice is considered as a whole, “[t]he flood insurance [that] must be maintained for the life of the loan” (emphasis added) seems to refer back to “flood insurance” as used in the immediately preceding sentence: “Federal law will not allow us to make you the loan that you have applied for if you do not purchase flood insurance.” The Arnett court, however, linked “[t]he flood insurance [that] must be maintained for the life of the loan” (emphasis added) to a statement found later in the notice— i.e., “[a]t a minimum, flood insurance purchased must cover the lesser of ....” In any event, there is a more fundamental problem. As Judge Spero aptly noted: Contrary to the Arnett court’s conclusion, nothing in the [notice] restricts the lender’s ability to require more than the minimum coverage. Read in isolation, it may be plausible to interpret the phrase “[a]t a minimum” to not mean that the amount of coverage specified in the [notice] is the minimum the lender may require. But the existence of Paragraph 5 precludes such an interpretation. That provision clearly provides that the amount of flood insurance the lender requires “can change during the term of the Loan.” The [notice] should not be interpreted so as to cancel out a clear provision elsewhere in the contract. The only reasonable interpretation of the contract is that it gives the borrower the ability to purchase, and the lender the ability to require, flood insurance above the minimum amount. Additionally, the [notice] speaks to what the NFIP requires, not necessarily what the lender requires. As such, it notifies the borrower of the minimum amount of coverage that is required to be purchased by the borrower — or the lender if the borrower fails to make such a purchase. Accordingly, the phrase “[a]t a minimum, flood insurance purchased must cover” is equally applicable to the borrower and the lender. Id. at *55-56. In their papers, Plaintiffs protest that Arnett is not the only authority in their favor; they cite in particular the recent First Circuit decision Lass. But, as Wells Fargo argued at the hearing, the NSFH in Lass is materially different. The notice in Lass provided in relevant part: “ ‘[A]t the closing the property you are financing must be covered by flood insurance in the amount of the principle [sic] amount financed, or the maximum amount available, whichever is less. This insurance will be mandatory until the loan is paid in full.’ ” Lass v. Bank of America, N.A., 695 F.3d 129, 132 (1st Cir.2012). Because of this provision, the First Circuit concluded that the notice “reasonably may be read to state that the mandatory amount of flood insurance imposed at that time would remain unchanged for the duration of the mortgage. Given the ambiguity as to the lender’s authority to increase the coverage requirement, [plaintiff] is entitled to proceed with her breach of contract and related claims.” Id. at 131. The First Circuit’s conclusion makes sense. As Judge Spero stated in McKenzie, the notice of special flood hazard in Lass is materially different because it did “ ‘not identify the level of coverage required at closing to be a mandatory minimum.’ Here, ... the NSFH does identify the level of coverage required at closing to be a mandatory minimum.” McKenzie, 2012 WL 5372120, at *18, 2012 U.S. Dist. LEXIS 155480, at *56 n. 11 (emphasis in original). In short, the notice in Lass does not contain the “at a minimum” qualification contained in the notice in this case. As Judge Spero noted, “the notification does not qualify the unequivocal obligation in Paragraph 5 nor does it in any way conflict with or contradict that obligation.” McKenzie, 2012 WL 5372120, at *18, 2012 U.S. Dist. LEXIS 155480, at *56 n. 11. Accordingly, the Court agrees with Wells Fargo that Plaintiffs’ excessive coverage claims are barred. The Court notes, however, that, only “pure” excessive coverage claims are barred. To the extent Plaintiffs claim that Wells Fargo increased coverage to replacement cost value in order to obtain kickbacks or that Wells Fargo force-placed retroactive insurance policies at replacement value coverage in order to obtain a benefit for itself, those claims are not barred because they are, in reality, kickback claims and backdating claims rather than excessive coverage claims. c. Summary As discussed above, the Court rejects Wells Fargo’s contention that the kickback claims are barred by the filed-rate or primary jurisdiction doctrine but agrees with Wells Fargo that dismissal is warranted with respect to the excessive coverage claims. The backdating theory, however, has not been challenged on any overarching basis. C. Federal Claims Because at least some of Plaintiffs’ theories survive the above challenges by Wells Fargo (ie., the kickback and backdating theories), the Court may now evaluate the specific arguments made as to each of the causes of action pled by Plaintiffs. 1. TILA Plaintiffs have brought a TILA claim against Fannie Mae and Wells Fargo only. However, because Fannie Mae is being dismissed, the Court addresses the claim as against Wells Fargo only. In their complaint, Plaintiffs assert that, when Wells Fargo “added the force-placed premium charge to the outstanding principal amount of [their] loan, a new debt obligation was created, requiring a new set of disclosures .... However, neither Fannie Mae nor Wells Fargo provided Plaintiffs with a new set of disclosures.” FAC ¶ 32. In their opposition papers, Plaintiffs suggest that Wells Fargo should have provided new disclosures that (1) the force-placed insurance included a kickback to Wells Fargo and that (2) the insurance could cover as much as the replacement cost value (ie., more than the principal balance). See, e.g., Docket No. 69 (Opp’n at 15-16). From the Court’s perspective, it is not clear how either alleged failure to disclose could constitute a violation of TILA. Nothing about TILA or its implementing regulations seems to require such disclosures. At best, there is a requirement, under 12 C.F.R. § 226.18(d), that a creditor disclose a finance charge, which (by definition) can include a premium for property insurance. See id. § 226.4(b)(8) (providing that one example of a finance charge is “[pjremiums or other charges for insurance against loss of or damage to property, or against liability arising out of the ownership or use of property, written in connection with a credit transaction”). Therefore, the Court limits its consideration of the TILA claim to whether there has been a violation of § 226.18(d). As Plaintiffs point out, several courts have held that, when a defendant force places insurance and adds that amount to the principal owed, then the defendant has an obligation to provide new disclosures under TILA. See, e.g., Arnett, 874 F.Supp.2d at 1039 (indicating that a new credit transaction — which requires new TILA disclosures — takes place where a creditor increases the amount of the plaintiffs debt; concluding that the plaintiffs in the case under consideration “may be able to state a TILA claim” if they could allege that the bank added the cost of flood insurance premiums to their outstanding principal on their mortgage loan); Travis v. Boulevard Bank, N.A., 880 F.Supp. 1226, 1229-30 (N.D.Ill.1995) (concluding that “the Defendant’s purchase of the allegedly unauthorized insurance and the subsequent addition of the resulting premiums to Plaintiffs’ existing indebtedness constituted a new credit transaction[;J Defendant’s action involved augmenting Plaintiffs’ existing finance charge with an additional finance charge for the resulting premiums”). This position has support from the language of § 226.18(d), which provides that, “[f]or each [credit] transaction, the creditor shall disclose the following information as applicable: ... (d) Finance charge.” 12 C.F.R. § 226.18(d) (emphasis added). In McKenzie, however, Judge Spero held that these cases were limited to situations where the purchase of insurance was unauthorized. Judge Spero rejected the TILA claim at issue in his case because Plaintiffs base their TILA claim on the theory that the letters sent to Plaintiffs notifying them that their coverage was insufficient altered the terms of their loans and Defendants failed to disclose this alteration. However, as discussed previously, the contracts already provided Defendants the authority to require coverage beyond the principal loan balance. The letters sent to Plaintiffs, therefore, did not alter the terms of the loans and no disclosure under TILA was required. See Travis v. Boulevard Bank, N.A., 880 F.Supp. 1226, 1229-30 (N.D.Ill.1995) (requiring post-consummation TILA disclosures under 12 C.F.R. 226.18 only where the defendant force-placed insurance without proper authorization); Wulf v. Bank of Am., N.A., 798 F.Supp.2d 586, 588-89 (E.D.Pa.2011) (same). Accordingly, Plaintiffs’ TILA claim is dismissed with prejudice'. McKenzie, 2012 WL 5372120, at *24, 2012 U.S. Dist. LEXIS 155480, at *75-76. Here, as discussed above, the excessive insurance coverage was authorized. Arguably, however, the kickback and backdating was not. Wells Fargo, however, presents one additional argument — i.e., that “[n]o new TILA disclosures are required when a creditor adds charges to a loan balance as a result of the borrower’s default." Docket No. 60 (Mot. at 22) (emphasis added). Although, in its motion, Wells Fargo cites eases which refer to 12 C.F.R. §§ 226.4(c)(2) and 226.17(e), the critical regulation is actually § 226.4(b)(8), as Wells Fargo notes in its reply. See Reply at 9 n. 11. As noted above, under § 226.4(b)(8), a finance charge (by definition) can include a premium for property insurance. See 12 C.F.R. § 226.4(b)(8) (providing that one example of a finance charge is “[pjremiums or other charges for insurance against loss of or damage to property, or against liability arising out of the ownership or use of property, written in connection with a credit transaction”). However, the Official Staff Commentary for § 226.4(b)(8) makes clear that, where property insurance is purchased by the creditor based on a failure by the borrower to maintain the insurance, the force-placed insurance cannot be deemed a finance charge in the first place: 2. Insurance written after consummation. In closed-end credit transactions, insurance sold after consummation is not “written in connection with” the credit transaction if the insurance is written because of the consumer’s default (for example, by failing to obtain or maintain required property insurance) or because the consumer requests insurance after consummation (although credit sale disclosures may be required for the insurance if it is financed). 46 F.R. 50288 (1981) (emphasis added). The Court adheres to the general directive contained in the Commentary: no TILA disclosure is required if the added charges are the result of the borrower’s default in failing to obtain the requisite insurance. That being said, Plaintiffs legitimately point out that they would not have been required to provide the additional flood insurance but for Wells Fargo’s unauthorized efforts to obtain a kickback or to otherwise receive a benefit through the backdating. Thus, the TILA claim remains viable so long as the kickback and backdating theories are viable (although some specific claims are dismissed as discussed below). The Court therefore denies the motion to dismiss the TILA claim, to the extent it is based on a kickback or backdating theory. As discussed above, “pure” excessive coverage claims are dismissed. 2. RESPA Unlike the TILA claim, the RESPA claim is pled against all Defendants — at least in the complaint. However, at the hearing, Plaintiffs represented to the Court (upon the Court’s inquiry) that the claim is being asserted against Wells Fargo only. The Court takes Plaintiffs at their word and, accordingly, addresses the RE SPA claim against Wells Fargo only. In its papers, Wells Fargo argues that (1) the RESPA claim is barred by the statute of limitations and (2) the RESPA claim is not viable because Plaintiffs did not allege that any Defendant engaged in improper conduct at the time of closing or escrow — only well after the loan was consummated. a. Statute of Limitations In the instant case, Plaintiffs have alleged that Defendants violated RESPA based on the alleged kickbacks that Wells Fargo received from Assurant/ASIC. See 12 U.S.C. § 2607. Under 12 U.S.C. § 2614, there is a one-year statute of limitations for a claim brought pursuant to §§ 2607. The clock starts from “the date of the occurrence of the violation.” Id. § 2614. In the instant case, Plaintiffs assert that there is no time bar because the “date of the occurrence of the violation” is each date when Plaintiffs paid for force-placed insurance and the date that Wells Fargo finally added the balance of force-placed insurance charges that Plaintiffs did not pay to the loan balance it sought to collect through foreclosure. This final act occurred on November 23, 2011, within the one year statute of limitations. Docket No. 67 (Opp’n at 17). Plaintiffs do not make any argument of equitable tolling, even though they pled such in the complaint. See, e.g., FAC ¶¶ 65-72. As stated in note 8, supra, the Court deems the equitable tolling argument abandoned and finds that there is no limitations bar to the extent Plaintiffs have restricted their claim to the alleged wrongdoing within the limitations period. b. Settlement Service Although there may be no time bar, the RESPA claim shall still be dismissed for an independent reason. As noted above, Plaintiffs claim a violation of § 2607. Section 2607(a) provides that “[n]o person shall give and no person shall accept any fee, kickback, or thing of value pursuant to any agreement or understanding, oral or otherwise, that business incident to or a part of a real estate settlement service involving a federally related mortgage shall be referred to any person.” 12 U.S.C. § 2607(a) (emphasis added). Section 2607(b) provides that “[n]o person shall give and no person shall accept any portion, split, or percentage of any charge made or received for the rendering of a real estate settlement service in connection with a transaction involving a federally related mortgage loan other than for services actually performed.” Id. § 2607(b) (emphasis added). For purposes of RESPA, “the term ‘settlement services’ includes any service provided in connection with a real estate settlement.” Id. § 2602(3). An implementing regulation similarly defines “settlement service” as “any service provided in connection with a prospective or actual settlement” — including the “[provision of services involving hazard, flood, or other casualty insurance or homeowner’s warrant